Smart Charge CSO Agreement Terms and Conditions
Effective Date: 01/01/2021
BACKGROUND
The Customer requires the services, as described in this Agreement (hereinafter "the Services") to be provided.
The Service Provider has the necessary skills, qualifications and experience to provide the Services to the Customer.
The Service Provider agrees to provide the Services to the Customer on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
In consideration of the matters described above, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Service Provider and the Customer hereby agree as follows:
1. DEFINITIONS
“ACL” means the Australian Consumer Law which is contained in the Competition and Consumer Act 2010 (Cth)
“AER” means the Australian Electricity Regulator (https://www.aer.gov.au/).
“Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with.
"Agreement" means this Service Agreement, including its Introduction.
"Agreement Date" means as the date this Agreement was executed and signed by the last party to the related CSO Agreement.
“Charging or Charge Station” means the unit where an electric vehicle is charged. A Charging Station consists of one or more charging connectors.
“Charge Station Operator” or “CSO” is the Site Owner as identified in Figure 1 of the related CSO Agreement and legal owner of the Charging Station.
"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise.
"Customer" means as the Customer in Table 1 of this Agreement and the Charge Station Operator who is the legal owner of the Charging Station.
"Commencement Date" means the date in Appendix 2 of the related CSO Agreement.
"Confidential Information" has the meaning described in the "Confidential Information" clause of this Agreement.
“Customer Data” means all electronic data or information submitted by Customers to the Services.
“Electricity NSP Registration Exemption Guideline” means the AER Electricity NSP Registration Exemption Guideline Version 6 dated March 2018.
“Embedded Network” is an embedded electricity network and are privately owned and managed electricity networks that often supply all premises within a specific area or building. Embedded networks generally buy electricity in bulk and then on-sell it to customers inside their network.
“EV” means a Battery Electric Vehicle that derives all motive force from the battery itself, without the assistance of another engine such as a fuel cell or internal combustion engine and requires an external power source connection to charge the battery.
“EV Charging Network” is an Electric Vehicle Charging Network as described in Figure 1 the “Electric Vehicle Charging Network” clause of the related CSO Agreement.
"Fees" means all fees payable by the Customer to the Service Provider in accordance with this Agreement and as contained in Tables 2a, 2b and 2c of the related CSO Agreement.
"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law
"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Intellectual Property" includes but is not limited to processes, business systems, business know-how, trade secrets, moral rights, goodwill, registered designs, copyrights, patents, trademarks, trade dress, industrial design, trade names, non-public information or other similar rights, or rights to apply for any of these rights.
“Licencing Fee” means the chosen option of an Annual Licencing Fee or a Per kW Licence Fee as define in Tables 2a and 2b of the related CSO Agreement.
"Losses" means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever.
“Open Charge Alliance” or OCA, is a global consortium of public and private electric vehicle infrastructure leaders that have come together to promote open standards through the adoption of the Open Charge Point Protocol (OCPP) and the Open Smart Charging Protocol (OSCP). (https://www.openchargealliance.org/)
"Party" means either the Customer or the Service Provider.
"Parties" means the Customer and the Service Provider collectively.
“Private Charging stations” are charging stations that can only be used by a single authorised Electric Vehicle Driver. E.g., Home personal use, or a Tenant or Landlord who use a shared parking environment with an allocated parking space.
“Public Charging Stations” are charging stations that can be viewed and used by any Electric Vehicle drivers based on the EV charging network agreement. E.g.: Municipalities, Retailers, Restaurant, Hotels.
"Receiving Party" in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly).
“Reimbursable Fees” means the fees in Table 2c which are applicable to the related CSO Agreement and includes any other agreed fees between the parties that are incurred by the Service Provider on behalf of the Customer.
“Reporting Frequency” is identified in Table 4 of the related CSO Agreement and is the frequency in which the Service Provider provides reporting to the Customer on the use of the Charging Stations.
“Semi-Public Charging Stations” are charging stations that can be used by a limited group of Electric Vehicles drivers who are given permission or access to these EV Chargers. E.g., Companies with employees, Apartment with shared charging stations.
"Services Location" means the location of Sites as described in the "Location of Services" clause.
