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HomeMy WebLinkAbout09-04-2018 Item 13 Approval of EV Charging Station Meeting Date: 9/4/2018 FROM: Daryl Grigsby, Director of Public Works Prepared By: Scott Lee, Parking Services Manager SUBJECT: APPROVAL OF SOLE SOURCE EV CHARGING STATION CONTRACT WITH CHARGEPOINT, APPROPRIATE ADDITIONAL FUNDS FROM PARKING FUND, AUTHORIZE CITY MANAGER TO ESTABLISH EV CHARGING RATES AND TO SIGN MASTER SERVICES AND SUBSCRIPTION AGREEMENTS. RECOMMENDATIONS 1. Approve the award of a sole source contract to ChargePoint for the purchase of Electric Vehicle charging stations; and 2. Appropriate $150,000 in additional fu nds from the Parking unreserved working capital to cover additional costs for expanding the project to include the Marsh Street Structure and two floors in the 919 Palm Street Structure; and 3. Authorize the City Manager, or his designee, to establish and mod ify the EV charging rates for each location; and 4. Authorize the City Manager, or his designee, to sign the Master Services and Subscription Agreement with ChargePoint. DISCUSSION In June of 2017, the City made Climate Action a Major City Goal in the 2017 -19 Financial Plan with an overall goal of reducing citywide greenhouse gas (GHG) emissions. As noted in the City’s Climate Action Plan, GHG emissions from fossil fuel combustion in on-road vehicles account for approximately 50 percent of the City’s 2006 ba seline emissions inventory. As part of the Climate Action Major City Goal budget in the 2017-19 Financial Plan, $105,000 in Parking Funds were allocated to establish electric vehicle charging stations for City fleet vehicles in the basement o f the 919 Palm Parking Structure. Staff has been working on that project and soliciting shared funding opportunities with other entities promoting EV Charging programs. In 2017, PG&E announced they would be installing the infrastructure for 7,500 EV charging stations t hroughout the state over the next three years, at their own expense. In December 2017, the City submitted applications with PG &E to participate in this EV charging network program. Initially, three sites were submitted, but one was rejected by PG &E as not meeting the criteria to participate in this program. The two remaining sites, 919 Palm and 871 Marsh Street were approved. The agreement with PG &E requires a minimum of 10 units per location (or floor) and that the units remain in service for a minimum period of 10 years. This allows the City to expand the EV Charging program beyond the initial City only fleet program. Staff has worked with PG&E to develop a project that will now install up to 43 stations in these two locations with 10 units designated for city fleet vehicles, and 33 for the general public. Packet Pg. 227 Item 13 PG&E requires the participant to purchase the equipment from their approved list of vendors. PG&E does not perform this work and only pays a portion of the installation costs. After evaluating the var ious factors and the configuration necessary for the locations selected, only the ChargePoint product and administration program was viable for City needs. While there are other vendors that offer the installation of this product it is city staff’s preference to deal directly with the manufacturer to provide the product , annual warranty coverage and also provide the necessary nationwide charging services that limit the City’s operating costs for the equipment and services. Additionally, ChargePoint has an extensive network throughout California and nationwide with over 53,000 places to charge. T heir mobile app allows users to check for open spots in real time, search by price and charging speed , to start the charging session with their mobile phone, and get notifications when the car is done charging or when a station opens up. The proposed purchase contract with ChargePoint includes: 1) both single and dual output wall mounted units, 2) initial system activation and configuration, 3) assembly and install ation of each unit, 4) five-year prepaid warranty and software upgrades, and five-year prepaid maintenance and management program. The City has a budget of $105,000 for this project from the Climate Action Major City Goal and PG&E will also pay a small amount toward the actual cost per unit ($575) but this still leaves an estimated shortfall of $150,000. The Parking Fund is proposing to fund this amount from its unreserved working capital. The actual rate for parking in the EV charging stalls will var y by location depending on whether the hourly parking rate is separate, or included, from the EV charging costs. At 919 Palm Street, the EV charging stations will be located within the public parking structure, so the EV charge will be calculated and paid separately from the parking charges. At 871 Marsh Street, the location will not require a vehicle to actually enter the structure, so the charge assessed will include the approved hourly parking rates (during applicable hours) as well as the EV charging costs. The vendor will process and collect all the revenue through their system, and remit to the City the net amount after retaining a 10% fee for processing and managing service. Recovery of upfront capital costs may also be part of the rate structure; which is yet to be determined. There will be a total of 43 charging stations, including 10 dedicated for fleet vehicles in the basement of 919 and 14 additional for public use on the 4 th floor. 19 charging stations will also be located in the annex portion of the Marsh Street Structure at street level. There will be a net increase of 39 charging stations with 29 designated as public and 10 for city fleet vehicles. The City currently has a total of four public EV charging stations with three in the 871 Marsh Street structure, and one in the annex portion. These four stations will be removed and replaced as part of the new system. The new system will be centrally managed by the vendor, ChargePoint. Packet Pg. 228 Item 13 NEXT STEPS Upon approval from Council, staff w ill contract with the approved vendor for the purchase and installation of all EV charging stations. This will be scheduled to coincide with the service line installation by PG &E. CONCURRENCES City Administration and the Office of Sustainability both support this request. ENVIRONMENTAL REVIEW The recommended actions are exempt from environmental review per CEQA Guidelines section 15303, New Construction or Conversion of Small Structures. FISCAL IMPACT The difference between the actual cost s, including installation, and the total amount available from the Climate Action Major City Goal and the rebate from PG &E, will be funded from the Parking Fund from its unreserved working capital which has a balance of approximately $12 million dollars. It is anticipated that t his amount will be recovered over the next five years through a surcharge assessed in the EV charging rate. Additional funds recovered thru the EV charging program will be used to fund the second five-year warranty program and to establish a reserve account for future replacement or for addition of more charging stations in the future. PG&E estimates the total cost for PG&E to provide the required infrastructure is $400,000 for all locations. This includes an upgrade of one transformer, installation of the necessary conduits and ports from each transformer to the site of each charging station, and preparation of all the necessary design specifications and drawings provided at no cost to the City as part of this program. The City is utilizing this opportunity to leverage the prior amount set aside in the budget and advancing additional funds to maximize this one-time program to install additional charging stations at multiple location to not only serve the fleet vehicles, but also to prov ide additional charging stations for the general public. Without the PG&E program, the public stations would not have been possible without considerable additional city funding. ALTERNATIVES The City Council may choose to not approve the sole source contract, or to not appropriate the additional funds from the Parking Fund or to not delegate the authority to establish EV charging rates to City Manager or their designee. The Parking Manager and staff do not recommend this alternative as any