These Terms of Service (the “Terms”) are important, so we hope you will read them and let us know if you have any questions. You can always e-mail us at support@swtchenergy.com with any questions.

By creating an account with SWTCH (a SWTCH Account) or subscribing to the electric vehicle charging as a service (the “Services”) from SWTCH Energy Inc. (SWTCH/”Provider”/”our” or “we”) where you (the “Subscriber”/”you” or ”your”) agreeing to be bound by these Terms, as they may be updated by SWTCH from time to time at its sole discretion. 

SWTCH reserves the right to update and change the Terms by providing thirty (30) days advance notice in accordance with Section 19, and posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. After the thirty (30) day notice period, if  you continue to use the Service, you agree to be bound by the revised Terms.

To deliver the Services, you shall provide any access to the location you indicate on the applicable Order Form (the “Property”), the parking space spaces available at the Property, and the electric vehicle charging system (an “EVCS”) at the Property as reasonably required by SWTCH as more particularly described in the applicable Order Form, subject to these Terms. 

GENERAL TERMS

SWTCH provides electric vehicle (“EV”) charging services for property owners.

SWTCH has no control over the conduct of the end users of the Services (“Users“) and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service, SWTCH acts as your agent to assign Users the right to charge their vehicles using the EVCS.

You acknowledge and agree that, by accessing or using the Service or by using the Service website(s), you are indicating that you have read, and that you understand and agree to be bound by these Terms, and any referenced documents, including SWTCH’s privacy policy available at [https://charge.swtchenergy.com/en/infos/privacy] (the “Privacy Policy”) and any applicable online confirmation of subscription to the Service or order form entered into between the Parties (“Order Form”). If you do not agree to these Terms, then you have no right to access or use the Service or the Service website(s).

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.

SWTCH reserves the right to update and change the Terms by posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. If we post an update about changes to the Terms and you continue to use the Service, you agree to be bound by the revised Terms.

The Terms may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English-language Terms and versions of the Terms available in another language, the most current English version of the Terms will prevail.

These Terms will not be enforceable by any person that is not a party to these Terms.

You may not assign these Terms without our written approval. However, notwithstanding the foregoing, where you are agreeing to these terms on behalf of a company, we will permit the assignment of these Terms solely in connection with a change in control event of the company, where the Terms shall be assigned to new controlling entity upon reasonable notice to SWTCH. SWTCH is entitled to assign or sub-contract our obligations under these Terms without your consent. One example of when this could happen is if SWTCH retains subcontractors to help us provide the Service, or if part or all of our company is bought by or combined with another company.

All parties to these Terms shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of these Terms impossible, whereupon all fees accrued due under these Terms shall be paid forthwith.

Each party acknowledges that these Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Provider policies) 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.

You agree that these Terms are fair and reasonable in all the circumstances. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent possible.

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of these Terms shall either be or be deemed to be a waiver or in any way prejudice any right of that party under these Terms. No right, power or remedy in these Terms conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

Headings contained in these Terms are for reference purposes only and should not be incorporated into these Terms and shall not be deemed to be any indication of the meaning of the clauses to which they relate.

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 Legislation Act, 2006.

(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 injury, wound, wrong, hurt, harm, fee, damages, cost, expense, expenditure, or loss of any nature, including, but not limited to: (i) injury or damage to any property or right; and (ii) injury, damage or death to any person or entity, (iii) attorneys’ fees, witness fees, expert witness fees and expenses; and (iv) all other litigation costs and expenses;

(iv)       “Prime” means the floating annual rate of interest established from time to time by the Canadian Imperial Bank of Commerce (or successor) as a reference rate of interest in Canada for Canadian dollar loans to commercial Subscribers in Canada and designated as its prime rate;

(v)        “Privacy Policy” means the Provider’s policy established from time to time with respect to the maintenance and use of personal, identifiable information;

(vi)       “Site Preparation” shall mean, without limitation, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and other site work necessary to provide adequate power and connectivity to the Parking Spaces according to the Provider’s site design guide; and

(vii)       “Subscription” means the Subscribers subscription to Services as agreed upon in the applicable Order Form between the Parties

2.         INVOICING & PAYMENT

(a)        The Subscriber is required to pay all amounts due and owing during Subscription to the Service, including but not limited to the Cloud Services defined below, as stated in the applicable Order Form regardless of whether the Subscriber is using the Service.

(b)        Once the necessary equipment, as outlined in the applicable Order Form (the “Equipment”) has been installed by Subscriber, and the Services are integrated by SWTCH with your EVCS, you shall be billed, annually in advance, for subscription fees for the Subscription. All invoices are due within fifteen (15) days of the invoice date unless otherwise stated in writing by SWTCH.   

(c)        Invoices not paid when due are subject to interest at the rate of Prime plus three percent (3.0%) per month. If any amount owing by the Subscriber is more than thirty (30) days overdue, the Provider may, without otherwise limiting any other rights or remedies available to the Provider at law, terminate the Subscription, suspend the provision of the Service, and/or enter onto Subscriber’s premise for the purpose of reclaiming any equipment owned by Provider. The Subscriber shall be liable for all costs, including reasonable legal fees and recovery fees, incurred by the Provider in connection with the Provider’s efforts to collect any past due amounts.

3.         INSTALLATION OF EVCS

(a)        The Subscriber acknowledges that all Equipment and EVCS necessary to use the Service shall be purchased and installed by Subscriber unless otherwise agreed to between the Parties and subject a separate agreement. 

4.         MAINTENANCE OF EVCS

(a)        The Subscriber shall ensure that the EVCS functions in the manner required for SWTCH to provide the Service.  

(b)        The Subscriber is responsible for servicing, repairing, modifying, and adjusting the related Equipment unless otherwise agreed to between the Parties and subject a separate agreement. 

(c)        The Subscriber agrees that: (i)  the Subscriber shall not interfere with, or cause its employees or agents to interfere with, the Provider’s performance of the Service; and (ii) that SWTCH shall be the exclusive provider of electric vehicle charging Equipment and related services to the Subscriber during the Term.

5.         CLOUD SERVICES. 

            During the Subscription, the Provider shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate who may use the EVCS to charge an electric vehicle and the price charged for such use.

6.         RESPONSIBILITIES AND AGREEMENTS.

(a)        In addition to  obligations set forth in Section 4 of these Terms, the Provider shall be solely responsible for:

(i)         provisioning and operating, maintaining, administering and supporting the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by the Provider (the “Network”);

(ii)        provisioning and operating, maintaining, administering and supporting the applications offered on the Service; and

(iii)        operating the Network in compliance with all applicable laws.

(b)        The Provider protect the confidentiality and security of all personally identifiable information in accordance with all applicable laws and regulations and the Provider’s current Privacy Policy.

(c)        The Provider shall not be responsible for, and makes no representation or warranty with respect to the following:

(i)         continuous availability of electrical service to the EVCS;

(ii)        continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by the Provider of the Service or Network; and

(iii)        availability of or interruption of the Network attributable to unauthorized intrusions. 

