EOS LINX PRODUCT AND SERVICE TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) GOVERN CUSTOMER’S PURCHASE OF EQUIPMENT AND SERVICES (“PRODUCT”) FROM EOS LINX, LLC (“EOS”). ANY ADDITIONAL PRINTED TERMS AND/OR CONDITIONS IN CUSTOMER’S PROPOSAL, PURCHASE ORDER OR OTHER DOCUMENT CONFLICTING WITH OR ADDING TO THESE TERMS, SHALL BE OF NO FORCE AND EFFECT, UNLESS AN AUTHORIZED REPRESENTATIVE OF EOS AGREES IN WRITING TO ACCEPT SUCH ADDITIONAL TERMS AND/OR CONDITIONS.
- Grant of License for EOS Owned and Operated transactions. Customer
hereby grants to EOS the exclusive right to install, operate and
maintain EOS Stations at the deployment locations (“Deployment
Locations”) listed on the Proposal, which may be amended from time to
time as necessary to update the Deployment Locations. The Parties will
work in good faith to determine the ultimate deployment of EOS Stations
at each of the Deployment Locations and may execute additional
documentation as necessary to address all relevant terms and conditions
specific to each Deployment Location.
- EOS Station Upgrades and Modifications
EOS may at any time elect to add, upgrade, or change the specific model of EV charger for reasons of commercial benefit, operational stability, revenue enhancement, increased functionality, and/or legal or commercial program compliance. However, EOS may not swap or replace an EOS Station if such swap or replacement would cause a material reduction in the quality or service capabilities of the EOS Station installed in such Deployment Location.
EOS and its employees and vendors shall, at any time during the Term of this Agreement, have the right to access a Deployment Location to maintain, inspect, repair or replace any portion of the EOS Station pursuant to its obligations hereunder.
The Proposal shall define which party, EOS or Customer (the
“Responsible Party”), will (i) be responsible for providing and
installing, at its cost, electrical infrastructure for the EOS Stations
at the point of connection (the “Make Ready”), and (ii) will have sole
control over supervising and conducting the construction and
installation activities for the EOS Station, and have sole control over
construction, construction schedule, and installation means, methods,
techniques, sequences, and procedures, including the coordination of all
work related thereto (the “Station Install”). Before beginning
activities to install the EOS Station at the Property, the Responsible
Party shall give a copy of the tentative construction schedule and
installation plans to the other party for its approval, which approval
shall not be unreasonably delayed, conditioned or withheld. No EOS
Install will begin until plans have been approved by all parties and all
applicable permits and certifications for the EOS Install has been
obtained. Upon approval of the Station Install plans and completion of
the Make Ready by the Responsible Party, the Responsible Party will, at
its sole expense, oversee and manage the configuration of the EOS
Station at the point of connection. The Station Install shall include
the hiring and coordination of all vendors and contractors for the
Station Install; the installation of chargers, hardware and software for
the operation of the EOS Station; any EV charging mobile applications,
the installation of connectivity; furnish and install any applicable
power management solution and the installation of all EOS required
Unless otherwise agreed upon or if Customer has previously acquired such licenses, permits, or other approvals required, EOS will support or obtain as defined in the Proposal, from applicable governmental authorities all licenses, permits, or other approvals required to install the EOS Station, and Customer will reasonably cooperate upon request with EOS’s efforts to do so.
Where EOS is the Responsible Party, Customer grants to EOS and its employees and vendors the non-exclusive right to use and occupy the Deployment Locations for the construction and installation of the EOS Stations, and EOS shall confine its operations strictly to those sites permitted by applicable law, ordinances, permits and this Agreement. Only those materials and equipment that are being used directly in the construction and installation of EOS Station shall be brought to and stored on the Deployment Location and its adjacent areas. EOS shall ensure that, subject to reasonable and unavoidable interruptions, all work is performed in a manner that affords continuous, reasonable access to the Deployment Locations.
