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HomeMy WebLinkAbout2019-01-22 - AGENDA REPORTS - ELECTRIC VEHICLE CHARGING STATIONS, PROJ R0022 AWA (2)2 Agenda Item: 2 CITY OF SANTA CLARITA AGENDA REPORT CONSENT CALENDAR CITY MANAGER APPROVAL: DATE: January 22, 2019 SUBJECT: ELECTRIC VEHICLE CHARGING STATIONS, PROJECT R0022 - AWARD DESIGN/BUILD CONTRACT DEPARTMENT: Public Works PRESENTER: Michael Villegas RECOMMENDED ACTION City Council: 1. Award a construction contract to Servitek Solutions, Inc., for the Electric Vehicle Charging Stations, Project R0022, in the amount of $176,659, and authorize a contingency in the amount of $17,666 for a total contract amount not to exceed $194,325. 2. Authorize the purchase of five-year prepaid cloud and maintenance services and one CT4021 commercial charging station from ChargePoint, Inc., in the amount of $45,878. 3. Authorize the City Manager to execute a donation agreement with FivePoint for seven CT4021 commercial charging stations and one CT4000 commercial charging station, and the Master Services and Subscription Agreement with ChargePoint for cloud services. 4. Authorize the charge of an administrative fee of $.15 to $.40 per kWh for the use of the electric vehicle charging stations. 5. Authorize the City Manager or designee to execute all documents, subject to City Attorney approval. BACKGROUND On May 22, 2018, the City Council received a presentation provided by the Mobile Source Air Pollution Reduction Review Committee (MSRC) Local Government Partnership Program and authorized staff to move forward with the proposed project of installing eight electric vehicle charging stations at various locations citywide. Subsequent to City Council approval, an application was successfully submitted for the MSRC Local Government Partnership Program, resulting in $122,000 in match grant funding for the proposed project. Page 1 Packet Pg. 18 2 In addition to securing grant funding, City of Santa Clarita (City) staff worked with FivePoint (formerly Newhall Land and Farm) to secure eight charging stations at no cost to the City. FivePoint will donate the hardware (i.e. the physical charging stations at a total value of approximately $55,000), while the City will cover installation and software costs. An additional charging station was added to the scope of the project to maximize the grant funding for a total of nine charging stations. These stations will be commissioned at Valencia Heritage Park, Valencia Glen Park, Central Park, Canyon Country Park, The Centre, Old Town Newhall Parking Structure, and City Hall, with the latter two locations receiving two charging stations each. Staff evaluated multiple charging network providers for this project, including ChargePoint, Inc. (ChargePoint), EV Connect, Volta, Clipper Creek, and eVgo, among others. After careful consideration, staff recommends using ChargePoint as the network provider, which would include both hardware and software equipment. ChargePoint is an industry leader, with over 3,500 users within the Santa Clarita Valley alone. Its products meet the needs of the City and its communities, and its network will allow the City to both monitor and charge for usage and collect data. To offset the costs of energy consumption and operation of the charging stations, staff recommends charging users between $.15 and $.40 per kWh to account for both peak and non- s costs and is in line with other benchmark cities' fees. On October 10, 2018, a Request for Proposal (RFP) for the design/build of the project was posted to PlanetBids. On November 9, 2018, Purchasing opened the bids and found that only one bid was submit (Servitek), based in the City of Industry. Due to the unusually low number of responses, staff reached out to each of the 38 vendors that received the RFP inquiring as to the reason(s) they did not submit a proposal. To date, one vendor responded to this inquiry stating they offered pricing to a few vendors that would act as the prime but received no response. Staff reviewed the proposal submitted by Servitek and found that the firm had a good experience working with other public agencies. In addition, the proposal met all of the requirements set forth in the RFP, and the contractor is in good standing with the Contractors State License Board. For these reasons, staff recommends awarding the construction contract for the design/build of nine charging stations to Servitek. The requested contingency amount will cover the cost of unforeseen site conditions, change order requests made by the contractor, and change orders for additional work ordered by the City. ALTERNATIVE ACTION Other action as determined by the City Council. Page 2 Packet Pg. 19 2 FISCAL IMPACT Adequate funds were appropriated as part of the Fiscal Year 2018-19 budget in Contractual Services expenditure account R0022232-5161.001, Air Quality Management District Fund, to support the recommended actions. ATTACHMENTS ChargePoint Master Services and Subscription Agreement (available in the City Clerk's Reading File) FivePoint Donation Agreement (available in the City Clerk's Reading File) Page 3 Packet Pg. 20 CHARGEPOINT® MASTER SERVICES AND SUBSCRIPTION AGREEMENT IMPORTANT: THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU OR THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT AND CHARGEPOINT, INC., CPI PLEASE READ IT CAREFULLY. BY USING ANY OF THE CHARGEPOINT SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT USE ANY CHARGEPOINT SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, YOU MAY NOT ENTER INTO THIS AGREEMENT AND SUCH ENTITY MAY NOT USE THE CHARGEPOINT SERVICES. 1. AGREEMENT. 1.1 SCOPE OF AGREEMENT. This Agreement governs the following activities: (a) Provisioning of ), if any, on ChargePoint; (b) Activation and use of the ChargePoint Services on SCharging Station(s), if any; (c) Sthe APIs as part of the ChargePoint Services; (d) Each grant of Rights by Subscriber; and (e) Each grant of Rights by a third party to Subscriber. 1.2 EXHIBITS AND PRIVACY POLICY. This Agreement includes the CPI Privacy Policy, as amended from time to time, and the following Exhibits, which are made a part of, and are hereby incorporated into, this Agreement by reference. Exhibit 1: Flex Billing Terms Exhibit 2: API Terms Exhibit 3: Terms Regarding Granting and Receipt of Rights In the event of any conflict between the terms of this Agreement on the one hand, and the Privacy Policy or any Exhibit on the other hand, this Agreement shall govern. Capitalized terms not otherwise defined in any Exhibit or the Privacy Policy shall have the same meaning as in this Agreement. 2. DEFINITIONS. The following terms shall have the definitions set forth below when used in this Agreement: 2.1 means any entity which directly or indirectly controls, is controlled by, or is indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject entity. 2.2 δ APIs δ means, individually or collectively, the application programming interfaces which are made available to Subscriber from time to time, as and when updated by CPI. 2.3 shall have the meaning ascribed to it in the applicable data sheet. The term ChargePoint Connections shall also mean any successor service provided by CPI. Revised 12.21.16 2.4 ChargePoint®open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by CPI (as defined below) in order to provide various services to, among others, Subscriber and its employees. 