(d)        All use of the Services by the Subscriber, its employees and agents shall comply with the these Terms.  All the Service account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such items secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to the Provider for, any unauthorized access to, use of or damage to the Network or Service arising as a result of Subscriber’s breach of its obligations. The Subscriber shall immediately notify the Provider upon becoming aware of any such unauthorized use.

(e)        The Subscriber shall not:

(i)         sell, resell, license, rent, lease or otherwise transfer the Services or any data collected or maintained by the Provider in connection with the operation of the Provider to any third party; 

(ii)        interfere with or disrupt the Services, 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 Services through any technology or means other than those provided or expressly authorized by the Provider; 

(iv)       reverse engineer, decompile or otherwise attempt to extract the source code of the Services, including, without limitation, the EVCS and Service, 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 Services, or any of The Provider’s various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the Provider (the “Marks”) and all other supplied material and/or developed by the Provider; 

(vi)       remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the equipment if provided by Provider;

(vii)       copy, frame or mirror any part of the Service;

(viii)      access the Network, any part of the Services 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 Services or collect information about the Provider users for any unauthorized purpose; 

(x)        upload, transmit or introduce any malicious code to the Provider or Service;

(xi)       use any of the Service if the Subscriber is a person barred from such use under the laws of the Canada or of any other jurisdiction; or

(xii)       use the Service to upload, post, display, transmit or otherwise make available:

(A)        any inappropriate, defamatory, obscene, or unlawful content;

(B)        any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party;

(C)       any messages, communication or other content is prohibited by applicable law.

(xiii)      utilize the Service for any other purpose other than Subscriber’s internal business purpose. 

(f)         The Provider shall own and hold all right, title and interest in and to the following:

(A)        all content, including data generated, collected, or maintained by the Provider in connection with the operation of the Provider, the Service and the EVCS;

(B)        the Marks; and

(C)       all other Provider supplied material developed or provided by the Provider for the Subscriber’s use in connection with the Service.  

(g)        The Subscriber grants to the Provider a non-assignable, non-transferable, and non-exclusive license to use the Property solely in accordance with these Terms to the extent necessary for the Provider to provide the Service. The Provider 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.

(h)        The Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to the Provider’s usage guidelines.  From time to time, the Provider may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines.  Any use of a Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of a Mark, the Subscriber must obtain the Provider’s prior written consent, and after such consent is obtained, the Subscriber may use the Mark in the approved manner.

(i)         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 the Provider;

(iii)        in any manner that implies any sponsorship or endorsement by the Provider;

(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 the Provider;

(v)        in any manner intended to disparage the Provider, the Network, or the Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to the Provider;

(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 the Provider.

(j)         The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of the Provider, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by the Provider. At no time will the Subscriber challenge or assist others to challenge the Marks (except to the extent such restriction is prohibited by law) or the registration of same by the Provider.

(k)        Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.

(l)         The Provider shall not have any liability whatsoever to the other 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 EVCS to the Network;

(iii)        interruptions attributable to unauthorized Network intrusions; or

(iv)       interruptions in services provided by any internet service provider not affiliated with the Provider.

(m)  You further agree that in the course of providing the Service to You, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from or compiled through the Services, including without limitation, demographic data, mobility patterns, location data and trend data, and statistics regarding the frequency of use of the Services  (collectively “Usage Data”). All rights to and in the Usage Data is the sole property of the SWTCH. For clarity, all Usage Data created in the provision of the Services, and generation of data on the electricity supplied to each User, shall be the sole property of the SWTCH. All right, title and interest in and to the Usage Data, including all Intellectual Property rights, defined below, 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 Agreement. For greater certainty, the Parties agree that SWTCH shall be the owner of all carbon credits generated as a result of this Agreement, including but not limited to: (a) carbon credits created in the voluntary carbon market; and (b) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140). 

(n)     SWTCH shall be permitted to enroll EV chargers, and Users using them, 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”).

      (i)         Subscriber agrees to allow SWTCH to control the EV charging stations enrolled in these Programs for the purposes of providing grid services. This may result in adjusting the rate of charge of the EV stations. Users enrolled in the Programs will have the option to opt-out at any time.

     (ii)         Some Programs might involve the Subscriber participation, in which case a separate agreement will be established between SWTCH and the Subscriber.

    (iii)         To deliver these Programs, SWTCH might partner with utilities, aggregators, or other energy markets participants (the “Grid Services Partners”). Grid Services Partners shall have no responsibility or liability in regard to the operation of the EV chargers or the grid service events, which will remain solely the responsibility of SWTCH.

    (iv)         Subscriber agrees that SWTCH is the only party allowed to enroll the EV Chargers in the Programs.

7.         RENEWAL AND TERMINATION.

(a)        Unless otherwise stated in the applicable Order Form, the initial term of this agreement shall be for a period of one (1) year from the date of subscription (the “Initial Term”) which shall automatically renew for subsequent one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”). The Provider shall invoice Subscriber for the Subscription at a renewal rate specified in the applicable Order Form.  After the first Renewal Term the Provider is permitted to increase the renewal rates up to a maximum of five percent (5%) per year.

 (b)       Subscriber may terminate the Subscription by providing notice of non-renewal of the applicable Renewal Term by providing at least sixty (60) days written notice prior to the end of the applicable Renewal Term to the Provider of the Subscriber's intent to terminate the Subscription.

(c)        These Terms may be immediately terminated by Subscriber for cause if:

(i)         the Provider 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 Subscriber; or

(ii)        the Provider 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. 

(d)        Any notice of termination or non-renewal of these Terms by the Subscriber pursuant to this Section 7 shall be sent to the address for notices to the Provider as set out below.

(e)        Upon any termination of these Terms for cause by Subscriber pursuant to the Subscription Service Agreement, the Provider shall refund a pro-rata portion of any pre-paid Subscription fees.

(f)         In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, the Subscriber must pay the remaining balance of the Subscription fees for the Subscription.   

(g)        These Terms may be immediately terminated by the Provider if:

(i)         the Subscriber is in material breach of any of its obligations under these Terms, and has not cured such breach within thirty (30) days of Subscriber’s receipt of written notice of such breach;

(ii)        the Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; or

(iii)        as otherwise explicitly provided in the these Terms.  

(h)        The Subscriber grants the Provider the right, upon termination of the Subscription to enter the Property for the purpose of removing any equipment provided by Provider. Within thirty (30) days of termination of a Subscription, the Provider and Subscriber shall engage in good faith to schedule a date upon which the Provider shall remove any Provider-owned equipment at no cost to Subscriber. Upon termination of a Subscription, the Subscriber shall immediately cease its use of all Services related to such Subscription and the Provider shall no longer be bound to deliver the Services under such Subscription.

(i)         The Subscriber agrees that it shall not interfere with, and shall cause its employees and agents not to interfere with, the Provider in conjunction with the service, maintenance, or removal of the Provider owned-equipment, or in any other way interfere with the Provider’s responsibilities under the these Terms.

8.         INDEMNIFICATION

(a)        The Subscriber shall indemnify, defend and hold the Provider and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents, 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)         The Subscriber’s negligent acts or omissions, recklessness or willful misconduct;

(ii)        The Subscribers use of the Service in a manner not authorized by Provider 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 alterations to the supply of electricity to the Equipment or that otherwise affect the ability of the Provider to provide the Services;

(iv)       Subscriber’s failure to comply with any of its material obligations under this Agreement;  and

(v)        the loss of life or any injury to persons or property due to conditions existing at the Parking Space unless any such damages arise out of or relate to the Provider’s negligence or willful misconduct.

