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Red E Charge, LLC
General Terms and Conditions
Purchase of Products and / or Services
1. Agreement.
These General Terms and Conditions (“Terms”) govern
Company’s purchase of electric vehicle (EV) charging
stations and related services from Red E.
All requests for the purchase of products and services or
modifications of products and services purchased from Red
E are subject to acceptance or rejection by Red E in its sole
discretion.
When Red E issues an Invoice to Company and Company
accepts the Invoice, these Terms, and Exhibits A, B, and C
to these Terms are incorporated by reference and together
constitute the full and final agreement between Red E and
Company (“Agreement”).
Any additional printed terms and / or conditions in
Company’s purchase order or other documents conflicting
with or adding to these terms, shall be of no force and
effect, unless an authorized representative of Red E agrees
in writing to accept such additional terms and /or
conditions.
Company accepts an Invoice when it: 1) signs the Invoice
(physically or electronically); 2) indicates in writing that it
accepts the invoice including by email; 3) makes any
payment on the Invoice, including a deposit; or 4) creates
an account on the Red E Customer Portal.
This Agreement may not be modified by course of dealing,
course of performance or usage of trade. This Agreement
supersedes all previous written or oral quotations,
statements, or agreements.
2. License.
When the Invoice provides for installation or servicing of
Red E products and / or services, Company grants a non-
exclusive irrevocable license to Red E to install and service
the EV Charging Stations at the Site, for the Term and any
Renewal Term.
3. Initial Inspection Period.
Notwithstanding anything to the contrary contained in this
Agreement, if the Invoice provides for the installation of
EV Charging Stations or other Equipment, Red E shall
have a period of up to thirty (30) days from when Red E
receives Utility Sign Off, to determine that the Site is
satisfactory for the installation of EV Charging Stations at
the price on the Invoice.
If Red E determines in its sole and exclusive discretion,
that the Site is not satisfactory for the installation of EV
Charging Stations it must give written notice to the
Company within seven (7) days that the Site is not suitable
for installation of EV Charging Systems, at which point
any services for the installation of EV Charging Systems
shall be stricken from Invoice and payment made by the
Company for the installation of EV Charging Systems or
Equipment will be refunded to Company.
4. Application for Grants and / or Rebates.
If requested by Company Red E may, but is not obligated
to, provide guidance or assistance in the preparation and
submission of applications for grants and rebates related to
the installation and use of EV Charging Stations, at no
charge to the Company.
5. Delivery / Shipping.
Shipping Costs. The cost of shipping is indicated on the
Invoice.
Shipping Terms. All shipping, unless otherwise indicated
on the Invoice shall be F.O.B. Red E’s point of shipment,
freight prepaid. Delivery by Red E to the point of shipment
(i.e., the location of Red E's warehouse) constitutes
delivery to the Company, and title and all risk of loss or
damage in transit shall pass to the Company at the time of
delivery at the F.O.B. point. Red E is not responsible for
breakage after having received “in good order” receipts
from the carrier. Company is responsible for pursuing any
damage claims with the carrier. No allowance will be made
in lieu of transportation if the Company accepts shipment
at factory, warehouse or freight station or otherwise
supplies its own transportation. Freight prepaid is defined
as: A) Shipments to destinations within the continental
United States to the accessible common carrier point
nearest the first destination. B) Shipments to U.S.
destinations outside the continental United States shall be
to the common carrier free delivery point in the United
States nearest the original port of embarkation. All charges
associated with F.A.S., C.I.F., or other charges such as pier
transfer, lift, ocean freight, and marine or war insurance
shall be paid by the Company, unless otherwise specified
in the Invoice. In no event will Red E be responsible for
demurrage or detention charges. All shipping dates are
approximate and are based upon prompt receipt of all
necessary information and required payments from
Company.
Transfer of Title. Delivery of the Equipment to Company
shall be completed upon delivery of the Equipment to
Company’s freight forwarder. Red E shall use
commercially reasonable efforts to deliver the Equipment
ordered by Company on or before the scheduled delivery
date. Unless otherwise agreed in the Invoice, all Equipment
ordered by Company shall be packed for shipment and
storage in accordance with Red E’s standard commercial
practices. It is Company’s obligation to notify Red E of
any special packaging requirements (which shall be at
Company’s expense). All claims for non-conforming
shipments must be made in writing by Company to Red E
within twenty (20) days of Company’s receipt of the
Equipment. Any claims made after such period shall be
deemed waived and released.
Substitutions. Red E shall have the right to make
substitutions and modifications to the Equipment and the
specifications of the Equipment to be delivered under the
terms of any applicable Invoice, provided that such
substitutions or modifications will not significantly alter
the performance, functionality, or safety of the Equipment.
Red E assumes no liability for deviation from published
dimensions and descriptive information not essential to
proper performance of the product.
6. Installation and Site Preparation.
If the Invoice provides for the installation of EV Charging
Stations, Red E will plan, prepare, and install the Charging
Stations at the Site. In some cases, Red E may need to
prepare the Site, this includes but is not limited to,
electrical service upgrades, installing conduit runs, running
wiring, installing cell repeaters, ensuring cellular coverage
and other Site work necessary to prepare the Site. Any
costs associated with preparing the Site are covered in the
Invoice. Red E may elect to use third parties for these
services at its sole and exclusive discretion. Red E cannot
guarantee a specific date when the EV Charging Stations
will be installed. However, in most cases Red E will install
the EV Charging Stations within 6 months of the
completion of any necessary Site preparations.
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7. Warranty, Extended Warranty, and Limitation of
Liability.
OEM Warranty. The EV Charging Stations are covered by
the terms of original manufacture warranty that comes with
the EV Charging Stations (“OEM Warranty”). RED E
DOES NOT PROVIDE ANY ADDITIONAL
WARRANTY OUTSIDE THE OEM WARRANTY. A
copy of the OEM Warranty can be obtained by reaching
out to an authorized Red E representative.
Disclaimer of Warranties. EXCEPT FOR THE OEM
WARRANTY PROVIDED WITH THE EV CHARGING
STATIONS, RED E MAKES NO WARRANTIES,
EITHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT TO THE
PERFORMANCE OF THE EV CHARGING STATIONS,
OR ANY PRODUCTS AND OR SERVICES PROVIDED
UNDER THE INVOICE. RED E EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF NON-INFRINGEMENT OF THIRD-
PARTY RIGHTS, MERCHANTABILITY, AND
FITNESS FOR A PARTICULAR PURPOSE. RED E
DOES NOT WARRANT THAT THE OPERATION OF
THE EV CHARGING STATIONS WILL BE
UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, EXCEPT FOR A PARTY’S
INDEMNIFICATION OBLIGATIONS HEREUNDER, IN
NO EVENT SHALL RED E BE LIABLE TO COMPANY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES
ARISING OUT OF THESE TERMS OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER,
WHETHER FOR BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHERWISE, AND
WHETHER OR NOT SUCH PARTY OR ITS AGENTS
HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
COMPANY’S SOLE REMEDY FOR ANY BREACH BY
RED E OF ITS OBLIGATIONS OR WARRANTIES
UNDER THESE TERMS SHALL BE LIMITED TO, AT
RED E’S OPTION, EITHER THE REPAIR OR
REPLACEMENT OF THE EV CHARGING STATIONS
THAT DO NOT CONFORM TO THE SPECIFICATIONS
SET OUT IN THE INVOICE, OR A REFUND BY RED E
OF ALL OR A PART OF THE PURCHASE PRICE OF
THE NON-CONFORMING EV CHARGING STATIONS.
Warranty Exclusions. The OEM Warranty set forth in this
Agreement is subject to certain exclusions as more fully set
forth in the OEM Warranty. COMPANY HAS BEEN
INFORMED AND UNDERSTANDS THAT, IN THE
EVENT ANY SUCH EXCLUSION BECOMES
APPLICABLE, ALL REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT
SHALL IMMEDIATELY BECOME NULL AND VOID.