2.5 Services means, collectively, the various cloud services offerings (including, without limitation, APIs and application service plans) made available for subscription by CPI. 2.6 Application applications established and maintained by CPI which will allow Subscriber to access ChargePoint Services. 2.7 Charging Station purchased by Subscriber, whether manufactured by CPI or by a CPI authorized entity, which are registered and activated on ChargePoint. 2.8 δ Content δ means all data collected or maintained by CPI in connection with the operation of ChargePoint. 2.9 CPI Marks means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with ChargePoint and/or CPI manufactured Charging Stations, including without limitation, ChargePoint. 2.10 CPI Property(i) ChargePoint, (ii) the ChargePoint Services (including all Content), (iii) all data generated or collected by CPI in connection with the operation of ChargePoint and ChargePoint Services, (iv) the CPI Marks, (v) the ChargePoint Cards, and (vi) all other CPI-supplied material developed or provided by CPI for Subscriber use in connection with the ChargePoint Services. 2.11 Documentation manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or ChargePoint and made available from time to time by CPI to Subscriber in any manner (including on-line). 2.12 means the earlier of (a) the date that Subscriber electronically accepts 2.13 Intellectual Property Rights all intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, Subscriber lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records. 2.14 means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents or programs. 2.15 means each of CPI and Subscriber. 2.16 PII personally identifiable information regarding Subscriber or a User (e.g., name, address, email address, phone number or credit card number) that can be used to uniquely identify, contact or locate Subscriber or such User. 2.17 means activating Charging Stations, warrantees and Service Plans on ChargePoint 2.18 means the rights, authorizations, privileges, actions, information and settings within the ChargePoint Services which a Rights Grantor grants to an Rights Grantee, to enable such Rights Grantee to access, obtain and use certain portions of the ChargePoint Services and certain information available therein in the course of providing services to or on behalf of such Rights Grantor in connection Page 2 of 18 Revised 12.21.16 with one or more of the Rights Grantor A Rights Grantor shall be deemed to have granted Right 2.19 (s) means subscription plans to the ChargePoint Services which are offered and sold by CPI from time to time, which vary according to their features, privileges and pricing. 2.20 means City of Santa Clarita. 2.21 and Services means any content and/or services that a Subscriber provides or makes available to Users and/or the general public in connection with the ChargePoint Services, other than Content, ChargePoint Services and CPI Property. 2.22 Subscriber Marks means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by Subscriber in connection with its business and/or Charging Stations. 2.23 Subscription means the fees payable by Subscriber for subscribing to any ChargePoint Services. 2.24 shall mean all present and future taxes, imposts, levies, assessments, duties or charges of whatsoever nature including without limitation any withholding taxes, sales taxes, use taxes, service taxes, value added or similar taxes at the rate applicable for the time being imposed by any national or local government, taxing authority, regulatory agency or other entity together with any penalty payable in connection with any failure to pay or any delay in paying any of the same and any interest thereon. 2.25 means the serialized proof of purchase of a Service Plan that is used by CPI in connection with enabling Services and/or provisioning Charging Stations. 2.26 User Charging Station. 3. AVAILABLE CHARGEPOINT SERVICES & SERVICE PLANS. A description of the various ChargePoint Services and Service Plans currently available for subscription is located on the CPI website. CPI may make other ChargePoint Services and/or Service Plans available from time to time, and may amend the features or benefits offered with respect to any ChargePoint Service or Service Plan at any time and from time to time. Subscription Fees of the Subscription. 4. CPI. 4.1 OPERATION OF CHARGEPOINT. CPI agrees to provide and shall be solely responsible for: (i) provisioning and operating, maintaining, administering and supporting ChargePoint and related infrastructure (other than Subscriber Charging Stations and infrastructure for transmitting data from Charging Stations to any ChargePoint operations center); (ii) provisioning and operating, maintaining, administering and supporting the ChargePoint Applications; and (iii) operating ChargePoint in compliance with all applicable laws. CPI will protect the confidentiality and security of PII in accordance with all applicable laws and regulations and the CPI Privacy Policy and acknowledges that it is responsible for the securi Data Security Standards), if any, that CPI possesses, otherwise stores, processes or transmits on behalf of Subscriber or for any impact, if any, on the security o. 4.2 LIMITATIONS ON RESPONSIBLITY. CPI shall not be responsible for, and makes no representation or warranty with respect to the following: (i) specific location(s) or number of Charging Stations now, or in the future, owned, operated and/or installed by persons other than Subscriber, or the Page 3 of 18 Revised 12.21.16 total number of Charging Stations that comprise ChargePoint; (ii) continuous availability of electrical service to any of Subscriber Charging Stations; (iii) continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by CPI of ChargePoint; (iv) availability of or interruption of the ChargePoint Network attributable to unauthorized intrusions; and/or (v) charging stations that are not registered with and activated on the ChargePoint Network. 5. SUBSCRIBER RESPONSIBILITIES AND AGREEMENTS. 5.1 GENERAL. (a) All use of ChargePoint and ChargePoint Services by Subscriber, its employees and agents and its grantees of Rights shall comply with this Agreement and all of the rules, limitations and policies of CPI set forth in the Documentation. All ChargePoint Services account details, passwords, keys, (and the use of its grantees of Rights), and Subscriber shall keep all such items secure and confidential. Subscriber shall prevent, and shall be fully liable to CPI for, any unauthorized access to or use of ChargePoint Charging Stations, ChargePoint Services account(s) or other equipment. Subscriber shall immediately notify CPI upon becoming aware of any such unauthorized use. (b) Subscriber shall be solely responsible for: (i) Provisioning of its Charging Stations, if any; (ii) keeping contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (iii) updating on the applicable ChargePoint Application, within five (5) business days, the location to which any of Subscriber Charging Stations are moved; (iv) the maintenance, service, repair and/or replacement of SubscriberCharging Stations as needed, including informing CPI of the existence of any Charging Stations that are non-operational and not intended to be replaced or repaired by Subscriber; and (v) compliance with all applicable laws. (c) Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange for such Users connecting with Subscriber using ChargePoint Connections. 