(b)        The Provider shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages from third-party Claims that result from or arise out of the actual or alleged misappropriation or infringement of any Intellectual Property rights in connection with the Service that is not due to the actions of the Subscriber.

(c)        The obligations under this Section 8 shall survive the termination or expiration of the these Terms.

9.         OWNERSHIP OF EQUIPMENT

The EVCS and Equipment is and shall remain the personal property of the Subscriber unless otherwise agreed to by the Parties in writing.

10.       INTELLECTUAL PROPERTY

(a)        Subscriber shall not:

(i)         create derivative works based on any of the Provider’s intellectual property rights, including, without limitation, the Service, Cloud Service, 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, Subscriber 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.

(b)        All right, title and interest in the Intellectual Property shall remain, the exclusive property of the Provider.  

(c)

11.       INJUNCTIVE RELIEF

The Parties recognize that the obligations under the 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.

12.       AUTHORITY

(a)        The Provider represents and warrants to the Subscriber that it has the appropriate legal authority to enter into these Terms, that it has all requisite licenses and permits to perform its obligations hereunder.

(b)        The Subscriber represents and warrants to the Provider that it has the appropriate legal authority to execute and be bound by these Terms, and that it will perform its obligations under this Agreement in compliance with any applicable laws, rules, regulations or ordinances.

13.       SEVERABILITY

If any provision of these Terms is found to be void, voidable, or unenforceable for any reason whatsoever, then that provision shall be deemed to be severed from the remainder of the these Terms shall remain in full force and effect.

14.       SUCCESSORS AND ASSIGNS

The Subscriber acknowledges and agrees that the Terms are enforceable against the Subscriber's successors and assigns.

15.       USE OF THE SINGULAR

In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.

16.       JOINT AND SEVERABLE LIABILITY

If more than one (1) person comprises the Subscriber:

(a)        all covenants, obligations, representations and warranties made by the Subscriber in or on account of the  these Terms  shall be deemed to have been made on a joint and several basis;

(b)        in the event of default by any Subscriber pursuant to these Terms, each Subscriber shall be deemed to be in default; and

(c)        default by any Subscriber shall permit the Provider, without limiting its rights at law, to exercise its remedies pursuant to these Terms or otherwise at law, against any Subscriber, as the Provider shall determine in its discretion.

17.       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.

18.       DISCLAIMER AND LIMITATIONS OF LIABILITY 

(a)        EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, PROVIDER’S TOTAL LIABILITY TO SUBSCRIBER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER THIS AGREEMENT WILL BE LIMITED TO A MAXIMUM AMOUNT TO THE AMOUNT PAYABLE BY SUBSCRIBER TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

(b)        PROVIDER SHALL NOT BE LIABLE TO THE SUBSCRIBER FOR ANY LOST PROFITS OR SAVINGS LOST BUSINESS, LOSS OF SUBSCRIBER DATA OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURRENCE OR DAMAGE. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.

(c)        Except as otherwise provided for in these Terms, the Provider does not make any representation, warranty or guarantee in respect of the condition of the EVCS, including whether the Equipment is suitable for the Subscriber.

 19.      NOTICE

(a)        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 the Provider or Subscriber at the address indicated in these Terms. 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.

(b)        Any notice required to be provided in accordance with these Terms shall be provided to Subscriber at the details as provided in the applicable Order Form.

(c)        Any notice required to be provided in accordance with these Terms shall be provided to the Provider at the email address listed above unless otherwise provided in the applicable Order Form.

20.       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 20 shall be maintained in effect during the entire duration of this Agreement, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following the expiry or termination of this Agreement, however caused.

21.       RELATIONSHIP OF PARTIES

Nothing in these Terms shall constitute or be deemed to constitute a partnership or joint venture between the Parties or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and neither Party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.

22.       FORCE MAJEURE

If either Party shall be delayed or hindered in or prevented from the performance of any act required under these Terms Agreement 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.

23.       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 any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement 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).

Last Updated: February 1, 2024

Version 1.2

These Terms of Service (the “Terms”) are important, so we hope you will read them and let us know if you have any questions. You can always e-mail us at support@swtchenergy.com with any questions.

By creating an account with SWTCH (a SWTCH Account) or subscribing to the electric vehicle charging as a service (the “Services”) from SWTCH Energy Inc. (SWTCH/”Provider”/”our” or “we”) where you (the “Subscriber”/”you” or ”your”) agreeing to be bound by these Terms, as they may be updated by SWTCH from time to time at its sole discretion. 

SWTCH reserves the right to update and change the Terms by providing thirty (30) days advance notice in accordance with Section 19, and posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. After the thirty (30) day notice period, if  you continue to use the Service, you agree to be bound by the revised Terms.

To deliver the Services, you shall provide any access to the location you indicate on the applicable Order Form (the “Property”), the parking space spaces available at the Property, and the electric vehicle charging system (an “EVCS”) at the Property as reasonably required by SWTCH as more particularly described in the applicable Order Form, subject to these Terms. 

GENERAL TERMS

SWTCH provides electric vehicle (“EV”) charging services for property owners.

SWTCH has no control over the conduct of the end users of the Services (“Users“) and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service, SWTCH acts as your agent to assign Users the right to charge their vehicles using the EVCS.

You acknowledge and agree that, by accessing or using the Service or by using the Service website(s), you are indicating that you have read, and that you understand and agree to be bound by these Terms, and any referenced documents, including SWTCH’s privacy policy available at [https://charge.swtchenergy.com/en/infos/privacy] (the “Privacy Policy”) and any applicable online confirmation of subscription to the Service or order form entered into between the Parties (“Order Form”). If you do not agree to these Terms, then you have no right to access or use the Service or the Service website(s).

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.

SWTCH reserves the right to update and change the Terms by posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. If we post an update about changes to the Terms and you continue to use the Service, you agree to be bound by the revised Terms.

The Terms may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English-language Terms and versions of the Terms available in another language, the most current English version of the Terms will prevail.

These Terms will not be enforceable by any person that is not a party to these Terms.

You may not assign these Terms without our written approval. However, notwithstanding the foregoing, where you are agreeing to these terms on behalf of a company, we will permit the assignment of these Terms solely in connection with a change in control event of the company, where the Terms shall be assigned to new controlling entity upon reasonable notice to SWTCH. SWTCH is entitled to assign or sub-contract our obligations under these Terms without your consent. One example of when this could happen is if SWTCH retains subcontractors to help us provide the Service, or if part or all of our company is bought by or combined with another company.

All parties to these Terms shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of these Terms impossible, whereupon all fees accrued due under these Terms shall be paid forthwith.

Each party acknowledges that these Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Provider policies) 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.

You agree that these Terms are fair and reasonable in all the circumstances. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent possible.

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of these Terms shall either be or be deemed to be a waiver or in any way prejudice any right of that party under these Terms. No right, power or remedy in these Terms conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

Headings contained in these Terms are for reference purposes only and should not be incorporated into these Terms and shall not be deemed to be any indication of the meaning of the clauses to which they relate.