Exclusive Remedies. THE REMEDIES PROVIDED IN
SECTION 7 ARE COMPANY’S SOLE AND
EXCLUSIVE REMEDIES, AND THEY REPLACE ANY
OTHER RIGHTS OR REMEDIES THAT COMPANY
MAY HAVE AGAINST RED E WITH RESPECT TO
THE NON-CONFORMANCE OF THE EV CHARGING
STATIONS OR OTHER PRODUCTS AND/OR
SERVICES PROVIDED BY RED E UNDER THE
INVOICE.
8. Extended Warranty – Labor Only.
The service covered by this Section 8 is only applicable
if the Operation & Maintenance Plan is purchased on
the Invoice.
If Company has purchased the Operation & Maintenance
Plan as reflected by the Invoice, the Operation &
Maintenance Terms and Conditions attached as Exhibit B
shall apply.
9. Subscription to Red E – Enterprise Software.
All EV Charging Stations sold by Red E are designed to
work on and require a subscription to Red E’s cloud-based
application services (“Red E – Enterprise Software”),
which provides features such as remote monitoring and
control, usage reporting, and customer support.
If the Invoice provides for the purchase of EV Charging
Stations or the purchase of Red E – Enterprise Software,
Company agrees to be bound by the Red E – Enterprise
Software terms and conditions in addition to these Terms.
The Red E – Enterprise Software Terms and Conditions are
attached as Exhibit C.
10. Payment of Invoices.
Payment. Unless otherwise indicated on the Invoice, all
payments will be due and payable to Red E in cash on the
Effective Date.
Finance Charges. Unless otherwise indicated on the
Invoice, Company agrees to pay finance charges on the
unpaid balance of all amounts, less any applicable
payments and credits, from the Effective Date at a rate of
three percent (3%) per month, or the highest applicable and
lawful rate on such unpaid balance, whichever is lower.
Remedies for Non-Payment. Upon Company failing to
cure any default of the payment terms in this Section 10 of
Terms for seven (7) days after receipt of written notice by
Red E of such breach, Red E may, in addition to any other
rights or remedies it may have at law, under these Terms,
or otherwise: 1) declare the entire balance of Company’s
account immediately due and payable; 2) foreclose any
security interest in any such goods delivered; 3) deduct
outstanding amounts from any charging fees the Company
may be entitled to due to use of the Red E - Enterprise
Software; 4) refuse to deliver any of the products or
services provided for in the Invoice; 5) terminate the
Invoice; and / or 6) Disable the EV Charging Stations or
Red E - Enterprise Software.
In the event of any dispute, Red E shall be entitled to
recover all reasonable costs and expenses, including but
not limited to any costs of collection incurred by Red E, in
connection with the enforcement of these Terms including
all reasonable attorneys’ fees.
Set-off. Company shall not be entitled to any reduction by
set-off or otherwise without the express written consent of
Red E’s Chief Financial Officer, except if such set-off is as
a result of a right to a refund under these Terms.
Taxes, Duties, and Shipping Fees. Unless otherwise
indicated on the Invoice all taxes, duties, and shipping fees
of any sort shall be the sole cost and responsibility of the
Company.
11. Security Interest.
Red E shall retain a purchase money security interest in the
EV Charging Stations and other products delivered to
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Company under the Invoice until entire purchase price is
paid to Red E by Company. Company hereby grants to Red
E a security interest in all of the right, title and interest of
Company in and to the EV Charging Stations and other
products delivered by Red E under the Invoice. The
security interest granted herein shall secure the payment of
all amounts due and owing under this Agreement.
Company hereby authorizes Red E to file all financing
statements and other documents deemed necessary by Red
E to perfect the security interest granted herein.
Company hereby waives any rights Company may have to
require Red E to proceed against any person or property,
and hereby waives any rights Company may have to
require Red E to proceed in any particular order against
any person or property.
Company hereby agrees that Red E may accelerate the
maturity of the obligations secured by this security interest
upon the occurrence of default of these Terms.
Upon payment in full for the products and / or services
delivered under Invoice, Red E shall promptly file a
termination statement or other documented needed to
discharge any applicable security interest of Red E.
12. Termination.
Red E and Company agree that the products and / or
services provided for on the Invoice may be terminated in
the following manner:
a. At the expiration of the Term;
b. Pursuant to Section three (3) of these Terms;
c. Pursuant to Section ten (10) of these Terms; and
d. Upon the default of Company under the
Agreement.
Any termination of the Agreement shall be
accompanied by notice of the same in accordance
with the notice requirements of these Terms.
13. Effect of Termination
Upon the termination of this Agreement:
Red E shall have the right, at its option, to enter
the Site and to remove any of the EV Charging
Stations or other equipment installed by and
owned by Red E;
All amounts owing to Red E shall become
immediately due and payable upon termination;
Company shall be liable for any and all costs
and expenses incurred by Red E in connection
with the removal of the EV Charging Stations,
other equipment installed by Red E, and any
and all EV rebates Red E must return;
Company shall cease its use of any intellectual
property or licenses granted by Red E to
Company; and
Company will return any materials that Red E
provided to Company during the Term of this
Agreement.
Termination of this Agreement by either Red E or
Company for any reason shall not relieve the parties of any
obligations accrued under this Agreement.
Nothing in this Section 13 shall serve to limit any rights
and remedies Red E would have against Company for
termination of this Agreement.
14. Intellectual Property.
Company shall not: (i) create derivative works based on the
products and / or services provided by Red E or its supplier
of such products and / or services; (ii) copy, frame or
mirror any part or content of the products and / or services
provided by Red E or its supplier of such products and / or
services; (iii) reverse engineer any products and / or
services provided by Red E or its supplier of such products
and / or services; or (iv) access the products and / or
services provided by Red E for any improper purpose
whatsoever, including, without limitation, in order to (A)
build a competitive product or service or (B) copy any
features, functions, interface, graphics or “look and feel” of
the products and / or services provided by Red E or its
supplier of such products and / or services.
All right, title and interest in and to any intellectual
property related in any way to the Equipment is, and shall
remain, the exclusive property of Red E. The term
“intellectual property” shall mean, for purposes of these
Terms, all of a party’s patents, patent applications, patent
rights, copyrights, moral rights, algorithms, devices,
application programming interfaces, databases, data
collections, diagrams, inventions, methods and processes
(whether or not patentable), know-how, trade secrets,
trademarks, service marks and other brand identifiers,
network configurations and architectures, proprietary
information, protocols, schematics, specifications, software
(in any form, including source code and executable code),
techniques, interfaces, URLs, web sites, works of
authorship, and all other forms of technology, in each case
whether or not registered with a governmental entity or
embodied in any tangible form and all rights and forms of
protection of a nature similar to any of the foregoing or
having equivalent effect anywhere in the world in any way
arising prior to or during the term of these Terms.
Any software or computer information, in whatever form
such information is provided with the products and / or
services purchased from Red E is licensed to Company
solely pursuant to Red E – Enterprise Software Terms and
Conditions or its supplier of such software or computer
information which licenses are hereby incorporated by
reference. Red E does not warrant that such software or
computer information will operate error-free or without
interruption, and warrants only that during the warranty
period applicable to the EV Charging Stations, the software
will perform its essential functions. If such software or
computer information fails to conform to such warranty,
Red E will, at its option, provide an update to correct such
non-conformance or replace the software or computer
information with the latest available version containing a
correction. Red E shall have no other obligation to provide
updates or revisions.
15. Confidentiality.
Company acknowledges that Confidential Information of
Red E, including trade secrets and valuable business
information, is to be kept confidential for two (2) years
following termination. Company agrees to exercise due
diligence to protect the integrity of Red E's Confidential
Information and to not analyze, modify, or reverse
engineer it. Company further agrees to Red E's restrictions
due to their legitimate business interests. Company
consents to Red E's use of its name in marketing materials.