5.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and warrants to CPI that: (i) it has the power and authority to enter into and be bound by this Agreement and shall have the power and authority to install the Charging Stations and any other electrical vehicle charging products which are registered and activated on the ChargePoint Network); (ii) the electrical usage to be conditions of any applicable electrical purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; and (iii) it has not installed or attached and will not install or attach Charging Stations on or to infrastructure not owned by Subscriber without proper authority, or in a manner that will block any easement or right of way. 5.3 CHARGEPOINT CARDS. Subscriber may be permitted by CPI, in CPI's sole discretion, to obtain CPI-provisioned radio-frequency identification cards ("ChargePoint Cards") which enable the individual card recipients to access and use ChargePoint. Subscriber may distribute such ChargePoint Cards to individuals, and each individual ChargePoint Card recipient is responsible for activating his or her ChargePoint Card on ChargePoint directly with CPI on the CPI web site. In no event will Subscriber create any separate ChargePoint accounts for any ChargePoint Card recipients or other third parties, nor will Subscriber create anonymous ChargePoint accounts associated with any ChargePoint Card. 5.4 USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not: (a) sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any Content therein to any third party; Page 4 of 18 Revised 12.21.16 (b) interfere with or disrupt the ChargePoint Services, servers, or networks connected to the ChargePoint Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the ChargePoint Services; (c) restrict or inhibit any other user from using and enjoying the ChargePoint Services or any other CPI services; (d) attempt to gain unauthorized access to the ChargePoint Network or the ChargePoint Services or related systems or networks or any data contained therein, or access or use ChargePoint or ChargePoint Services through any technology or means other than those provided or expressly authorized by CPI; (e) create any ChargePoint Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on ChargePoint, or obtain or attempt to obtain multiple keys for the same URL; (f) reverse engineer, decompile or otherwise attempt to extract the source code of the ChargePoint Services or any part thereof, or any Charging Station, except to the extent expressly permitted or required by applicable law; (g) create derivative works based on any CPI Property; (h) remove, conceal or cover the CPI Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for (i) except as otherwise expressly permitted by this Agreement or in any applicable data sheet relating to a ChargePoint Service, copy, frame or mirror any part of the ChargePoint Services or ChargePoint Contentn intranets or otherwise solely for (j) access ChargePoint, any ChargePoint Application or the ChargePoint Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to (k) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the ChargePoint Services or Content or collect information about ChargePoint users for any unauthorized purpose; (l) upload, transmit or introduce any Malicious Code to ChargePoint or ChargePoint Services; (m) use any of the ChargePoint Services if Subscriber is a person barred from such use under the laws of the United States or of any other jurisdiction; or (n) use the ChargePoint Services to upload, post, display, transmit or otherwise make available (A) any inappropriate, defamatory, obscene, or unlawful content; (B) any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (C) any messages, communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, the Agreement or the Documentation. Page 5 of 18 Revised 12.21.16 5.5 CONTENT. (a) ChargePoint Content (including but not limited to Charging Station data and status) is provided for planning purposes only. Subscriber may find that various events may mean actual Charging Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition, certain Charging Station-related Content, including Charging Station name and use restrictions, is set by the Charging Station owner and is not verified by CPI. Subscriber should exercise judgment in use of the Content. (b) Certain Content may be provided under license from third parties and is subject to copyright and other intellectual property rights of such third parties. Subscriber may be held liable for any unauthorized copying or disclosure of such third party-supplied Content. use of such Content may be subject to additional restrictions set forth in the Documentation. (c) Subscriber shall not copy, modify, alter, translate, amend, or publicly display any of the Content except as expressly permitted by the Documentation. Subscriber shall not present any portion of the Content in any manner, that would (i) make such Content false, inaccurate or misleading, (ii) falsify or delete any author attributions or labels of the origin or source of Content, or (iii) indicate or suggest that the Charging Station locations provided as part of the Content are anything other than ® ChargePoint Network Charging Stations. (d) Subscriber shall not remove, obscure, or alter in any manner any proprietary rights notices (including copyright and trademark notices), warnings, links or other notifications that appear in the ChargePoint Service. 6. SUBSCRIPTION FEES AND PAYMENT TERMS. 6.1 SUBSCRIPTION FEES. Subscriber shall pay all Subscription Fees within thirty (30) days of its receipt of CPI invoice. All payments shall be made in U.S. Dollars by check, wire transfer, ACH payment system or other means approved by CPI. Customer may not offset any amounts due to CPI hereunder against amounts due to Customer under this Agreement or any other agreement. Fees payable to CPI do not include any Taxes, and Subscriber is responsible for any and all such Taxes. All payment obligations under this Agreement are non-cancelable and non-refundable. 6.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. Subscriber will reimburse CPI CPI in the collection of any late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days overdue, CPI may, without otherwise limiting CPImedies, (a) terminate this Agreement, (b) suspend the use by Subscriber of the ChargePoint Services until such amounts are paid in full, and/or (c) condition future ChargePoint Service renewals and other Subscriber purchases on payment terms other than those set forth herein; provided that CPI shall not exercise any such rights if Subscriber has reasonably disputed such charges and is cooperating diligently in good faith to resolve the dispute. 7. INTELLECTUAL PROPERTY RIGHTS AND LICENSES. 