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 Legislation Act, 2006.

(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 injury, wound, wrong, hurt, harm, fee, damages, cost, expense, expenditure, or loss of any nature, including, but not limited to: (i) injury or damage to any property or right; and (ii) injury, damage or death to any person or entity, (iii) attorneys’ fees, witness fees, expert witness fees and expenses; and (iv) all other litigation costs and expenses;

(iv)       “Prime” means the floating annual rate of interest established from time to time by the Bank of America (or successor) as a reference rate of interest in the USA for USD dollar loans to commercial Subscribers in the USA and designated as its prime rate;

(v)        “Privacy Policy” means the Provider’s policy established from time to time with respect to the maintenance and use of personal, identifiable information;

(vi)       “Site Preparation” shall mean, without limitation, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and other site work necessary to provide adequate power and connectivity to the Parking Spaces according to the Provider’s site design guide; and

(vii)       “Subscription” means the Subscribers subscription to Services as agreed upon in the applicable Order Form between the Parties

2.         INVOICING & PAYMENT

(a)        The Subscriber is required to pay all amounts due and owing during Subscription to the Service, including but not limited to the Cloud Services defined below, as stated in the applicable Order Form regardless of whether the Subscriber is using the Service.

(b)        Once the necessary equipment, as outlined in the applicable Order Form (the “Equipment”) has been installed by Subscriber, and the Services are integrated by SWTCH with your EVCS, you shall be billed, annually in advance, for subscription fees for the Subscription. All invoices are due within fifteen (15) days of the invoice date unless otherwise stated in writing by SWTCH. 

(c)        Invoices not paid when due are subject to interest at the rate of Prime plus three percent (3.0%) per month. If any amount owing by the Subscriber is more than thirty (30) days overdue, the Provider may, without otherwise limiting any other rights or remedies available to the Provider at law, terminate the Subscription, suspend the provision of the Service, and/or enter onto Subscriber’s premise for the purpose of reclaiming any equipment owned by Provider. The Subscriber shall be liable for all costs, including reasonable legal fees and recovery fees, incurred by the Provider in connection with the Provider’s efforts to collect any past due amounts.

3.         INSTALLATION OF EVCS

(a)        The Subscriber acknowledges that all Equipment and EVCS necessary to use the Service shall be purchased and installed by Subscriber unless otherwise agreed to between the Parties and subject a separate agreement. 

4.         MAINTENANCE OF EVCS

(a)        The Subscriber shall ensure that the EVCS functions in the manner required for SWTCH to provide the Service.  

(b)        The Subscriber is responsible for servicing, repairing, modifying, and adjusting the related Equipment unless otherwise agreed to between the Parties and subject a separate agreement. 

(c)        The Subscriber agrees that: (i)  the Subscriber shall not interfere with, or cause its employees or agents to interfere with, the Provider’s performance of the Service; and (ii) that SWTCH shall be the exclusive provider of electric vehicle charging Equipment and related services to the Subscriber during the Term.

5.         CLOUD SERVICES. 

            During the Subscription, the Provider shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate who may use the EVCS to charge an electric vehicle and the price charged for such use.

6.         RESPONSIBILITIES AND AGREEMENTS.

(a)        In addition to  obligations set forth in Section 4 of these Terms, the Provider shall be solely responsible for:

(i)         provisioning and operating, maintaining, administering and supporting the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by the Provider (the “Network”);

(ii)        provisioning and operating, maintaining, administering and supporting the applications offered on the Service; and

(iii)        operating the Network in compliance with all applicable laws.

(b)        The Provider protect the confidentiality and security of all personally identifiable information in accordance with all applicable laws and regulations and the Provider’s current Privacy Policy.

(c)        The Provider shall not be responsible for, and makes no representation or warranty with respect to the following:

(i)         continuous availability of electrical service to the EVCS;

(ii)        continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by the Provider of the Service or Network; and

(iii)        availability of or interruption of the Network attributable to unauthorized intrusions. 

(d)        All use of the Services by the Subscriber, its employees and agents shall comply with the these Terms.  All the Service account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such items secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to the Provider for, any unauthorized access to, use of or damage to the Network or Service arising as a result of Subscriber’s breach of its obligations. The Subscriber shall immediately notify the Provider upon becoming aware of any such unauthorized use.

(e)        The Subscriber shall not:

(i)         sell, resell, license, rent, lease or otherwise transfer the Services or any data collected or maintained by the Provider in connection with the operation of the Provider to any third party; 

(ii)        interfere with or disrupt the Services, 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 Services through any technology or means other than those provided or expressly authorized by the Provider; 

(iv)       reverse engineer, decompile or otherwise attempt to extract the source code of the Services, including, without limitation, the EVCS and Service, 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 Services, or any of The Provider’s various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the Provider (the “Marks”) and all other supplied material and/or developed by the Provider; 

(vi)       remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the equipment if provided by Provider;

(vii)       copy, frame or mirror any part of the Service;

(viii)      access the Network, any part of the Services 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 Services or collect information about the Provider users for any unauthorized purpose; 

(x)        upload, transmit or introduce any malicious code to the Provider or Service;

(xi)       use any of the Service if the Subscriber is a person barred from such use under the laws of the USA or of any other jurisdiction; or

(xii)       use the Service to upload, post, display, transmit or otherwise make available:

(A)        any inappropriate, defamatory, obscene, or unlawful content;

(B)        any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party;

(C)       any messages, communication or other content is prohibited by applicable law.

(xiii)      utilize the Service for any other purpose other than Subscriber’s internal business purpose. 

(f)         The Provider shall own and hold all right, title and interest in and to the following:

(A)        all content, including data generated, collected, or maintained by the Provider in connection with the operation of the Provider, the Service and the EVCS;

(B)        the Marks; and

(C)       all other Provider supplied material developed or provided by the Provider for the Subscriber’s use in connection with the Service.  

(g)        The Subscriber grants to the Provider a non-assignable, non-transferable, and non-exclusive license to use the Property solely in accordance with these Terms to the extent necessary for the Provider to provide the Service. The Provider 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.

(h)        The Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to the Provider’s usage guidelines.  From time to time, the Provider may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines.  Any use of a Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of a Mark, the Subscriber must obtain the Provider’s prior written consent, and after such consent is obtained, the Subscriber may use the Mark in the approved manner.

(i)         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 the Provider;

(iii)        in any manner that implies any sponsorship or endorsement by the Provider;

(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 the Provider;

(v)        in any manner intended to disparage the Provider, the Network, or the Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to the Provider;

(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 the Provider.

(j)         The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of the Provider, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by the Provider. At no time will the Subscriber challenge or assist others to challenge the Marks (except to the extent such restriction is prohibited by law) or the registration of same by the Provider.

(k)        Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.

(l)         The Provider shall not have any liability whatsoever to the other 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 EVCS to the Network;

(iii)        interruptions attributable to unauthorized Network intrusions; or

(iv)       interruptions in services provided by any internet service provider not affiliated with the Provider.