"Service Provider" means Smart EV Solutions Pty Ltd (ABN 74 650 654 916), trading as ‘Smart Charge’, or Affiliates.
“Service Provider Network” the collection of all Charge Station Operator EV Charging Stations that are managed by the Service Provider. Also referred to as the “Network”.
"Services" means the services to be provided by the Service Provider to the Customer, the specific description of which is as described in this Agreement.
“Site Owner” is the “Charge Station Operator” or “CSO” as identified in Figure 1 of the related CSO Agreement.
“Smart Charge™ Software” is the intellectual property of the Service Provider and is OCPP Compliant electric vehicle charging hardware management, open platform software, which allows a Site Owner to obtain revenue from onsite Electric Vehicle Charging Stations.
"Supplying Party" in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly).
"Termination Date" means the earlier of the date that this Agreement is terminated by the Customer or the Service Provider in accordance with the terms of this Agreement, or the date of expiry of the related CSO Agreement.
“Users” means Electric Vehicle drivers that use the Charging Stations.
“User Payment” means fees collected from Users, on behalf of the Customer by the Service Provider relating to the use of the Charging Stations by the User.
2. INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:
a. Words referring to one gender include every other gender.
b. Words referring to a singular number include the plural, and words referring to a plural include the singular.
c. Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa.
d. Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.
e. Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to the related CSO Agreement and the events contemplated by it.
f. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
3. ELECTRIC VEHICLE CHARGING NETWORK
The Customer acknowledges and accepts that:
a. An EV Charging Network is equipped with Smart Charging stations, connected to central control software called a Backend to manage EV Driver (User) charging requests. Smart Charging stations communicate over a wireless or fixed secure network.
b. Drivers have to use a Smartphone application, connected authorised RFID (Radio Frequency Identification) card or QR Scan to identify and generate a charging process. The Charging Station can then remotely manage the authorization request with the connected Backend.
4. COMPATIBLE EV CHARGING STATION
The Customer acknowledges and accepts that:
a. The Service Provider’s EV Charging Network supports all EV charging stations that are compatible with the OCPP SOAP, JSON protocol 1.5 & 1.6, and any future releases of the protocol.
b. The OCPP protocol has been developed by an organisation called the Open Charge Alliance who define the features of communication from a backend to a connected EV charging station.
5. TYPE OF CHARGING STATIONS
The Service Provider defines three types of set up, reporting and access to charging stations on their Network, these are Public, Private and Semi-Public, as defined above.
6. SERVICES
a. In consideration for the Customer paying the Fees in a timely manner, and subject to the provisions of this Agreement, the Service Provider hereby agrees to provide the Customer with the Services as described below:
i. Licence Subscription: Annual subscription access to the Service Providers Network. Including visibility to Users on an Application, accessible via Google Play and Apple App Stores, including registration of the common platform and connection to eRoaming partner networks.
ii. Regular Usage Reporting: A regular report, included in the Licensing Fee, on Charging Station utilisation.
iii. Support Services: Reasonable access, to 24/7 Level 1 Customer & User Support via the phone number: 1800 998 896. Our Fair Use Policy applies.
iv. Site Services (as agreed by the parties): not included in the Licencing Fee and subject to additional fees for Consultancy, Training, Repair and Annual Maintenance.
b. The Services may also include any other tasks which the Parties may agree on.
7. EMBEDDED NETWORK
The Customer acknowledges and accepts that they are responsible to follow and comply to the AER Embedded Network requirements.
8. APPOINTMENT AS AGENT
The Customer, as an Exempt Seller under AER Guidelines, irrevocably appoints the Service Provider during the term of this Agreement as their Agent to collect revenues from Users, where applicable, at an agreed rate, for Electric Vehicle Charging services from the registered Charging Stations at their Sites.
9. LOCATION OF SERVICES
The Services will only be supplied at the Services Locations set out in Appendix 1 of the related CSO Agreement, as varied from time to time.
10. TIMING OF SERVICES
a. The Service Provider will commence providing the Services on the Commencement Date, set out in Appendix 1 of the related CSO Agreement, as varied from time to time.
b. The Services will be completed as and when required.