of these optio ns will delay the installation and operationalization of EV charging stations for the City and not achieve the Major City Goal and require the City to fund the additional infrastructure costs associated with the PG&E Program. Packet Pg. 229 Item 13 Attachments: a - City of SLO PGE Quote b - ChargePoint - MSSA - FINAL 2.13.17 (3) Packet Pg. 230 Item 13 Quotation ChargePoint, Inc. Driving a Better Way™ chargepoint.com \i2\ Sales Representative: Brendan ODonnell Quote Number: Q-29210-1 E-Mail: brendan.odonnell@chargepoint.com Date: 6/18/2018 Telephone: 949.521.3386 Expires On: 6/17/2018 Primary Contact: \i1\\i2\ Bill To Address Scott Lee City of San Luis Obispo Ship To Address Scott Lee City of San Luis Obispo 1260 Chorro Street San Luis Obispo CA 93401-3668 NJPA Product Name Product Description Qty List Price Disc%Unit Price Total Price CT4023 Dual Output, Wall Mount Unit - 208/240V @30A with Cord Management 17 USD 6,190 25 USD 4,643 USD 78,931 CT4013-GW1 Single Output Gateway Option USA, Wall Mount Unit - 208/240V @30A with Cord Management 4 USD 4,505 25 USD 3,379 USD 13,516 CT4013 Single Output, Wall Mount Unit - 208/240V @30A with Cord Management 4 USD 3,990 25 USD 2,993 USD 11,972 CPSUPPORT-ACTIVE Initial Station Activation & Configuration Service includes activation of cloud services and configuration of radio groups, custom groups, connections, access control, visibility control, pricing, reports and alerts. One time initial service per station. 25 USD 349 100 USD 0 USD 0 CT4000-INSTALLVALID Customer works with their own contractor to perform the all construction to the point where the stations can be bolted down and connected. ChargePoint will engage one of their O&M Partners to install the station on the prepared site and validation of electrical capacity, transformers, panels, breakers, wiring, cellular coverage and that station installation meets all ChargePoint published requirements and local codes. CT4000-INSTALLVALID is priced per CT4000 station. A successful Site Validation is a prerequisite to purchase ChargePoint Assure. 25 USD 1,200 50 USD 600 USD 15,000 © 2018 ChargePoint, Inc. Page 1 of 2 Packet Pg. 231 Item 13 Product Name Product Description Qty List Price Disc%Unit Price Total Price CPCLD-COMMERCIAL-5 5yr Prepaid Commercial Cloud Plan. Includes Secure Network Connection, On- going Station Software updates, Station Inventory, 24x7 Driver Support, Host Support, Session Data and Analytics, Fleet Vehicle Management and Integration, Fleet Access Control, Valet Dashboard, Power Management (Circuit, Panel, Site Sharing), Scheduled Charging, Driver Access Control, Pricing and Automatic Funds Collection, Waitlist, Videos (on supported hardware). 42 USD 1,105 0 USD 1,105 USD 46,410 CT4000-ASSURE5 5 prepaid years of ChargePoint Assure.25 USD 2,495 0 USD 2,495 USD 62,375 Quote Total:USD 228,204.00 Estimated Tax:USD 8,092.48 Shipping and Handling:USD 2,750.00 Grand Total:USD 239,046.48 Sales tax in applicable states (AZ, CA, FL, GA, MA, NY, PA, TX, WA) and shipping fees will be applied to invoice. Quote Acceptance Purchase Terms and Conditions are attached hereto and incorporated herein by reference. By signing this quote I hereby acknowledge that I have the authority to purchase the product detailed on this document on behalf of my organization. Furthermore, I agree to the referenced terms and conditions and that this signed quote shall act as a purchase order. Signature :/SE1/Title :\t1\ Name (Print) :\PN1\Date :\D1\ Company Name :\CompanyName_1\ Requested Ship Date :\dsrequestedshipdate_1\ AP Contact Name :\tapcontactname_1\ AP Contact E-Mail :\eapcontactemail_1\ © 2018 ChargePoint, Inc. Page 2 of 2 Packet Pg. 232 Item 13 CT4021 CT4000 Level 2 Commercial Charging Station Specifications and Ordering Information Ordering Information Specify model number followed by the applicable code(s). The order code sequence is: Model-Options. Software, Services and Misc are ordered as separate line items. Hardware Description Order Code Model 1830 mm (6') Single Port Bollard Mount 1830 mm (6') Dual Port Bollard Mount 1830 mm (6') Single Port Wall Mount 1830 mm (6') Dual Port Wall Mount 2440 mm (8') Dual Port Bollard Mount 2440 mm (8') Dual Port Wall Mount CT4011 CT4021 CT4013 CT4023 CT4025 CT4027 Options Integral Gateway Modem - USA Integral Gateway Modem - Canada -GW1 -GW2 Misc Power Management Kit Bollard Concrete Mounting Kit CT4000-PMGMT CT4001-CCM Software & Services Description Order Code ChargePoint Commercial Service Plan CTSW-SAS-COMM-n1 ChargePoint Service Provider Plan CTSW-SAS-SP-n1 ChargePoint Assure CT4000-ASSUREn2 Station Activation and Configuration CPSUPPORT-ACTIVE ChargePoint Station Installation and Validation CT4000-INSTALLVALID Note: All CT4000 stations require a network service plan. 1 Substitute n for desired years of service (1, 2, 3, 4, or 5 years). 2 Substitute n for the duration of the coverage (1, 2, 3, 4, or 5 years). Order Code Examples If ordering this the order code is 1830 mm (6') Dual Port Bollard USA Gateway Station with Concrete Mounting Kit ChargePoint Commercial Service Plan, 3 Year Subscription ChargePoint Station Installation and Validation 2 Years of Assure Coverage CT4021-GW1 CT4001-CCM CTSW-SAS-COMM-3 CT4000-INSTALLVALID CT4000-ASSURE2 1830 mm (6') Single Port Wall Mount Station ChargePoint Commercial Service Plan, 5 Year Subscription 4 Years of Assure Coverage Station Activation and Configuration CT4013 CTSW-SAS-COMM-5 CT4000-ASSURE4 CPSUPPORT-ACTIVE The First ENERGY STAR® Certified EV Charger Packet Pg. 233 Item 13 ChargePoint CT4000 Family 2 chargepoint.com CT4021 1830 mm (6') CT4025 2440 mm (8') Bollard CT4023 1830 mm (6') CT4027 2440 mm (8') Wall Mount 347 mm (13.7") CT4023 1811 mm (71.3") 1184 mm (46.6") 483 mm (19.0") 302 mm (11.9") 347 mm (13.7") 233 mm (9.2") 233 mm (9.2") CT4021 1811 mm (71.3") 1186 mm (46.7") CT4025 2426 mm (95.5") CT4027 2426 mm (95.5") 470 mm (18.5") 289 mm (11.4") Packet Pg. 234 Item 13 chargepoint.com 3 CT4000 Family Specifications Electrical Input Single Port (AC Voltage 208/240V AC)Dual Port (AC Voltage 208/240V AC) Input Current Input Power Connection Required Service Panel Breaker input Current Input Power Connection Required Service Panel Breaker Standard 30A One 40A branch circuit 40A dual pole (non-GFCI type)30A x 2 Two independent 40A branch circuits 40A dual pole (non-GFCI type) x 2 Standard Power Share n/a n/a n/a 32A One 40A branch circuit 40A dual pole (non-GFCI type) Power Select 24A 24A One 30A branch circuit 30A dual pole (non-GFCI type) 24A x 2 Two independent 30A branch circuits 30A dual pole (non-GFCI type) x 2 Power Select 24A Power Share n/a n/a n/a 24A One 30A branch circuit 30A dual pole (non-GFCI type) Power Select 16A 16A One 20A branch circuit 20A dual pole (non-GFCI type) 16A x 2 Two independent 20A branch circuits 20A dual pole (non-GFCI type) x 2 Power Select 16A Power Share n/a n/a n/a 16A One 20A branch circuit 20A dual pole (non-GFCI type) Service Panel GFCI Do not provide external GFCI as it may conflict with internal GFCI (CCID) Wiring - Standard 3-wire (L1, L2, Earth)5-wire (L1, L1, L2, L2, Earth) Wiring - Power Share n/a 3-wire (L1, L2, Earth) Station Power 8W typical (standby), 15W maximum (operation) Electrical Output Standard 7.2kW (240V AC @ 30A)7.2kW (240V AC@30A) x 2 Standard Power Share n/a 7.2kW (240V AC@30A) x 1 or 3.8kW (240V AC@16A) x 2 Power Select 24A 5.8kW (240V AC@24A) 5.8kW (240V AC@24A) x 2 Power Select 24A Power Share n/a 5.8kW (240V AC@24A) x 1 or 2.9kW (240V AC@12A) x 2 Power Select 16A 3.8kW (240V AC@16A)3.8kW (240V AC@16A) x 2 Power Select 24A Power Share n/a 3.8kW (240V AC@16A) x 1 or 1.9kW (240V AC@8A) x 2 Functional Interfaces Connector(s) Type SAE J1772™SAE J1772™ x 2 Cable Length - 1830 mm (6') Cable Management 5.5 m (18')5.5 m (18') x 2 Cable Length - 2440 mm (8') Cable Management n/a 7 m (23') Overhead Cable Management System Yes LCD Display 145 mm (5.7") full color, 640x480, 30fps full motion video, active matrix, UV protected Card Reader ISO 15693, ISO 14443, NFC Locking Holster Yes Yes x 2 Packet Pg. 235 Item 13 ChargePoint CT4000 Family ChargePoint, Inc. 240 East Hacienda Avenue Campbell, CA 95008-6617 USA +1.408.841.4500 or +1.877.370.3802 US and Canada toll-free chargepoint.com Listed by Underwriters Laboratories Inc. Safety and