(m)  You further agree that in the course of providing the Service to You, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from or compiled through the Services, including without limitation, demographic data, mobility patterns, location data and trend data, and statistics regarding the frequency of use of the Services  (collectively “Usage Data”). All rights to and in the Usage Data is the sole property of the SWTCH. For clarity, all Usage Data created in the provision of the Services, and generation of data on the electricity supplied to each User, shall be the sole property of the SWTCH. All right, title and interest in and to the Usage Data, including all Intellectual Property rights, defined below, 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 Agreement. For greater certainty, the Parties agree that SWTCH shall be the owner of all carbon credits generated as a result of this Agreement, including but not limited to: (a) carbon credits created in the voluntary carbon market; and (b) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140). 

(n)     SWTCH shall be permitted to enroll the Subscriber’s EV chargers, and Users using them, 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”).

      (i)         Subscriber agrees to allow SWTCH to control the EV charging stations enrolled in these Programs for the purposes of providing grid services. This may result in adjusting the rate of charge of the EV stations. Users enrolled in the Programs will have the option to opt-out at any time.

     (ii)         Some Programs might involve the Subscriber participation, in which case a separate agreement will be established between SWTCH and the Subscriber.

    (iii)         To deliver these Programs, SWTCH might partner with utilities, aggregators, or other energy markets participants (the “Grid Services Partners”). Grid Services Partners shall have no responsibility or liability in regard to the operation of the EV chargers or the grid service events, which will remain solely the responsibility of SWTCH.

    (iv)         Subscriber agrees that SWTCH is the only party allowed to enroll the EV Chargers in the Programs.

7.         RENEWAL AND TERMINATION.

(a)        Unless otherwise stated in the applicable Order Form, the initial term of this agreement shall be for a period of one (1) year from the date of subscription (the “Initial Term”) which shall automatically renew for subsequent one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”). The Provider shall invoice Subscriber for the Subscription at a renewal rate specified in the applicable Order Form.  After the first Renewal Term the Provider is permitted to increase the renewal rates up to a maximum of five percent (5%) per year.

 (b)       Subscriber may terminate the Subscription by providing notice of non-renewal of the applicable Renewal Term by providing at least sixty (60) days written notice prior to the end of the applicable Renewal Term to the Provider of the Subscriber's intent to terminate the Subscription.

(c)        These Terms may be immediately terminated by Subscriber for cause if:

(i)         the Provider 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 Subscriber; or

(ii)        the Provider 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. 

(d)        Any notice of termination or non-renewal of these Terms by the Subscriber pursuant to this Section 7 shall be sent to the address for notices to the Provider as set out below.

(e)        Upon any termination of these Terms for cause by Subscriber pursuant to the Subscription Service Agreement, the Provider shall refund a pro-rata portion of any pre-paid Subscription fees.

(f)         In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, the Subscriber must pay the remaining balance of the Subscription fees for the Subscription.   

(g)        These Terms may be immediately terminated by the Provider if:

(i)         the Subscriber is in material breach of any of its obligations under these Terms, and has not cured such breach within thirty (30) days of Subscriber’s receipt of written notice of such breach;

(ii)        the Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; or

(iii)        as otherwise explicitly provided in the these Terms.  

(h)        The Subscriber grants the Provider the right, upon termination of the Subscription to enter the Property for the purpose of removing any equipment provided by Provider. Within thirty (30) days of termination of a Subscription, the Provider and Subscriber shall engage in good faith to schedule a date upon which the Provider shall remove any Provider-owned equipment at no cost to Subscriber. Upon termination of a Subscription, the Subscriber shall immediately cease its use of all Services related to such Subscription and the Provider shall no longer be bound to deliver the Services under such Subscription.

(i)         The Subscriber agrees that it shall not interfere with, and shall cause its employees and agents not to interfere with, the Provider in conjunction with the service, maintenance, or removal of the Provider owned-equipment, or in any other way interfere with the Provider’s responsibilities under the these Terms.

8.         INDEMNIFICATION

(a)        The Subscriber shall indemnify, defend and hold the Provider and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents, 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)         The Subscriber’s negligent acts or omissions, recklessness or willful misconduct;

(ii)        The Subscribers use of the Service in a manner not authorized by Provider 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 alterations to the supply of electricity to the Equipment or that otherwise affect the ability of the Provider to provide the Services;

(iv)       Subscriber’s failure to comply with any of its material obligations under this Agreement;  and

(v)        the loss of life or any injury to persons or property due to conditions existing at the Parking Space unless any such damages arise out of or relate to the Provider’s negligence or willful misconduct.

(b)        The Provider shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages from third-party Claims that result from or arise out of the actual or alleged misappropriation or infringement of any Intellectual Property rights in connection with the Service that is not due to the actions of the Subscriber.

(c)        The obligations under this Section 8 shall survive the termination or expiration of the these Terms.

9.         OWNERSHIP OF EQUIPMENT

The EVCS and Equipment is and shall remain the personal property of the Subscriber unless otherwise agreed to by the Parties in writing.

10.       INTELLECTUAL PROPERTY

(a)        Subscriber shall not:

(i)         create derivative works based on any of the Provider’s intellectual property rights, including, without limitation, the Service, Cloud Service, 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, Subscriber 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.

(b)        All right, title and interest in the Intellectual Property shall remain, the exclusive property of the Provider.  

(c)

11.       INJUNCTIVE RELIEF

The Parties recognize that the obligations under the 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.

12.       AUTHORITY

(a)        The Provider represents and warrants to the Subscriber that it has the appropriate legal authority to enter into these Terms, that it has all requisite licenses and permits to perform its obligations hereunder.

(b)        The Subscriber represents and warrants to the Provider that it has the appropriate legal authority to execute and be bound by these Terms, and that it will perform its obligations under this Agreement in compliance with any applicable laws, rules, regulations or ordinances.

13.       SEVERABILITY

If any provision of these Terms is found to be void, voidable, or unenforceable for any reason whatsoever, then that provision shall be deemed to be severed from the remainder of the these Terms shall remain in full force and effect.

14.       SUCCESSORS AND ASSIGNS

The Subscriber acknowledges and agrees that the Terms are enforceable against the Subscriber's successors and assigns.

15.       USE OF THE SINGULAR

In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.

16.       JOINT AND SEVERABLE LIABILITY

If more than one (1) person comprises the Subscriber:

(a)        all covenants, obligations, representations and warranties made by the Subscriber in or on account of the  these Terms  shall be deemed to have been made on a joint and several basis;

(b)        in the event of default by any Subscriber pursuant to these Terms, each Subscriber shall be deemed to be in default; and

(c)        default by any Subscriber shall permit the Provider, without limiting its rights at law, to exercise its remedies pursuant to these Terms or otherwise at law, against any Subscriber, as the Provider shall determine in its discretion.

17.       GOVERNING LAW

These Terms shall be governed by and construed in accordance with the laws of the State of Delaware and laws of the USA, as applicable.

18.       DISCLAIMER AND LIMITATIONS OF LIABILITY 

(a)        EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, PROVIDER’S TOTAL LIABILITY TO SUBSCRIBER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER THIS AGREEMENT WILL BE LIMITED TO A MAXIMUM AMOUNT TO THE AMOUNT PAYABLE BY SUBSCRIBER TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

(b)        PROVIDER SHALL NOT BE LIABLE TO THE SUBSCRIBER FOR ANY LOST PROFITS OR SAVINGS LOST BUSINESS, LOSS OF SUBSCRIBER DATA OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURRENCE OR DAMAGE. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.