Unless Customer has executed an Proposal under the EOS Purchase Program, or as otherwise defined in the Proposal, on completion of the installation of each EOS Station, EOS shall continue to retain all ownership rights therein and shall have the right to remove all or a portion of the same at any time during the Term set forth in the Proposal, whether or not said items are considered fixtures and attachments to the Deployment Locations under applicable laws, provided prior to removal EOS must comply with the termination provisions of this Agreement.
Operation and Maintenance. In the event of any EOS Station failure, damage, or other problem requiring repair, replacement, adjustment, or maintenance, Customer shall notify EOS, or a person designated by EOS within twenty-four (24) hours of first becoming aware of such failure or problem. Customer will not permit anyone other than an authorized representative or designee of EOS to perform any service or repair work on the EOS Station without EOS’s prior written approval. EOS and its representatives, employees and vendors shall always at any reasonable time and during business hours have the right to enter and upon a Deployment Location for the purpose of inspecting, repairing, maintaining, replacing or upgrading the EOS Station or any portion thereof, and observing its use.
Exclusivity. Customer hereby grants EOS an exclusive right to provide electric vehicle charging and related services at the agreed upon Deployment Locations during the Term.
- Utility Matters.
Except to the extent set forth to the contrary in the Proposal or subsequently agreed in writing by the Parties, EOS shall be responsible for obtaining the electrical service and any other utilities necessary to operate the EOS Station. Customer shall cooperate with EOS as necessary in that regard, including by granting appropriate easements to local utility providers. Where possible, EOS may establish separately metered electricity for EOS Stations with EOS as the owner of record for such meter. For any EOS Stations not separately metered, EOS shall measure in kWh and provide monthly reports to Customer showing the electricity used by the EOS Station.
Neither Customer nor EOS has any responsibility or liability for interruption, curtailment, failure, or defect in the supply or character of utilities furnished to facilities or equipment located at a Deployment Location, unless the cause of the interruption is caused by the negligence, or willful misconduct of Customer or EOS.
The responsibility for payment of the monthly recurring cost for electricity consumed by the platform will be determined based on the specific EOS product that is deployed and as agreed upon and documented in the separate EOS Proposal.
- EOS Station Upgrades and Modifications
Media and Advertising. With respect to any Product equipped with digital displays, Customer grants EOS the exclusive right to sell and run advertising spots (“Ads”) on the displays; provided, however, that all Ads sold and run on the displays (a) are subject to Customer’s prior written approval if desired and specifically requested and (b) shall expressly comply with EOS’s Acceptable Use Policy.
- Equipment Purchase Transactions
Where Customer is purchasing equipment (“Equipment”) from EOS, Customer represents and warrants that it is purchasing the Equipment for its own account and not for resale, and that it will not, absent EOS’s prior written consent, resell any of the Equipment. Nothing in this Section shall be deemed to prohibit Customer from reselling Equipment to any of its affiliates. For purposes of these Terms, the term “affiliate” shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject entity.
Customer shall be responsible for arranging for the installation and operation of the Equipment and for paying all of the costs thereof. At Customer’s request, EOS may provide the names and contact information of one or more EOS-approved installers of Equipment; provided that, in providing such information EOS makes no representation or warranty of any kind, nor does it undertake any liability, with respect to or regarding the quality of any installation or other services performed by any such installer. EXCEPT AS SPECIFICALLY AGREED TO IN WRITING, EOS IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR, THE QUALITY OF ANY INSTALLATION SERVICES OR ANY CLAIM IN ANY WAY RELATING TO OR RESULTING FROM SUCH SERVICES.
Operation. Customer expressly agrees that as long as the unit is connected to the EPS Network and visible on the EOS maps and mobile application, Customer will ensure the Equipment is functioning properly and available to the public 24/7, excluding permissible down time for maintenance. Should the Equipment be unavailable to the public for charging for a period of three (3) days or longer and Customer does not certify in writing to EOS that the issues with the equipment are being rectified then Customer expressly grants EOS a limited license for EOS, its employees, agents, and vendors to enter upon the Deployment Location at any time (and to the extent possible, with 24 hour notice to Customer), for the specific purposes of inspecting, servicing, and maintaining the Equipment. Customer shall not interfere with EOS’s services, maintenance, or data collection from the Equipment.
