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Item #06 Approval of the ChargePoint Master Services and Subscription Agreement and the ChargePoint Assure Terms and Conditions of Service for the Electric Vehicle Charging Station J ighs.k+/.Apr ocoee florida AGENDA ITEM COVER SHEET Meeting Date: September 1, 2015 Item # Reviewed By: Contact Name: Charles Smith Department Director: Charle Smith Contact Number: 407-905-3159 City Manager: Rob Subject` Approval of the ChargePoint Master Services and Subscription Agreement and the ChargePoint Assure Terms and Conditions of Service for the Electric Vehicle Charging Station (District 2 -Commissioner Wilsen) Background Summary: The Utilities Department in in the process of purchasing a dual bollard electric vehicle charging station from ChargePoint, Inc. as they have been identified as a leader in their industry; they offer the world's largest and most open electric vehicle charging network. ChargePoint, Inc. requires a subscription for their service plans through the adoption and execution of their Master Services and Subscription Agreement. Some of the benefits of the commercial service plan are: online monitoring of the station's usage, pricing maangement, payment processing, mapping of the station, and controlling the station's access. As the charging station is a fairly new product, the department also wishes to enter into an extended one (1) year parts and labor warranty agreement with ChargePoint, Inc. Issue: Should the City Commission accept and authorize the Mayor to execute ChargePoint's Master Services and Subscription Agreement and the Assure Terms and Conditions of Service? Recommendations Staff Recommends that the City Commission accept and authorize the Mayor to execute ChargePoint's Master Services and Subscription Agreement and the Assure Terms and Conditions of Service. Attachments: 1) NovaCharge Invoice (authorized ChargePoint distributor) 2) Commercial Service Plan Information 3) ChargePoint Assure Information 4) Master Services and Subscription Agreement 5) ChargePoint Assure Terms and Conditions of Service Financial Impact: The annual fee for the commercial service plan for the dual bollard charging station is $560.00. The annual fee for the warranty program is $840.00. Type of Item: (please mark with an `x') Public Hearing For Clerk's Dept Use Ordinance First Reading X Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion&Direction X Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by () N/A 2 N© • CHARGE NovaCharge Quote 172A State Street E. Oldsmar, Florida 34677 Date Quote# 8/20/2015 Q20150214 Phone:(813)333-1119 Rep Name/Address HR City of Ocoee,FL c/o Diana Turner Project Pilot Program Terms Net 45 days Item Description Qty U/M Cost Total Commercial Netwo... Commercial ChargePoint Network Service Plan:24/7/365 2 ea 280.00 560.00 Network Operation&Driver Support,Station Manager Login,Flex Billing,Reservations,Station API use (SERVICE PLAN PRICING IS PER L2 CHARGING PORT, NOT PER STATION) OPTIONAL 2 year-$500 per port=$1000 total OPTIONAL 3 year-$705 per port=$1410 total CT4000-Assure 1 ChargePoint's parts and on-site labor to repair or replace any 1 ea 840.00 840.00 manufacturing defect. Includes remote monitoring of station and proactive repair dispatch. 1 years of Chargepoint Assure OPTIONAL 2 year-$1600 OPTIONAL 3 year-$2320 Sales Tax 0.00% 0.00 Total $1,400.00 Thank you for your business. Pricing il;.c8i#&diiuticaty and Commission may be required for warranty activation,proper installation and function of the system. 2.Pricing is valid for 60 days from date of quote generation. 3.Standard invoice terms are Net 30 days unless detailed above. 4.A late fee of 1.5%will be added to past due accounts. 5.3%additional charge for credit card processing.6.Manufacturer provided standard product warranty applies to all products. 7.All prices FOB source,customer pays freight. —chargepoin+ Commercial Service Plan The best way to connect with EV drivers With ChargePoint,you're connected to the world's largest and Set pricing your way most open EV charging network with over 19,000 charging Set charging fees by time,session,kWh,or any combination locations.ChargePoint's cloud-based Commercial Service Plan thereof.You can set fees for different drivers or groups of provides you with everything you need to manage your EV drivers,or different times of the day. charging operations,including flexible management tools,rich data analysis,payment processing and 24x7x365 driver support. Automated payment services We connect stations to ChargePoint over a secure,cellular data network allowing station owners to manage all their charging ChargePoint handles all payment processing for you with a operations from a single dashboard. PCI-compliant solution known as Flex Billing.You set the price;we handle the money on your behalf and send you ChargePoint leads the market with revolutionary new ways to a check every month. make EV charging good for business,and easy and convenient for