(c)        Except as otherwise provided for in these Terms, the Provider does not make any representation, warranty or guarantee in respect of the condition of the EVCS, including whether the Equipment is suitable for the Subscriber.

 19.      NOTICE

(a)        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 the Provider or Subscriber at the address indicated in these Terms. 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.

(b)        Any notice required to be provided in accordance with these Terms shall be provided to Subscriber at the details as provided in the applicable Order Form.

(c)        Any notice required to be provided in accordance with these Terms shall be provided to the Provider at the email address listed above unless otherwise provided in the applicable Order Form.

20.       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 20 shall be maintained in effect during the entire duration of this Agreement, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following the expiry or termination of this Agreement, however caused.

21.       RELATIONSHIP OF PARTIES

Nothing in these Terms shall constitute or be deemed to constitute a partnership or joint venture between the Parties or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and neither Party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.

22.       FORCE MAJEURE

If either Party shall be delayed or hindered in or prevented from the performance of any act required under these Terms Agreement 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.

23.       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 any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement 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).

Last Updated: February 1, 2024

Version 1.2

These Terms of Service (the “Terms”) are important, so we hope you will read them and let us know if you have any questions. You can always e-mail us at support@swtchenergy.com with any questions.

By creating an account with SWTCH (a SWTCH Account) or subscribing to the electric vehicle charging as a service (the “Services”) from SWTCH Energy Inc. (SWTCH/”Provider”/”our” or “we”) where you (the “Subscriber”/”you” or ”your”) agreeing to be bound by these Terms, as they may be updated by SWTCH from time to time at its sole discretion. 

SWTCH reserves the right to update and change the Terms by providing thirty (30) days advance notice in accordance with Section 19, and posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. After the thirty (30) day notice period, if  you continue to use the Service, you agree to be bound by the revised Terms.

To deliver the Services, you shall provide any access to the location you indicate on the applicable Order Form (the “Property”), the parking space spaces available at the Property, and the electric vehicle charging system (an “EVCS”) at the Property as reasonably required by SWTCH as more particularly described in the applicable Order Form, subject to these Terms. 

GENERAL TERMS

SWTCH provides electric vehicle (“EV”) charging services for property owners.

SWTCH has no control over the conduct of the end users of the Services (“Users“) and disclaims all liability in this regard to the maximum extent permitted by law. In offering the Service, SWTCH acts as your agent to assign Users the right to charge their vehicles using the EVCS.

You acknowledge and agree that, by accessing or using the Service or by using the Service website(s), you are indicating that you have read, and that you understand and agree to be bound by these Terms, and any referenced documents, including SWTCH’s privacy policy available at [https://charge.swtchenergy.com/en/infos/privacy] (the “Privacy Policy”) and any applicable online confirmation of subscription to the Service or order form entered into between the Parties (“Order Form”). If you do not agree to these Terms, then you have no right to access or use the Service or the Service website(s).

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.

SWTCH reserves the right to update and change the Terms by posting updates and changes to the Service website. You are advised to check the Terms from time to time for any updates or changes that may impact you. If we post an update about changes to the Terms and you continue to use the Service, you agree to be bound by the revised Terms.

The Terms may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English-language Terms and versions of the Terms available in another language, the most current English version of the Terms will prevail.

These Terms will not be enforceable by any person that is not a party to these Terms.

You may not assign these Terms without our written approval. However, notwithstanding the foregoing, where you are agreeing to these terms on behalf of a company, we will permit the assignment of these Terms solely in connection with a change in control event of the company, where the Terms shall be assigned to new controlling entity upon reasonable notice to SWTCH. SWTCH is entitled to assign or sub-contract our obligations under these Terms without your consent. One example of when this could happen is if SWTCH retains subcontractors to help us provide the Service, or if part or all of our company is bought by or combined with another company.

All parties to these Terms shall be released from their respective obligations in the event of national emergency, war, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties or either of them renders the performance of these Terms impossible, whereupon all fees accrued due under these Terms shall be paid forthwith.

Each party acknowledges that these Terms (including any referenced agreements including but not limited to an Order Form entered into between the Parties and any applicable Provider policies) 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.

You agree that these Terms are fair and reasonable in all the circumstances. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent possible.

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of these Terms shall either be or be deemed to be a waiver or in any way prejudice any right of that party under these Terms. No right, power or remedy in these Terms conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

Headings contained in these Terms are for reference purposes only and should not be incorporated into these Terms and shall not be deemed to be any indication of the meaning of the clauses to which they relate.

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 Legislation Act, 2006.

(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 injury, wound, wrong, hurt, harm, fee, damages, cost, expense, expenditure, or loss of any nature, including, but not limited to: (i) injury or damage to any property or right; and (ii) injury, damage or death to any person or entity, (iii) attorneys’ fees, witness fees, expert witness fees and expenses; and (iv) all other litigation costs and expenses;

(iv)       “Prime” means the floating annual rate of interest established from time to time by the Canadian Imperial Bank of Commerce (or successor) as a reference rate of interest in Canada for Canadian dollar loans to commercial Subscribers in Canada and designated as its prime rate;

(v)        “Privacy Policy” means the Provider’s policy established from time to time with respect to the maintenance and use of personal, identifiable information;

(vi)       "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;

(vii)       “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;

(viii)      “Site Preparation” shall mean, without limitation, performing any electrical service upgrades, installing conduit runs, running wiring, installing communication equipment to ensure data connectivity and other site work necessary to provide adequate power and connectivity to the Parking Spaces according to the Provider’s site design guide; and

(ix)       “Subscription” means the Subscribers subscription to Services as agreed upon in the applicable Order Form between the Parties

2.         INVOICING & PAYMENT

(a)        The Subscriber is required to pay all amounts due and owing during Subscription to the Service, including but not limited to the Cloud Services defined below, as stated in the applicable Order Form regardless of whether the Subscriber is using the Service.

(b)        Once the necessary equipment, as outlined in the applicable Order Form (the “Equipment”) has been installed by Subscriber, and the Services are integrated by SWTCH with your EVCS, you shall be billed, annually in advance, for subscription fees for the Subscription. All invoices are due within fifteen (15) days of the invoice date unless otherwise stated in writing by SWTCH. 

(c)        Invoices not paid when due are subject to interest at the rate of Prime plus three percent (3.0%) per month. If any amount owing by the Subscriber is more than thirty (30) days overdue, the Provider may, without otherwise limiting any other rights or remedies available to the Provider at law, terminate the Subscription, suspend the provision of the Service, and/or enter onto Subscriber’s premise for the purpose of reclaiming any equipment owned by Provider. The Subscriber shall be liable for all costs, including reasonable legal fees and recovery fees, incurred by the Provider in connection with the Provider’s efforts to collect any past due amounts.

3.         INSTALLATION OF EVCS

(a)        The Subscriber acknowledges that all Equipment and EVCS necessary to use the Service shall be purchased and installed by Subscriber unless otherwise agreed to between the Parties and subject a separate agreement. 