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16. Carbon Credits.
Unless otherwise indicated on the Invoice, Red E shall
have exclusive rights as it relates to any Carbon Tax
Credits and any other credits that result from the use or
existence of the EV Charging Stations.
17. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without
regard to its conflict of laws principles. Any disputes,
actions, claims, or causes of action arising out of or in
connection with this Agreement shall be exclusively
subject to the jurisdiction of the state and federal courts
located within the State of Michigan. The parties hereby
submit to the personal jurisdiction and venue of such courts
for the purpose of resolving any such disputes.
18. Injunctive Relief.
In the event of a breach or threatened breach by the
Company of any provision of this Agreement, Red E shall
be entitled, in addition to any other rights and remedies
available to it at law or in equity, to seek injunctive relief
or specific performance to enforce the provisions of this
Agreement without the need to post a bond or other
security. The pursuit of injunctive relief by Red E shall not
limit or prejudice any other rights or remedies available to
Red E under this Agreement or at law.
19. Amendment.
This Agreement may only be amended or modified by a
written agreement signed by both Red E and Company. No
oral or implied amendment or modification shall be
binding on either party.
20. Miscellaneous Provisions.
Severability. In the event that any provision of this
Agreement is determined to be unenforceable or invalid
under applicable law or by a court of competent
jurisdiction, such provision shall be modified or limited to
the extent necessary to render it enforceable and valid. If
such modification or limitation is not possible, the
unenforceable or invalid provision shall be severed from
this Agreement, and the remaining provisions shall remain
in full force and effect. The parties shall make good faith
efforts to replace the unenforceable or invalid provision
with a valid and enforceable provision that achieves, to the
extent possible, the original intent and economic effect of
the severed provision.
Attorneys’ Fees. In the event that any action at law or in
equity is necessary to enforce the terms of this Agreement,
the prevailing party shall be entitled to recover its
reasonable attorneys' fees, costs, and expenses incurred in
connection with such action, in addition to any other relief
to which the prevailing party is entitled.
Force Majeure. Neither party shall be liable for any failure
or delay in the performance of its obligations under this
Agreement if such failure or delay is caused by acts of
God, fire, flood, war, terrorism, government action, or any
other event beyond the reasonable control of the party
("Force Majeure Event"). The party affected by the Force
Majeure Event shall promptly notify the other party in
writing of the Force Majeure Event and its expected
duration. During the continuance of the Force Majeure
Event, the affected party's obligations under this
Agreement shall be suspended to the extent and for the
duration of such Force Majeure Event. The affected party
shall use reasonable efforts to mitigate the effects of the
Force Majeure Event and to resume performance under this
Agreement as soon as reasonably practicable.
Headings. The headings used in this Agreement are for
convenience only and shall not be deemed to limit,
interpret, or affect the provisions of this Agreement.
Waiver. The failure of either party to enforce any provision
of this Agreement shall not be deemed a waiver of future
enforcement of that or any other provision. No waiver of
any provision of this Agreement shall be effective unless it
is in writing and signed by the waiving party.
Counterparts and Electronic Signatures. This Agreement
may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This
Agreement may be executed and delivered by facsimile,
email, or other electronic means, and such facsimile, email,
or electronic signature shall be deemed an original for all
purposes.
Further Assurances. Each party agrees to promptly execute
and deliver, or cause to be executed and delivered, any
further documents, instruments, or agreements and to take
any further actions that may be necessary or desirable to
give full effect to this Agreement and to carry out its
provisions. Each party shall cooperate fully with the other
party and provide any reasonable assistance that may be
required to complete any such further documents,
instruments, or agreements or to take any such further
actions.
Voluntary and Informed Execution. The parties hereby
acknowledge that they have read and understood the terms
and conditions of this Agreement, and that they have
voluntarily and knowingly executed this Agreement
without any duress, coercion, or undue influence. Each
party further acknowledges that they have had the
opportunity to seek independent legal advice regarding the
terms and implications of this Agreement, and that they
have executed this Agreement with full knowledge and
understanding of its contents.
Notices. Any notice, request, demand, or other
communication required or permitted to be given by either
party under this Agreement shall be in writing and shall be
deemed to have been effectively given or served when
delivered personally, sent by registered mail, or by email
with confirmation of receipt to the respective addresses of
the parties as set forth below:
To Red E:
As indicated on the Invoice.
To Company:
At the Site.
Either party may change its address for notice by providing
written notice to the other party in accordance with this
section.
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Exhibit A: Definitions
1. "Company" refers to the entity(s) and / or individual(s) identified under the “BILL TO” section on the Invoices.
2. "Red E" refers to Red E Charging LLC, a Michigan limited liability company.
3. “Invoice” refers to invoices issued by Red E to Company for products and / or services.
4. “Red E Customer Portal” refers to the platform that Company will use in setting up its use of the Red E – Enterprise Software Terms and Conditions.
5. "EV Charging Stations" refers to the electric vehicle charging stations sold by Red E to Company pursuant to the Invoice.
6. “Equipment” refers to the EV Charging Stations and / or any other physical products purchased from Red E by Company pursuant to the Invoice.
7. “Term” refers to 5 years from the Effective Date, unless otherwise indicated on the Invoice.
8. “Renewal Term” refers to any subsequent terms that may be agreed upon by Red E and Company.
9. "Site" refers to the Company’s physical address identified on the Invoice under the “BILL TO” section, where the EV Charging Stations and / or
Equipment will be installed or serviced.
10. "Effective Date" refers to the date the Company accepted the Invoice pursuant to Section one (1) of the Terms.
11. “Confidential Information” refers to any confidential and proprietary information of either party disclosed by Red E to Company, including without
limitation, trade secrets, valuable business or professional information, and all terms and conditions of this Agreement.
12. “Utility Sign Off” means when the applicable utility informs Red E of the required infrastructure to install the EV Chargers.
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Exhibit B – Operation & Maintenance Terms and Conditions
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Exhibit C – Red E – Enterprise Software Terms and Conditions
RED E – ENTERPRISE SOFTWARE AS A SERVICE (SAAS) TERMS AND CONDITIONS
1. Agreement and Applicability.
These Red E – Enterprise Software as a Service (SaaS) Terms and
Conditions (“SaaS Agreement”) are entered into as of the Effective
Date (as defined in the Terms), between Red E (as defined in the
Terms) (“Licensor”) and Company (as defined in the Terms)
(“Subscriber”).
For purposes of this SaaS Agreement, Subscriber and Licensor
each will be referred to individually as a "Party" and together as
"the Parties."
Any capitalized terms used in this SaaS Agreement and not defined
in this SaaS Agreement, shall have the meaning given to them in
the Terms.
This SaaS Agreement, the Invoice, and the Terms are incorporated
in this SaaS Agreement by reference.
In the event of a conflict between this SaaS Agreement, the Invoice
and the Terms, the terms of the Invoice shall take precedence,
followed by the terms of this SaaS Agreement, and finally the
Terms.
2. Definitions.
“Application” shall mean the Licensor-developed application used
by Subscriber for the Service hereunder;
“Authorized User” shall mean one (1) of Subscriber’s employees
and independent contractors working for Subscriber in the ordinary
course of Subscriber’s business who: (i) agree to be bound by the
terms of this SaaS Agreement; and (ii) are specifically authorized
by Subscriber to access the Service;
“Authorized Reseller” shall mean a third party authorized by Red
E to sell the Service which are the subject of this SaaS Agreement.