7.1 CPI PROPERTY. As between CPI and Subscriber, CPI retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the CPI Property and any improvements thereto. No rights are granted to Subscriber in the CPI Property hereunder except as expressly set forth in this Agreement. Page 6 of 18 Revised 12.21.16 7.2 SUBSCRIBER PROPERTY. As between CPI and Subscriber, Subscriber retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to (i) all Subscriber Marks and (ii) all Subscriber Content and Services No rights are granted to CPI in the Subscriber Property hereunder except as expressly set forth in this Agreement. 7.3 LIMITED LICENSE TO SUBSCRIBER. CPI hereby grants to Subscriber a royalty-free, non- assignable, non-transferable, and non-exclusive license to use the CPI Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for Subscriber to access, use and receive the ChargePoint Services as permitted herein. 7.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non-assignable, non- transferable, and non-exclusive license to use the Subscriber Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for CPI to provide the ChargePoint Services. CPI may utilize the Subscriber Marks to advertise that Subscriber is using the ChargePoint Services. The foregoing license includes a perpetual and irrevocable right of CPI to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by Subscriber in the ChargePoint Services, solely for the purpose of enabling CPI to operate, market and promote the ChargePoint Services, and to index and serve such Subscriber Content and Services as search results through ChargePoint Services. CPI shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or Subscriber Rights Grantees relating to the ChargePoint Services. 7.5 ADDITIONAL TERMS REGARDING CPI MARKS. (a) USE LIMITATIONS. Subscriber shall display the CPI Marks in connection with Subscriber shall not use any of the CPI Marks for or with any products other than its Charging Stations. From time to time, CPI may provide updated CPI Mark usage guidelines on the ChargePoint Application or elsewhere in the Documentation, and Subscriber shall thereafter comply with such updated guidelines. For any use of the CPI Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the CPI Mark, Subscriber must obtain CPI unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the CPI Mark in the approved manner. All use by Subscriber of CPI's Marks (including any goodwill associated therewith) will inure to the benefit of CPI. (b) PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any likeness of a CPI Mark): (i) connection with the name of a business of Subscriber or its Affiliates; (ii) in any manner that (x) implies a relationship or affiliation with CPI other than as described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of CPI or CPI personnel; (iii) in any manner intended to disparage CPI, ChargePoint, or the ChargePoint Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to CPI; Page 7 of 18 Revised 12.21.16 (iv) in any manner that violates any law or regulation; or (v) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by CPI. (c) NO REGISTRATION OF CPI MARKS. Subscriber shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any CPI Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to a CPI Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of CPI, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Subscriber by CPI. At no time will Subscriber challenge or assist others to challenge the CPI Marks (except to the extent such restriction is prohibited by law) or the registration thereof by CPI. (d) TERMINATION AND CESSATION OF USE OF CPI MARKS. Upon termination of this Agreement, Subscriber will immediately discontinue all use and display of all CPI Marks. 8. LIMITATIONS OF LIABILITY. 8.1 DISCLAIMER OF WARRANTIES. CHARGEPOINT AND THE CHARGEPOINT SERVICES ARE EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CPI DOES NOT WARRANT THAT (A) SUBS USE OF THE CHARGEPOINT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET OTHER INFORMATION OBTAINED BY SUBSCRIBER FROM OR IN CONNECTION WITH THE CHARGEPOINT SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE CHARGEPOINT SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE CHARGEPOINT SERVICES IS OBTAINED AT OWN DISCRETION AND RISK, AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. 8.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CPI BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT SERVICES, THIS AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT. 8.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither CPI nor Subscriber shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatever the cause; (ii) interruptions in wireless or cellular service linking Charging Stations to ChargePoint; (iii) interruptions attributable to unauthorized ChargePoint Network intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with CPI; or (v) the inability of a Charging Station to access ChargePoint as a result of any change in product offerings Page 8 of 18 Revised 12.21.16 by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions. 8.4 LIMITATION OF LIABILITY. CPI aggregate Subscription Fees paid by Subscriber to CPI in the twelve (12) calendar months prior to the event giving rise to the liability. 8.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE CHARGEPONT SERVICES, CPI HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CPI AND THE UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CHARGEPOINT SERVICES. 8.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICITONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 8, ONE OR MORE OF THE ABOVE LIMITATIONS MAY NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, CPI GRANTED IN SUCH CASES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 9. TERM AND TERMINATION. 9.1 TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and shall continue until the expiration of all of SubscriberService Plans. 9.2 SERVICE PLAN TERM. Each Service Plan acquired by Subscriber shall commence as follows: Each Service Plan acquired for use with a new Charging Station will commence on the earlier to occur of (i) the date of Provisioning such new Charging Station, or (ii) one year from the date the Token(s) necessary for Provisioning such new Charging Station is made available to Subscriber or its installer. Renewals of Service Plans will commence on the date of the expiration of the Subscription being renewed. Each Subscriber Service Plan shall continue for the applicable duration thereof, unless this Agreement is terminated earlier in accordance with its terms. 