4.         MAINTENANCE OF EVCS

(a)        The Subscriber shall ensure that the EVCS functions in the manner required for SWTCH to provide the Service.  

(b)        The Subscriber is responsible for servicing, repairing, modifying, and adjusting the related Equipment unless otherwise agreed to between the Parties and subject a separate agreement. 

(c)        The Subscriber agrees that: (i)  the Subscriber shall not interfere with, or cause its employees or agents to interfere with, the Provider’s performance of the Service; and (ii) that SWTCH shall be the exclusive provider of electric vehicle charging Equipment and related services to the Subscriber during the Term.

5.         CLOUD SERVICES. 

            During the Subscription, the Provider shall make available to the Subscriber a software offering that will permit the Subscriber to, among other things, designate who may use the EVCS to charge an electric vehicle and the price charged for such use.

6.         RESPONSIBILITIES AND AGREEMENTS.

(a)        In addition to  obligations set forth in Section 4 of these Terms, the Provider shall be solely responsible for:

(i)         provisioning and operating, maintaining, administering and supporting the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by the Provider (the “Network”);

(ii)        provisioning and operating, maintaining, administering and supporting the applications offered on the Service; and

(iii)        operating the Network in compliance with all applicable laws.

(b)        The Provider protect the confidentiality and security of all personally identifiable information in accordance with all applicable laws and regulations and the Provider’s current Privacy Policy.

(c)        The Provider shall not be responsible for, and makes no representation or warranty with respect to the following:

(i)         continuous availability of electrical service to the EVCS;

(ii)        continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by the Provider of the Service or Network; and

(iii)        availability of or interruption of the Network attributable to unauthorized intrusions. 

(d)        All use of the Services by the Subscriber, its employees and agents shall comply with the these Terms.  All the Service account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use, and Subscriber shall keep all such items secure and confidential. The Subscriber shall use reasonable efforts to prevent, and shall be fully liable to the Provider for, any unauthorized access to, use of or damage to the Network or Service arising as a result of Subscriber’s breach of its obligations. The Subscriber shall immediately notify the Provider upon becoming aware of any such unauthorized use.

(e)        The Subscriber shall not:

(i)         sell, resell, license, rent, lease or otherwise transfer the Services or any data collected or maintained by the Provider in connection with the operation of the Provider to any third party; 

(ii)        interfere with or disrupt the Services, 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 Services through any technology or means other than those provided or expressly authorized by the Provider; 

(iv)       reverse engineer, decompile or otherwise attempt to extract the source code of the Services, including, without limitation, the EVCS and Service, 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 Services, or any of The Provider’s various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with the Provider (the “Marks”) and all other supplied material and/or developed by the Provider; 

(vi)       remove, conceal or cover the Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the equipment if provided by Provider;

(vii)       copy, frame or mirror any part of the Service;

(viii)      access the Network, any part of the Services 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 Services or collect information about the Provider users for any unauthorized purpose; 

(x)        upload, transmit or introduce any malicious code to the Provider or Service;

(xi)       use any of the Service if the Subscriber is a person barred from such use under the laws of the Canada or of any other jurisdiction; or

(xii)       use the Service to upload, post, display, transmit or otherwise make available:

(A)        any inappropriate, defamatory, obscene, or unlawful content;

(B)        any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party;

(C)       any messages, communication or other content is prohibited by applicable law.

(xiii)      utilize the Service for any other purpose other than Subscriber’s internal business purpose. 

(f)         The Provider shall own and hold all right, title and interest in and to the following:

(A)        all content, including data generated, collected, or maintained by the Provider in connection with the operation of the Provider, the Service and the EVCS;

(B)        the Marks; and

(C)       all other Provider supplied material developed or provided by the Provider for the Subscriber’s use in connection with the Service.  

(g)        The Subscriber grants to the Provider a non-assignable, non-transferable, and non-exclusive license to use the Property solely in accordance with these Terms to the extent necessary for the Provider to provide the Service. The Provider 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.

(h)        The Subscriber shall not use any of the Marks for or with any products, except in the manner permitted pursuant to the Provider’s usage guidelines.  From time to time, the Provider may provide updated Mark usage guidelines, and the Subscriber shall immediately comply with such updated guidelines.  Any use of a Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of a Mark, the Subscriber must obtain the Provider’s prior written consent, and after such consent is obtained, the Subscriber may use the Mark in the approved manner.

(i)         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 the Provider;

(iii)        in any manner that implies any sponsorship or endorsement by the Provider;

(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 the Provider;

(v)        in any manner intended to disparage the Provider, the Network, or the Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to the Provider;

(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 the Provider.

(j)         The Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of the Provider, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by the Provider. At no time will the Subscriber challenge or assist others to challenge the Marks (except to the extent such restriction is prohibited by law) or the registration of same by the Provider.

(k)        Upon termination of these Terms, the Subscriber will immediately discontinue all use and display of all Marks.

(l)         The Provider shall not have any liability whatsoever to the other 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 EVCS to the Network;

(iii)        interruptions attributable to unauthorized Network intrusions; or

(iv)       interruptions in services provided by any internet service provider not affiliated with the Provider.

(m)  You further agree that in the course of providing the Service to You, SWTCH will develop, create, and accrue information, records, reports, specification, information and other materials or data derived from or compiled through the Services, including without limitation, demographic data, mobility patterns, location data and trend data, and statistics regarding the frequency of use of the Services  (collectively “Usage Data”). All rights to and in the Usage Data is the sole property of the SWTCH. For clarity, all Usage Data created in the provision of the Services, and generation of data on the electricity supplied to each User, shall be the sole property of the SWTCH. All right, title and interest in and to the Usage Data, including all Intellectual Property rights, defined below, 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 Agreement. For greater certainty, the Parties agree that SWTCH shall be the owner of all carbon credits generated as a result of this Agreement, including but not limited to: (a) carbon credits created in the voluntary carbon market; and (b) compliance credits created through the provision of the Service pursuant to the Clean Fuel Regulations (SOR/2022-140). 

(n)     SWTCH shall be permitted to enroll the Subscriber’s EV chargers, and Users using them, 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”).

      (i)         Subscriber agrees to allow SWTCH to control the EV charging stations enrolled in these Programs for the purposes of providing grid services. This may result in adjusting the rate of charge of the EV stations. Users enrolled in the Programs will have the option to opt-out at any time.

     (ii)         Some Programs might involve the Subscriber participation, in which case a separate agreement will be established between SWTCH and the Subscriber.

    (iii)         To deliver these Programs, SWTCH might partner with utilities, aggregators, or other energy markets participants (the “Grid Services Partners”). Grid Services Partners shall have no responsibility or liability in regard to the operation of the EV chargers or the grid service events, which will remain solely the responsibility of SWTCH.

    (iv)         Subscriber agrees that SWTCH is the only party allowed to enroll the EV Chargers in the Programs.

7.         RENEWAL AND TERMINATION.

(a)        Unless otherwise stated in the applicable Order Form, the initial term of this agreement shall be for a period of one (1) year from the date of subscription (the “Initial Term”) which shall automatically renew for subsequent one (1) year renewal terms (the “Renewal Term”, collectively with the Initial Term, the “Term”). The Provider shall invoice Subscriber for the Subscription at a renewal rate specified in the applicable Order Form.  After the first Renewal Term the Provider is permitted to increase the renewal rates up to a maximum of five percent (5%) per year.