Connectivity Features Ground Fault Detection 20mA CCID with auto retry Open Safety Ground Detection Continuously monitors presence of safety (green wire) ground connection Plug-Out Detection Power terminated per SAE J1772™ specifications Power Measurement Accuracy +/- 2% from 2% to full scale (30A) Power Report/Store Interval 15 minute, aligned to hour Local Area Network 2.4 GHz Wi-Fi (802.11 b/g/n) Wide Area Network 3G GSM, 3G CDMA Safety and Operational Ratings Enclosure Rating Type 3R per UL 50E Safety Compliance UL listed for USA and cUL certified for Canada; complies with UL 2594, UL 2231-1, UL 2231-2, and NEC Article 625 Surge Protection 6kV @ 3000A. In geographic areas subject to frequent thunder storms, supplemental surge protection at the service panel is recommended. EMC Compliance FCC Part 15 Class A Operating Temperature -30°C to +50°C (-22°F to 122°F) Storage Temperature -30°C to +60°C (-22°F to 140°F) Non-Operating Temperature -40°C to +60°C (-40°F to 140°F) Operating Humidity Up to 85% @ +50°C (122°F) non-condensing Non-Operating Humidity Up to 95% @ +50°C (122°F) non-condensing Terminal Block Temperature Rating 105°C (221°F) Charging Stations per 802.11 Radio Group Maximum of 10. Each station must be located within 45m (150') “line of sight” of a gateway station. ChargePoint, Inc. reserves the right to alter product offerings and specifications at any time without notice, and is not responsible for typographical or graphical errors that may appear in this document. Contact Us Visit chargepoint.com Call +1.408.705.1992 Email sales@chargepoint.com Copyright © 2018 ChargePoint, Inc. All rights reserved. CHARGEPOINT is a U.S. registered trademark/service mark, and an EU registered logo mark of ChargePoint, Inc. All other products or services mentioned are the trademarks, service marks, registered trademarks or registered service marks of their respective owners. DS-CT4000-05. April 2018. PN 73-001020-01-11. Packet Pg. 236 Item 13 Revised 12.21.16 CHARGEPOINT® MASTER SERVICES AND SUBSCRIPTION AGREEMENT IMPORTANT: THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU OR THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT (“SUBSCRIBER”) AND CHARGEPOINT, INC., A DELAWARE CORPORATION (“CPI”). PLEASE READ IT CAREFULLY. BY USING ANY OF THE CHARGEPOINT SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT USE ANY CHARGEPOINT SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, YOU MAY NOT ENTER INTO THIS AGREEMENT AND SUCH ENTITY MAY NOT USE THE CHARGEPOINT SERVICES. 1. AGREEMENT. 1.1 SCOPE OF AGREEMENT. This Agreement governs the following activities: (a) Provisioning of Subscriber’s Charging Station(s), if any, on ChargePoint; (b) Activation and use of the ChargePoint Services on Subscriber’s Charging Station(s), if any; (c) Subscriber’s use of the APIs as part of the ChargePoint Services; (d) Each grant of Rights by Subscriber; and (e) Each grant of Rights by a third party to Subscriber. 1.2 EXHIBITS AND PRIVACY POLICY. This Agreement includes the CPI Privacy Policy, as amended from time to time, and the following Exhibits, which are made a part of , and are hereby incorporated into, this Agreement by reference. Exhibit 1: Flex Billing Terms Exhibit 2: API Terms Exhibit 3: Terms Regarding Granting and Receipt of Rights In the event of any conflict between the terms of this Agreement on the one hand, and the Privacy Policy or any Exhibit on the other hand, this Agreement shall govern. Capitalized terms not otherwise defined in any Exhibit or the Privacy Policy shall have the same meaning as in this Agreement. 2. DEFINITIONS. The following terms shall have the definitions set forth below when used in this Agreement: 2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject entity. 2.2 "APIs" means, individually or collectively, the application programming interfaces which are made available to Subscriber from time to time, as and when updated by CPI. 2.3 “ChargePoint Connections” shall have the meaning ascribed to it in the applicable data sheet. The term ChargePoint Connections shall also mean any successor service provided by CPI. Packet Pg. 237 Item 13 Page 2 of 18 Revised 12.21.16 2.4 “ChargePoint®” means the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by CPI (as defined below) in order to provide various services to, among others, Subscriber and its employees. 2.5 “ChargePoint Services” means, collectively, the various cloud services offerings (including, without limitation, APIs and application service plans) made available for subscription by CPI. 2.6 “ChargePoint Application” means any of the applications established and maintained by CPI which will allow Subscriber to access ChargePoint Services. 2.7 “Charging Station” means the electric vehicle charging station(s) purchased by Subscriber, whether manufactured by CPI or by a CPI authorized entity, which are registered and activated on ChargePoint. 2.8 "Content" means all data collected or maintained by CPI in connection with the operation of ChargePoint. 2.9 “CPI Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with ChargePoint and/or CPI manufactured Charging Stations, including without limitation, ChargePoint. 2.10 “CPI Property” means (i) ChargePoint, (ii) the ChargePoint Services (including all Content), (iii) all data generated or collected by CPI in connection with the operation of ChargePoint and ChargePoint Services, (iv) the CPI Marks, (v) the ChargePoint Cards, and (vi) all other CPI-supplied material developed or provided by CPI for Subscriber use in connection with the ChargePoint Services. 2.11 “Documentation” means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or ChargePoint and made available from time to time by CPI to Subscriber in any manner (including on-line). 2.12 “Effective Date” means the earlier of (a) the date that Subscriber electronically accepts this Agreement, or (b) the date of Subscriber’s first use of the ChargePoint Services. 2.13 “Intellectual Property Rights” means all intellectual property rights, including, without limitation, 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, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records. 2.14 “Malicious Code” means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents or programs. 2.15 “Party” means each of CPI and Subscriber. 2.16 “PII” means personally identifiable information regarding Subscriber or a User (e.g., name, address, email address, phone number or credit card number) that can be used to uniquely identify, contact or locate Subscriber or such User. 2.17 “Provisioning” means activating Charging Stations, warrantees and Service Plans on ChargePoint 2.18 “Rights” means the rights, authorizations, privileges, actions, information and settings within the ChargePoint Services which a Rights Grantor grants to an Rights Grantee, to enable such Rights Grantee to access, obtain and use certain portions of the ChargePoint Services and certain information available therein in the course of providing services to or on behalf of such Rights Grantor in connection Packet Pg. 238 Item 13 Page 3 of 18 Revised 12.21.16 with one or more of the Rights Grantor’s Charging Stations. A Rights Grantor shall be deemed to have granted Rights to the entity that will be responsible for creating Subscriber’s account and Provisioning Subscriber’s Charging Stations. Such deemed grant may be terminated by Subscriber at any time. 2.19 “Service Plan(s)” means subscription plans to the ChargePoint Services which are offered and sold by CPI from time to time, which vary according to their features, privileges and pricing. 2.20 “Subscriber” means . 2.21 “Subscriber Content and Services” means any content and/or services that a Subscriber provides or makes available to Users and/or the general public in connection with the ChargePoint Services, other than Content, ChargePoint Services and CPI Property. 2.22 “Subscriber Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by Subscriber in connection with its business and/or Charging Stations. 2.23 “Subscription Fees” means the fees payable by Subscriber for subscribing to any ChargePoint Services. 