“Billing Start Date” shall mean the date identified on the Invoice
as the date from which billing shall be calculated (which under no
circumstances or if not indicated on the Invoice shall be later than
the Service Start Date, as defined below);
“Display Devices” shall mean any display device used to access
and display the Service;
“Service” shall mean Licensor’s service level subscribed to by
Subscriber when they log into the Red E Customer Portal for the
first time;
“Service Start Date” shall mean the date from which Subscriber
creates a profile on the Red E Customer Portal for the Service;
“Fees” shall mean the fees payable pursuant to Section 4 hereof;
“Office” shall mean the Site;
“Invoice” shall mean the Invoice that sets out the commercial
terms and is executed by the Parties, if Subscriber purchased the
Service from Licensor. If Subscriber purchases the Service from an
Authorized Reseller then Invoice shall mean whatever document
outlines the fees and payments for the Service;
“Term” shall mean a period of five (5) years;
“Terms” Shall mean the General Terms and Conditions that are
available upon request by emailing us at
[info@redecharge.com].
3. License to Receive the Service.
Grant. Licensor hereby grants the Subscriber a limited,
nonexclusive and non-transferable license, without right of
sublicense, during the Term to access and display on Subscriber’s
Display Devices within the United States, the Service, and to
permit Authorized Users to use the Service, subject to the terms
and conditions of this SaaS Agreement. All rights in the Service
not expressly granted hereunder are reserved to Licensor.
Scope. The license granted to Subscriber hereunder is limited to a
single, authorized Application for the display and retrieval of the
Service on an Authorized User’s desktop. The license does not
extend to multiple applications for the display or retrieval of
content within the Services. Subscriber shall have no right pursuant
to this SaaS Agreement to distribute the Service in whole or in part
over the internet, or via email or instant messaging, via an intranet,
personal digital assistant, wireless application protocol, short
message service or radio system. Nothing in this SaaS Agreement
shall obligate Licensor to continue providing access to any Service
beyond the date when Licensor ceases providing such Service to
subscribers generally.
Restrictions on Use. Subscriber shall not edit, alter, abridge or
otherwise change in any manner the content of the Service,
including, without limitation, all copyright and proprietary rights
notices. Subscriber may not, and may not permit others to: (1)
reverse engineer, decompile, decode, decrypt, disassemble, or in
any way derive source code from, the software or Service; (2)
modify, translate, adapt, alter, or create derivative works from the
Service; (3) copy (other than one back-up copy), distribute,
publicly display, transmit, sell, rent, lease, or otherwise exploit the
Service; or (4) distribute, sublicense, rent, lease, loan, or grant any
third party access to or use of the Service.
4. Fees and Payment.
In exchange for the license granted above, commencing on the
Billing Start Date, Subscriber shall pay Licensor for the Term
hereof the Fees, based on the Services and on any other
commercial terms contained in this SaaS Agreement. Subscriber
shall only be entitled to one Authorized User.
5. Access.
Delivery and Acceptance. The Service is delivered to Subscriber
via the Display Device, Licensor will make the Service available to
Subscriber as indicated on the Invoice. The Service will be deemed
accepted upon the Service Start Date. Any updates, bug fixes, or
upgrades (“Corrections”) to the Service will be deemed accepted
by Subscriber on the day such Corrections are delivered.
6. Copyright Protection;
Use Restrictions; Security. Subscriber agrees that the Service
specifications, including without limitation, the editorial coding
and metadata contained therein, are the property of Licensor or
Licensor’s licensors. The works and databases included in the
content of the Service are protected by applicable copyright
laws. Subscriber agrees that only Authorized Users shall be
permitted access to the Service. Except as set forth herein, no
clients or other persons or entities who are not legal employees of
Subscriber or independent contractors consulting for Subscriber in
the ordinary course of Subscriber’s business may be Authorized
Users. Subscriber shall not reverse engineer, decompile or
disassemble any part of the Service. Subscriber further agrees that
neither Subscriber nor any Authorized User shall store (except as
permitted under this SaaS Agreement for retrieval and display
purposes only), copy, reproduce, retransmit, disseminate,
sublicense, sell, distribute, publish, broadcast, circulate, create
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derivative works (including, without limitation, trading
algorithms), test algorithms in conjunction with, or distribute by
any means the Service in whole or in part to anyone, including, but
not limited to, other employees of Subscriber, without Licensor’s
express prior written consent; provided, however, that Authorized
Users may on an occasional basis in the normal course of business
include limited portions of the Service (a) in oral and (with proper
attribution to the respective Service) non-electronic written
communications with clients and other employees, and (b) in email
and instant messaging communications with other employees
and/or securities professionals. Without limiting the foregoing,
under no circumstances shall distribution under this Section by
Subscriber be permitted if such distribution may be viewed as a
substitute for a subscription to the Service itself. Subscriber agrees
that when using the Service in this way, the facts, content, and
intent of the Service will not be changed in form or in spirit or
otherwise in any way be prejudicial to the integrity of the Service
or Licensor. Other than as expressly set forth in this SaaS
Agreement, no license or intellectual property rights owned or
licensed by Licensor are granted to Subscriber, and all such rights
are hereby expressly reserved.
7. Disclaimer.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE
SERVICE(S), THE CONTENTS THEREIN, AND ANY
ACCOMPANYING DOCUMENTATION ARE PROVIDED ON
AN “AS IS,” “AS AVAILABLE” BASIS AND LICENSOR
DOES NOT MAKE ANY AND HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS,
GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, OR NONINFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS.
8. Indemnification.
Subscriber Infringement Indemnity. Subscriber, at its expense,
will defend, indemnify, and hold Licensor harmless from and
against any and all third-party claims for damages (whether
ordinary, direct, indirect, incidental, special, consequential, or
exemplary), judgments, liabilities, fines, penalties, losses, claims,
costs, and expenses including, without limitation, reasonable
attorney’s fees, finally awarded by a court of competent
jurisdiction, after all rights of appeal are exhausted, against
Licensor which directly relate to a claim, action, lawsuit, or
proceeding made or brought against Licensor by a third party
alleging the infringement or violation of such third party's
registered patent, trade secret, copyright, or trademark (each a
“Licensor Claim”) by way of Licensor's use of any Subscriber
content that Subscriber provides to Licensor and Licensor uses in
the provision of any Services.
Licensor Infringement Indemnity. Licensor, at its expense, will
defend, indemnify, and hold Subscriber harmless from and against
any and all third-party claims for damages (whether ordinary,
direct, indirect, incidental, special, consequential, or exemplary),
judgments, liabilities, fines, penalties, losses, claims, costs, and
expenses including, without limitation, reasonable attorney’s fees,
finally awarded by a court of competent jurisdiction, after all rights
of appeal are exhausted, against Subscriber which directly relate to
a claim, action, lawsuit, or proceeding made or brought against
Subscriber by a third party alleging the infringement or violation of
such third party's registered patent, trade secret, copyright, or
trademark (each a “Subscriber Claim”) by way of Subscriber's use
of the Service that Licensor provides to Subscriber.
Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES,
AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS,
EMPLOYEES AND LICENSORS (“THE PARTIES”) WILL
NOT BE LIABLE (JOINTLY OR SEVERALLY) TO
SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD
PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS,
LOST SAVINGS AND LOST REVENUES (COLLECTIVELY,
THE “EXCLUDED DAMAGES”), WHETHER OR NOT
CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT,
OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE
PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF
OR COULD HAVE FORESEEN ANY OF THE EXCLUDED
DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN
ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO
EVENT WILL THE LIABILITY OF THE PARTIES ARISING
OUT OF ANY CLAIM RELATED TO THIS SAAS
AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY
INFRINGEMENT OR THE SUBJECT MATTER HEREOF
EXCEED THE AGGREGATE AMOUNT PAID BY
SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS
ANY PORTION OF THIS SECTION TO BE
UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL
BE LIMITED TO THE FULLEST POSSIBLE EXTENT
PERMITTED BY APPLICABLE LAW. SUBSCRIBER WILL
INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR
FOR ANY LOSS, DAMAGE OR COST IN CONNECTION
WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT
BY ANY THIRD PARTY AGAINST LICENSOR RELATING
TO ANY BREACH OF THIS SAAS AGREEMENT BY
SUBSCRIBER.