 (b)       Subscriber may terminate the Subscription by providing notice of non-renewal of the applicable Renewal Term by providing at least sixty (60) days written notice prior to the end of the applicable Renewal Term to the Provider of the Subscriber's intent to terminate the Subscription.

(c)        These Terms may be immediately terminated by Subscriber for cause if:

(i)         the Provider 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 Subscriber; or

(ii)        the Provider 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. 

(d)        Any notice of termination or non-renewal of these Terms by the Subscriber pursuant to this Section 7 shall be sent to the address for notices to the Provider as set out below.

(e)        Upon any termination of these Terms for cause by Subscriber pursuant to the Subscription Service Agreement, the Provider shall refund a pro-rata portion of any pre-paid Subscription fees.

(f)         In case of any attempted early cancellation or termination of a Subscription by the Subscriber not otherwise permitted by these Terms, the Subscriber must pay the remaining balance of the Subscription fees for the Subscription.   

(g)        These Terms may be immediately terminated by the Provider if:

(i)         the Subscriber is in material breach of any of its obligations under these Terms, and has not cured such breach within thirty (30) days of Subscriber’s receipt of written notice of such breach;

(ii)        the Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; or

(iii)        as otherwise explicitly provided in the these Terms.  

(h)        The Subscriber grants the Provider the right, upon termination of the Subscription to enter the Property for the purpose of removing any equipment provided by Provider. Within thirty (30) days of termination of a Subscription, the Provider and Subscriber shall engage in good faith to schedule a date upon which the Provider shall remove any Provider-owned equipment at no cost to Subscriber. Upon termination of a Subscription, the Subscriber shall immediately cease its use of all Services related to such Subscription and the Provider shall no longer be bound to deliver the Services under such Subscription.

(i)         The Subscriber agrees that it shall not interfere with, and shall cause its employees and agents not to interfere with, the Provider in conjunction with the service, maintenance, or removal of the Provider owned-equipment, or in any other way interfere with the Provider’s responsibilities under the these Terms.

(j)         In the event of termination of this Agreement prior to the Reporting Requirements 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.

8.         INDEMNIFICATION

(a)        The Subscriber shall indemnify, defend and hold the Provider and its affiliates, and any of their respective present and former directors, officers, members, shareholders, employees, representatives and agents, 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)         The Subscriber’s negligent acts or omissions, recklessness or willful misconduct;

(ii)        The Subscribers use of the Service in a manner not authorized by Provider 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 alterations to the supply of electricity to the Equipment or that otherwise affect the ability of the Provider to provide the Services;

(iv)       Subscriber’s failure to comply with any of its material obligations under this Agreement;  and

(v)        the loss of life or any injury to persons or property due to conditions existing at the Parking Space unless any such damages arise out of or relate to the Provider’s negligence or willful misconduct.

(b)        The Provider shall indemnify, defend, and hold the Subscriber harmless from and against any and all Damages from third-party Claims that result from or arise out of the actual or alleged misappropriation or infringement of any Intellectual Property rights in connection with the Service that is not due to the actions of the Subscriber.

(c)        The obligations under this Section 8 shall survive the termination or expiration of the these Terms.

9.         OWNERSHIP OF EQUIPMENT

The EVCS and Equipment is and shall remain the personal property of the Subscriber unless otherwise agreed to by the Parties in writing.

10.       INTELLECTUAL PROPERTY

(a)        Subscriber shall not:

(i)         create derivative works based on any of the Provider’s intellectual property rights, including, without limitation, the Service, Cloud Service, 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, Subscriber 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.

(b)        All right, title and interest in the Intellectual Property shall remain, the exclusive property of the Provider.  

(c)

11.       INJUNCTIVE RELIEF

The Parties recognize that the obligations under the 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.

12.       AUTHORITY

(a)        The Provider represents and warrants to the Subscriber that it has the appropriate legal authority to enter into these Terms, that it has all requisite licenses and permits to perform its obligations hereunder.

(b)        The Subscriber represents and warrants to the Provider that it has the appropriate legal authority to execute and be bound by these Terms, and that it will perform its obligations under this Agreement in compliance with any applicable laws, rules, regulations or ordinances.

13.       SEVERABILITY

If any provision of these Terms is found to be void, voidable, or unenforceable for any reason whatsoever, then that provision shall be deemed to be severed from the remainder of the these Terms shall remain in full force and effect.

14.       SUCCESSORS AND ASSIGNS

The Subscriber acknowledges and agrees that the Terms are enforceable against the Subscriber's successors and assigns.

15.       USE OF THE SINGULAR

In these Terms, the use of the singular shall be deemed to include plural wherever the context so requires and vice versa.

16.       JOINT AND SEVERABLE LIABILITY

If more than one (1) person comprises the Subscriber:

(a)        all covenants, obligations, representations and warranties made by the Subscriber in or on account of the  these Terms  shall be deemed to have been made on a joint and several basis;

(b)        in the event of default by any Subscriber pursuant to these Terms, each Subscriber shall be deemed to be in default; and

(c)        default by any Subscriber shall permit the Provider, without limiting its rights at law, to exercise its remedies pursuant to these Terms or otherwise at law, against any Subscriber, as the Provider shall determine in its discretion.

17.       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.

18.       DISCLAIMER AND LIMITATIONS OF LIABILITY 

(a)        EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, PROVIDER’S TOTAL LIABILITY TO SUBSCRIBER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER THIS AGREEMENT WILL BE LIMITED TO A MAXIMUM AMOUNT TO THE AMOUNT PAYABLE BY SUBSCRIBER TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

(b)        PROVIDER SHALL NOT BE LIABLE TO THE SUBSCRIBER FOR ANY LOST PROFITS OR SAVINGS LOST BUSINESS, LOSS OF SUBSCRIBER DATA OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURRENCE OR DAMAGE. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.

(c)        Except as otherwise provided for in these Terms, the Provider does not make any representation, warranty or guarantee in respect of the condition of the EVCS, including whether the Equipment is suitable for the Subscriber.

 19.      NOTICE

(a)        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 the Provider or Subscriber at the address indicated in these Terms. 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.

(b)        Any notice required to be provided in accordance with these Terms shall be provided to Subscriber at the details as provided in the applicable Order Form.

(c)        Any notice required to be provided in accordance with these Terms shall be provided to the Provider at the email address listed above unless otherwise provided in the applicable Order Form.

20.       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 20 shall be maintained in effect during the entire duration of this Agreement, provided that any policies written on a “claims made” basis shall be maintained for at least two (2) years following the expiry or termination of this Agreement, however caused.

21.       RELATIONSHIP OF PARTIES

Nothing in these Terms shall constitute or be deemed to constitute a partnership or joint venture between the Parties or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and neither Party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.

22.       FORCE MAJEURE

If either Party shall be delayed or hindered in or prevented from the performance of any act required under these Terms Agreement 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.

23.       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 any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement 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).

Last Updated: February 1, 2024

Version 1.2