drivers.ChargePoint®service plans simplify station Connect with drivers management and administration,allowing you to build a relationship with drivers who frequent your stations in order to ChargePoint Connections creates a relationship between drivers keep them coming back. and organizations.Connections gives you control and helps you manage who can charge on your stations and how much they The Commercial Plan is perfect for organizations looking to make pay. Drivers request to connect with your organization and you EV charging part of their daily operations. decide who joins. Grant rights to other ChargePoint organizations Through Rights Granting,you can easily approve an organization to view and manage your stations,allowing you to outsource some or all of your EV charging-related operations such as -chargepuin+ The Charging Sessions report provides granular data on how k. .�#^m . frequently EV drivers are using «° charging stations and when. p tY ASP wa, ChargePoint Commercial Service Plan provisioning and troubleshooting stations. Focus on your core ChargePoint's stations to communicate timely and targeted business instead of station maintenance. messaging to drivers. 24x7X365 driver support from ChargePoint Allow reservations Every ChargePoint networked station displays a ChargePoint As a station owner,you decide whether you want to make your customer support phone number for fast,24x7x365 station-side stations reservable.With reservations,drivers can make,cancel driver support by ChargePoint experts.We take care of the EV and change reservations for charging sessions. drivers using your stations,saving you and your staff valuable time and money. Map your stations Station owners have the option of making their stations visible Get Started to all drivers or specific groups of drivers such as employees or Join the EV revolution and purchase a ChargePoint Commercial customers.Drivers with access will see the real-time availability Service Plan today.Contact us to discuss what plans and features and status of your stations and the price you've set on the meet your needs.Visit chargepoint.com for more information. ChargePoint website,mobile apps,and in the navigation systems of top-selling EVs. About ChargePoint Get detailed reports With access control,flexible pricing and advanced cloud services, To get the most value out of your charging stations,you need ChargePoint makes EV charging good for your business. to maximize station utilization by managing pricing,controlling With ground-breaking features and advanced functionality, access,and expanding infrastructure where it's needed most.To ChargePoint makes it easier than ever to monitor and track make informed decisions about how to manage your stations, charging station usage and costs,create viable pricing structures you must have access to granular data on how EV drivers are for charging services and inspire driver loyalty. using them. ChargePoint Analytics provides a wide range of automated reports showing everything from energy usage and greenhouse For More Information gases avoided,to station usage by time-of-day,peak occupancy, Visit chargepoint.com number of drivers,session duration and much more.You Follow us on Twitter @chargepointnet can access logs and reports for all stations via a single login Like us on Facebook @chargepoint and dashboard. Track and report data for taxes and compliance If you are providing EV charging for employees,you'll have the data for employee benefit reporting required by tax codes. Customization and branding With customized signage and tailored videos,you can use -chargepoin+ ChargePoint,Inc. Copyright©2015 ChargePoint,Inc.All rights reserved.CHARGEPOINT is a U.S.registered trademark/service mark,and an EU 254 East Hacienda Avenue I Campbell,CA i 95008-6617 USA registered logo mark of ChargePoint,Inc.All other products or services mentioned are the trademarks,service marks,registered +1.408.841.4500 or toll free+1.877.370.3802 trademarks or registered service marks of their respective owners.BR-ComSerP-00.April 2015.PN 73-001036-01-3. chargepoint.com —chargepoin+ ChargePoint Service Products Everything you need to make EV charging a success for your business. ChargePoint,the company that developed the largest and most open EV charging network in the world,now also provides best-in-class services to help you at all stages of implementing an EV charging solution that is right for your business.Backing up these service products is the largest and most experienced support team in the industry. ChargePoint Assure ! High quality service and support starts with high quality products, - °i l I site preparation and installation.Even though chargepoint® charging stations are the most advanced and reliable in the l #; `. world,site conditions,utilization,accidents and sometimes even equipment failures can cause unanticipated costs and efforts to resolve.For these reasons,ChargePoint has developed and offers the best warranty in the industry.Each ChargePoint station