11. TERM
a. The term of this Agreement will begin on the Commencement Date for one (1) year.
b. The Agreement shall be automatically renewed at the end of the term for another one (1) year unless one party to the Agreement provides written notice to the other party that the automatic renewal shall not apply. Such notice shall be provided at least 90 days prior the end of the Term of the Agreement.
12. PERFORMANCE OF SERVICES
a. The Services will be performed by the Service Provider, its employees, agents or subcontractors as chosen by the Service Provider in the Service Provider’s sole discretion.
b. The Service Provider is responsible for any work undertaken by the Service Provider’s subcontractors, employees or agents.
c. Any Services undertaken by the Service Provider’s subcontractors, employees or agents shall be undertaken to the standards set out in the related CSO Agreement.
d. The Service Provider is responsible for all payments to employees, agents, subcontractors or affiliates, except as agreed by the Parties in writing from time to time.
e. The Service provider is responsible for ensuring compliance with any legislation which applies to the Service Providers employees, agents, subcontractors or affiliates.
13. INSURANCE
a. The Service Provider shall maintain suitable insurance coverage for the services provided, including but not limited to:
i. Insurance policies required by law;
ii. Worker's Compensation Insurance for any of the Service Provider's workers; and
iii. Public Liability Insurance.
b. Upon the request of the Customer, the Service Provider will provide to the Customer a copy of the Insurance Policies.
14. NATURE OF RELATIONSHIP
a. Nothing in this Agreement constitutes an employment relationship between the Customer and the Service Provider or between the Customer and the Service Provider's workers (such as the employees, agents or subcontractors of the Service Provider). No relationship of employer and employee is created by the related CSO Agreement.
b. Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Customer and the Service Provider except for the contractual relationship which is provided in the related CSO Agreement.
c. The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Customer as a contractor and not as an employee, partner, joint venture partner, agent or otherwise.
15. CURRENCY
Unless otherwise specifically provided, all monetary amounts contained in the related CSO Agreement are in Australian Dollars (AUD).
16. FEES
a. In consideration of the Service Provider providing the Services in accordance with this Agreement, the Customer agrees to pay Fees to the Service Provider as specified in the related CSO Agreement.
b. Either an Annual Network Licence Fee (Option 1 – Table 2a) or per kW Fee (Option 2 – Table 2b) shall be chosen as the applicable Licence Fee for the related CSO Agreement.
c. If the Annual Network Licence Fee in Table 2a of the related CSO Agreement is the selected as the applicable Fee for this Agreement, the Service Provider shall provide to the Customer an Invoice at the beginning of each annual period for the Fees payable in advance of the next annual License subscription period.
d. If the Per kW Licence Fee in Table 2b is chosen for the related CSO Agreement, the Service Provider shall provide to the Customer an Invoice after the end of each calendar month for the Fees payable in that month.
e. For the Reimbursable Fees in Table 2c of the related CSO Agreement, the Service Provider shall provide to the Customer an Invoice after the end of each calendar month for the Fees payable in that month.
f. For any agreed Service Work performed on the Charging Stations, the Service Provider will provide an invoice at the completion of the work.
g. The Customer gives authority to the Service Provider to deduct any Fees payable from the Users Payments collected on behalf of the Customer when such fees are imminently due and payable.
h. Fees shall be payable within 14 days of the invoice date.
i. If the Fees Payable on the invoice exceed the User Payments collected on behalf of a Customer during the relevant period, the Customer shall pay the balance of the invoice within 14 days of the invoice date.
j. Unless otherwise specified, all fees specified are inclusive of GST.
17. USER PAYMENTS
a. During the Term of this Agreement, the Customer irrevocably gives the Service Provider permission to collect all revenue and User Payments from the Users, as specified in the Appendix for each Site Location and charging session.
b. Within seven (7) days of the end of each Reporting Frequency, the Service Provider shall provide the Customer with a Report identifying the usage of each charging station, the User Payments collected and the Fees payable by the Customer for the service provided.
The Service Provider shall deliver the balance of any User Payments, after deducting any Fees for
a. Invoices issued, within 14 days of providing the Report in Clause 17b above.
b. The balance of User Payments shall be paid into the Customer’s nominated Bank Account in Table 5 of the related CSO Agreement.
c. Unless otherwise specified, all User Payments, fees or charges specified are inclusive of GST.