2.24 “Taxes” shall mean all present and future taxes, imposts, levies, assessments, duties or charges of whatsoever nature including without limitation any withholding taxes, sales taxes, use taxes, service taxes, value added or similar taxes at the rate applicable for the time being imposed by any national or local government, taxing authority, regulatory agency or other entity together with any penalty payable in connection with any failure to pay or any delay in paying any of the same and any interest thereon. 2.25 “Token(s)” means the serialized proof of purchase of a Service Plan that is used by CPI in connection with enabling Services and/or provisioning Charging Stations. 2.26 “User” means any person using a Charging Station. 3.AVAILABLE CHARGEPOINT SERVICES & SERVICE PLANS. A description of the various ChargePoint Services and Service Plans currently available for subscription is located on the CPI website. CPI may make other ChargePoint Services and/or Service Plans available from time to time, and may amend the features or benefits offered with respect to any ChargePoint Service or Service Plan at any time and from time to time. Subscription Fees are based on Subscriber’s choice of Service Plan and not on actual usage of the Subscription. 4.CPI’S RESPONSIBILITIES AND AGREEMENTS. 4.1 OPERATION OF CHARGEPOINT. CPI agrees to provide and shall be solely responsible for: (i) provisioning and operating, maintaining, administering and supporting ChargePoint and related infrastructure (other than Subscriber’s Charging Stations and infrastructure for transmitting data from Charging Stations to any ChargePoint operations center); (ii) provisioning and operating, maintaining, administering and supporting the ChargePoint Applications; and (iii) operating ChargePoint in compliance with all applicable laws. CPI will protect the confidentiality and security of PII in accordance with all applicable laws and regulations, customary practices in the industry and the CPI Privacy Policy and acknowledges that it is responsible for the security of “cardholder data” (as that term is defined for purposes of the Payment Card Industry – Data Security Standards), if any, that CPI possesses, otherwise stores, processes or transmits on behalf of Subscriber or for any impact, if any, on the security of Subscriber’s cardholder data environment. 4.2 LIMITATIONS ON RESPONSIBLITY. CPI shall not be responsible for, and makes no representation or warranty with respect to the following: (i) specific location(s) or number of Charging Packet Pg. 239 Item 13 Page 4 of 18 Revised 12.21.16 Stations now, or in the future, owned, operated and/or installed by persons other than Subscriber, or the total number of Charging Stations that comprise ChargePoint; (ii) continuous availability of electrical service to any of Subscriber’s Charging Stations; (iii) continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by CPI of ChargePoint; (iv) availability of or interruption of the ChargePoint Network attributable to unauthorized intrusions; and/or (v) charging stations that are not registered with and activated on the ChargePoint Network. 5.SUBSCRIBER’S RESPONSIBILITIES AND AGREEMENTS. 5.1 GENERAL. (a)All use of ChargePoint and ChargePoint Services by Subscriber, its employees and agents and its grantees of Rights shall comply with this Agreement and all of the rules, limitations and policies of CPI set forth in the Documentation. All ChargePoint Services account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber’s own use (and the use of its grantees of Rights), and Subscriber shall keep all such items secure and confidential. Subscriber shall prevent, and shall be fully liable to CPI for, any unauthorized access to or use of ChargePoint or ChargePoint Services via Subscriber’s Charging Stations, ChargePoint Services account(s) or other equipment. Subscriber shall immediately notify CPI upon becoming aware of any such unauthorized use. (b)Subscriber shall be solely responsible for: (i) Provisioning of its Charging Stations, if any; (ii) keeping Subscriber’s contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (iii) updating on the applicable ChargePoint Application, within five (5) business days, the location to which any of Subscriber’s Charging Stations are moved; (iv) the maintenance, service, repair and/or replacement of Subscriber’s Charging Stations as needed, including informing CPI of the existence of any Charging Stations that are non-operational and not intended to be replaced or repaired by Subscriber; and (v) compliance with all applicable laws. (c)Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange for such Users connecting with Subscriber using ChargePoint Connections. 5.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and warrants to CPI that: (i) it has the power and authority to enter into and be bound by this Agreement and shall have the power and authority to install the Charging Stations and any other electrical vehicle charging products which are registered and activated on the ChargePoint Network; (ii) the electrical usage to be consumed by Subscriber’s Charging Stations will not violate or otherwise conflict with the terms and conditions of any applicable electrical purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; and (iii) it has not installed or attached and will not install or attach Charging Stations on or to infrastructure not owned by Subscriber without proper authority, or in a manner that will block any easement or right of way. 5.3 CHARGEPOINT CARDS. Subscriber may be permitted by CPI, in CPI's reasonable discretion, to obtain CPI-provisioned radio-frequency identification cards ("ChargePoint Cards") which enable the individual card recipients to access and use ChargePoint. Subscriber may distribute such ChargePoint Cards to individuals, and each individual ChargePoint Card recipient is responsible for activating his or her ChargePoint Card on ChargePoint directly with CPI on the CPI web site. In no event will Subscriber create any separate ChargePoint accounts for any ChargePoint Card recipients or other third parties, nor will Subscriber create anonymous ChargePoint accounts associated with any ChargePoint Card. 5.4 USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not: Packet Pg. 240 Item 13 Page 5 of 18 Revised 12.21.16 (a)sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any Content therein to any third party; (b)knowingly interfere with or disrupt the ChargePoint Services, servers, or networks connected to the ChargePoint Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the ChargePoint Services; (c)restrict or inhibit any other user from using and enjoying the ChargePoint Services or any other CPI services; (d)attempt to gain unauthorized access to the ChargePoint Network or the ChargePoint Services or related systems or networks or any data contained therein, or access or use ChargePoint or ChargePoint Services through any technology or means other than those provided or expressly authorized by CPI; (e) create any ChargePoint Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on ChargePoint, or obtain or attempt to obtain multiple keys for the same URL; (f)reverse engineer, decompile or otherwise attempt to extract the source code of the ChargePoint Services or any part thereof, or any Charging Station, except to the extent expressly permitted or required by applicable law; (g)create derivative works based on any CPI Property; (h)remove, conceal or cover the CPI Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for use in connection with Subscriber’s Charging Stations; (i)except as otherwise expressly permitted by this Agreement or in any applicable data sheet relating to a ChargePoint Service, copy, frame or mirror any part of the ChargePoint Services or ChargePoint Content, other than copying or framing on Subscriber’s own intranets or otherwise solely for Subscriber’s own internal business use and purposes; (j) access ChargePoint, any ChargePoint Application or the ChargePoint Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;” (k)use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the ChargePoint Services or Content or collect information about ChargePoint users for any unauthorized purpose; (l)upload, transmit or introduce any Malicious Code to ChargePoint or ChargePoint Services; (m)use any of the ChargePoint Services if Subscriber is a person barred from such use under the laws of the United States or of any