Effective Date: 1 July 2023
Smart EV Solutions Pty Ltd (“SEVS”) operates a Software as a Service EV Charger Management platform, with integrated management tools.
CSO Customer wishes to procure a means of manging its EV Charger assets and End Users who charger their EVs using such assets, and tracking their access to, and consumption of, Charging Services.
SEVS will provide and CSO Customer will procure the Services through the Smart Charge Platform subject to the terms and conditions of this Agreement.
1. Definitions and interpretation
1.1 In this Agreement, terms defined in the Details have the corresponding meaning.
1.2 In this Agreement, terms defined in the Schedule (if any) have the corresponding meaning.
1.3 In this Agreement, the terms in bold in the left column in the following table have the corresponding meaning unless repugnant to the context.
Account - A user account with credentials that permit access to the Smart Charge Platform.
Admin User - The individual nominated by CSO Customer, who has power and authority to manage the CSO Customer's Account.
Agreement - The agreement formed at the time contemplated by clause 2 comprising these CSO Terms and Conditions and our Proposal.
Annual Licence Fee - As defined in the Proposal, and if none, as defined in the Fee Schedule, and if none as agreed in writing by the parties.
Billing Period - A period of time within which Fees become due and payable under this Agreement.
Business Day - Any day that is not a Saturday, Sunday, bank holiday, or gazetted public holiday in the place where SEVS conducts its main operations (as recorded in the Details, or notified to CSO Customer from time to time).
Charger Management Fees - As described in the Schedule, or SoS, or SoW referenced in the Schedule.
Charger Revenue - Revenue received by us from one or more EV Chargers on the CSO Network.
Charging Services - As defined in clause 11.6.
Content - Any textual, visual, aural content, including without limitation: text, images, sounds, videos, animations, documents, data, files containing human readable content, any works or subject matter other than works created by a person as protected by copyright laws, or any combination of these things. But expressly excluding any functional software or module that forms a part of the System on which the Content is stored or accessed.
CSO Admin Account - The Account through which the CSO Customer may access the Smart Charge Platform.
CSO Agent - An agent (other than us) appointed by you from time to time using the form in Annexure A.
CSO Network - A reference to the network of EV Chargers under management through the CSO Admin Account.
CSO Terms and Conditions - These terms and conditions.
Customer Materials - Any Content uploaded onto the Smart Charge Platform by, or for and on behalf of CSO Customer.
Delegate - An individual whom you authorize to access the Smart Charge Platform for and on your behalf to perform any service for you. Such reference includes the Admin User unless specifically provided otherwise.
Details - The tabulated particulars at the start of this Agreement titled as such, which include the Parties' details.
End Date - As defined in our Proposal, as governed by these terms and conditions. And if not defined, then 12 months after the Start Date.
End Users - In relation to a CSO Customer means the individuals, or any of them as the case requires, who are permitted to access the CSO Network via the Smart Charge App. In any other context it means any person who is authorized to use an EV Charger managed by the Smart Charge Platform. For avoidance of doubt End Users are any persons who uses the Smart Charge App to access EV Chargers, or the information hosted on them, managed by the Smart Charge Platform.
EULA - End User Licence Agreement for End Users – refer to clause 4.
EV Charger - An electronic vehicle charger that CSO Customer owns, and which is connected to, and under management within, the Smart Charge Platform.
Fee Schedule - Any guide or statement of Fees that may apply to this Agreement, as supplied by us to you from time to time.
Fees - The fees due to Us, or that may become due in relation to this Agreement.
Force Majeure Event - Any natural disaster, fire, flood, war, riot, terrorism, vandalism, government sanction, industrial action, pandemic or event caused by, or relating to the threat of communicable disease or other significant event outside the reasonable control of a Party
Initial Term - As defined in clause 2.
Insolvency Event - In relation to a party means any of the following:
a. an application is made to a court for an order that the party be wound up and the order is not disposed of within 30 business days or an order is made that the party be wound up;
b. an application is made to a court for an order appointing a liquidator or provisional liquidator or a liquidator or provisional liquidator is appointed in respect of that party and that order or appointment is not disposed of within 30 business days;
c. the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any classes of its creditors, or it proposes a reorganisation, moratorium or other administration;
d. the party resolves to wind itself up, or otherwise dissolve itself, or gives notice of the intention to do so, or is otherwise wound up or dissolved;
e. any step is taken to appoint an administrator, a receiver, and/or manager or other like person over the whole or any part of the party’s assets or business;
f. judgment is entered against the party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days; or
g. the party is placed under official management, commits an act of bankruptcy or is charged with a criminal offence.
Intellectual Property Rights - All industrial and intellectual property rights including, without limitation, trade marks, patents, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights.
Mediation Notice - As defined in clause 30.
Periodic Reporting Fees - As contemplated by the Schedule.
Premium Services - Refer to clause 11.6.
Pricing Guide - The pricing guide or equivalent document published by us and in effect at the time you enter into this Agreement, and subsequently at the time that this Agreement is subject to extension or renewal.
Proposal - A written document that defines the scope of Services to be delivered under this Agreement, and other particulars. Without limitation such document may be a formal document named "Quote", "Proposal", "Scope", "Schedule" or similar, or be any other document, supplied at about the same time, and referring to, these CSO Terms and Conditions. If no such scoping document is attached or supplied at the same time as these CSO Terms and Conditions, then reference to Proposal is a reference to the relevant standard service package referred to in the Schedule or otherwise agreed by the parties. Such proposal incorporates the Pricing Guide.
Renewal Term - As defined in clause 2.
Schedule - The schedule (and if more than one then either or each of them as the case requires) attached at the beginning of this Agreement if any.
Services - The services or any of them that are, or may be, provided by Us under this Agreement as the case requires.
Site Particulars - The particulars for each site on which an EV Charger is located, and which is to be connected to the Smart Charge Platform.
Smart Charge App - The application what we provide to enable End Users to charge an electric vehicle with an EV Charger.