9.3 TERMINATION BY CPI. (a) This Agreement may be immediately terminated by CPI: (i) if Subscriber is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) thereof; (ii) Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; (iii) upon the determination by any regulatory body that the subject matter of this Agreement is subject to any governmental regulatory authorization or review that imposes additional costs of doing business upon Page 9 of 18 Revised 12.21.16 CPI; or (iv) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in breach, CPI may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of its subscription to ChargePoint Services. In such case, this Agreement shall terminate upon the later of iptions to ChargePoint Services. (b) CPI Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement, or has acted in manner that indicates that Subscriber does not intend to, or is unable to, comply with any provision of this Agreement; (B) such suspension is required by law (for example, due to a change to the law governing the provision of the ChargePoint Services); or (c) providing the ChargePoint Services to Subscriber could create a security risk or material technical burden as reasonably determined by CPI. 9.4 TERMINATION BY SUBSCRIBER. This Agreement may be immediately terminated by Subscriber without prejudice to any other remedy of Subscriber at law or equity: (i) if CPI is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days of the date of its receipt of written notice thereof, or (ii) CPI becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors. 9.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement for cause by Subscriber pursuant to Section 9.4(i) or by CPI pursuant to Section 9.3(a)(iii), CPI shall refund to Subscriber a pro-rata portion of any pre-paid Subscription Fees based upon the remaining Service Plan term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any Subscription Fees as a result of such termination. In no event shall any termination relieve Subscriber of any unpaid Subscription Fees due CPI for the Service Plan term in which the termination occurs or any prior Service Plan term. 9.6 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CPI, limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by their nature or terms are intended to survive the termination of this Agreement will remain in full force and effect as between the Parties hereto regardless of the termination of this Agreement. 10. INDEMNIFICATION. Subscriber hereby agrees to indemnify, defend and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, Claimssuffered or incurred by such indemnified parties resulting from or arising out of (directly, or through a grantee of Rights by Subscriber) of the ChargePoint Services, ChargePoint or Subscriber Content and Services. Subscriber will cooperate as fully as reasonably required in the defense of any claim. CPI reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Subscriber. 11. GENERAL. 11.1 AMENDMENT OR MODIFICATION. CPI reserves the right to modify this Agreement from time to time. CPI will provide notice of each such modification to Subscriber. of the ChargePoint Services following such notice will constitute an acceptance of the modified Agreement. 11.2 WAIVER. The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right. Page 10 of 18 Revised 12.21.16 11.3 FORCE MAJEURE. Except with respect to payment obligations, neither CPI nor Subscriber reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of such P therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a Party from performing its obligations under this Agreement; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts. 11.4 ARBITRATION. This Agreement is to be construed according to the laws of the State of California, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Except with respect to any matter relating to intellectual property rights of CPI, any dispute arising from or relating to this Agreement shall be arbitrated in Santa Clara, California. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the proceeding. With respect to any matter relating to the intellectual property rights of CPI, such claim may be litigated in a court of competent jurisdiction. The prevailing party in any dispute arising out of this 11.5 NOTICE TO CALIFORNIA CUSTOMERS. (a) ) was enacted to ensure that the mix of fuels sold by California oil refiners and distributers meets applicable greenhouse gas emissions targets. California has a statewide goal to reduce carbon intensity of transportation fuels by at least 10% by 2020. (b) The ChargePoint Network can track the fueling of electric vehicles, which If applicable reporting requirements are met, LCFS credits are issued by the California Air Resources Board. An available LCFS credit may be claimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the LCFS credits are only available to one party, meaning any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available LCFS credits generated from use of the Charging Stations, but will not claim any available LCFS credits that Subscriber intends to claim. If Subscriber intends to claim the LCFS credits, it must engage in the reporting and other administrative obligations necessary to generate such credits. (c) Subscriber agrees that it will provide CPI with written notice of its intent to claim LCFS credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the LCFS credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim LCFS credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any LCFS credits. All notices shall be provided by email to CPI at lcfsnotification@chargepoint.com. 11.6 NOTICE TO OREGON CUSTOMERS (a) Clean Fuel Program was created with the purpose of reducing greenhouse gas emissions in the transportation sector. (b) The fueling of electric vehicles, and the operation of the ChargePoint Network, Page 11 of 18 Revised 12.21.16 issued by the Oregon Department of Environmental Quality. By reporting the amount of electric vehicle fueling, ChargePoint is able to help Oregon track the growing use of electric vehicles in the state, for which ChargePoint will receive OCFP credits. (c) An available OCFP credit may be claimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the OCFP credits are only available to one party. This means any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available OCFP credits generated from use of the Charging Stations, but will not claim any available OCFP credits that Subscriber intends to claim. (d) Subscriber agrees that it will provide CPI with written notice of its intent to claim OCFP credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the OCFP credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim OCFP credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any OCFP credits. All notices shall be provided by email to CPI at lcfsnotification@chargepoint.com. 11.7 NOTICES. Other than the notices required in Sections 11.5 and 11.6, any notice required or permitted by this Agreement shall be sent (a) if by CPI, via electronic mail to the address indicated by via electronic mail to mssa@chargepoint.com. 11.8 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the ChargePoint Services may be irreparable; therefore, CPI is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies. 11.9 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. 11.10 ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of CPI (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, CPI shall be entitled, at its sole discretion, to terminate this Agreement upon written notice given to Subscriber. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. CPI may assign its rights and obligations under this Agreement. 