other jurisdiction; or (n)use the ChargePoint Services 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 that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, the Agreement or the Documentation. Packet Pg. 241 Item 13 Page 6 of 18 Revised 12.21.16 5.5 CONTENT. (a)ChargePoint Content (including but not limited to Charging Station data and status) is provided for planning purposes only. Subscriber may find that various events may mean actual Charging Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition, certain Charging Station-related Content, including Charging Station name and use restrictions, is set by the Charging Station owner and is not verified by CPI. Subscriber should exercise judgment in Subscriber’s use of the Content. (b) Certain Content may be provided under license from third parties and is subject to copyright and other intellectual property rights of such third parties. Subscriber may be held liable for any unauthorized copying or disclosure of such third party-supplied Content. Subscriber’s use of such Content may be subject to additional restrictions set forth in the Documentation. (c)Subscriber shall not copy, modify, alter, translate, amend, or publicly display any of the Content except as expressly permitted by the Documentation. Subscriber shall not present any portion of the Content in any manner, that would (i) make such Content false, inaccurate or misleading, (ii)falsify or delete any author attributions or labels of the origin or source of Content, or (iii) indicate or suggest that the Charging Station locations provided as part of the Content are anything other than ChargePoint® Network Charging Stations. (d) Subscriber shall not remove, obscure, or alter in any manner any proprietary rights notices (including copyright and trademark notices), warnings, links or other notifications that appear in the ChargePoint Service. 6.SUBSCRIPTION FEES AND PAYMENT TERMS. 6.1 SUBSCRIPTION FEES. Subscriber shall pay all Subscription Fees within thirty (30) days of its receipt of CPI’s invoice. All payments shall be made in U.S. Dollars by check, wire transfer, ACH payment system or other means approved by CPI. Customer may not offset any amounts due to CPI hereunder against amounts due to Customer under this Agreement or any other agreement. Fees payable to CPI do not include any Taxes, and Subscriber is responsible for any and all such Taxes, if any. All payment obligations under this Agreement are non-cancelable and non-refundable. 6.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. Subscriber will reimburse CPI for attorneys’ fees and other expenses reasonably incurred by CPI in the collection of any late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days overdue, CPI may, without otherwise limiting CPI’s rights or remedies, (a) suspend the use by Subscriber of the ChargePoint Services until such amounts are paid in full, and/or (b) condition future ChargePoint Service renewals and other Subscriber purchases on payment terms other than those set forth herein; provided that CPI shall not exercise any such rights if Subscriber has reasonably disputed such charges and is cooperating diligently in good faith to resolve the dispute. 7.INTELLECTUAL PROPERTY RIGHTS AND LICENSES. 7.1 CPI PROPERTY. As between CPI and Subscriber, CPI retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the CPI Property and any improvements thereto. No rights are granted to Subscriber in the CPI Property hereunder except as expressly set forth in this Agreement. Packet Pg. 242 Item 13 Page 7 of 18 Revised 12.21.16 7.2 SUBSCRIBER PROPERTY. As between CPI and Subscriber, Subscriber retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to (i) all Subscriber Marks and (ii) all Subscriber Content and Services (collectively, the “Subscriber Property”). No rights are granted to CPI in the Subscriber Property hereunder except as expressly set forth in this Agreement. 7.3 LIMITED LICENSE TO SUBSCRIBER. CPI hereby grants to Subscriber a royalty-free, non- assignable, non-transferable, and non-exclusive license to use the CPI Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for Subscriber to access, use and receive the ChargePoint Services as permitted herein. 7.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non-assignable, non- transferable, and non-exclusive license to use the Subscriber Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for CPI to provide the ChargePoint Services. CPI may utilize the Subscriber Marks to advertise that Subscriber is using the ChargePoint Services. The foregoing license includes a perpetual and irrevocable right of CPI to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by Subscriber in the ChargePoint Services, solely for the purpose of enabling CPI to operate, market and promote the ChargePoint Services, and to index and serve such Subscriber Content and Services as search results through ChargePoint Services. CPI shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or Subscriber Rights Grantees relating to the ChargePoint Services. 7.5 ADDITIONAL TERMS REGARDING CPI MARKS. (a)USE LIMITATIONS. Subscriber shall display the CPI Marks in connection with Subscriber Charging Stations as required in this Agreement during the term of Subscriber’s Service Plan. Subscriber shall not use any of the CPI Marks for or with any products other than its Charging Stations. From time to time, CPI may provide updated CPI Mark usage guidelines on the ChargePoint Application or elsewhere in the Documentation, and Subscriber shall thereafter comply with such updated guidelines. For any use of the CPI Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the CPI Mark, Subscriber must obtain CPI’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the CPI Mark in the approved manner. All use by Subscriber of CPI's Marks (including any goodwill associated therewith) will inure to the benefit of CPI. (b)PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any likeness of a CPI Mark): (i)as a part of the name under which Subscriber’s business is conducted or in connection with the name of a business of Subscriber or its Affiliates; (ii)in any manner that (x) implies a relationship or affiliation with CPI other than as described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of CPI or CPI personnel; (iii)in any manner intended to disparage CPI, ChargePoint, or the ChargePoint Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to CPI; Packet Pg. 243 Item 13 Page 8 of 18 Revised 12.21.16 (iv) in any manner that violates any law or regulation; or (v)that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by CPI. (c)NO REGISTRATION OF CPI MARKS. Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any CPI Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a CPI Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of CPI, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by CPI. At no time will Subscriber challenge or assist others to challenge the CPI Marks (except to the extent such restriction is prohibited by law) or the registration thereof by CPI. (d)TERMINATION AND CESSATION OF USE OF CPI MARKS. Upon termination of this Agreement, Subscriber will immediately discontinue all use and display of all CPI Marks. 8.LIMITATIONS OF LIABILITY. 8.1 DISCLAIMER OF WARRANTIES. CHARGEPOINT AND THE CHARGEPOINT SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR SUBSCRIBER’S USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRI NGEMENT. WITHOUT LIMITING THE FOREGOING, CPI DOES NOT WARRANT THAT (A) SUBSCRIBER’S USE OF THE CHARGEPOINT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET SUBSCRIBER’S REQUIREMENTS; (B) ALL CONTENT AND OTHER INFORMATION OBTAINED BY SUBSCRIBER FROM OR IN CONNECTION WITH THE CHARGEPOINT SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE CHARGEPOINT SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE CHARGEPOINT SERVICES IS OBTAINED AT SUBSCRIBER’S OWN DISCRETION AND RISK, AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. 8.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL EITHER PARTY TO THI AGREEMENT BE LIABLE TO THE OTHER FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT SERVICES, THIS AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT. 8.