18. MATERIALS, COSTS AND DISBURSEMENTS
a. The Service Provider is not entitled to charge, and the Customer will not be liable for, any additional costs such as costs for materials or disbursements, excluding Fees or pre-authorise expenditure which have been set out in this Agreement, unless the Customer otherwise approves and confirmed the approval in writing.
b. The Service Provider shall not be liable for any losses whatsoever, whether direct, indirect or consequential arising due to delays or non-approval of any costs for materials or disbursements for which approval from the Customer is requested.
c. In the event that a Charging Station has a fault, error or any issue that does not arise from the Smart Charge system and requires work to be done to enable the Charging Station to operate safely, or there is an incident which impacts the safe use of the Charging Station, the Service Provider is pre-authorised to commit the Customer to expenses in accordance pre-approved authorisation as outlined in Table 3 of the related CSO Agreement. The Service Provider shall issue an invoice to recover this expenditure from the Customer, including a 5% administration fees, and the Customer is required to pay this invoice within 14 days of the date of the invoice.
19. INVOICING
a. The Service Provider shall be entitled to invoice the Customer for the Annual Licence Fee of each Charging Station, prior to commencement of the term of the related CSO Agreement.
b. The Customer must make payment to the Service Provider’s nominated Bank Account in Table 5 of the related CSO Agreement within 14 days of the date of any Invoice issued by the Service Provider for services, Fees, costs or reimbursement subject to the related CSO Agreement.
20. LATE PAYMENT OF INVOICE
a. If payment is not received by the Service Provider by the due date for payment as specified on the invoice, the Service Provider expressly has a right to suspend some or all services at their discretion ,until the Invoice has been paid in full.
b. If the Customer does not make payment by the due date for the payment as specified in the Invoice, the Service Provider may require the Customer to pay in advance for any future Services or any part of the Services which have not been performed.
c. The Service Provider is entitled to charge an interest rate of ten percent (10%) per annum, compounded daily, on any outstanding payment due and may continue to do so until such time as the payment and associated interest.
21. SERVICE PROVIDER OBLIGATIONS
a. The Smart Charge Software shall be made available by the Service Provider to the Customer, subject to any unavailability caused by circumstances beyond the Service Provider’s reasonable control, including any force majeure events and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within the Service Provider’s possession or reasonable control, and denial of service attacks.
b. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation.
c. The Service Provider shall attempt to notify the Customer of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Services.
d. The Service Provider shall be entitled to change the Services during the Term provided that the Service Provider will not materially reduce the capabilities provided by the Services.
22. SUPPORT
a. The Service Provider shall provide reasonable access to First and Second Line Support to Customers and Users of the Services, directly during (Australian Eastern Standard Time) Business Hours, subject to Public Holidays for applicable in Brisbane, Queensland, and First Line Support via a third party managed 1800 998 896 Call Centre after hours.
b. The First and Second Line Support is provided on a reasonable use basis and the Service Provider may in its sole discretion cease to provide the Customer with access to this Support if it considers the use to be unreasonable or for any other reason.
c. For the purposes of this Agreement “First Line Support” means
i. fielding each initial call on a Services problem or other inquiry from a Customer or User;
ii. generating and issuing a trouble ticket containing a reference/tracking number to the Customer or User;
iii. to the extent reasonably possible, identifying the problem or performance deficiency in the Services;
iv. where such problem has not been resolved, preparation of an error notification in relation to the problem or performance deficiency;
v. managing communications and expectations with the Customer and/or User until the problem is referred to the Service Provider; and
vi. escalating the error notification to the Service Provider.