comes with 1 year of ChargePoint Assure coverage—the industry's first and most comprehensive Parts and On-Site Labor warranty at no extra cost. goit To keep your stations online and to ensure an enjoyable experience for both the driver as well as the station owner,we go beyond the typical warranty break fix features.We've included station management,station performance metrics reporting and unlimited software configuration changes at no additional cost. We back our performance with a Service Level response time commitment and a 98%annual station W uptime commitment. e even cover labor costs for items typically excluded from most warranties like vandalism,abuse and accidents. Ongoing station management service is a key part of Assure. The annual Cloud Services Subscription is required for all ChargePoint stations and gives you the station owner,access to a rich set of data and analytic tools to monitor the usage of your charging stations,identify problems,and assess how well your stations are meeting your business goals.You can easily add new stations,and design and modify your station policies,however Key benefits of ChargePoint Assure: with Assure,you may request these changes be performed on + Unlimited software configuration changes your behalf by our expert staff. + 98%annual uptime guarantee with non-performance'penalty With the station management service from ChargePoint Assure, + 1 business day response time to station failures or 1 business you can request the day-to-day management of your stations be day from Parts arrival when required performed by the ChargePoint team for hands-off management. + Monthly summary reports and detailed quarterly reports of That's a full year of no worry support. If a station fails due to your station's performance metrics a manufacturing defect we roll our service team to repair or + Proactive station monitoring and dispatch replace that product on site. + Labor coverage for station equipment issues typically not Want more years of worry free support?Purchase 1 to 4 covered by warranty such as vandalism,abuse and accidents additional years of ChargePoint Assure coverage for as little as caused by reckless drivers or snow plows 10%of list price per year. Note:A successful Site Validation is required to enable your first year ChargePoint Assure coverage.Without a successful Site Validation your stations will be covered by our standard Parts- Only exchange warranty. 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 Charge Point; (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. 7-29-15 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 "Pit' 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 Page 2 of 18 7-14-15 dlc 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 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. 2.21 "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. 2.22 "Subscription Fees" means the fees payable by Subscriber for subscribing to any ChargePoint Services. 2.23 "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. 2.24 "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. 2.25 "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 and the CPI Privacy Policy. 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 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 Page 3 of 18 7-14-15 dtc 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 sole 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: (a) sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any Content therein to any third party; (b) 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; Page 4 of 18 7-14-15 dlc (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; (I) 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. 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 Page 5 of 18 7-14-15 dlc 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. SERVICES FEES AND PAYMENT TERMS. 6.1 SERVICES FEES,LATE PAYMENTS.Subscriber shall pay all service fees and any late fees in accordance with the Florida Prompt Payment Act,Article XIV,Chapter 218, Florida Statutes. 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. 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 Page 6 of 18 7-14-15 dlc 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; (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. LIIMITATIONS OF LIABILITY. Page 7 of 18 7-14-15 dlc 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 NONINFRINGEMENT. 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 CPI BE LIABLE 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) 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 Services 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 INDEMNIFY 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 INDIRECTLY,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 Page 8 of 18 7-14-15 dic 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. (a) 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. All other Service Plans will commence on the date of activation of such Service Plans,but in no event more than one year after the date the Token(s) necessary for such activation is made available to Subscriber. 