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither CPI nor Subscriber shall 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, whatever the cause; (ii) interruptions in wireless or cellular service linking Charging Stations to ChargePoint; (iii) interruptions attributable to unauthorized ChargePoint Network intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with CPI; or (v) the inability of a Charging Station to access ChargePoint as a result of any change in product offerings (including, without limitation, the any network upgrade or introduction of any “next generation” services) Packet Pg. 244 Item 13 Page 9 of 18 Revised 12.21.16 by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions. 8.4 LIMITATION OF LIABILITY. CPI’s aggregate liability under this Agreement shall not exceed aggregate Subscription Fees paid by Subscriber to CPI in the twelve (12) calendar months prior to the event giving rise to the liability. 8.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE CHARGEPONT SERVICES, CPI HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE “UNDERLYING CARRIER”). SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CPI AND THE UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDE MNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR IND IRECTLY, IN CONNECTION WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CHARGEPOINT SERVICES. 8.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICITONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 8, ONE OR MORE OF THE ABOVE LIMITATIONS MAY NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, CPI’S LIABILTY AND/OR IMPLIED WARRANTIES GRANTED IN SUCH CASES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 9.TERM AND TERMINATION. 9.1 TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and shall continue until the expiration of all of Subscriber’s Service Plans. 9.2 SERVICE PLAN TERM. Each Service Plan acquired by Subscriber shall commence as follows: Each Service Plan acquired for use with a new Charging Station will commence on the earlier to occur of (i) the date of Provisioning such new Charging Station, or (ii) one year from the date the Token(s) necessary for Provisioning such new Charging Station is made available to Subscriber or its installer. Renewals of Service Plans will commence on the date of the expiration of the Subscription being renewed. Each Subscriber Service Plan shall continue for the applicable duration thereof, unless this Agreement is terminated earlier in accordance with its terms. 9.3 TERMINATION BY CPI. (a) This Agreement may be immediately terminated by CPI: (i) if Subscriber is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days (or within five (5) days in the case of any payment default) of Subscriber’s receipt of written notice thereof; (ii) 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; (iii) upon the determination by any regulatory body that the subject matter of this Agreement is subject to any governmental regulatory authorization or review that imposes additional costs of doing business upon Packet Pg. 245 Item 13 Page 10 of 18 Revised 12.21.16 CPI; or (iv) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in breach, CPI may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of its subscription to ChargePoint Services. In such case, this Agreement shall terminate upon the later of the expiration of all of Subscriber’s subscriptions to ChargePoint Services. (b)CPI may in its reasonable discretion suspend Subscriber’s continuing access to the ChargePoint Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement; (B) such suspension is required by law (for example, due to a change to the law governing the provision of the ChargePoint Services); or (c) providing the ChargePoint Services to Subscriber could create a security risk or material technical burden as reasonably determined by CPI. Subscriber shall not be liable to CPI for any Subscription Fees if such suspension is due to section (B) or (C) of the foregoing sentence. 9.4 TERMINATION BY SUBSCRIBER. This Agreement may be immediately terminated by Subscriber without prejudice to any other remedy of Subscriber at law or equity: (i) if CPI is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days of the date of its receipt of written notice thereof, (ii) CPI 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 (iii) for convenience and upon sixty (60) days prior written notice to CPI of such termination. 9.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement for cause by Subscriber pursuant to Section 9.4(i) or by CPI pursuant to Section 9.3(a)(iii), CPI shall refund to Subscriber a pro-rata portion of any pre-paid Subscription Fees based upon the remaining Service Plan term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any Subscription Fees as a result of such termination. In no event shall any termination relieve Subscriber of any unpaid Subscription Fees due CPI for the Service Plan term in which the termination occurs or any prior Service Plan term. 9.6 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CPI, limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by their nature or terms are intended to survive the termination of this Agreement will remain in full force and effect as between the Parties hereto regardless of the termination of this Agreement. 10.INDEMNIFICATION. Subscriber hereby agrees to indemnify, defend and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of Subscriber’s actual or alleged use (directly, or through a grantee of Rights by Subscriber) of the ChargePoint Services, ChargePoint or Subscriber Content and Services. Subscriber will cooperate as fully as reasonably required in the defense of any claim. CPI reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Subscriber. CPI hereby agrees to indemnify, defend and hold Subscriber, its officials, officers, employees, agents, from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of CPI’s provision and licensing of the ChargePoint Services, ChargePoint or Subscriber Content and Services. CPI will cooperate as fully as reasonably required in the defense of any claim. Subscriber reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by CPI. Packet Pg. 246 Item 13 Page 11 of 18 Revised 12.21.16 11.GENERAL. 11.1 AMENDMENT OR MODIFICATION. CPI reserves the right to modify this Agreement from time to time. CPI will provide notice of each such modification to Subscriber. Subscriber’s continued use of the ChargePoint Services following such notice will constitute an acceptance of the modified Agreement. 11.2 WAIVER. The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right. 11.3 FORCE MAJEURE. Except with respect to payment obligations, neither CPI nor Subscriber will be liable for failure to perform any of its obligations hereunder due to causes beyond such party’s reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of such Party’s condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a Party from performing its obligations under this Agreement; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts. 11.4 NOTICE TO CALIFORNIA CUSTOMERS. (a)California’s Low Carbon Fuel Standard (“LCFS”) was enacted to ensure that the mix of fuels sold by California oil refiners and distributers meets applicable greenhouse gas emissions targets. California has a statewide goal to reduce carbon intensity of transportation fuels by at least 10% by 2020. (b)The ChargePoint Network can track the fueling of electric vehicles, which positively contributes to reducing California’s carbon intensity. If applicable reporting requirements are met, LCFS credits are issued by the California Air Resources Board. An available LCFS credit may be claimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the LCFS credits are only available to one party, meaning any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available LCFS credits generated from use of the Charging Stations, but will not claim any available LCFS credits that Subscriber intends to claim. If Subscriber intends to claim the LCFS credits, it must engage in the reporting and other administrative obligations necessary to generate such credits. (c)Subscriber agrees that it will provide CPI with written notice of its intent to claim LCFS credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the LCFS credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim LCFS credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any LCFS credits. All notices shall be provided by email to CP I at lcfsnotification@chargepoint.com. 11.5 NOTICE TO OREGON CUSTOMERS (a)Oregon’s Clean Fuel Program (“OCFP”) was created with the purpose of reducing greenhouse gas emissions in the transportation sector. (b)The fueling of electric vehicles, and the operation of the ChargePoint Network, contributes to reducing Oregon’s greenhouse gas emissions and is eligible for OCFP credits, which are issued by the Oregon Department of Environmental Quality. By reporting the amount of electric vehicle Packet Pg. 247 Item 13 Page 12 of 18 Revised 12.21.16 fueling, ChargePoint is able to help Oregon track the growing use of electric vehicles in the state, for which ChargePoint will receive OCFP credits. (c)An available OCFP credit may be claimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the OCFP credits are only available to one party. This means any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available OCFP credits generated from use of the Charging Stations, but will not claim any available OCFP credits that Subscriber intends to claim. (d)Subscriber agrees that it will provide CPI with written notice of its intent to claim OCFP credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the OCFP credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim OCFP credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any OCFP credits. All notices shall be provided by email to CPI at lcfsnotification@chargepoint.com. 11.6 NOTICES. Other than the notices required in Sections 11.5 and 11.6, any notice required or permitted by this Agreement shall be sent (a) if by CPI, via electronic mail to the address indicated by Subscriber in Subscriber’s ChargePoint Services account; or (b) if by Subscriber, via electronic mail to mssa@chargepoint.com. 11.7 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the ChargePoint Services may be irreparable; therefore, CPI is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies. 11.8 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. 11.9 ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of CPI (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, CPI shall be entitled, at its sole discretion, to terminate this Agreement upon written notice given to Subscriber. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. CPI may assign its rights and obligations under this Agreement. 11.10 NO AGENCY OR PARTNERSHIP. CPI, in the performance of this Agreement, is an independent contractor. In performing its obligations under this Agreement, CPI shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by CPI and Subscriber to be created by this Agreement. Neither Party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever. 11.11 ENTIRE AGREEMENT. This Agreement (including the attached Exhibits) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, Packet Pg. 248 Item 13 Page 13 of 18 Revised 12.21.16 representations and writings. All purchase orders issued by Subscriber shall state that such purchase orders are subject to all of the terms and conditions of this Agreement, and contain no other term other than the type of Service Plan, the number of Charging Stations for which such Service Plan is ordered, the term of such Service Plans and applicable Subscription Fees. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation shall be incorporated into or form any part of this Agreement, and all such purported terms and conditions shall be null and void. 11.12 COPYRIGHT POLICIES. It is CPI's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. 11.13 THIRD PARTY RESOURCES. The ChargePoint Services may include hyperlinks to other websites or resources. CPI has no control over any web sites or resources that are provided by companies or persons other than CPI. Subscriber acknowledges and agrees that CPI is not responsible for the availability of any such web sites or resources, CPI does not endorse any advertising, products or other materials on or available from such web sites or resources, and CPI is not liable for any loss or damage that may be incurred by Subscriber as a result of any reliance placed by Subscriber on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources. 11.14 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document. 11.15 ENGLISH LANGUAGE AGREEMENT GOVERNS. Where CPI has provided Subscriber with a translation of the English language version of this Agreement, Subscriber agrees that the translation is provided for Subscriber’s convenience only and that the English language version of this Agreement governs Subscriber’s relationship with CPI. If there is any conflict between the English language version of this Agreement and such translation, the English language version will prevail. Subscriber: ChargePoint, Inc. Name: ___________________________________ Name: Jonathan Kaplan Title: _____________________________________ Title: General Counsel Date: ____________________________________ Date:____________________________________ Address: __________________________________ Address: 254 E. Hacienda Ave _________________________________________ Campbell, CA 95008 EXHIBIT 1 Packet Pg. 249 Item 13 Page 14 of 18 Revised 12.21.16 FLEX BILLING TERMS This Exhibit sets forth certain additional terms and conditions (“Flex Billing Terms”) pursuant to which Subscriber may charge Users fees for the use of Subscriber’s Charging Stations. In order to charge such fees, Subscriber must subscribe to a Service Plan that includes CPI’s management, collection and/or processing services related to such fees (“Flex Billing”). 1.DEFINITIONS. The following additional defined terms shall apply to these Flex Billing Terms: 1.1 “CPI Fees” means a fee, currently equal to ten percent (10%) of Session Fees, charged for a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing of Session Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior written notice (which may include, without limitation, notice provided by CPI through its regular newsletter to Subscriber) of any increase in CPI Fees. 1.2 “Net Session Fees” means the total amount of Session Fees collected on behalf of the Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected by CPI from Users in connection with the use of Charging Stations. Except as required by law, Subscriber shall be responsible for the payment of all Taxes incurred in connection with use of Subscriber’s Charging Stations. 1.3 “Session” or “Charging Session” means the period of time during which a User uses Subscriber’s Charging Station to charge his or her electric vehicle for a continuous period of time not less than two (2) minutes commencing when a User has accessed such Charging Station and ending when such User has terminated such access. 1.4 “Session Fees” means the fees set by the Subscriber for a Charging Session, inclusive of any applicable Taxes. 2.FLEX-BILLING SERVICE FOR CHARGING STATIONS. 2.1. SESSION FEES. Subscriber shall have sole authority to determine and set in real -time Session Fees. Subscriber shall be solely responsible for determining and charging Session Fees in compliance with all applicable laws and regul ations (including without limitation any restriction on Subscriber’s use of per-kWh pricing). Subscriber acknowledges that CPI is not responsible for informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber or any third party for any alleged or actual failure of Subscriber to comply with such applicable laws and regulations. 2.2 DEDUCTIONS FROM SESSION FEES. In exchange for CPI collecting Session Fees on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from all Session Fees collected: (i) CPI Fees and (ii) to the extent required by Section 3, applicable Taxes. 2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI shall remit Net Session Fees to Subscriber not more than thirty (30) days after the end of each calendar month as directed by Subscriber from time to time through the applicable ChargePoint Services . Notwithstanding the foregoing, no such payment will be required if at the end of any calendar month the amount due to Subscriber hereunder is less than fifty U.S. Dollars ($50), except in connection with the expiration or termination of this Agreement. In no event shall CPI remit amounts due to Subscriber, regardless of the amount then due, later than thirty (30) days following the end of each calendar quarter. 