Returns. Customer shall have five (5) business days from receipt of the Equipment to return unopened and unused items (with all packaging intact) to EOS. All items not returned by Customer within such five (5) business-day period shall not be returnable. EOS shall return any and all prepaid amounts with respect to the returned items. The determination as to whether any returned items were unused, unopened and intact, pursuant to the terms and conditions herein, shall be solely within EOS’s discretion.
Customer Obligations. Customer shall, at its sole cost and expense, take all actions necessary to maintain the Deployment Locations in a clean, safe, and orderly condition including, without limitation, parking lot sweeping, parking lot snow removal, parking lot repaving and restriping, and maintenance and repair of curbs, gutters and landscaping features. In addition, Customer shall take reasonable precautions to protect the EOS Station from graffiti and other vandalism. For the avoidance of doubt, Customer shall be under no obligation to maintain the EOS Station, signage or any other equipment installed by EOS at a Deployment Location.
- Intellectual Property.
As used in these Terms and Conditions, “Intellectual Property” means all
copyrights, patents, trademarks and service marks, names, logos,
designs, domain names, generic Top-Level Domain names, all registrations
for copyrights, patents, trademarks and service marks/names, domain
names, generic Top-Level Domain names, trade secrets, know-how, and all
unique concepts, information, data and knowledge that is eligible for
legal protection under applicable laws as intellectual property, whether
protected through confidentiality, registration or pending
registration, regardless of form, whether disclosed in writing,
electronically, orally or through visual means, whether learned or
obtained orally, through observation, through the discharge of
responsibilities under the Proposal and these Terms and Conditions, or
through analysis of that information, data or knowledge.
EOS Intellectual Property. The parties agree that, as between them, EOS has and retains ownership of all of EOS’s Intellectual Property, and Customer has no right, and shall not obtain any right, in any EOS Intellectual Property.
Drawings and Other Documents. All documents prepared by or under the direction of EOS pursuant to transactions with the Customer including, without limitation, drawings, specifications, and other documents, including those in electronic format, are solely and exclusively EOS Intellectual Property, and EOS retains all common law, statutory and other reserved rights, including the copyright.
Publicity. EOS may make general press releases and statements, hold press conferences, both through traditional and electronic media, including websites and mobile applications created by or for EOS or other third parties, regarding the Customer’s purchase of the Products, provided that Customer shall have the ability to review and approve in advance any such public statements and any use of the Customer’s Intellectual Property in connection therewith, such approval not to be unreasonably withheld, conditioned or delayed. Customer agrees to allow EOS to name Customer as a customer of EOS in EOS’s marketing materials. Notwithstanding the foregoing, EOS may advise mapping services of the existence of the EOS Stations at Customer locations so that such services may include such information in connection with their mapping services; and EOS may disclose to the public information about the location of the EOS Stations and the progress of its construction as required by governmental authorities.
- Indemnification; Limitation of Liability.
EOS. EOS shall indemnify and hold harmless Customer, its affiliates, and their respective representatives, agents, officers, directors, shareholders, partners and employees from and against all claims, demands, causes of action, liabilities, costs, damages, losses, penalties, fines, judgments or expenses, including reasonable attorneys’ fees and costs of collection (collectively, “Losses”) that arise out of or result from (i) any willful misconduct or gross negligence of EOS, its affiliates, and their respective representatives, agents, officers, directors, shareholders, partners and employees in connection with this Agreement, (ii) any breach by EOS of its obligations, representations or warranties set forth in these Terms and Conditions, (iii) any death or personal injury, or any destruction of or damage to any real or tangible personal property, or (iv) the installation, operation, maintenance or use of the EOS Stations during the Term, except to the extent arising out of or resulting from any willful misconduct or negligence of Customer.
Customer. Customer shall indemnify and hold harmless EOS from and against all Losses that arise out of or result from (i) any willful misconduct or negligence of Customer, its representatives, agents and employees in connection with the Proposal and/or these Terms and Conditions, or (ii) any breach by Customer of its obligations, representations or warranties; except to the extent arising out of or resulting from any willful misconduct or gross negligence of EOS.
Limitation. Except for each Party’s indemnification obligations set forth in this Section, (a) in no event shall either Party be liable (in contract or in tort, including negligence and strict liability) to such other Party or to such other Party’s affiliates or their respective representatives, agents, officers, directors, shareholders, partners or employees for any special, indirect or consequential damages relating to the transactions contemplated by the Proposal and these Terms and Conditions; and (b) the entire liability of each Party for any and all claims of any kind arising from or relating to this Agreement will be subject in all cases to an affirmative obligation on the part of the other Party to use commercially reasonable efforts to mitigate its damages to the extent possible.
Confidentiality. Customer will keep strictly confidential and not disclose any Confidential Information, as defined below, of EOS to any third party or use any Confidential Information of EOS except as expressly set forth in these Terms and Conditions. The term “Confidential Information” includes all trade secret, proprietary, confidential and other non-public information of or concerning the EOS, its affiliates or the clients or business of the EOS or its affiliates, whether written or oral, and whether prepared by or on behalf of EOS, its affiliates or the clients or representatives of EOS or its affiliates, and whether disclosed prior to, on or after the date of the accepted Proposal, including, without limitation, the specific terms of the Proposal and these Terms and Conditions, any prospective properties, and all marketing plans strategies and activities, including co-marketing activity information.
Notices. All notices hereunder shall be in writing and shall be deemed given upon personal delivery or upon deposit in the United States mail, first-class postage fully prepaid, return receipt requested, addressed to EOS at the address listed below and to the Customer at its addresses set forth in the Proposal. Any Party may change its address for notice in accordance with the notice terms of this Section 15. Notices to EOS shall be addressed as follows:
To: EOS Linx, LLC
Attention: Vice President – HR and Administration
Street/PO Box: 104 Continental Place, Suite 120
City, State, Zip Code: Brentwood, TN 37027
Prevailing Party. If any action, suit or proceeding is necessary to enforce or interpret the terms of the Proposal and/or these Terms and Conditions, and the prevailing party is awarded a final, non-appealable judgment from a court of competent jurisdiction, the other party shall pay and reimburse all reasonable attorneys’ fees and expenses incurred by the prevailing party, in addition to any other remedy it may have.
- Limited Warranty/Limitation of Liability.
Customer understands and agrees that EOS makes no warranty, express, implied, or statutory, as to any matter whatsoever, including the condition of the EOS Station, its merchantability, or fitness for any particular purpose except as may be provided in the Proposal.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, REVENUE OR BUSINESS, OR FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES UNDER ANY CAUSE OF ACTION, WHETHER FOR BREACH OF CONTRACT, TORT, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
EXCEPT AS OTHERWISE NOTED HEREIN, HOST’S SOLE REMEDY FOR ANY BREACH BY EOS OF ITS OBLIGATIONS UNDER THESE TERMS SHALL BE LIMITED TO, AT EOS’S OPTION, REPAIR OR REPLACEMENT OF THE EQUIPMENT TO WHICH SUCH BREACH IS APPLICABLE OR REFUND BY EOS OF THE PURCHASE PRICE OF THE NON-CONFORMING EQUIPMENT.
IN THE EVENT EOS IS FOUND LIABLE FOR A BREACH OF ITS OBLIGATIONS UNDER THESE TERMS EOS’S MAXIMUM CUMULATIVE LIABILITY TO CUSTOMER, FOR ANY TYPE OF DAMAGE (WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE) SHALL BE LIMITED TO THE PURCHASE PRICE OF THE EQUIPMENT AND WHICH SHALL NOT EXCEED THE PRICE OF THE EQUIPMENT PRODUCT, PART, OR SERVICE ON WHICH SUCH LIABILITY IS BASED.
Independent Contractors. The Parties shall act as and be independent contractors in the performance of the transaction contemplated by the PROPOSAL and these Terms and Conditions. Nothing shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose, and the employees of one Party shall not be deemed to be the employees of the other Party. Except as otherwise stated herein, neither Party has any right to act on behalf of the other, nor represent that it has such right or authority.
Force Majeure. EOS shall be excused from performance of its obligations where such performance is illegal, impossible, impracticable or otherwise materially impaired as the result of a Force Majeure Event, provided that EOS provides prompt notice to the Customer. “Force Majeure Event” means an unforeseeable act or any cause beyond a EOS’s reasonable control such as war, work stoppage, fire, epidemic, infectious disease outbreak (e.g. COVID-19), weather events, air carrier interruption (to/from a destination relevant to the services provided hereunder), act of government or due to compliance with any regulation, orders or acts of any federal, state or local government (not directed at EOS), or any department or agency thereof, civil or military authorities, acts of God, fires, floods, wars or riots. Should a Force Majeure Event delay EOS’s performance, the associated due date shall be extended for a period of time reasonably necessary to overcome the effect of such delay.
Errors. EOS reserves the right to correct errors or omissions in Proposals, acknowledgments, invoices, or other documents.
Further Assurances. Each Party agrees to execute (and acknowledge, if requested) and deliver additional documents and instruments and to perform additional acts as may be reasonably necessary or appropriate to effectuate, carry out, and perform all of the terms, provisions and conditions of the Proposal and these Terms and Conditions.
No Waiver. A waiver by either Party of a breach of any provision of these Terms and Conditions shall not constitute a waiver of that Party’s rights to otherwise demand strict compliance with the Proposal and all provisions hereof.
Entire Agreement. Nothing in these Terms and Conditions is intended to obligate or commit EOS to provide any services other than as set forth herein. The Proposal together with these Terms and Conditions, including any schedule or exhibit attached hereto or thereto, constitute the entire agreement of the Parties with respect to the subject matter hereof. There are no other promises, representations, terms, conditions, or obligations other than those contained herein or therein. This agreement supersedes all prior communications, representations, or agreements, oral or written, between the Parties and shall not be modified except in writing signed by both Parties. Notwithstanding the foregoing, EOS obligations herein and in the Proposal may be assigned by EOS to a parent, a wholly-owned subsidiary, an affiliate, any entity with which it might merge, or to any successor-in-interest without notice to Customer.
Severability. Should any provision of these Terms and Conditions be determined to be void, invalid, unenforceable or illegal for whatever reason, such provision(s) shall be null and void; provided, however, that the remaining provisions of these Terms and Conditions shall be unaffected thereby and shall continue to be valid and enforceable.
Governing Law; Jurisdiction. The Proposal together with these Terms and Conditions shall be construed, interpreted, and enforced in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of laws that would require the application of any other law. Venue on any action arising out of the Proposal and these Terms and Conditions will be proper only in the federal courts situated in the Middle District of Tennessee or the state courts of Tennessee situated in Williamson County, Tennessee. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER.
Construction. The headings in these Terms and Conditions are inserted for convenience and identification only. When the context requires, the number of all words shall include the singular and the plural. The words importing any gender include the other genders and the words including, includes and include shall be deemed to be followed by the words without limitation. All documents or items attached to, or referred to in, the Proposal are incorporated into these Terms and Conditions Agreement as fully as if stated within the body hereof.
Authorization. All of these Terms and Conditions are binding on the signatory to the Proposal and/or the business entity it represents. The signatory represents that it has the requisite authority to bind the entity on whose behalf it signs.