9. Term; Early Termination.
This SaaS Agreement shall become effective when Subscriber
signs the Invoice or creates an account on the Red E Customer
Portal and, unless terminated earlier in accordance herewith, shall
continue from the Billing Start Date for the Term. This SaaS
Agreement shall automatically renew for subsequent like terms
unless either Party gives the other written notice of its intention not
to renew no later than sixty (60) days prior to the end of the then
current term. For clarity: (i) in the event Subscriber executes the
Invoice after the Billing Start Date then this SaaS Agreement will
be deemed effective from the Billing Start Date, and (ii) in the
event Subscriber receives the Service before the Invoice is
executed, then this SaaS Agreement shall be deemed effective
from the Service Start Date. Modifications in any ongoing Fees
shall be communicated to Subscriber no later than ninety (90) days
prior to their effective date, and such modified Fees shall be
deemed to replace those previously stated in the Invoice.
This SaaS Agreement may be terminated as follows: (a) if either
Party commits a material breach of any provision of this SaaS
Agreement and fails to remedy such breach within thirty (30) days
of receiving written notice thereof by the non-breaching Party
(Notice of Breach), the Party giving such notice may then deliver a
second written notice to the breaching Party terminating this SaaS
Agreement, in which event this SaaS Agreement, and the licenses
granted hereunder, will terminate on the date specified in such
second notice; or (b) if a receiver is appointed over any assets of
either Party or if either Party makes any arrangement with its
creditors or becomes subject to an administration order or goes into
liquidation or anything equivalent to the foregoing under any
jurisdiction or ceases to carry on business, the other may terminate
by giving written notice with immediate effect. If this SaaS
Agreement is terminated before the end of its then current term for
any reason other than by Subscriber under this Clause 9(a) or (b) ,
then Subscriber will pay to Licensor as liquidated damages the
amount due by Subscriber for the previous calendar month times
3
the number of months remaining in such Term (Liquidated
Damages) within 30 days after such termination. The Parties agree
that the Liquidated Damages under this clause are not intended to
be and will not be punitive in effect and that the Liquidated
Damages are a genuine pre-estimate of loss (which may be
difficult to ascertain) resulting from early termination of this SaaS
Agreement. Notwithstanding anything to the contrary contained in
this SaaS Agreement, if Subscriber receives any notice of late
payment under this SaaS Agreement in any form, written or
electronic, from Licensor including any business division (e.g.,
Licensor's Credit Department), such notice will be deemed to be a
Notice of Breach.
10. Confidentiality.
Subscriber and Licensor understand and agree that in the
performance of this SaaS Agreement each Party may have access
to private or confidential information of the other Party which
either is marked as “confidential” or the receiving Party should
reasonably know under the circumstances that such information is
confidential and/or proprietary information of the other Party. Each
of us shall hold such information in confidence and not, without
the consent of the other, disclose it to a third party or use it for any
purpose other than in performance of this SaaS Agreement. This
obligation of confidentiality shall not apply to information that is
generally available to the public through no act or omission of the
receiving Party or becomes known to the receiving Party through a
third party with no obligation of confidentiality, or is required to be
disclosed by law, court or by any government or regulatory
authority. If any confidential information is required to be
disclosed by statute, rule, regulation or order of any court of
competent jurisdiction, before any such disclosure the receiving
Party will provide notice to the disclosing Party reasonably
sufficient to allow the disclosing Party the opportunity to apply for
a protective order or other restriction regarding such disclosure. If
either Party elects to file this SaaS Agreement with the U. S.
Securities and Exchange Commission or any other securities
exchange or market, regulatory authority or other body, the filing
Party will provide the non-filing Party, no less than five (5)
business days before the expected date of the filing (the “Filing
Date”), a copy of the SaaS Agreement marked to show the sections
for which the filing Party plans to seek confidential treatment. The
filing Party agrees to expand its confidential treatment request to
include those provisions of this SaaS Agreement reasonably
indicated by the non-filing Party before the Filing Date as
provisions for which the non-filing Party requests confidential
treatment. All confidential information will remain the exclusive
property of the owner. No public announcement, press release or
communication concerning this SaaS Agreement shall be made
without the prior consent of the other Party.
11. Miscellaneous.
Notice. All notices to a Party hereunder shall be in writing, and
delivered by certified mail, return receipt requested or overnight
courier service, with confirmation by the above described mailing
methods to the address(es) set forth on the Invoice, or to a different
address which a Party may give written notice of pursuant to this
section from time to time. Notice will be deemed delivered and
received on the date it is actually received.
Amendment. This SaaS Agreement may not be amended except in
a writing executed by authorized representatives of Subscriber and
Licensor.
Assignment. This SaaS Agreement is not transferable, assignable,
delegable, or sublicensable by Subscriber in whole or in part,
without the prior written permission of Licensor. This SaaS
Agreement will be binding upon and inure to the benefit of the
Parties and their respective successors, trustees, administrators, and
assigns.
Survival. The following obligations of the Parties will survive
termination or expiration of this SaaS Agreement for any reason:
Sections 1 , 6 , 7 , 8 , and 9 , of this SaaS Agreement and any payment
obligations of Subscriber that accrue prior to such termination or
expiration.
Independent Contractor. Licensor is acting in performance of
this SaaS Agreement as an independent contractor.
Binding Effect and Third-Party Beneficiary. Except if
specifically stated in this SaaS Agreement, neither Party, nor any
of their respective employees or agents, will have the power or
authority to bind or obligate the other Party. No third party is a
beneficiary of this SaaS Agreement.
Waiver of Rights. Except where specifically stated to the
contrary, all remedies available to either Party for breach of this
SaaS Agreement under this SaaS Agreement, at law, or in equity,
are cumulative and nonexclusive. A waiver or failure of either
Party at any time to require performance by the other Party of any
provision hereof will not affect the full right to require such
performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this SaaS
Agreement, Licensor will be entitled, in addition to any other
rights available under this SaaS Agreement or at law or in equity,
to apply for immediate injunctive relief without any requirement to
post a bond or other security and Subscriber acknowledges and
agrees to not contest such application.
Severability. If any provision or portion thereof of this SaaS
Agreement or its application in a particular circumstance is held to
be invalid or unenforceable to any extent in any jurisdiction, such
provision or portion thereof will, as to such jurisdiction only, be
ineffective to the extent of such unenforceability. All other
provisions and portions of them hereunder will not be affected by
the invalidity and will be valid and enforced to the fullest extent
permitted by law.
Choice of Law and Venue. This SaaS Agreement, as well as any
and all tort claims arising from this SaaS Agreement or arising
from any of the proposals, negotiations, communications or
understandings regarding this SaaS Agreement, will be governed
by and construed in accordance with the laws of the State of
Michigan, United States, applicable to contracts made entirely
within Michigan and wholly performed in Michigan, without
regard to any conflict or choice of law principles. The sole
jurisdiction and venue for any litigation arising out of this SaaS
Agreement will be an appropriate federal or state court located in
Michigan.
Force Majeure. Any failure or delay by Licensor in the
performance of its obligations pursuant to this SaaS Agreement
will not be deemed a default or breach of the SAAS Agreement or
a ground for termination to the extent such failure or delay is due
to computer or internet or telecommunications breakdowns, denial
of service attacks, fire, flood, earthquake, elements of nature or
acts of God, pandemics, epidemics, local disease outbreaks, public
health emergencies, communicable diseases, and quarantines, acts
of war, terrorism, riots, civil unrest, rebellions or revolutions in the
United States or any nation where the obligations under this SaaS
Agreement are to be executed, strikes, supplier and third-party
failure, lockouts, or labor difficulties, or any similar cause beyond
the reasonable control of Licensor.