SoS - Scope of Services, as described in the Proposal or as otherwise agreed by the Parties from time to time.
SoW - Scope of Work, as described in the Proposal or as otherwise agreed by the Parties from time to time.
Start Date. -The date that you accept the terms of this Agreement, unless otherwise agreed, in which case the agreed date.
Subscription Package - A package of Services, arrangements, and fees, which you may select to determine the scope of the parties obligations under this Agreement.
Supplemental Service Fees - As described in the Schedule, or the SoW or SoS.
Supplemental Services - As described in the Schedule, or the SoW or SoS.
Training Module - A discrete unit of training available on the Smart Charge Platform, and may be written, audible, video, graphic, or any combination of these.
we, Us, our - Smart EV Solutions Pty Ltd
you, your, CSO Customer -The Party to this Agreement other than Us, and additionally such reference includes the CSO Agent or individual Admin User as the case requires.
1.4 In this Agreement, unless the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule, exhibit, annexure, or attachment is to a clause or paragraph of, or schedule, exhibit, annexure, or attachment to, this Agreement, and a reference to this Agreement includes any such schedules, exhibits, annexures, or attachments;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to A$, $A, dollar or $ is a reference to Australian currency;
(f) a reference to time is to AEST;
(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other legal entity, as the case requires;
(h) a reference to a statute, or ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example”, or similar expressions;
(j) any agreement, representation, warranty, or indemnity made or given by two or more parties (including where two or more persons are included in the same defined term) binds each party jointly and severally;
(k) any agreement, representation, warranty, or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it;
(m) if a day on or by which an obligation must be performed, or an event must occur, is not a Business Day, the obligation must be performed, or the event must occur by 4:00pm on the next Business Day;
(n) if any calculation relating to the issue or transfer of Equity Securities results in a number that is, or includes, a fraction, the fraction is rounded down to the nearest whole number; and
(o) a reference to days is to sequential calendar days unless specifically provided otherwise;
(p) headings are for ease of reference only and do not affect interpretation.
1.5 When we use the word "delete" in relation to an account or data, this means delete the primary record, or such parts of it so not to cause disruption to the platform or other users. Further, we may at our discretion retain certain information from an account or data to fulfil our operational requirements, insurance requirements, obligations at law, and to document our rights, obligations, historic records, and future plans relating to our business. Finally, use of the word delete in relation to your data or account means that you will no longer have the benefit of that account or data, or any part of it.
1.6 Reference to a party in this Agreement:
(a) is a reference to a party to this Agreement, whether a signatory to the original document, or through any variation or amendment agreed in writing and signed by all parties from time to time.
(b) that is a trustee is bound both personally and in its capacity as a trustee.
(c) includes a reference to the party’s executors, administrators, successors and permitted assigns and substitutes.
(d) that is a Company includes each wholly owned subsidiary from time to time and all rights and obligations of the parties apply to each Subsidiary as if a reference to the Company is also to the wholly owned Subsidiary, as the case requires.
1.7 Reference to CSO Customer (or an obligation that CSO Customer has to us) includes an additional and equivalent reference to the CSO Customer's CSO Agent as appointed from time to time. To the extent that an appointment is made without first terminating the appointment of an existing CSO Agent, then we may deem the latest appointment as a contemporaneous termination of any existing appointment.
2. Start date and duration
2.1 This Agreement begins upon the Start Date and continues until the End Date (“Initial Term”) unless a Party terminates this Agreement earlier in writing in accordance with this Agreement.
2.2 Upon expiry of the Initial Term, or the then current Renewal Term, this Agreement will automatically renew for an additional period of equal duration to the Initial Term (“Renewal Term”) unless either Party gives notice in writing to the other stating that the Agreement is not to renew, at least 60 days prior to the expiry of the Initial Term or the then current Renewal Term.
2.3 If the Schedule prescribes that automatic renewal does not apply, then clause 2.2 has no effect.
2.4 You accept the terms and conditions of this Agreement upon the earliest occurrence of any one of the following events:
(a) you signing a paper or electronic document in the space provided, which contains our Proposal;
(b) you signing a paper of electronic document in the space provided, which contains these CSO Terms and Conditions;
(c) you logging into the Smart Charge Platform using the CSO Admin Account;
(d) your Admin User logging into the CSO Admin Account;
(e) any Delegate logging into any Account on the Smart Charge Platform;
(f) you requesting any Services from us, through the Smart Charge Platform;
(g) you signing up for an Account and you check the checkbox that indicates that you agree to SEVS’s CSO Terms and Conditions;
(h) you do any other thing, which represents that you agree to SEVS’s CSO Terms and Conditions, when prompted by us when you are using the Smart Charge Platform.
2.5 To the extent that we vary or add new terms and conditions in accordance with clause 3, then you accept such variation or additional terms and conditions upon the earliest occurrence of any of the events listed in clause 2.4(a) through 2.4(h), after we notify you of such variation or addition.
3. We may vary these terms and conditions
3.1 Despite any other provision of this Agreement, we may at any time vary the terms of this Agreement by notice to you in writing. A notice delivered by any of the following methods will be sufficient for this purpose:
(a) posted on any Account accessed by your Admin User;
(b) posted on the CSO Admin Account;
(c) sent by email;
(d) posted on any access point to the Smart Charge Platform.
4. EULA incorporated by reference
4.1 Each of your Delegates must accept our EULA prior to accessing the Smart Charge Platform, at the time of writing the EULA is available from https://smart-charge.com.au/eula, and we may notify you of a change to this URL from time to time.
4.2 CSO Customer's Admin User must accept, and is subject to, the provisions of our EULA, the terms of which are in addition to these terms and conditions.
4.3 In regard to the Admin User's obligations, to the extent of any inconsistency between the EULA and these terms and conditions, these terms and conditions prevail to the extent of the inconsistency.