3.TAXES. Subscriber is responsible for the payment of all Taxes incurred in connection with Session Fees; provided that CPI is solely responsible for all Taxes assessable based on CPI’s income, property and Packet Pg. 250 Item 13 Page 15 of 18 Revised 12.21.16 employees. Where CPI is required by law to collect and/or remit the Taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless Subscriber has otherwise provided CPI with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority. Packet Pg. 251 Item 13 Page 16 of 18 Revised 12.21.16 EXHIBIT 2 API TERMS This Exhibit sets forth certain additional terms and conditions (“API Terms”) governing Subscriber’s use of the APIs in connection with Subscriber’s use of the ChargePoint Services. The API Terms are part of the Agreement, and all such use of the APIs remains subject to the Agreement terms. 1.ADDITIONAL DEFINITIONS. The following additional definitions shall apply to the API Terms. 1.1 "API Implementation" means a Subscriber software application or website that uses any of the APIs to obtain and display Content in conjunction with Subscriber Content and Services. 1.2 “API Documentation” means all Documentation containing instructions, restrictions or guidelines regarding the APIs or the use thereof, as amended and/or supplemented by CPI from time to time. 1.3 “CPI Site Terms” means the Terms and Conditions displayed on CPI’s website, governing use of CPI’s website and the ChargePoint Services by visitors who are not Service Plan subscribers. 2.API USE. Subscriber may use the APIs as and to the extent permitted by Subscriber’s Service Plan and the API Documentation, subject to the terms and conditions of the Agreement. 2.1 AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information through a set of function calls. The particular APIs and API function calls made available by CPI from time to time (and the Content available through such APIs and function calls) will be limited by Subscriber’s Service Plan, and Subscriber’s particular Service Plan may not include all APIs and function calls then available from CPI. 2.2 USE AND DISPLAY OF CONTENT. Subscriber is permitted to access, use and publicly display the Content with Subscriber Content and Services in Subscriber’s API Implementation, subject to the following requirements and limitations. (a) All Charging Station locations provided to Subscriber as part of the Content shall be clearly identified by Subscriber in Subscriber’s API Implementation as ChargePoint® Network Charging Stations and shall contain the Brand Identifiers required by the API Documentation. In no event shall Subscriber’s API Implementation identify or imply that any Charging Station is a part of any network of charging stations other than ChargePoint. (b)Subscriber shall keep the Content used by Subscriber’s API Implementation current with Content obtained with the APIs to within every forty eight (48) hours. (c)Content provided to Subscriber through the APIs may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of CPI’s business partners and/or other third party rights holders of Content indexed by CPI, which may not be deleted or altered in any manner. (d)Subscriber shall not: Packet Pg. 252 Item 13 Page 17 of 18 Revised 12.21.16 (i)pre-fetch, cache, or store any Content, except that Subscriber may store limited amounts of Content for the purpose of improving the performance of Subscriber’s API Implementation if Subscriber does so temporarily, securely, and in a manner that does not permit use of the Content outside of the ChargePoint Service; (ii)hide or mask from CPI the identity of Subscriber’s service utilizing the APIs, including by failing to follow the identification conventions listed in the API Documentation; or (iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. 2.3 REQUIRED INFORMATION. Subscriber must: (a) display to all viewers and users of Subscriber’s API Implementation the link to the CPI Site Terms and Conditions as presented through the ChargePoint Services or described in the Documentation; (b) explicitly state in the use terms governing Subscriber’s API Implementation that, by using Subscriber’s API Implementation, such viewers and users are agreeing to be bound by the CPI Site Terms; and (c) include in Subscriber’s API Implementation, and abide by, a privacy policy complying will all applicable laws; and (d) comply with all applicable laws designed to protect the privacy and legal rights of users of Subscriber’s API Implementation. 2.4 REPORTING. Subscriber must implement reporting mechanisms, if any, that CPI requires in the API Documentation. 3.CPI BRANDING REQUIREMENTS AND RESTRICTIONS. 3.1 MANDATORY CPI BRANDING. Subject to Section 3.2 below and the restrictions on use of CPI Marks set forth in the Agreement, Subscriber agrees that each page comprising Subscriber’s API Implementation will include a ChargePoint logo and will state that Subscriber’s application or website is provided, in part, through the ChargePoint Services. 3.2 RESTRICTIONS. Subscriber shall not: (a)display any CPI Mark as the most prominent element on any page in Subscriber’s API Implementation or Subscriber’s website (except as used in connection with the display of Charging Stations); or (b)display any CPI Mark anywhere in Subscriber’s API Implementation or on Subscriber’s website if Subscriber’s API Implementation or website contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty -one (21) years of age. Packet Pg. 253 Item 13 Page 18 of 18 Revised 12.21.16 EXHIBIT 3 TERMS REGARDING GRANTING OF RIGHTS This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and Rights Grantees regarding the granting of Rights (“Rights Terms”). The Rights Terms are part of the Agreement, and all use of the ChargePoint Services permitted pursuant to the Rights Terms remains subject to the Agreement. 1.ADDITIONAL DEFINITIONS. The following additional definitions shall apply. 1.1 “Rights Grantor” means Subscriber. 1.2 “Rights Grantee” means a any person to whom Subscriber has granted Rights. For purposes of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity assisting Subscriber with creating its account and initiating Subscriber’s access to Services. 2.TERMS. This Section governs Subscriber’s granting of Rights as a Rights Grantor. 2.1 LIMITED RIGHTS. A Rights Grantee’s right to access and use the ChargePoint Services for and on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights Grantor to such Rights Grantee. Such Rights may be limited according to the Service Plan(s) subscribed to by Subscriber. Subscriber may revoke Rights, or any portion thereof, it has granted to a Rights Grantee at will and such Rights will thereafter by terminated with respect to such Rights Grantee. In no event may Subscriber grant Rights in excess of those provided to it through the Service Plan(s) to which it has subscribed. 2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Services by a Rights Grantee exercising Rights granted by Subscriber shall be subject to the terms and conditions of the Agreement (including without limitation Subscriber’s indemnification obligation pursuant to Section 10 thereof). Subscriber shall be responsible for the actions, omissions, or performance of such Rights Grantee while exercising any such Rights, as if such action, omission or performance had been committed by Subscriber directly. 2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Services merely enable a Rights Grantor to extend Rights to Rights Grantees. The mere extension of such Rights by a Rights Grantor to a Rights Grantee does not constitute an agreement between Rights Grantor and the Rights Grantee with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. CPI does not, either through the terms of the Agreement or the provision of ChargePoint Services undertake to provide any such agreement. It is the responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement on terms mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an agreement. Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of such agreement. Packet Pg. 254 Item 13