Entire Agreement. This SaaS Agreement contains the final and
entire agreement of the Parties and supersedes all previous and
4
contemporaneous verbal or written negotiations, understandings, or
agreements regarding the SaaS Agreement’s subject matter.
-
1. Agreement and Applicability.
These Red E – Enterprise Software as a Service (SaaS) Terms and
Conditions (“SaaS Agreement”) are entered into as of the Effective
Date (as defined in the Terms), between Red E (as defined in the
Terms) (“Licensor”) and Company (as defined in the Terms)
(“Subscriber”).
For purposes of this SaaS Agreement, Subscriber and Licensor
each will be referred to individually as a "Party" and together as
"the Parties."
Any capitalized terms used in this SaaS Agreement and not defined
in this SaaS Agreement, shall have the meaning given to them in
the Terms.
This SaaS Agreement, the Invoice, and the Terms are incorporated
in this SaaS Agreement by reference.
In the event of a conflict between this SaaS Agreement, the Invoice
and the Terms, the terms of the Invoice shall take precedence,
followed by the terms of this SaaS Agreement, and finally the
Terms.
2. Definitions.
“Application” shall mean the Licensor-developed application used
by Subscriber for the Service hereunder;
“Authorized User” shall mean one (1) of Subscriber’s employees
and independent contractors working for Subscriber in the ordinary
course of Subscriber’s business who: (i) agree to be bound by the
terms of this SaaS Agreement; and (ii) are specifically authorized
by Subscriber to access the Service;
“Authorized Reseller” shall mean a third party authorized by Red
E to sell the Service which is the subject of this SaaS Agreement.
“Billing Start Date” shall mean the date identified on the Invoice
as the date from which billing shall be calculated (which under no
circumstances or if not indicated on the Invoice shall be later than
the Service Start Date, as defined below);
“Display Devices” shall mean any display device used to access
and display the Service;
“Service” shall mean Licensor’s service level subscribed to by
Subscriber when they log into the Red E Customer Portal for the
first time;
“Service Start Date” shall mean the date from which Subscriber
creates a profile on the Red E Customer Portal for the Service;
“Fees” shall mean the fees payable pursuant to Section 4 hereof;
“Office” shall mean the Site;
“Invoice” shall mean the Invoice that sets out the commercial
terms and is executed by the Parties, if Subscriber purchased the
Service from Licensor. If Subscriber purchases the Service from an
Authorized Reseller then Invoice shall mean whatever document
outlines the fees and payments for the Service;
“Term” shall mean a period of five (5) years;
“Terms” Shall mean the General Terms and Conditions that are
available upon request by emailing us at
3. License to Receive the Service.
Grant. Licensor hereby grants the Subscriber a limited,
nonexclusive and non-transferable license, without right of
sublicense, during the Term to access and display on Subscriber’s
Display Devices within the United States, the Service, and to
permit Authorized Users to use the Service, subject to the terms
and conditions of this SaaS Agreement. All rights in the Service
not expressly granted hereunder are reserved to Licensor.
Scope. The license granted to Subscriber hereunder is limited to a
single, authorized Application for the display and retrieval of the
Service on an Authorized User’s desktop. The license does not
extend to multiple applications for the display or retrieval of
content within the Services. Subscriber shall have no right pursuant
to this SaaS Agreement to distribute the Service in whole or in part
over the internet, or via email or instant messaging, via an intranet,
personal digital assistant, wireless application protocol, short
message service or radio system. Nothing in this SaaS Agreement
shall obligate Licensor to continue providing access to any Service
beyond the date when Licensor ceases providing such Service to
subscribers generally.
Restrictions on Use. Subscriber shall not edit, alter, abridge or
otherwise change in any manner the content of the Service,
including, without limitation, all copyright and proprietary rights
notices. Subscriber may not, and may not permit others to: (1)
reverse engineer, decompile, decode, decrypt, disassemble, or in
any way derive source code from, the software or Service; (2)
modify, translate, adapt, alter, or create derivative works from the
Service; (3) copy (other than one back-up copy), distribute,
publicly display, transmit, sell, rent, lease, or otherwise exploit the
Service; or (4) distribute, sublicense, rent, lease, loan, or grant any
third party access to or use of the Service.
4. Fees and Payment.
In exchange for the license granted above, commencing on the
Billing Start Date, Subscriber shall pay Licensor for the Term
hereof the Fees, based on the Services and on any other
commercial terms contained in this SaaS Agreement. Subscriber
shall only be entitled to one Authorized User.
5. Access.
Delivery and Acceptance. The Service is delivered to Subscriber
via the Display Device, Licensor will make the Service available to
Subscriber as indicated on the Invoice. The Service will be deemed
accepted upon the Service Start Date. Any updates, bug fixes, or
upgrades (“Corrections”) to the Service will be deemed accepted
by Subscriber on the day such Corrections are delivered.
6. Copyright Protection;
Use Restrictions; Security. Subscriber agrees that the Service
specifications, including without limitation, the editorial coding
and metadata contained therein, are the property of Licensor or
Licensor’s licensors. The works and databases included in the
content of the Service are protected by applicable copyright
laws. Subscriber agrees that only Authorized Users shall be
permitted access to the Service. Except as set forth herein, no
clients or other persons or entities who are not legal employees of
Subscriber or independent contractors consulting for Subscriber in
the ordinary course of Subscriber’s business may be Authorized
Users. Subscriber shall not reverse engineer, decompile or
disassemble any part of the Service. Subscriber further agrees that
neither Subscriber nor any Authorized User shall store (except as
permitted under this SaaS Agreement for retrieval and display
purposes only), copy, reproduce, retransmit, disseminate,
sublicense, sell, distribute, publish, broadcast, circulate, create
derivative works (including, without limitation, trading
algorithms), test algorithms in conjunction with, or distribute by
any means the Service in whole or in part to anyone, including, but
not limited to, other employees of Subscriber, without Licensor’s
express prior written consent; provided, however, that Authorized
Users may on an occasional basis in the normal course of business
include limited portions of the Service (a) in oral and (with proper
attribution to the respective Service) non-electronic written
communications with clients and other employees, and (b) in email
and instant messaging communications with other employees
and/or securities professionals. Without limiting the foregoing,
under no circumstances shall distribution under this Section by
Subscriber be permitted if such distribution may be viewed as a
substitute for a subscription to the Service itself. Subscriber agrees
that when using the Service in this way, the facts, content, and
intent of the Service will not be changed in form or in spirit or
otherwise in any way be prejudicial to the integrity of the Service
or Licensor. Other than as expressly set forth in this SaaS
Agreement, no license or intellectual property rights owned or
licensed by Licensor are granted to Subscriber, and all such rights
are hereby expressly reserved.
7. Disclaimer.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE
SERVICE(S), THE CONTENTS THEREIN, AND ANY
ACCOMPANYING DOCUMENTATION ARE PROVIDED ON
AN “AS IS,” “AS AVAILABLE” BASIS AND LICENSOR
DOES NOT MAKE ANY AND HEREBY SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS,
GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, OR NONINFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS.
8. Indemnification.
Subscriber Infringement Indemnity. Subscriber, at its expense,
will defend, indemnify, and hold Licensor harmless from and
against any and all third-party claims for damages (whether
ordinary, direct, indirect, incidental, special, consequential, or
exemplary), judgments, liabilities, fines, penalties, losses, claims,
costs, and expenses including, without limitation, reasonable
attorney’s fees, finally awarded by a court of competent
jurisdiction, after all rights of appeal are exhausted, against
Licensor which directly relate to a claim, action, lawsuit, or
proceeding made or brought against Licensor by a third party
alleging the infringement or violation of such third party's
registered patent, trade secret, copyright, or trademark (each a
“Licensor Claim”) by way of Licensor's use of any Subscriber
content that Subscriber provides to Licensor and Licensor uses in
the provision of any Services.