23. CUSTOMER OBLIGATIONS
The Customer:
a. certifies and warrants that they are the legal owner or Authorised Manager of the Charging Stations outlined in this Agreement and holds all rights and interest in the Charging Station and is duly authorised to enter into the related CSO Agreement;
b. in the event that they are not the legal owner or Authorised Manager of the Charging Stations indemnifies, defends and hold harmless the Service Provider and its officers, directors, agents, employees, shareholders, successors and assigns, and each of them from any and all claims, actions, and suits, against any liabilities, judgements, lawsuits, damages, costs, charges, legal fees, and other expenses of every nature and character by reason of any damage that the Service Provider may suffer as a result of the Customer not being the legal owner or Authorised Manager of the Charging Stations;
c. must maintain connected at all times, subject to network outages as notified by the electricity network provider, an electrical connection to the Charging Stations outlined in this Agreement;
d. do all things necessary to reconnect a Charging Station to the electricity supply after an outage and within a reasonable time after the outage ends;
e. pay, on time, for the Services provided by the Service Provider;
f. maintain suitable insurance coverage for the Charging Stations, including Public Liability and any other generally expected insurance cover and provide valid Certificates of Insurance Cover from the Insurer to the Service Provider at the commencement of this Agreement and at each insurance policy renewal;
g. must, at the Customer's own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Customer, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and making available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services;
h. must ensure that the Customer's employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Customer, including by making available any information, documentation, facilities, resources or personnel as reasonably required by the Service Provider, in accordance with this clause 23;
i. will, in the event that the Customer does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider;
j. must ensure, as much as reasonably possible, to maximise the availability and User utilisation for the Charging Stations, as well as notify the Service Provider in a timely manner of any issues that may prevent use;
k. notify the Service Provider in writing within 5 Business Days of any installation of new Charging Stations or movement of exiting Charging Stations, including the new address of that Charging Station;
l. promptly notify the Service Provider of any Charging Station undergoing maintenance, service, repair or replacement, including informing of any Charging Station that is non-operational and not intended to be replaced or repaired by the Customer; and
m. use best endeavours to prevent unauthorised access to any of the Service Providers Network Services, including the protection of any login credentials, loss of RFID Cards, and notify the Service Provider of any need to suspend or change any credentials promptly after becoming aware of such a need.
24. MUTUAL OBLIGATIONS
Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
25. RESTRICTIONS
The Customer shall not (and shall not authorize any third party to):
a. modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement of the foregoing restriction is prohibited by applicable law;
b. circumvent any user limits or other timing, use or functionality restrictions built into the Services;
c. remove any proprietary notices, labels, or marks from the Services (except to the extent Reseller is so permitted to for the purposes of re-branding the Services);
d. frame or mirror any content forming part of the Services; or
e. access the Services in order to
i. build a competitive product or service, or
ii. copy any ideas, features, functions or graphics of the Services.
26. RETURN OF PROPERTY
a. Upon the termination, expiration or completion of this Agreement, each Party will promptly return to the other Party any property, documentation, records or confidential information which is the property of the other Party.
b. In the event that the Customer terminates this Agreement prior to completion of the Services:
i. the Service Provider will be entitled to attend the location or locations where the Services were undertaken in order to recover any materials and/or equipment which are the property of the Service Provider; or
ii. if agreed between the Parties, the Customer may retain the Service Provider's materials and/or equipment but must compensate the Service Provider for the said materials and/or equipment in an amount as agreed between the Parties.
27. CONFIDENTIAL INFORMATION
a. The Receiving Party shall keep the Confidential Information of the Supplying Party confidential and secret, whether disclosed to or received by the Receiving Party.
b. The Receiving Party shall only use the Confidential Information of the Supplying Party for the purpose of performing the Receiving Party's obligations under this Agreement.
c. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet those obligations.
d. For the purpose of this Agreement, "Confidential Information" means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:
i. information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;
ii. information of whatever nature relating to the business activities, practices and finances of the Supplying Party;
iii. any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;
iv. any information derived from any other information which falls within this definition of Confidential Information;
v. any copy of any Confidential Information; and
vi. the fact that discussions are taking place between the Parties
but does not include information which:
vii. was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;
viii. is, or becomes, publicly available, through no fault of the Receiving Party;
ix. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
x. is provided to the Receiving Party by the Supplying Party and is marked "Non-Confidential"; or
xi. is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so, how far it is possible to prevent or restrict such enforced disclosure.
If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.
f. This clause will survive the termination, expiration or completion of the related CSO Agreement.
28. OWNERSHIP AND PROPRIETARY RIGHTS
The Service Provider and its suppliers and/or licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to the Services. The Customer agrees that only the Service Provider shall have the right to maintain, enhance or otherwise modify the Services.
29. INTELLECTUAL PROPERTY
a. In connection with the provision of the Services, the Service Provider may generate, create, write or produce Intellectual Property ("Created IP"), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required in order to provide the Services to the Customer.
b. Unless otherwise agreed between the Parties, any Intellectual Property rights in any Created IP generated by the Service Provider in connection with the provision of the Services to the Customer shall belong to the Service Provider.
c. Unless otherwise agreed between the Parties, any intellectual property rights in any Intellectual Property provided by the Customer to the Service Provider in order to assist in the provision of the Services, shall belong to the Customer.
d. This clause will survive the termination, expiration or completion of the related CSO Agreement.
30. QUALITY OF SERVICES
a. The Service Provider must perform the Services using reasonable care and skill for a Service Provider in its field.
b. The Service Provider must ensure that any end products or materials given by the Service Provider to the Customer under the terms and conditions of this Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.
c. This clause will survive the termination, expiration or completion of the related CSO Agreement.
31. LIMITATION OF LIABILITY
a. The Customer may have certain rights under the Australian Consumer Law (“ACL”), or under other similar or related consumer protection laws.
b. The ACL (or any other similar or related consumer protection laws) may give the Customer certain rights, warranties, guarantees and remedies regarding the provision of services by the Service Provider, which cannot be excluded, modified or restricted by the Service provider (“Statutory Rights”).
c. The Service Provider’s liability to the Customer may be governed by the ACL (and any other similar or related consumer protection laws) and by the related CSO Agreement.
d. To the maximum extent permitted by law, the Service Provider excludes all conditions and warranties implied by custom, law or statute, except for the Customer’s Statutory rights.
e. The Customer hereby agrees that the Customer is solely responsible for determining whether the Services are fit for the Customer's purpose.
f. Except in cases of death or personal injury caused by a Party's negligence, that Party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, liability shall be limited to Fees paid by the Customer to the Service Provider.
g. To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.
h. When the Customers Statutory Rights apply, to the maximum extent possible, the Service Provider’s liability in respect of any claim is limited to, at the Service Providers option:
i. the Supply of the Services again; or
ii. the payment of the cost of having the Services supplied again.
i. The Service Provider's failure to exercise or enforce any right or provision of the related CSO Agreement will not constitute a waiver of such right or provision.
j. This clause will survive termination, expiration or completion of the related CSO Agreement.
32. INDEMNITY
a. Except for any payment in settlement from any applicable insurance policy or policies, and to the extent permitted by law, each Party, (which for the purposes of this clause shall be referred to as the "Indemnifying Party" as the context requires) hereby respectively indemnifies, keeps indemnified, and holds harmless the other Party, as well as any of the other Party's employees, agents, officers, representatives, affiliates, and permitted successors and assigns, against any and all demands, claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal costs, and any other costs whatsoever which may arise out of:
i. any act or omission of the Indemnifying Party in connection with the related CSO Agreement;
ii. any act or omission of any of the Indemnifying Party's employees, agents, officers, representatives, affiliates, or permitted successors and assigns in connection with the related CSO Agreement;
iii. the Services or anything provided under the related CSO Agreement; or
iv. the relationship between the Service Provider and the Customer.
b. The Indemnifying Party shall not be liable under the indemnity given under this clause where a court of competent jurisdiction, giving a final judgment, holds that any loss, damage or liability is the result of the gross negligence, wilful misconduct or bad faith of the other Party or of any of the other Party's employees, agents, officers, representatives, affiliates, or permitted successors or assigns.
c. This clause will survive termination, expiration or completion of the related CSO Agreement.
33. WORKPLACE HEALTH AND SAFETY
a. The Customer is committed to providing a workplace to its employees, agents, subcontractors, affiliates or other visitors which is healthy, safe and clean.
b. The Customer is committed to creating, motivating and maintaining a positive workplace culture, particularly in relation to workplace health, safety, welfare and wellbeing.
c. The Customer's commitment to workplace health and safety may be reflected and implemented through various standards, procedures, guidelines and/or policies ("WHS Policies").
d. The Service Provider must, at the Service Provider's cost, comply with all relevant WHS Policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by the Customer or by law.
e. The Customer is required to make the Service Provider aware of any Customer specific requirements, and any changes to those requirements, in a timely manner.
34. WARRANTIES REGARDING LEGAL ADVICE
a. Each Party, (which for the purposes of this clause shall be referred to as the "Warranting Party" as the context requires) hereby respectively warrants:
i. That the Warranting Party fully understands the terms of this Agreement.
ii. That the Warranting Party has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Agreement and the Warranting Party has either:
A. taken such independent legal advice; or
B. elected not to take such independent legal advice.
iii. That the Warranting Party has not been induced to enter this Agreement by any representation(s) made by the other Party or by any officer, employee, director, agent, contractor, assignee, successor or other representative of the other Party, except as provided in this Agreement.
b. This clause 34 will survive the termination, expiration or completion of this Agreement.
36. COMPLIANCE WITH LAWS
a. Each Party must, at the their own cost, comply with all laws which relate to or affect their obligations under this Agreement, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments ("the Laws").
b. Each party hereby indemnifies, keeps indemnified and holds harmless the other Party against any actions, costs, charges, claims or demands in relation to a breach of the Laws.
c. This clause will survive the termination, expiration or completion of this Agreement.
37. ENTIRE AGREEMENT
a. The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.
b. The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.
c. The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.
d. No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.
38. NOTICES
a. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Customer if delivered to the address in Table 1 of the related CSO Agreement.
b. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Service Provider if delivered to the following address:
c. Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.
39. WRITTEN COMMUNICATION
a. In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:
i. such notice is properly given if given to the other Party;
A. by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement; or
B. by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.
ii. such notice is taken to be received:
A. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address;
B. if sent by prepaid post within Australia, five (5) days after the date of posting;
C. if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.
40. TERMINATION
a. This Agreement may be terminated by the Service Provider if the Customer fails to pay any requisite Fees within fourteen (14) days after the date they are due. The Service Provider may terminate the Agreement immediately, with no notice period, in writing.
b. Aside from termination by the Service Provider in response to the Customer's failure to pay any Fees, as set out in the preceding sub-clause hereof, this Agreement may be terminated by either Party, upon notice in writing:
i. if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not;
ii. if the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform;
iii. if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.
c. If this Agreement is terminated before the expiration of its natural term, the Customer hereby agrees to pay for all Services rendered up to the date of the termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by the Service Provider related to the rendering of Services prior to the date of termination.
d. Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.
e. Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause.
41. ASSIGNMENT
Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.
42. WAIVER
a. The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.
b. The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.
c. Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.
43. FORCE MAJEURE
a. In the event that circumstances arise which:
i. are outside of the reasonable control of a Party;
ii. materially affect that Party's performance of its obligations under this Agreement; and
iii. could not have been reasonably foreseen or avoided;
(hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.
b. In the event that such a delay or failure occurs, the Party affected by the Circumstances must make all necessary efforts to immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.
c. Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.
44. APPLICABLE LAW
a. This Agreement is subject to the laws of Queensland and each Party submits to the jurisdiction of the courts of Queensland and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of Queensland, Australia.
b. The Parties agree that any dispute or claim (whether contractual or non-contractual) arising out of or in connection with the Agreement, including but not limited to any question regarding its existence, validity, construction, breach, performance or termination (“Dispute”), the Parties will, without prejudice to any other right or entitlement, explore whether the dispute can be resolved by agreement between them using informal dispute resolution techniques. The rules governing such technique adopted shall be as agreed between the Parties or as selected by the Australian Commercial Disputes Centre Limited. This Clause does not prevent a Party from protecting its interests via an injunction or any other legal means.
c. This Agreement is not intended to confer any rights on any third parties (that is any party other than the Customer and the Service Provider).
45. SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.
46. SURVIVAL OF OBLIGATIONS
At the termination, expiration or completion of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.
47. COUNTERPARTS
This Agreement may be validly executed in one or more counterparts, each of which will be deemed an original with such counterparts together constituting one and the same instrument and the date of the Agreement shall be the date upon which it is executed by the last Party.
48. CONTACT US
You can contact us about these Terms using the following details:
Please contact us using any of the contact methods listed on www.smart-charge.com.au
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Smart EV Solutions Pty Ltd T/As Smart Charge - ABN:74650654916
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