4.4 For clarify, this clause 4 does not apply to SEVS or any of its personnel if nominated as your Admin User.
5. Provision of Services
Scope of work (SoW)
5.1 We will provide the SoW as described in the Proposal. The SoW will be performed as an initial step to achieve the following:
(a) Set up your End Users on the Smart Charge Platform;
(b) Set up your Admin User on the Smart Charge Platform;
(c) Upload and format your Content for use in the Smart Charge Platform;
(d) Set up the CSO Admin Account, and provide access to it, or Integrate the Smart Charge Platform into your existing systems as described in the Proposal;
(e) Any other objective that we can deliver as expressly set out in the Proposal.
5.2 Unless we expressly agree otherwise in writing, our SoW does not include us doing any of the things listed in clause 5.1 above. To the extent that we agree to provide such Services, then additional charges apply. Please refer to clause 11.5 for details.
Scope of services (SoS) - Smart Charge Platform
5.3 We may provide the following Services through the Smart Charge Platform:
(a) Platform Hosting through our suppliers;
(b) Software as a Service – EV Charger management;
(c) Software as a Service – payment processing;
(d) Software as a Service – user management.
5.4 We provide limited technical support Services to assist you with use of the Smart Charge Platform. Please refer to clause 19 for details.
5.5 For the duration of, and subject to the terms and conditions of this Agreement:
(a) the scope of our Services, and the service levels to be delivered by us are described in the SoS and as such may be determined by reference to the Proposal, and for avoidance of doubt anything not expressly included in the Proposal or the SoS is excluded;
(b) we will provide the Smart Charge Platform in accordance with this Agreement as varied by us and agreed by you from time to time;
(c) we will provide you with an Account, which you will be able to access and administer;
(d) we will host your Account and any related pages, and Content with a third-party host;
(e) we will use reasonable endeavours to rectify any faults in the Smart Charge Platform for which we are responsible;
(f) we will take reasonable steps to investigate and restore Services when affected by causes beyond our control;
(g) we will update the Smart Charge Platform from time to time, and we will give you reasonable notice of any changes, where possible, however, due to the technical nature of the Smart Charge Platform, updates are rolled-out to all Accounts and CSO Admin Accounts and you cannot opt-out of any update.
Purpose of services
5.6 Our Services are provided as a means of providing access to and facilitating payment processing in relation to use of the CSO Customer's electric vehicle chargers, and are provided on an "as-is" basis.
5.7 CSO Customer is solely responsible for determining the suitability of our Services for its purposes and the purposes of its Delegates and End Users. WE ABSOLUTELY DISCLAIM ANY RESPONSIBILITY FOR, AND MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT, THE SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, of our Services.
5.8 If any Service is not suitable for CSO Customer's purposes or the purposes of its Delegates or End Users, for any reason, you may request and we may agree to provide additional Services. Nothing in this Agreement is to be read as requiring us to provide such additional Services. We may charge a fee for delivering additional Services; and impose additional terms and conditions in relation to your use of them.
6. Opt-in services
6.1 From time to time we may offer Services that are not available by default, and for which you may opt-in. We reserve the right to make such Services subject to additional terms and conditions, and additional Fees.
6.2 Upon accepting, or requesting any opt-in services, any additional terms and conditions and Fees that apply are incorporated by reference to this Agreement, unless expressly agreed otherwise in writing.
7. Service limitations
7.1 Hosting is provided through a reputable third party service provider and we do not guarantee that the hosting services will be continuous or error free. At the time of writing hosting of the Smart Charge Platform is provided by Amazon AWS and managed by other service providers. If you have any difficulties accessing your Account, please check the following hosting status page: https://status.aws.amazon.com/
Domains and email
7.2 You are responsible for your domain name registration, domain delegation, and email accounts. We do not provide general hosting or communication infrastructure as part of our Services.
Third party service providers
7.3 All communication services are performed by third party service providers. Any communication services that may be used by you in relation to the Smart Charge Platform, are integrated with the Smart Charge Platform and there are no options for alternate third party service providers.
Suitability of Content
7.4 To the extent that we agree to supply any Content for your use on, or in relation to, the CSO Admin Account, we make no representation or warranty about the suitability or fitness for any purpose of that Content. Please refer to clauses 5.7through 5.8 for further details.
End Users' data and information
7.5 We reserve the right to not share some, or any, End Users' information with you unless we are required to do so by law, or we have otherwise agreed in writing. To the extent that we agree to share any information from End Users, we may anonymise such information to protect their identity, or to maintain our obligations of confidence to them, if any.
8. Service exclusions
8.1 We do not provide any of the following services under this Agreement:
(a) Professional advice of any kind, including without limitation legal advice, safety advice, engineering advice, electrical contractor advice, operational advice, strategic advice, risk related advice, or human resources advice;
(b) Advice relating to End Users;
(c) EV Charger installation services;
(d) Maintenance services;
(e) Servicing of EV Chargers;
(f) Safety assessments;
(g) Safety testing;
(h) Assurance of any kind, including without limitation underwriting, or representations about the results or consequences of consumption of Services or other Content;
(i) Assessments of knowledge, skills, expertise, or any other measurable aspect of cognition of Delegates;
(j) Standards compliance of any kind (unless we otherwise expressly agree in writing).
8.2 If you require any of the services described in clause 8.1, you must obtain those services from third parties, or discuss your requirements with us so we can obtain quotes on your behalf. However, if we agree to liaise with third party service providers on your behalf, you remain responsible for engaging such providers directly unless we expressly agree otherwise in writing, and nothing in this Agreement is to be construed as us providing their services under this Agreement, or being liable to pay any third party supplier's fees.
9. Disclaimers relating to our Services
9.1 We are not responsible for any failure, delay, inaccessibility, loss, damage, or other consequence arising from a failure or other problem with any of the following:
(a) Utilities supply;
(b) Internet connection;
(c) Mobile network (telephony or data);
(d) Hardware other than an EV Charger;
(e) EV Charger, including compatibility with the Smart Charge Platform, system configuration, system limitations, and related issues;
(f) Access to, availability of, or usability of your assets;
(g) Abuse or destruction of any of your assets;
(h) Location of your assets;
(i) Hardware and software used by you and your Delegates to access the Smart Charge Platform;
(j) Third party service availability;
(k) Agreements between you and your suppliers (other than Us);
(l) Agreements between you and your customers;
(m) Agreements between you and your Delegates;
(n) Collection of data by Telecommunications Carriers pursuant to the Telecommunications (Interception and Access) Act 1979 (Cth) or other commonwealth or state or territory laws of similar or equivalent effect;
(o) Card issuers or payment processors declining transactions;
(p) Availability of card issuer or payment processor services; and
(q) Force Majeure events.
9.2 You may choose the Connection Type for the Smart Charge Platform in relation to your CSO Network. However, certain features and rights that apply to one Connection Type do not apply to all Connection Types, and your selection of a particular Connection Type may restrict certain features of the Smart Charge Platform and the Smart Charge App. Consequently, any such restriction will limit the Service that we provide to you under this Agreement.
10. Right to subcontract
10.1 We may appoint employees, suppliers, sub-contractors, or agents to provide some or all of the Services; and such entities are bound by the same obligations as us. It is our responsibility to ensure such entities comply with this Agreement.
11.1 You must pay our fees in full in a timely manner, and additionally in accordance with the following provisions of this clause 11.
11.2 You must pay our periodic fees (such as Licence Fees) in advance in order to access the Services unless we agree to another arrangement in writing. If the fee is charged per item (such as a charging socket) then this fee is the number of items multiplied by the relevant fee. For example if your Subscription Package includes an annual or monthly fee, then this fee must be paid in advance (prior to the start of the relevant Billing Period).
11.3 If your Subscription Package contemplates one-off fees:
(a) That are payable for set-up of your Account, EV Chargers, or for us to prepare you or your assets for use of the Services, then those fees are payable in advance of you gaining access to the Smart Charge Platform;
(b) That are payable where we perform specific Services for you, then those fees are payable within the credit terms of the invoice that we send you in relation to those Services.
11.4 If your Subscription Package includes a Service and you want us to provide multiples of that Service (such as access to the Smart Charge Platform for one of your personnel, and you wish to add one or more additional persons to have access), then this is subject to our approval, and we may charge an additional fee for providing such additional Services. We reserve the right to require payment for such services in advance, and in any event you must pay any invoice that we issue to you for such additional Services
11.5 All out-of-scope Supplemental Services are billed by the hour at the rate, unless otherwise described in our Proposal (“Supplemental Service Fees”). You must pay our Supplemental Service Fees for all Supplemental Services to be completed by us at your request. We will invoice you for any Supplemental Service Fees, and such invoices will be payable within 14 days of the date of issue, unless a longer period for payment is noted on the invoice. We may require that such invoices are paid prior to us completing any Supplemental Services.
11.6 We may provide different service levels for a particular Service, and charge different rates for delivery of higher levels of Service ("Premium Services"). For example, we will provide a limited amount of Support Services at no additional cost to enable you to administer your CSO Admin Account and Account on the Smart Charge Platform, and we may charge additional fees for higher levels of service. All fees payable in relation to Premium Services are payable in advance.
11.7 We may charge a fee for processing payment in relation to Charging Services. This fee is in addition to any amount payable to third party payment processors, which are integrated into the Smart Charge Platform. Any such fee that we charge is calculated on the gross payment amount of the relevant transaction, and unless we otherwise agree in writing, is payable to us prior to remittance of any Charger Revenue to you. For clarity, if the Charger Revenue is insufficient to pay such fees, then you must pay us for any outstanding amount.
11.8 We may vary our Fees from time to time, and the variation to our fees will take effect on:
(a) For periodic fees, upon renewal of this Agreement, unless any of the following apply to the relevant Service;
(b) For fees relating to Premium Services, at the next Billing Period;
(c) For fees relating to Supplemental Services, to any such Services requested by you after we publish the changes to our fees.
(d) for fees relating to payment processing, the first payment processed in the following Billing Period;
11.9 The limited services provided under clauses 5.1 and 5.2 are provided at the outset of the Agreement to assist you to set up your CSO Admin Account and to implement our Services. Resupply of such Services after this time may be charged as out-of-scope Supplemental Services
12.1 Payments made annually in advance must be made by direct deposit into our nominated bank account unless we agree otherwise in advance.
12.2 Payments made on a periodic basis must be made by direct deposit into our nominated bank account unless we agree otherwise in advance.
12.3 To the extent that we agree to you making payments by credit card, debit card, or through any other payment network, then any related fees and charges will be payable by you in addition to our other Fees; including any fees and charges for failed or reversed payments.
12.4 If you do not remit payment on time for any of the amounts contemplated by this Agreement, we may immediately, or at a later time, deduct an equivalent amount from the Charger Revenue collected by us.
13. Payment processing
Services include payment processing from End Users
13.1 Our Services include:
(a) processing payments from End Users; and
(b) to the extent that any End Users access an EV Charger on the CSO Network and process a payment for use of it, we will attribute such payment to your CSO Admin Account; and
(c) remittance of amounts accrued to your CSO Admin Account monthly, subject to the following provisions of this clause 13, and the other terms of this Agreement.
Remittance amount subject to off-set and deduction of Fees
13.2 We have the right to set-off or deduct any Fees and other amounts that you owe Us at any time prior to the date of remittance to you under this clause 13. Such right relates to any amount that you owe Us under this Agreement; and additionally, amounts that you owe Us in relation to any other agreement you have with us at the relevant time (for example if we agree to provide any of the excluded services under a separate agreement).
We do not store credit card information
13.3 We do not receive or store any card information on the Smart Charge Platform.
13.4 We may apply identifiers to payments processed for End Users for tracking purposes and reconciliation of transactions. This is for our internal business purposes, and such information is not available to you, unless we include any part of such information in our reports issued to you at our sole discretion.
13.5 We reserve the right to use functionality within the payment processing facilities to automatically remit certain amounts to you under this Agreement. If you have any questions regarding an amount you have received from us, please contact us.