Licensor Infringement Indemnity. Licensor, at its expense, will
defend, indemnify, and hold Subscriber harmless from and against
any and all third-party claims for damages (whether ordinary,
direct, indirect, incidental, special, consequential, or exemplary),
judgments, liabilities, fines, penalties, losses, claims, costs, and
expenses including, without limitation, reasonable attorney’s fees,
finally awarded by a court of competent jurisdiction, after all rights
of appeal are exhausted, against Subscriber which directly relate to
a claim, action, lawsuit, or proceeding made or brought against
Subscriber by a third party alleging the infringement or violation of
such third party's registered patent, trade secret, copyright, or
trademark (each a “Subscriber Claim”) by way of Subscriber's use
of the Service that Licensor provides to Subscriber.
Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES,
AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS,
EMPLOYEES AND LICENSORS (“THE PARTIES”) WILL
NOT BE LIABLE (JOINTLY OR SEVERALLY) TO
SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD
PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS,
LOST SAVINGS AND LOST REVENUES (COLLECTIVELY,
THE “EXCLUDED DAMAGES”), WHETHER OR NOT
CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT,
OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE
PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF
OR COULD HAVE FORESEEN ANY OF THE EXCLUDED
DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN
ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO
EVENT WILL THE LIABILITY OF THE PARTIES ARISING
OUT OF ANY CLAIM RELATED TO THIS SAAS
AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY
INFRINGEMENT OR THE SUBJECT MATTER HEREOF
EXCEED THE AGGREGATE AMOUNT PAID BY
SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS
ANY PORTION OF THIS SECTION TO BE
UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL
BE LIMITED TO THE FULLEST POSSIBLE EXTENT
PERMITTED BY APPLICABLE LAW. SUBSCRIBER WILL
INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR
FOR ANY LOSS, DAMAGE OR COST IN CONNECTION
WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT
BY ANY THIRD PARTY AGAINST LICENSOR RELATING
TO ANY BREACH OF THIS SAAS AGREEMENT BY
SUBSCRIBER.
9. Term; Early Termination.
This SaaS Agreement shall become effective when Subscriber
signs the Invoice or creates an account on the Red E Customer
Portal and, unless terminated earlier in accordance herewith, shall
continue from the Billing Start Date for the Term. This SaaS
Agreement shall automatically renew for subsequent like terms
unless either Party gives the other written notice of its intention not
to renew no later than sixty (60) days prior to the end of the then
current term. For clarity: (i) in the event Subscriber executes the
Invoice after the Billing Start Date then this SaaS Agreement will
be deemed effective from the Billing Start Date, and (ii) in the
event Subscriber receives the Service before the Invoice is
executed, then this SaaS Agreement shall be deemed effective
from the Service Start Date. Modifications in any ongoing Fees
shall be communicated to Subscriber no later than ninety (90) days
prior to their effective date, and such modified Fees shall be
deemed to replace those previously stated in the Invoice.
This SaaS Agreement may be terminated as follows: (a) if either
Party commits a material breach of any provision of this SaaS
Agreement and fails to remedy such breach within thirty (30) days
of receiving written notice thereof by the non-breaching Party
(Notice of Breach), the Party giving such notice may then deliver a
second written notice to the breaching Party terminating this SaaS
Agreement, in which event this SaaS Agreement, and the licenses
granted hereunder, will terminate on the date specified in such
second notice; or (b) if a receiver is appointed over any assets of
either Party or if either Party makes any arrangement with its
creditors or becomes subject to an administration order or goes into
liquidation or anything equivalent to the foregoing under any
jurisdiction or ceases to carry on business, the other may terminate
by giving written notice with immediate effect. If this SaaS
Agreement is terminated before the end of its then current term for
any reason other than by Subscriber under this Clause 9(a) or (b),
then Subscriber will pay to Licensor as liquidated damages in the
amount indicated on the Invoice as an early termination fee (“Early
Termination Fee”) or if not indicated on the invoice or purchased
from a Authorized Reseller the amount due by Subscriber for the
previous calendar month times the number of months remaining in
such Term (Liquidated Damages) within 30 days after such
termination. The Parties agree that the Liquidated Damages under
this clause are not intended to be and will not be punitive in effect
and that the Liquidated Damages are a genuine pre-estimate of loss
(which may be difficult to ascertain) resulting from early
termination of this SaaS Agreement. Notwithstanding anything to
the contrary contained in this SaaS Agreement, if Subscriber
receives any notice of late payment under this SaaS Agreement in
any form, written or electronic, from Licensor including any
business division (e.g., Licensor's Credit Department), such notice
will be deemed to be a Notice of Breach.
10. Confidentiality.
Subscriber and Licensor understand and agree that in the
performance of this SaaS Agreement each Party may have access
to private or confidential information of the other Party which
either is marked as “confidential” or the receiving Party should
reasonably know under the circumstances that such information is
confidential and/or proprietary information of the other Party. Each
of us shall hold such information in confidence and not, without
the consent of the other, disclose it to a third party or use it for any
purpose other than in performance of this SaaS Agreement. This
obligation of confidentiality shall not apply to information that is
generally available to the public through no act or omission of the
receiving Party or becomes known to the receiving Party through a
third party with no obligation of confidentiality, or is required to be
disclosed by law, court or by any government or regulatory
authority. If any confidential information is required to be
disclosed by statute, rule, regulation or order of any court of
competent jurisdiction, before any such disclosure the receiving
Party will provide notice to the disclosing Party reasonably
sufficient to allow the disclosing Party the opportunity to apply for
a protective order or other restriction regarding such disclosure. If
either Party elects to file this SaaS Agreement with the U. S.
Securities and Exchange Commission or any other securities
exchange or market, regulatory authority or other body, the filing
Party will provide the non-filing Party, no less than five (5)
business days before the expected date of the filing (the “Filing
Date”), a copy of the SaaS Agreement marked to show the sections
for which the filing Party plans to seek confidential treatment. The
filing Party agrees to expand its confidential treatment request to
include those provisions of this SaaS Agreement reasonably
indicated by the non-filing Party before the Filing Date as
provisions for which the non-filing Party requests confidential
treatment. All confidential information will remain the exclusive
property of the owner. No public announcement, press release or
communication concerning this SaaS Agreement shall be made
without the prior consent of the other Party.
11. Miscellaneous.
Notice. All notices to a Party hereunder shall be in writing, and
delivered by certified mail, return receipt requested or overnight
courier service, with confirmation by the above described mailing
methods to the address(es) set forth on the Invoice, or to a different
address which a Party may give written notice of pursuant to this
section from time to time. Notice will be deemed delivered and
received on the date it is actually received.
Amendment. This SaaS Agreement may not be amended except in
a writing executed by authorized representatives of Subscriber and
Licensor.
Assignment. This SaaS Agreement is not transferable, assignable,
delegable, or sublicensable by Subscriber in whole or in part,
without the prior written permission of Licensor. This SaaS
Agreement will be binding upon and inure to the benefit of the
Parties and their respective successors, trustees, administrators, and
assigns.
Survival. The following obligations of the Parties will survive
termination or expiration of this SaaS Agreement for any reason:
Sections 1, 6, 7, 8, and 9, of this SaaS Agreement and any payment
obligations of Subscriber that accrue prior to such termination or
expiration.
Independent Contractor. Licensor is acting in performance of
this SaaS Agreement as an independent contractor.
Binding Effect and Third-Party Beneficiary. Except if
specifically stated in this SaaS Agreement, neither Party, nor any
of their respective employees or agents, will have the power or
authority to bind or obligate the other Party. No third party is a
beneficiary of this SaaS Agreement.
Waiver of Rights. Except where specifically stated to the
contrary, all remedies available to either Party for breach of this
SaaS Agreement under this SaaS Agreement, at law, or in equity,
are cumulative and nonexclusive. A waiver or failure of either
Party at any time to require performance by the other Party of any
provision hereof will not affect the full right to require such
performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this SaaS
Agreement, Licensor will be entitled, in addition to any other
rights available under this SaaS Agreement or at law or in equity,
to apply for immediate injunctive relief without any requirement to
post a bond or other security and Subscriber acknowledges and
agrees to not contest such application.