11.11 NO AGENCY OR PARTNERSHIP. CPI, in the performance of this Agreement, is an independent contractor. In performing its obligations under this Agreement, CPI shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by CPI and Subscriber to be created by this Agreement. Neither Party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever. Page 12 of 18 Revised 12.21.16 11.12 ENTIRE AGREEMENT. This Agreement (including the attached Exhibits) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. All purchase orders issued by Subscriber shall state that such purchase orders are subject to all of the terms and conditions of this Agreement, and contain no other term other than the type of Service Plan, the number of Charging Stations for which such Service Plan is ordered, the term of such Service Plans and applicable Subscription Fees. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation shall be incorporated into or form any part of this Agreement, and all such purported terms and conditions shall be null and void. 11.13 COPYRIGHT POLICIES. It is CPI's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. 11.14 THIRD PARTY RESOURCES. The ChargePoint Services may include hyperlinks to other websites or resources. CPI has no control over any web sites or resources that are provided by companies or persons other than CPI. Subscriber acknowledges and agrees that CPI is not responsible for the availability of any such web sites or resources, CPI does not endorse any advertising, products or other materials on or available from such web sites or resources, and CPI is not liable for any loss or damage that may be incurred by Subscriber as a result of any reliance placed by Subscriber on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources. 11.15 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document. 11.16 ENGLISH LANGUAGE AGREEMENT GOVERNS. Where CPI has provided Subscriber with a translation of the English language version of this Agreement, Subscriber agrees that the translation is and that the English language version of this Agreement governs relationship with CPI. If there is any conflict between the English language version of this Agreement and such translation, the English language version will prevail. Subscriber: ChargePoint, Inc. Name: ___________________________________ Name: Jonathan Kaplan Title: Title: General Counsel _____________________________________ Date: ____________________________________ Date:____________________________________ Address: Address: __________________________________ 254 E. Hacienda Ave _________________________________________ Campbell, CA 95008 Page 13 of 18 Revised 12.21.16 EXHIBIT 1 FLEX BILLING TERMS This Exhibit sets forth certain additional terms and conditions Subscriber may charge fees, Subscriber must subscribe to a Service Plan that includes 1. DEFINITIONS. The following additional defined terms shall apply to these Flex Billing Terms: 1.1 means a fee, currently equal to ten percent (10%) of Session Fees, charged for a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing of Session Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior written notice (which may include, without limitation, notice provided by CPI through its regular newsletter to Subscriber) of any increase in CPI Fees. 1.2 means the total amount of Session Fees collected on behalf of the Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected by CPI from Users in connection with the use of Charging Stations. Except as required by law, Subscriber shall be responsible for the payment of all Taxes incurred in connection with use 1.3 or means the period of time during which a User uses than two (2) minutes commencing when a User has accessed such Charging Station and ending when such User has terminated such access. 1.4 means the fees set by the Subscriber for a Charging Session, inclusive of any applicable Taxes. 2. FLEX-BILLING SERVICE FOR CHARGING STATIONS. 2.1. SESSION FEES. Subscriber shall have sole authority to determine and set in real-time Session Fees. Subscriber shall be solely responsible for determining and charging Session Fees in compliance with all applicable laws and regulations (including without limitation any restriction on -kWh pricing). Subscriber acknowledges that CPI is not responsible for informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber or any third party for any alleged or actual failure of Subscriber to comply with such applicable laws and regulations. 2.2 DEDUCTIONS FROM SESSION FEES. In exchange for CPI collecting Session Fees on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from all Session Fees collected: (i) CPI Fees and (ii) to the extent required by Section 3, applicable Taxes. 2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI shall remit Net Session Fees to Subscriber not more than thirty (30) days after the end of each calendar month as directed by Subscriber from time to time through the applicable ChargePoint Services. Notwithstanding the foregoing, no such payment will be required if at the end of any calendar month the amount due to Subscriber hereunder is less than fifty U.S. Dollars ($50), except in connection with the expiration or termination of this Page 14 of 18 Revised 12.21.16 Agreement. In no event shall CPI remit amounts due to Subscriber, regardless of the amount then due, later than thirty (30) days following the end of each calendar quarter. 3. TAXES. Subscriber is responsible for the payment of all Taxes incurred in connection with Session Fees; provided that employees. Where CPI is required by law to collect and/or remit the Taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless Subscriber has otherwise provided CPI with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority. Page 15 of 18 Revised 12.21.16 EXHIBIT 2 API TERMS This Exhibit sets forth certain additional terms and conditions governing Subscriberuse of the APIs in connection with use of the ChargePoint Services. The API Terms are part of the Agreement, and all such use of the APIs remains subject to the Agreement terms. 1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply to the API Terms. 1.1 δ API Implementation δ means a Subscriber software application or website that uses any of the APIs to obtain and display Content in conjunction with Subscriber Content and Services. 1.2 means all Documentation containing instructions, restrictions or guidelines regarding the APIs or the use thereof, as amended and/or supplemented by CPI from time to time. 1.3 CPI means the Terms and Conditions displayed on CPI use of CPIService Plan subscribers. 2. API USE. and the API Documentation, subject to the terms and conditions of the Agreement. 