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 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 discretion suspend Subscriber's continuing access to the ChargePoint Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement, or has acted in manner that indicates that Subscriber does not intend to, or is unable to, comply with any provision of this Agreement; (8)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. 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,ec-(ii)CPI becomes the subject of a petition in bankruptcy or any other proceeding related Page 9 of 18 7-14-15 dlc to insolvency,receivership,liquidation or an assignment for the benefit of creditors,or(iii)with thirty(30) days notice if Subscriber fails to receive funding for this program in a subsequent fiscal year. 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 is a municipal corporation established under the laws of the State of Florida and does not waive its right to sovereign immunity under Florida law. To the extent not prohibited by Florida law, 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. 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 ARBITRATION. This Agreement is to be construed according to the laws of the State of Florida,excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Except with respect to any matter relating to Subscriber's violation of the intellectual property rights of CPI, any dispute arising from or relating to this Agreement shall be arbitrated in Orange County, Florida. . The Page 10 of 18 7-14-15 dlc arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the Parties agree,a mediator may be consulted prior to arbitration. All claims shall be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. With respect to any matter relating to the intellectual property rights of CPI,such claim may be litigated in a court of competent jurisdiction. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys'fees and costs.. 11.5 NOTICES. 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. 11.6 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the Charge Point 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. 11.7 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. 11.8 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. 11.9 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. 11.10 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, 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. Page 11 of 18 7-14-15 dlc 11.11 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. 11.12 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. 11.13 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. 11.14 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. [SIGNATURES ON NEXT PAGE] Page 12 of 18 7-14-15 dlc CITY OF OCOEE By: S.Scott Vandergrift, Mayor ATTEST: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE CITY OF OCOEE COMMISSION IN A MEETING HELD ON 2015 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE,FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of 20_. SHUFFIELD,LOWMAN &WILSON, P.A. By: City Attorney CHARGEPOINT, INC. By4--A IVY e:Jo .than .plan Title:General Counsel Date: Page 13 of 18 7-14-15 dlc EXHIBIT 1 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 regulations (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. Page 14 of 18 7-14-15 dlc 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 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. Page 15 of 18 7-14-15 dic EXHIBIT 2 API TERMS This Exhibit sets forth certain additional terms and conditions("AP)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: Page 16 of 18 7-14-15 dic (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. Page 17 of 18 7-14-15 dlc 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 a Subscriber that has granted Rights. 1.2 "Rights Grantee" means a Subscriber that is 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. 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 to the extent not prohibited by Florida law, 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. Subscriber is a municipal corporation established under the laws of the State of Florida and does not waive its right to sovereign immunity under Florida law. Page 18 of 18 7-14-15 dlc chargepoin+ CHARGEPOINT ASSURE TERMS AND CONDITIONS OF SERVICE Welcome to ChargePoint Assure. ChargePoint Assure is a full service maintenance and support program designed specifically for ChargePoint customers. 