13.6 You may request that we identify payments that we remit to you with certain identifiers. However, our obligation in this regard is limited, as certain banks and banking systems truncate, amend, or format payment identifiers, and this is outside of our control. In this regard identifiers using only alpha-numeric characters and up to 18 characters long have the highest likelihood of not being changed by either the sending or the receiving bank.
14. Customer obligations
14.1 In addition to your other obligations contemplated by this Agreement, you must perform each of the obligations set out in this clause 14.
14.2 If you are an individual, you must be at least 18 years of age to enter into this Agreement.
14.3 Your nominated Admin User must be at least 18 years of age.
14.4 You must own each site on which an EV Charger is situated, unless you have notified us in writing of all relevant details of the owner of the relevant site, the manner by which you have obtained the right to locate an EV Charger on that site (such as a lease), and, done all things reasonably requested by us to ensure that we can legally and operationally connect an EV Charger on each site to the Smart Charge Platform (including supplying all Site Particulars for Schedule 2).
14.5 You must not facilitate access to the Smart Charge Platform for a person who is less than 18 years of age, unless you have all necessary rights and authority to do so (as required by applicable laws, including without limitation the laws of the Commonwealth of Australia, and the state in which you reside, and the state in which the person under 18 years of age resides).
14.6 You must act in accordance with the policies or rules that we publish from time to time, which relate to your use of the Services or the Smart Charge Platform (such as content and publishing, or capturing of information). All such rules can be accessed at the link provided on the Smart Charge Platform, if any. If there is any inconsistency between these terms and conditions and any policy or rule that we publish, then the terms and conditions of this Agreement will prevail to the exclusion of such policy or rule. The provisions of any policy that we publish do not give you any additional contractual rights that you may enforce against us.
14.7 You must respond in a timely manner if we bring an issue to your attention in relation to the Smart Charge Platform, the Customer Materials, EV Chargers, other equipment, data, or network that affects the operation of the Smart Charge Platform, or any other Services that we provide.
14.8 You must notify us if you believe that your Account has been accessed without your authority.
14.9 You must take reasonable measures to prevent any unauthorised person from accessing the Smart Charge Platform, your Account, or any other Services we provide using your Account credentials. You are responsible for any damage caused or fees incurred by any such person. For clarity, this means that you must not share or disclose the CSO Admin Account credentials with any person other than the named contact in the Details, or other person agreed by us in writing from time to time.
14.10 You must provide reasonable assistance and co-operation during any periods of scheduled or mission critical maintenance.
14.11 You are responsible for the Content on the CSO Admin Account, and the integrity and conduct of your Account on the Smart Charge Platform, and:
(a) You must only provide us with truthful, accurate and complete information in relation to this contract, and for entry onto the Smart Charge Platform; and
(b) you must ensure that all details relating to your organisation are correctly entered into the Smart Charge Platform, including:
(i) any information that we reasonably require to provide our Services;
(ii) your company, association, or business identification number (such as ACN, ABN, ARBN, etc), if any;
(iii) any other information required by law.
(c) the allocation, registration, and closure of all Delegates' Accounts.
14.12 You are responsible for all aspects of safety on each site relating to:
(a) Access to any EV Charger;
(b) Use of any EV Charger;
(c) Control of physical security threats on any site that you control, on which an EV Charger is placed;
(d) Control of electronic and cyber security threats on any site that you control, on which an EV Charger is placed;
(e) Maintenance of any EV Charger;
(f) Surveillance for identification of any physical damage to any EV Charger;
(g) Connection of any EV Charger to a electricity source, electricity grid, or other supply of electricity; and
(h) Approach and departure of any vehicle to or from a site that you control on which an EV Charger is placed.
Your warranties to us about your positive obligations
14.13 You warrant to Us on each day of the Term of this Agreement that:
(a) Each site is safe; and
(b) You have fulfilled your positive obligations, and will continue to fulfil your positive obligations as set out above in this clause 14.
14.14 You must not use information about another person gained through the Smart Charge Platform for any purpose other than in accordance with this Agreement, including any policies published by us from time to time.
14.15 You must not upload or publish any Content that is unlawful, unsuitable for general viewing or consumption, obscene, defamatory, in breach of any advertising standards, or in breach of any person’s privacy or other human rights. You further agree that we may remove any material that we reasonably deem unsuitable, or suspend your Account in accordance with this Agreement until you remove such Content. Nothing in this clause is to be read as limiting any of our rights under this Agreement.
14.16 You must not use the Smart Charge Platform to obtain information from End Users, that you have no right to obtain from them.
14.17 You must not use information obtained from End Users in contravention of the Privacy Act 1988 (Cth), or any other laws.
14.18 You must not:
(a) reverse engineer, reverse assemble or reverse compile the Smart Charge Platform or any part of it;
(b) combine or incorporate the Smart Charge Platform in any other program or system without our prior consent in writing;
(c) copy the Smart Charge Platform, or any Content contained on it belonging to a person other than you, in whole or in part; or
(d) require that we permit access to any End Users who are in breach of the EULA.
14.19 You must not, and must not authorise, permit, or facilitate any other person to:
(a) Apply information to the outside of any EV Charger connected to our Services, including without limitation:
(i) By applying stickers to the EV Charger;
(ii) By applying paint, marker, ink, tape, or any other material or device to the EV Charger;
(iii) By using any structure, signage, banner, or other device or material to obstruct access to the EV Charger with the aim of, or having the result that, the relevant thing delivers information that we have not approved, or obstructs information that would otherwise be delivered to any person through use or prospective use of the EV Charger; or
(iv) Obtain or seek to obtain information from End Users, whether manually, electronically, or otherwise.
Your warranties regarding information
14.20 In addition to any other warranties you make to us under this Agreement, on the day that you sign this Agreement, and each day during the term of this Agreement, you warrant to us that:
(a) All information that you provide to us is accurate and complete and current;
(b) To the extent that any information that you have provided to us changes, or your circumstances change, that you will promptly (being not less than 3 business days, unless agreed by us in advance) notify us in writing of the changes.
Your warranties regarding chargers
14.21 Prior to requesting that we add an EV Charger to the Smart Charge Platform, and each day that the charger is connected to the platform, you warrant to us that:
(a) The EV Charger is compliant with Australian metering laws, including the National Measurement Act 1960(Cth) and the National Measurement Regulations 2009 (Cth); and
(b) The EV Charger is safe, functional, and in good working order, and you will conduct all relevant maintenance of it; and
(c) You will service the EV Charger as required, and if we bring an issue to your attention with the EV Charger, you will promptly attend to any servicing required to resolve the issue;
(d) The EV Charger is compliant with all laws in Australia, and the state in which it is located; and
(e) The EV Charger is compliant with all mandatory standards that apply to it, and use of it;
(f) That if you cannot conscientiously and continuously make each of the warranties under this clause 14.21, then you will notify us immediately in writing.
15. Our rights
15.1 In addition to any other rights we have under this Agreement or at law:
(a) If we reasonably believe that you are in default of any of your obligations under this Agreement, or are not acting in accordance with the law, or are doing anything or omitting to do anything that may cause loss or damage or injury to any person (including us) then we may do any one or combination of the following:
(i) immediately suspend our Services, or any of them;
(ii) notify Smart Charge App users that your site or EV Charger is unavailable;
(iii) notify users of the Smart Charge Platform that your site or EV Charger is unavailable;
(iv) post safety notices on the Smart Charge App, including in relation to any of your sites or EV Chargers;
(v) post safety notices on the Smart Charge Platform, including in relation to any of your sites or EV Chargers.
(b) we may determine the Smart Charge Platform's interoperation with third party systems and users of such systems to access to any EV Charger connected to the Smart Charge Platform without prior notice to you;
(c) We may refuse to connect an EV Charger to the Smart Charge Platform until you prove compliance with your obligations and warranties under this Agreement to our satisfaction, and supply all information we need to enable connection to, and interoperability with the Smart Charge Platform;
16. Intellectual Property
Customer Materials and Third Party Intellectual Property
16.1 You (or where applicable, the third party owner) retain ownership of all Content you upload to your Account and such rights are not assigned or transferred under this Agreement.
16.2 You grant us a perpetual, irrevocable, royalty-free licence to use, copy, modify or adapt the Content (including any Customer Materials) as reasonably necessary to deliver the Services and perform our rights and obligations under this Agreement and for provision of services to third parties including End Users, including the right to grant sub-licences where reasonably necessary.
16.3 You warrant that you have full legal right and authority to grant the licence in clause 16.2, and that our use or modification of the Content in accordance with this Agreement will not infringe upon any third party Intellectual Property Rights.
Smart Charge Platform
16.4 No Intellectual Property Rights in the Smart Charge Platform and our Content are transferred to you under this Agreement.
16.5 Subject to your continued compliance with the terms and conditions of this Agreement, for the duration of this Agreement we grant you a non-exclusive, revocable, licence to use, enjoy, and exploit the Smart Charge Platform for the purposes described in this Agreement.
Intellectual Property created under this Agreement
16.6 Unless otherwise agreed in writing:
(a) all Intellectual Property Rights and materials developed under this Agreement for the purpose of improving or advancing the Smart Charge Platform, vest in and are owned by us upon creation; and
(b) from the time of development of any Intellectual Property Rights contemplated by clause (a) above, for the remainder of the duration of this Agreement, such Intellectual Property Rights are licensed to you pursuant to clause 16.5, subject to the terms and conditions of this Agreement.
16.7 All Intellectual Property Rights (if any) created by us as a derivative work of any Customer Materials are automatically assigned to you upon creation, and are automatically licensed back to us under clause 16.2.
17.1 We have implemented various measures to ensure the availability of our Services on a continuous basis, including backups of Content generally, and Customer Materials specifically. However, we do not guarantee that these measures will be sufficient to cause the Services to be uninterrupted or error free.
17.2 Backups will not be generally accessible to any person other than us and our contractors, and backups will not be deleted immediately in any case that we have the right or obligation to delete any data under this Agreement. Backups will be deleted on a scheduled basis only.
18. Maintenance and updates
18.1 The Smart Charge Platform is delivered as Software as a Service and will be subject to maintenance and updates from time to time. You cannot opt-out of such maintenance and updates.
18.2 We will take reasonable steps to limit any down time associated with maintenance and updates.
19.1 Our Services include limited support, which we will provide to you on the following basis:
(a) you must appoint a person to be your Admin User;
(b) the Admin User(s) is the only person who may access and administer your Account;
(c) the Admin User(s) is the only person who may access our support Services;
(d) if the Admin User changes, then you must notify us immediately of the change, and provide the contact information for that person;
(e) the Admin User will be deemed to have unencumbered right to manage your Account, and your access to the Smart Charge Platform and our Services.
19.2 If you appoint a CSO Agent, that appointment will also be an appointment under clause 19.1, and the CSO Agent will be the Admin User.
19.3 You may appoint SEVS as the Admin User.
19.4 Our support Services may be accessed by the Admin User, by any of the following methods:
(a) By email to Support@smart-charge.com.au; or
(b) By phone by calling 1800 998 896; or
(c) By the integrated chat service on the Smart Charge Platform, if any, as available from time to time.
20. Appointment of CSO Agent
20.1 You may appoint a CSO Agent by signing, and having the CSO Agent sign a copy of the document set out in Annexure A.
20.2 Upon the parties signing a copy of the document in Annexure A, and it being emailed to us:
(a) The appointment is effective immediately;
(b) Any pre-existing appointment is immediately terminated;
(c) The CSO Agent immediately agrees to be a party to this Agreement and to be bound to it;
(d) The CSO Agent has all power and authority to act for an on behalf of, and to bind the CSO Customer in relation to this Agreement, except in relation to the following things:
(i) The CSO Agent has no authority to change the bank account, remittance, or other payment details of the CSO Customer; and
(ii) The CSO Agent has no right to be paid by us in any way, or to be credited any amount that would otherwise be to the benefit of CSO Customer;
(iii) The CSO Agent may not terminate this Agreement on behalf of the CSO Customer;
(iv) The CSO Agent may not seek to vary the terms of this Agreement unless it has written direction signed by CSO Customer, and we agree in advance to the varied terms;
(v) The CSO Agent will not personally incur any fees or amounts under this Agreement in its own right, and any amounts incurred by the CSO Agent are on behalf of the CSO Customer, and CSO Customer is responsible for payment of all such amounts.
20.3 Except as expressly set out above, nothing in this clause 20 affects the relationship of principal and agent between the CSO Customer and the CSO Agent as otherwise provided at law.
21. Data sovereignty
21.1 We reserve the right to store Content in places outside Australia, to meet scaling, operational, redundancy, bandwidth and speed purposes; or to access specialised third party services; unless we otherwise agree with you in writing.
22. Data security
22.1 We take a range of security measures to secure Content on the Smart Charge Platform from unauthorised or accidental disclosure, including:
(a) Issuing Accounts to Delegates with access credentials which implement industry standard authentication and authorisation protocols;
(b) Encrypting data in transit;
(c) Encrypting data at rest;
(d) Requiring secure connections using HTTPS or other industry standards; and requiring multi-factor authentication for access to Accounts.
22.2 The information in clause 22.1 above must not be relied on as a representation as to the suitability of the Smart Charge Platform to meet your security requirements or any other purpose.
22.3 Please note that despite the measures we take to secure any Content, the security and confidentiality of that information is subject to the security and information practices of Delegates who have access to your Content. Please refer to the EULA for details on Delegate's obligations in this regard.
23. Foreign laws compliance
23.1 This Agreement is made in Australia and subject to the laws as stated. We do not represent or warrant that your use of our Services, or the Smart Charge Platform complies with the laws of any country other than Australia.
23.2 It is your responsibility to determine whether your use of our Services and the Smart Charge Platform complies with your local laws.
24. No warranties, except as expressly set out in this Agreement
24.1 Unless expressly stated in this Agreement, we make no warranties or representations about the Smart Charge Platform, our Services, or their suitability for your purposes.
24.2 You warrant that you are obtaining our Services for business purposes.
24.3 Nothing in this clause 24 affects your rights, if any, under the Australian Consumer Law, please refer to clause 29.
26.1 Any information that you receive from us under this Agreement relating to any person other than you is confidential information, unless:
(a) The information is available publicly other than in breach of a confidentiality obligation, or that has become available as a result of a data breach;
(b) Is required to be disclosed by law, and then only to the extent so required; or
(c) We have otherwise agreed in writing that the information is not confidential.
26.2 You must not disclose any confidential information to any person unless we otherwise agree in writing in advance. This clause 26.2 is subject to clause 26.3.
26.3 Nothing in clause 26.2 prevents you from disclosing confidential information to the following persons or any of them who have a need to know and whom have a binding written obligation of confidence to you: i/ your personnel, ii/ legal advisors, iii/ financial advisors, or iii/ accountants.
27. Suspension and Termination
27.1 We may conduct scheduled or mission critical maintenance of the Smart Charge Platform during which time the Services may be interrupted. We will give you reasonable notice of such maintenance where possible and make all reasonable efforts to keep any disruption to a minimum.
27.2 We may suspend the Services at any time and give you a written notice of default if:
(a) you do not make any payment when due, or any payment is dishonoured or subject to chargeback, transaction reversal, or recall request; or
(b) we have reason to suspect illegal or unethical activity in relation to your data or Content; or
(c) in our reasonable opinion your Content, conduct, data, network, software or equipment may cause damage to any person or property; or
(d) you do not comply with any of your obligations under this Agreement.
Termination for default
27.3 We may terminate this Agreement immediately by written notice if:
(a) you fail to remedy a breach despite receiving 7 days written notice of default from us;
(b) you are guilty of dishonesty, serious misconduct or serious neglect of duty; or
(c) you experience an Insolvency Event.
Termination for convenience
27.4 We may terminate this Agreement at any time by giving you 14 days written notice.
27.5 After the Initial Term, you may terminate this Agreement at any time by given us 3 months written notice, which includes using any feature on the Smart Charge Platform that allows you to close or delete your Account. This clause 27.5 may be varied by our Proposal.
28. Consequences of termination
28.1 Upon termination of this Agreement for any reason, in addition to any other rights or remedies:
(a) we may immediately disable your access to the Smart Charge Platform and take your Account offline;
(b) we may issue an invoice for any Fees incurred by you, but not yet invoiced by us and paid by you;
(c) all fees to date, including fees invoiced under this clause 28.1 are immediately due and payable;
(d) your licence to use the Smart Charge Platform immediately ends;
(e) if you have no amounts outstanding to us, we will give you the opportunity to receive a copy of all your Customer Materials in our possession, and we may charge a fee for delivering such data and Content to you;
(f) we may, but need not, keep all data and Content uploaded by you to the Smart Charge Platform for our records;
(g) we may destroy any data and Content uploaded by you to the Smart Charge Platform; and
(h) a Party not in default may pursue any other rights or remedies available at law against a defaulting Party subject to clauses 29, 30 and 31.
28.2 Unless we terminate this Agreement under clause 27.4, then you are not entitled to a refund of the Annual Licence Fee or any part of it. If we terminate this Agreement under clause 27.4 and you are not otherwise in default of your obligations, then we will pay you a pro-rata refund of the Annual Licence Fee.
29. Indemnity & limitation of liability
29.1 To the extent permitted by law, you will indemnify, defend and hold harmless SEVS and its directors, officers, agents, employees and sub-contractors against any and all losses, costs, expenses and damages that it suffers, including but not limited to reasonable legal fees, resulting from your own negligence or malpractice, or reckless or intentional misconduct, or failure to perform your obligations and responsibilities under this Agreement.
29.2 You agree to release and hold harmless SEVS against any action, proceeding, claim, demand or prosecution relating to:
(a) any downtime, interruption, lost revenue, or consequential loss of any kind whether directly or indirectly arising in connection with the Services; and
(b) any hardware or software failure, loss of data or any other loss or damage of any kind whether directly or indirectly arising in connection with the Services.
29.3 You release and indemnify, and agree to keep SEVS indemnified against any action proceeding, claim, demand, or prosecution relating to:
(a) any breach of your warranties under this Agreement; and
(b) any injury or death of any person caused by or attributable to any EV Charger or the CSO Network;
(c) any loss or damage to persons or property (including data), caused by your Content or the CSO Network; and
(d) any loss or damage suffered by End Users, or any of them, for your use of the Smart Charge Platform.
Limitation of liability
29.4 Subject to clauses 29.7, 29.8 and 29.9, any liability of SEVS for any loss or damage, however caused (including, without limitation, by the negligence of SEVS), suffered by you in connection with this Agreement is limited to the lesser of:
(a) the last three months’ worth of Annual Licence Fees paid by you and received by us; or
29.5 The limitation set out in clause 29.4 is an aggregate limit for all claims, whenever made.
29.6 For clarity, and without limiting clause 29.4, the Parties agree that clause 29.4 is to apply in connection with a breach of this Agreement, anticipated breach of this Agreement or other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
29.7 Subject to clauses 29.8 and 29.9, SEVS is not liable for any consequential loss however caused (including, without limitation, by the negligence of SEVS) suffered or incurred by you in connection with this Agreement.
29.8 Except as contemplated by clause 29.9, nothing in this Agreement is intended to limit any rights you have under the Competition and Consumer Act 2010 (Cth).
29.9 If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by SEVS in connection with this Agreement and SEVS’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clauses 29.4, 29.6 and 29.7 do not apply to that liability and instead SEVS’s liability for such failure is limited to (at SEVS’s election):
(a) in the case of a supply of goods, SEVS replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or
(b) in the case of a supply of services, SEVS supplying the services again or paying the cost of having the services supplied again.
29.10 In this clause 29 a reference to consequential losses means any indirect, special, economic, or consequential loss including loss of revenue, profits, goodwill, bargain or opportunities that you suffer in any way, even if we knew or should have known about the possibility of such loss.
Commitment to resolve disputes
30.1 SEVS is committed to resolving any disputes as quickly and expeditiously as possible. When notified of a dispute by you, SEVS will cause an authorised representative to try and resolve that dispute with you. Upon receipt of a dispute in writing we will respond within 30 days.
30.2 To the extent that you are a body corporate or an incorporated association, if you notify us of a dispute, or you are notified of a dispute by us, then your executive committee, or board of directors, or equivalent management body, are responsible for addressing the subject matter of the dispute and engaging in the dispute resolution process.
30.3 If a dispute arises between you and SEVS in relation to this Agreement, either Party may give the other Party a written notice that they intend to arrange mediation (“Mediation Notice”).
30.4 The Parties must refer the dispute to an independent mediator within 21 days of the Mediation Notice being received, or deemed to be received, whichever is earlier.
30.5 If the Parties cannot agree on a suitable mediator, either Party may contact the Law Society (or equivalent) in their state and request that they provide a mediator.
30.6 The costs of the mediation must be paid by you and us in equal shares.
31. Legal Proceedings
31.1 No Party may commence court proceedings unless the dispute remains unresolved after 42 days from the date of the written notice provided under Clause 30.3.
Control of Smart Charge Platform
32.1 Nothing in this Agreement is to be read as limiting our rights to administer, monitor, and control the Smart Charge Platform, unless expressly and specifically stated.
32.2 You are responsible for all duties, charges and legal fees (on a solicitor and own client basis) incurred in enforcing this Agreement.
Currency and Taxation
32.3 Unless otherwise stated, all monetary amounts are expressed in Australian dollars exclusive of GST.
32.4 The Parties’ obligations under Clauses 3, 7, 8, 11, 16, 24, 25, 28, 29, 30, and 31 shall survive the termination of this Agreement for whatever reason.
32.5 This Agreement contains the entire agreement between the Parties and supersedes all previous negotiations or agreements in relation to the Services.
32.6 In addition to any other provision of this Agreement, neither Party is liable for any delay or failure to perform its obligations under this Agreement to the extent that such failure is caused by a Force Majeure Event. Nothing in this clause excuses payment of money due.
32.7 The laws of the State of Queensland, Australia apply to this Agreement and the Parties submit exclusively to the courts of that jurisdiction.
Relationship between the Parties
32.8 Nothing in this Agreement constitutes a partnership or contract of employment. It is the express intention of the Parties to deny any such relationship.
Representatives, Successors and Assigns
32.9 You must not assign or novate this Agreement in whole or in part.
32.10 We may assign or novate this Agreement in whole or part at our sole discretion.
32.11 If any provision of this Agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.
Varying the agreement
32.12 In addition to our rights to vary this Agreement, the Parties may agree to a variation or amendment of this Agreement, and such agreement will be binding on the Parties upon being reduced to writing and signed by each Party.
32.13 Any delay or failure to enforce any rights in relation to a breach by the other Party will not be construed as a waiver of those rights.
32.14 This Agreement may be executed in any number of counterparts, and if so the counterparts taken together, constitute one and the same instrument.
32.15 This Agreement is not binding on any Party unless one or more counterparts have been duly executed by, or on behalf of, each Party named in the document, and delivered to the other party in accordance with clause 32.17.
32.16 The parties agree that a counterpart may be signed electronically, and may also be delivered electronically to the other party.
32.17 A signed counterpart may be delivered in any of the following ways:
(a) By handing the counterpart to the other party;
(b) By scanning the signed counterpart and emailing the scanned copy to the other party;
(c) By uploading a scanned copy of the signed counterparty to an electronic system used for transferring or otherwise communicating files between users, as required, or agreed by us;
(d) By signing the form electronically using a system prescribed by us for the purposes of signing the agreement.