2.1 AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information through a set of function calls. The particular APIs and API function calls made available by CPI from time to time (and the Content available through such APIs and function calls) will be limited by Service Plan, and may not include all APIs and function calls then available from CPI. 2.2 USE AND DISPLAY OF CONTENT. Subscriber is permitted to access, use and publicly display the Content with Subscriber Content and Services in API Implementation, subject to the following requirements and limitations. (a) All Charging Station locations provided to Subscriber as part of the Content shall be ® clearly identified by Subscriber in API Implementation as ChargePoint Network Charging Stations and shall contain the Brand Identifiers required by the API Documentation. In no event shall API Implementation identify or imply that any Charging Station is a part of any network of charging stations other than ChargePoint. (b) Subscriber shall keep the Content used by API Implementation current with Content obtained with the APIs to within every forty eight (48) hours. (c) Content provided to Subscriber through the APIs may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of CPIbusiness partners and/or other third party rights holders of Content indexed by CPI, which may not be deleted or altered in any manner. (d) Subscriber shall not: Page 16 of 18 Revised 12.21.16 (i) pre-fetch, cache, or store any Content, except that Subscriber may store limited amounts of Content for the purpose of improving the performance of API Implementation if Subscriber does so temporarily, securely, and in a manner that does not permit use of the Content outside of the ChargePoint Service; (ii) hide or mask from CPI the identity of service utilizing the APIs, including by failing to follow the identification conventions listed in the API Documentation; or (iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. 2.3 REQUIRED INFORMATION. Subscriber must: (a) display to all viewers and users of API Implementation the link to the CPI Site Terms and Conditions as presented through the ChargePoint Services or described in the Documentation; (b) explicitly state in that, by using API Implementation, such viewers and users are agreeing to be bound by the CPI Site Terms; and , and abide by, a privacy policy complying will all applicable laws; and (d) comply with all applicable laws designed to protect the privacy and legal rights of users . 2.4 REPORTING. Subscriber must implement reporting mechanisms, if any, that CPI requires in the API Documentation. 3. CPI BRANDING REQUIREMENTS AND RESTRICTIONS. 3.1 MANDATORY CPI BRANDING. Subject to Section 3.2 below and the restrictions on use of CPI Marks set forth in the Agreement, Subscriber agrees that each page comprising API Implementation will include a ChargePoint logo and will state that application or website is provided, in part, through the ChargePoint Services. 3.2 RESTRICTIONS. Subscriber shall not: (a) display any CPI Mark as the most prominent element on any page in API Implementation (except as used in connection with the display of Charging Stations); or (b) display any CPI Mark anywhere in API Implementation or on website if API Implementation or website contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age. Page 17 of 18 Revised 12.21.16 EXHIBIT 3 TERMS REGARDING GRANTING OF RIGHTS This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and Rights Grantees regarding the granting of Rights . The Rights Terms are part of the Agreement, and all use of the ChargePoint Services permitted pursuant to the Rights Terms remains subject to the Agreement. 1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply. 1.1 Rights Grantor means Subscriber. 1.2 Rights Grantee means a any person to whom Subscriber has granted Rights. For purposes of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity assisting Subscriber with . 2. TERMS. as a Rights Grantor. 2.1 LIMITED RIGHTS. A Rights Grantee to access and use the ChargePoint Services for and on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights Grantor to such Rights Grantee. Such Rights may be limited according to the Service Plan(s) subscribed to by Subscriber. Subscriber may revoke Rights, or any portion thereof, it has granted to a Rights Grantee at will and such Rights will thereafter by terminated with respect to such Rights Grantee. In no event may Subscriber grant Rights in excess of those provided to it through the Service Plan(s) to which it has subscribed. 2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Services by a Rights Grantee exercising Rights granted by Subscriber shall be subject to the terms and conditions of the Agreement thereof). Subscriber shall be responsible for the actions, omissions, or performance of such Rights Grantee while exercising any such Rights, as if such action, omission or performance had been committed by Subscriber directly. 2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Services merely enable a Rights Grantor to extend Rights to Rights Grantees. The mere extension of such Rights by a Rights Grantor to a Rights Grantee does not constitute an agreement between Rights Grantor and the Rights Grantee with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. CPI does not, either through the terms of the Agreement or the provision of ChargePoint Services undertake to provide any such agreement. It is the responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement on terms mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an agreement. Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, arising out of such agreement. Page 18 of 18 Revised 12.21.16 ELECTRIC VEHICLE CHARGING STATION DONATION AGREEMENT This Electric Vehicle Charging Station Agreementbetween ChargePoint, Inc., a Delaware corporation, with its headquarters located at 240 Hacienda Avenue, Campbell, CPI and City of Santa Clarita Owner California general law city, with its headquarters located at 23920 Valencia Boulevard, Santa Clarita, CA 91355. CPI and Owner are each sometimes referred to herein as PartyParties 1. Charging Stations. Owner has been awarded one or more CPI electric vehicle charging stations Charging Stations under the Electric Vehicle Charging Station Program Program. The Program has been funded in part by Five Point. The charging stations will be installed at the locations specified on Appendix A under this Agreement. Product Product Name Product Code Quantity Unit Price Total Price Description Dual Output Gateway Option USA, Bollard 00-400003-02 Unit - 208/240V CT4021-GW1 7 $7,210 $50,470 @30A with Cord Management Single Output Gateway Option USA, Bollard 00-400024-00 Unit - 208/240V CT4011-GW1 1 $5,010 $5,010 @30A with Cord Management Grand Total: $55,480 2. Shipment and Delivery. Owner will pay for the cost of standard delivery charges of the Charging Stations to the locations designated by Owner in writing to CPI. CPI shall choose the method by which Charging Stations are to be delivered. 3. Installation. a. the Charging Stations may only be done by a CPI approved installer. b. Owner agrees to cause the installation of the Charging Stations, and the provisioning of such Charging Stations on the ChargePoint Network, within sixty (60) days following the delivery of the Charging Stations to Owner. In the event that the Charging Stations have not been installed by the expiration of such sixty (60) day period, Owner shall be responsible for suggested retail price for each of the Charging Stations. Owner shall provide proof, or cause its installer to provide proof, to CPI that the Charging Stations have been installed within ninety (90) days of their delivery to Owner including an executed verification form in the form set forth in Appendix B. If Owner so fails to cause the installation of the Charging Stations and provide proof thereof, CPI may invoice Owner for t All invoices are due net thirty (30). In the event that Owner is having trouble arranging for the installation of the Charging Stations, Owner shall contact CPI as soon as possible so that the parties can cooperate to cause the prompt installation of the Charging Stations. The Charging Stations are not to be removed from their packaging by any person other than the Installer. 