1. WHAT IS COVERED: With ChargePoint Assure, ChargePoint agrees to do each of the following: a. Ensure that all parts are provided and labor is performed,on-site if necessary,to correct any defect in the materials or workmanship of electric vehicle charging stations purchased from ChargePoint, Inc.,or its representatives("Charging Stations") in a prompt and professional manner. b. Provide remote, automated monitoring of your Charging Stations. c. Perform triage with respect to any Charging Station that may be defective. d. Coordinate all repairs necessary to have your Charging Station back up and running. e. Ensure that you are provided response no later than two business days from the date ChargePoint becomes aware of an issue. f. Begin onsite repairs within two business days from the delivery of any parts required to fix your Charging Station. 2. WHAT IS NOT COVERED: ChargePoint undertakes no responsibility with respect to repairing, replacing, monitoring or servicing anything other than your Charging Stations. This means, for example,that ChargePoint is not responsible for the physical mounting and electrical wiring of your Charging Stations or for the performance of any cellular or Wi-Fi repeaters or other devices installed in connection with your Charging Stations. 3. CUSTOMER RESPONSIBILITIES: In order to perform its obligations under ChargePoint Assure, ChargePoint needs your cooperation. Specifically,you agree to: a. Provide reasonable access to ChargePoint or its designee as necessary for the performance of ChargePoint's obligations. b. Permit ChargePoint to access the Charging Stations remotely by maintaining a separately purchased Cloud Services subscription necessary for remote access. c. Maintain your premises in accordance with all applicable laws, rules and regulations. d. Keep the areas in which Charging Stations are located in a clean, safe and orderly condition,to at least the same standard as you customarily use to maintain the remainder of your premises. e. Promptly notify ChargePoint of any suspected defect with a Charging Station. 4. WHO IS ELIGIBLE FOR CHARGEPOINT ASSURE?: ChargePoint Assure is only available to purchasers of Charging Stations who either: 1)use a ChargePoint Operations and Maintenance Partner("O&M Partner")to install their Charging Stations or 2)successfully complete a site validation as described below. a. ChargePoint O&M Partner Installation. For information on how to contact a ChargePoint O&M Partner, please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. b. Site Validation: If you do not use an O&M Partner to install your Charging Station,you still will be eligible for ChargePoint Assure after your installation has been validated by ChargePoint or an authorized third party. The purpose of the site validation is to ensure that your Charging Stations were installed correctly, in accordance with ChargePoint's recommended specifications and operational requirements. Site validations require the payment of ChargePoint's then current fee,charged on a"per site"basis. For these purposes, a"site"is defined as any group of Charging Stations whose circuits are terminated at the same power panel. 5. EXCLUSIONS FROM COVERAGE: ChargePoint's obligations under ChargePoint Assure shall not apply to defects or service repairs resulting from the following: a. Cosmetic damage such as scratches and dents. 70-001012-01-1 -chargepoin+ b. Normal aging. c. Abuse,vandalism,damage or other problems caused by accidents or negligence(including but not limited to physical damage from being struck by a vehicle), or use of the Charging Station in a way other than as specified in the applicable Charge Point documentation. d. Installation, alteration,modification or relocation of the Charging Station that was not approved in writing by ChargePoint, performed by an O&M Partner or validated in the manner described above. e. Use of the Charging Station with software, interfacing, parts or supplies not supplied by ChargePoint. f. Damage as a result of extreme power surge, extreme electromagnetic field or any other acts of nature. In addition ChargePoint's obligations under ChargePoint Assure shall not apply to any Charging Station that was not installed by a ChargePoint O&M Partner or a ChargePoint certified installer pursuant to the provisions of Section 4 of these Terms and Conditions. 6. CONTACT INFORMATION: If at any time turning the term of your coverage of ChargePoint Assure you believe you have a defective Charging Station,contact Customer Service at 1-877-850-4562 or suDDortachargeooint.com. 7. SERVICE TERM: If you comply with the installation requirements described in Section 4,you will receive, at no-cost, ChargePoint Assure coverage that will replace your standard ChargePoint Warranty and will last for the remainder of the standard Warranty period, if any. You may purchase extensions to your ChargePoint Assure coverage. The extension period will begin on the date your standard Exchange Warranty expires or, if applicable,the date that any extensions to ChargePoint Assure coverage that you have previously purchased expire. Please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. 8. PAYMENTS: ChargePoint will send you an invoice for any extended ChargePoint Assure coverage that you order. Payment will be made in accordance with Florida's Local Government Prompt Payment Act,Article XIV, Chapter 218, Florida Statutes. g, TRANSFERS: Your ChargePoint Assure coverage applies only to the Charging Stations and installation site for which it was purchased. If you sell or otherwise transfer your Charging Stations,your ChargePoint Assure coverage may not be transferred without ChargePoint's prior written consent. 10. REPLACEMENT PARTS AND STATIONS: Replacement parts or charging stations provided by ChargePoint under ChargePoint Assure may be remanufactured or reconditioned parts or Charging Stations or, if the exact Charging Station is no longer manufactured by ChargePoint, a Charging Station with substantially similar functionality. All replaced parts and Charging Stations,whether under warranty or not, become the property of ChargePoint. Any replacement parts or Charging Stations so furnished will be covered by ChargePoint Assure for the remainder of your ChargePoint Assure coverage or ninety(90)days from the date of delivery of such replacement parts or Charging Stations,whichever is later. 11. LIMITS ON LIABILITY: This section limits ChargePoint's liability under ChargePoint Assure. Please read it carefully. a. CHARGEPOINT IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS, LOST DATA, LOSS OF USE, OR COST OF COVER INCURRED BY YOU ARISING OUT OF OR RELATED TO YOUR PURCHASE OR USE OF, OR INABILITY TO USE,THE CHARGING STATION, UNDER ANY THEORY OF LIABILITY,WHETHER IN AN ACTION IN CONTRACT,STRICT LIABILITY, TORT(INCLUDING NEGLIGENCE)OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CHARGEPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT,THE CUMULATIVE LIABILITY OF CHARGEPOINT FOR ALL CLAIMS WHATSOEVER RELATED TO PERFORMANCE BY CHARGEPOINT OF ITS OBLIGATIONS UNDER CHARGEPOINT ASSURE WILL NOT EXCEED THE PRICE YOU PAID FOR CHARGEPOINT ASSURE.THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF CHARGEPOINT AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER IS A MUNICIPAL CORPORATION EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA AND IN NO WAY WAIVES ITS RIGHT TO SOVEREIGN IMMUNITY UNDER 70-001012-01-1 SECTION 768.28 FLORIDA STATUTES. chargepon+ b. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. 12. ARBITRATION: These ChargePoint Assure Terms and Conditions of Service are to be construed according to the laws of the State of Florida,excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Any dispute arising from or relating to these ChargePoint Assure Terms and Conditions of Service shall be arbitrated in range County, Florida. The arbitration shall be administered by JAMS,in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the parties' individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. 13. AMENDMENT OR MOFICIATION: These ChargePoint Assure Terms and Conditions of Service may not be amended or modified except pursuant to a writing executed by each of the parties. 14. 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. 15. FORCE MAJEURE: ChargePoint will not be liable for failure to perform any of its obligations hereunder due to causes beyond its reasonable control and occurring without its fault or negligence, including but not limited to fire, flood,earthquake or other natural disaster(irrespective of ChargePoint'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 ChargePoint 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. 16. 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. 17. ASSIGNMENT. You may not assign any of its rights or obligations hereunder,whether by operation of law or otherwise,without the prior written consent of ChargePoint. In the event of any purported assignment in breach of this Section 17, ChargePoint shall be entitled, at its sole discretion,to terminate these ChargePoint Assure Terms and Conditions of Service by providing written notice to you. Subject to the foregoing,this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. ChargePoint may assign its rights and obligations under this Agreement. 18. ENTIRE AGREEMENT. This Agreement 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, representations and writings. To the extent of any conflict or inconsistency between these ChargePoint Assure Terms and Conditions of Service and any purchase order,the Agreement shall prevail. 19. COUNTERPARTS. his Agreement may be executed in one or more counterparts,each of which shall be deemed an original, but all of which,to en together, shall constitute but one and the same document. 70-001012-01-1 CITY OF OCOEE By: John Grogan, Mayor ATTEST: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE CITY OF OCOEE COMMISSION IN A MEETING HELD ON , 2015 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20 . SHUFFIELD, LOWMAN&WILSON, P.A. By: City Attorney —chargepoin+ CHARGEPOINT ASSURE TERMS AND CONDITIONS OF SERVICE Welcome to ChargePoint Assure. ChargePoint Assure is a full service maintenance and support program designed specifically for ChargePoint customers. 1. WHAT IS COVERED: With ChargePoint Assure, ChargePoint agrees to do each of the following: a. Ensure that all parts are provided and labor is performed,on-site if necessary,to correct any defect in the materials or workmanship of electric vehicle charging stations purchased from ChargePoint, Inc., or its representatives("Charging Stations") in a prompt and professional manner. b. Provide remote, automated monitoring of your Charging Stations. c. Perform triage with respect to any Charging Station that may be defective. d. Coordinate all repairs necessary to have your Charging Station back up and running. e. Ensure that you are provided response no later than two business days from the date ChargePoint becomes aware of an issue. f. Begin onsite repairs within two business days from the delivery of any parts required to fix your Charging Station. 2. WHAT IS NOT COVERED: ChargePoint undertakes no responsibility with respect to repairing, replacing, monitoring or servicing anything other than your Charging Stations. This means,for example,that ChargePoint is not responsible for the physical mounting and electrical wiring of your Charging Stations or for the performance of any cellular or Wi-Fi repeaters or other devices installed in connection with your Charging Stations. 3. CUSTOMER RESPONSIBILITIES: In order to perform its obligations under ChargePoint Assure, ChargePoint needs your cooperation. Specifically,you agree to: a. Provide reasonable access to ChargePoint or its designee as necessary for the performance of ChargePoint's obligations. b. Permit ChargePoint to access the Charging Stations remotely by maintaining a separately purchased Cloud Services subscription necessary for remote access. c. Maintain your premises in accordance with all applicable laws, rules and regulations. d. Keep the areas in which Charging Stations are located in a clean,safe and orderly condition,to at least the same standard as you customarily use to maintain the remainder of your premises. e. Promptly notify ChargePoint of any suspected defect with a Charging Station. 4. WHO IS ELIGIBLE FOR CHARGEPOINT ASSURE?: ChargePoint Assure is only available to purchasers of, Charging Stations who either: 1)use a ChargePoint Operations and Maintenance Partner("O&M Partner")to install their Charging Stations or 2)successfully complete a site validation as described below. a. ChargePoint O&M Partner Installation. For information on how to contact a ChargePoint O&M Partner, please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. b. Site Validation: If you do not use an O&M Partner to install your Charging Station,you still will be eligible for ChargePoint Assure after your installation has been validated by ChargePoint or an authorized third party. The purpose of the site validation is to ensure that your Charging Stations were installed correctly, in accordance with ChargePoint's recommended specifications and operational requirements. Site validations require the payment of ChargePoint's then current fee, charged on a"per site"basis. For these purposes,a"site"is defined as any group of Charging Stations whose circuits are terminated at the same power panel. 5. EXCLUSIONS FROM COVERAGE: ChargePoint's obligations under ChargePoint Assure shall not apply to defects or service repairs resulting from the following: a. Cosmetic damage such as scratches and dents. 70-001012-01-1 chargepoin+ b. Normal aging. c. Abuse,vandalism,damage or other problems caused by accidents or negligence(including but not limited to physical damage from being struck by a vehicle), or use of the Charging Station in a way other than as specified in the applicable Charge Point documentation. d. Installation, alteration, modification or relocation of the Charging Station that was not approved in writing by ChargePoint, performed by an O&M Partner or validated in the manner described above. e. Use of the Charging Station with software, interfacing, parts or supplies not supplied by ChargePoint. f. Damage as a result of extreme power surge,extreme electromagnetic field or any other acts of nature. In addition ChargePoint's obligations under ChargePoint Assure shall not apply to any Charging Station that was not installed by a ChargePoint O&M Partner or a ChargePoint certified installer pursuant to the provisions of Section 4 of these Terms and Conditions. 6. CONTACT INFORMATION: If at any time turning the term of your coverage of ChargePoint Assure you believe you have a defective Charging Station,contact Customer Service at 1-877-850-4562 or supportCcl�.charaepoint.com. 7. SERVICE TERM: If you comply with the installation requirements described in Section 4,you will receive, at no-cost, ChargePoint Assure coverage that will replace your standard ChargePoint Warranty and will last for the remainder of the standard Warranty period, if any. You may purchase extensions to your ChargePoint Assure coverage. The extension period will begin on the date your standard Exchange Warranty expires or, if applicable,the date that any extensions to ChargePoint Assure coverage that you have previously purchased expire. Please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. 8. PAYMENTS: ChargePoint will send you an invoice for any extended ChargePoint Assure coverage that you order. Payment will be made in accordance with Florida's Local Government Prompt Payment Act, Article XIV, Chapter 218, Florida Statutes. g. TRANSFERS: Your ChargePoint Assure coverage applies only to the Charging Stations and installation site for which it was purchased. If you sell or otherwise transfer your Charging Stations,your ChargePoint Assure coverage may not be transferred without ChargePoint's prior written consent. 10. REPLACEMENT PARTS AND STATIONS: Replacement parts or charging stations provided by ChargePoint under ChargePoint Assure may be remanufactured or reconditioned parts or Charging Stations or, if the exact Charging Station is no longer manufactured by ChargePoint, a Charging Station with substantially similar functionality. All replaced parts and Charging Stations,whether under warranty or not, become the property of ChargePoint. Any replacement parts or Charging Stations so furnished will be covered by ChargePoint Assure for the remainder of your ChargePoint Assure coverage or ninety(90)days from the date of delivery of such replacement parts or Charging Stations,whichever is later. 11. LIMITS ON LIABILITY: This section limits ChargePoint's liability under ChargePoint Assure. Please read it carefully. a. CHARGEPOINT IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS, LOST DATA, LOSS OF USE, OR COST OF COVER INCURRED BY YOU ARISING OUT OF OR RELATED TO YOUR PURCHASE OR USE OF, OR INABILITY TO USE,THE CHARGING STATION, UNDER ANY THEORY OF LIABILITY,WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT(INCLUDING NEGLIGENCE)OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CHARGEPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT,THE CUMULATIVE LIABILITY OF CHARGEPOINT FOR ALL CLAIMS WHATSOEVER RELATED TO PERFORMANCE BY CHARGEPOINT OF ITS OBLIGATIONS UNDER CHARGEPOINT ASSURE WILL NOT EXCEED THE PRICE YOU PAID FOR CHARGEPOINT ASSURE.THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF CHARGEPOINT AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. CUSTOMER IS A MUNICIPAL CORPORATION EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA AND IN NO WAY WAIVES ITS RIGHT TO SOVEREIGN IMMUNITY UNDER 70-001012-01-1 SECTION 768.28 FLORIDA STATUTES. —chargepo - b. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. 12. ARBITRATION: These ChargePoint Assure Terms and Conditions of Service are to be construed according to the laws of the State of Florida,excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Any dispute arising from or relating to these ChargePoint Assure Terms and Conditions of Service shall be arbitrated in range County, Florida. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the parties' individual capacities,and not as a plaintiff or class member in any purported class or representative proceeding. 13. AMENDMENT OR MOFICIATION: These ChargePoint Assure Terms and Conditions of Service may not be amended or modified except pursuant to a writing executed by each of the parties. 14. 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. 15. FORCE MAJEURE: ChargePoint will not be liable for failure to perform any of its obligations hereunder due to causes beyond its reasonable control and occurring without its fault or negligence, including but not limited to fire, flood,earthquake or other natural disaster(irrespective of ChargePoint'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 ChargePoint 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. 16. 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. 17. ASSIGNMENT. You may not assign any of its rights or obligations hereunder,whether by operation of law or otherwise,without the prior written consent of ChargePoint. In the event of any purported assignment in breach of this Section 17, ChargePoint shall be entitled, at its sole discretion,to terminate these ChargePoint Assure Terms and Conditions of Service by providing written notice to you. Subject to the foregoing,this Agreement shall bind and inure to the benefit of the parties,their respective successors and permitted assigns. ChargePoint may assign its rights and obligations under this Agreement. 18. ENTIRE AGREEMENT. This Agreement 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, representations and writings. To the extent of any conflict or inconsistency between these ChargePoint Assure Terms and Conditions of Service and any purchase order,the Agreement shall prevail. 19. COUNTERPARTS. his Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which,to en together,shall constitute but one and the same document. 70-001012-01-1 CITY OF OCOEE By: John Grogan,Mayor ATTEST: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE CITY OF OCOEE COMMISSION IN A MEETING HELD ON , 2015 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20 . SHUFFIELD, LOWMAN& WILSON, P.A. By: City Attorney