Severability. If any provision or portion thereof of this SaaS
Agreement or its application in a particular circumstance is held to
be invalid or unenforceable to any extent in any jurisdiction, such
provision or portion thereof will, as to such jurisdiction only, be
ineffective to the extent of such unenforceability. All other
provisions and portions of them hereunder will not be affected by
the invalidity and will be valid and enforced to the fullest extent
permitted by law.
Choice of Law and Venue. This SaaS Agreement, as well as any
and all tort claims arising from this SaaS Agreement or arising
from any of the proposals, negotiations, communications or
understandings regarding this SaaS Agreement, will be governed
by and construed in accordance with the laws of the State of
Michigan, United States, applicable to contracts made entirely
within Michigan and wholly performed in Michigan, without
regard to any conflict or choice of law principles. The sole
jurisdiction and venue for any litigation arising out of this SaaS
Agreement will be an appropriate federal or state court located in
Michigan.
Force Majeure. Any failure or delay by Licensor in the
performance of its obligations pursuant to this SaaS Agreement
will not be deemed a default or breach of the SAAS Agreement or
a ground for termination to the extent such failure or delay is due
to computer or internet or telecommunications breakdowns, denial
of service attacks, fire, flood, earthquake, elements of nature or
acts of God, pandemics, epidemics, local disease outbreaks, public
health emergencies, communicable diseases, and quarantines, acts
of war, terrorism, riots, civil unrest, rebellions or revolutions in the
United States or any nation where the obligations under this SaaS
Agreement are to be executed, strikes, supplier and third-party
failure, lockouts, or labor difficulties, or any similar cause beyond
the reasonable control of Licensor.
Entire Agreement. This SaaS Agreement contains the final and
entire agreement of the Parties and supersedes all previous and
contemporaneous verbal or written negotiations, understandings, or
agreements regarding the SaaS Agreement’s subject matter.
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The information contained in these Terms (as defined below) sets forth your rights and obligations with respect to the use of Company’s (as defined below) Services (as defined below). Please read these Terms before using our Services. You may not use our Services use unless and until you: (a) agree to these terms and conditions in their entirety; (b) are at least 18 years old; (c) have the legal authority to bind yourself or your organization that your represent, if any to these Terms; and (d) are not prohibited from accessing or using our Services by any applicable law, rule, or regulation. By clicking “I Agree,” you agree to be bound by these Terms.
1. Applicability of Terms and Conditions: These terms and conditions ("Terms") shall apply to your use of our Services. A copy of these Terms is available at https://www.redecharge.com/terms-conditions (“Site”). By clicking “I Agree” or using our Services, you confirm that you have read, understood, and agree to comply with these Terms. These Terms are subject to change at any time without prior written notice by Red E Charging LLC (“Company,” “we,” “us,” or “our”). Please review these Terms in their entirety prior to using our Services. Your continued use of the Services after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes of these Terms.
2. Services Provided: The Services shall include the provision of electric vehicle (EV) charging facilities at designated EV charging stations owned, operated, or managed by Company. This includes access to and use of charging hardware, software, and any related technology or infrastructure that enables the delivery of electric power to charge EVs, as well as any support features provided through Company platforms (such as customer support, mobile applications, or account management portals). The Services are provided to enable you to charge your vehicles in compliance with these Terms and applicable laws, rules, and regulations (collectively, "Services").
3. Account and Payment: You may be required to create an account to access certain features of our Services. You are responsible for maintaining the confidentiality of your account information. Payment for Services is required at the time of use. Fees for Services are disclosed at the time of use. Company reserves the right to change pricing at any time.
You agree to pay all charges incurred, including applicable taxes and fees, using a valid payment method. By using any such card or payment provider, you are hereby representing and warranting your full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation.
4. Chargeback Policy: By using our Services and accepting these Terms, you agree not to initiate any chargeback request with your payment provider unless you have first made a good faith effort to resolve any payment dispute directly with us. If you believe you were incorrectly charged or encountered an issue with a transaction, place contact our customer support at https://www.redecharge.com/support to allow us an opportunity to investigate and resolve the matter. If you initiate a chargeback without valid reason, or if we determine after investigation that the chargeback request was unwarranted, we reserve the right to: (i) suspend or terminate your account and access to our Services; (ii) recover any charges, fees, or costs incurred as a result of the chargeback; and (iii) pursue other legal remedies to collect owed amounts.
You are responsible for any fees imposed by your payment provider or bank in connection with a chargeback, including any fees we incur due to unauthorized chargebacks.
5. Payment Processing and Settlement: Once preauthorization charges are submitted to verify the authenticity of the payment method used for our Services, the chargeback request will be settled within 24 to 48 hours. We are not responsible for any delays by your payment provider or bank in connection that may affect the timing of funds being returned to your account.
6. Representations & Warranties (“R&Ws”); Disclaimers; Limitations on Liability:
(a) User R&Ws: You represent and warrant to us as follows: (i) that you have the right to enter into any transaction to use our Services without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you will use the Services provided in these Terms exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; (iii) you will not damage, interfere with, or misuse our EV charging stations or attempt to modify or disable security features of our stations; and (iv) you will not use our stations to charge unauthorized devices or vehicles.
(b) Company’s Limited Warranty: Our Services are provided “as-is” and “as available” without any express or implied warranties.
(c) Limitation on Warranties: To the maximum extent permitted by law, we are not liable for any indirect, incidental, special, or consequential damages, including but not limited to any loss of use, data, or profits, arising from your use of the Services.
7. Sole and Exclusive Remedies/Liability Cap: SUBJECT TO APPLICABLE LAW, THE REMEDIES SET FORTH ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES, AND OUR ENTIRE OBLIGATION AND LIABILITY, FOR ANY BREACH OF OUR LIMITED WARRANTY. SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY'S OBLIGATION OR LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE YOU PAID ON THE SITE FOR ANY SERVICES. ADDITIONALLY, SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.
8. Privacy Policy and Website Terms of Use: Please review our Privacy Policy which can be found at https://www.redecharge.com/privacy-policy. The Privacy Policy governs our processing of all personal information that we may collect from any person through the use of our Services.
9. Third Party Beneficiaries: These Terms are for your sole benefit and nothing in these Terms, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
10. Force Majeure: Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, floods, lockouts, fires, pandemics, epidemics, local disease outbreaks, public health emergencies, acts of God, terrorism, and/or delivery, vendor, supplier, or other third-party delays, non-performance, or failures of any kind.
11. Assignment: Company may assign or otherwise transfer any or all of its rights or obligations, in whole or in part, to any third party in its sole discretion. You may not assign any of your rights or delegate any of your duties under these Terms.
12. Partial Invalidity: In the event that any part or portion of these Terms is deemed to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
13. Indemnification. You agree to indemnify, defend, and hold harmless Company, its affiliates, and their respective officers, directors, employees, and agents from any claims, damages, liabilities, or expenses arising from your use of our Services, your breach of these Terms, or violation of any law or the rights of any third party.
14. Termination and Suspension. We reserve the right to suspend or terminate your access to the Services for any reason, including a breach of these Terms, with or without notice.
15. Governing Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. Any disputes, actions, claims, or causes of action arising out of or in connection with these Terms shall be exclusively subject to the jurisdiction of the state and federal courts located within the State of Michigan.
16. No Waivers. Our failure to enforce any of our rights under these Terms will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law.
17. Notices. Any notice, request, demand, or other communications required or permitted to be given by either party under these Terms shall be in writing and shall be deemed to have been effectively given or served when delivered personally, sent by registered mail, or by email with confirmation of receipt to the respective addresses provided by involved parties.