4. Warranty/Limitation of Liability/Release of Claims Against Newhall. (a) Warranty. The Charging Station is covered by the terms Parts Only applicable warranties with respect to the Charging Station are set forth in the Warranty, and are hereby incorporated by reference into this Agreement. (b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4 AND IN THE WARRANTY, CPI MAKES NO WARRANTY WITH NETWORK STANDARD SERVICES OR T EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CPI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON- INFRINGEMENT OF THIRD PARTY RIGHTS BY THE CHARGING STATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CPI DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE CHARGING STATION. (c) Limitation of Liability. (i) REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CPI BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGING STATION, THE CHARGEPOINT NETWORK, ANY CHARGEPOINT NETWORK SERVICE PLANS, OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY YOU NOT SPECIFICALLY SET FORTH IN THIS ADDENDUM. BECAUSE SOME STATES OR JURISDICITON DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. (ii) YOUR SOLE REMEDY FOR ANY BREACH BY CPI OF ITS OBLIGATIONS OR WARRANTIES UNDER THIS AGREEMENT SHALL REPAIR OR REPLACEMENT OF THE CHARGING STATION. (d) Warranty Exclusions. Exclusive Remedies. THE REMEDIES CONTAINED IN SECTION 4 ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND ARE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES YOU MAY HAVE AGAINST CPI WITH RESPECT TO THE PERFORMANCE OF THE CHARGING STATIONS, THE (e) Release of Claims ns to Owner under this Agreement, Owner forever releases, discharges and disclaims any claims of any nature whatsoever against Newhall or any of its affiliates, officers, employees, directors, partners, or members arising from or related to the installation and use of the Charging Stations. 5. Network Access. As a part of the award, Owner shall subscribe, for a minimum period of one (1) ChargePoint Network Commercial Service Plan for use with awarded Charging Stations. Owner must keep the Charging Stations connected to the ChargePoint Network throughout the entire Subscription Period. In order to access its service plan, bscription Agreement. 6. Access to Information. As part of the Program, CPI will report and release to Newhall, and such other participants and partners of CPI in the Program as CPI shall determine necessary, all data and information relating to the use o http://www.coulombtech.com/privacy-policy.php 7. Low Carbon Fuel Standard Credit. As a condition to participating in the Program owner agrees not to claim any Low Carbon Fuel Standard Credits arising from the use of the Charging Stations. 8. Failure to Comply with Terms of the Program. In the event that Owner fails to (i) use a CPI authorized installer or (ii) provide proof of installation, Owner suggested retail price for the Charging Station(s). 9. No Amendment or Modification. No modification, amendment or waiver of this Agreement shall be effective unless in writing and either signed or electronically accepted by the party against whom the amendment, modification or waiver is to be asserted. 10. Waiver. ure at any time to require performance of any obligation under this Agreement e a waiver of the constitute a waiver of such rights. No waiver will be effective unless in writing and signed by an authorized representative of the party granting such waiver. Any such waiver will be effective only with respect to the specific instance and for the specific purpose given. 11. Applicable law. This Agreement will be construed, and performance will be determined, according to the laws of the State of California without reference to such principles of conflicts of law and the state and federal courts of California shall have exclusive jurisdiction over any claim arising under this Agreement. 12. Waiver of Jury Trial. Owner and CPI each hereby waive any right to jury trial in connection with any action or litigation arising out of this Agreement. 13. Severability. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Owner or CPI will to any extent be determined by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, Owner and CPI or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. 14. Assignment. Owner may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of CPI, except in connection with a sale installed, or as may be required by any current or future lender having a mortgage against the property on or about which the Charging Stations are being installed. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document. Delivery of an executed counterpart of this Agreement by facsimile or electronic transmission in a PDF counterpart of this Agreement and each such counterpart, whether delivered manually, by facsimile or PDF shall be deemed an original. Any party delivering an executed counterpart of this Agreement by facsimile or PDF shall also manually deliver an executed counterpart of this Agreement, however the failure to do so shall have no effect on the validity, enforceability or binding nature and effect of this Agreement. 16. Priority. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail. To the extent of any conflict or inconsistency between the terms and conditions of the Warranty and any purchase order, the Warranty shall prevail. SIGNATURE PAGE FOLLOWS CHARGEPOINT, INC. City of Santa Clarita By: _________________________________ By: _________________________________ (Signature) (Signature) Name: ______________________________ Name: ______________________________ Title: ______________________________ Title: _______________________________ Date: ______________________________ Date:_______________________________ APPENDIX A CHARGING STATION LOCATIONS 1. City Hall (2 Stations) 23920 Valencia Blvd, Santa Clarita, CA 91355 2. Valencia Heritage Park 24155 Newhall Ranch Road, Santa Clarita, CA 91355 3. Valencia Glen Park 23750 Via Gavola, Santa Clarita, CA 91355 4. Central Park 27150 Bouquet Canyon Road, Santa Clarita, CA 91350 5. Canyon Country Park 17615 Soledad Canyon Road, Santa Clarita, CA 91387 6. The Centre 20880 Centre Point Parkway, Santa Clarita, CA 91350 th 7. Old Town Newhall Parking Structure (2 Stations) 22551 9 Street, Santa Clarita, CA 91321 APPENDIX B VERIFICATION FORM \[See attached\] ELECTRIC VEHICLE CHARGING STATION VERIFICATION This Electric Verification Owner as follows: 1. Charging Stations EVSE Make: EVSE Model: EVSE Serial Number: EVSE Functionality Level: Level 2 Number of Parking Spaces Served: 2. The Charging Stations are located at the following address: Street Address: City, State Zip Code: Installation of these improvements is complete as of \[insert date\], and photographic evidence of I declare under penalty of perjury that I have the authority to execute this Verification on behalf of the Contractor, and that the foregoing is true and correct. Date: By: Name: Title: