SaaS Agreement

metroEV_Full_Colour@2x-3

THIS SOFTWARE-AS-A-SERVICE (“SAAS”) AGREEMENT (THE “AGREEMENT”) GOVERNS CUSTOMER’S USE OF THE SERVICES. BY CLICKING ON THE ACCEPTANCE BOX OR ACCESSING OR USING THE SITE OR THE SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SUCH ACCESS AND USE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACCESS OR USE WILL CONSTITUTE SUCH ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN CUSTOMER AND METROSPHERE CORP., D/B/A METROEV A CORPORATION INCORPORATED UNDER THE LAWS OF THE PROVINCE OF ONTARIO, WITH OFFICES AT 7-80 CITIZEN COURT, MARKHAM, ONTARIO L6G 1A7 (“METROEV”). EACH OF THE CUSTOMER AND METROEV, IS REFERRED TO AS A “PARTY,” AND, COLLECTIVELY, THE “PARTIES”.

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER ENTITY OR GROUP OR IF YOU HAVE AUTHORIZED ANOTHER ENTITY OR INDIVIDUAL TO ACCEPT THESE TERMS ON YOUR BEHALF, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT OR TO HAVE SUCH ENTITY OR INDIVIDUAL BIND YOU TO THIS AGREEMENT.

THIS AGREEMENT DOES NOT COVER HARDWARE INSTALLATION OR HARDWARE SUPPORT.

NO ACTIVATION FEES OR ANNUAL SERVICE FEES WILL APPLY TO THIS SAAS AGREEMENT. THE ONLY FEES THE CUSTOMER WILL BE CHARGED UNDER THIS AGREEMENT ARE THE TRANSACTION FEES AS DEFINED HEREIN.

1.                Access to Software Services.

(a)             Software Services. During the Term and subject to the payment of applicable fees, metroEV will use commercially reasonable efforts to make available to the Customer (on a non-exclusive basis) the a software as a service application ("Software Services") for remote management of EVCS at the site(s) designated by the Customer (the “Site”), which will include the following features: (i) connection, monitoring & power management of EVCS; (ii) dashboard with unlimited profiles; (iii) monthly reports for the Customer & resident users of the EVCS; (iv) access control settings & user grouping; and (v) billing end users for the usage of the EVCS. The Customer agrees that its purchase of a subscription to the Software Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by metroEV regarding future functionality or features.

(b)            Hosted Environment. metroEV or its authorized service providers will make available the Software Services to the Customer in a hosted, virtualized environment, accessible via the Internet.

(c)             Internet. In order to access and use the Software Services, the Customer must have or must obtain reliable access to the Internet. The Customer must also provide all equipment necessary to make (and maintain) a connection to the Internet.

(d)            Administration Access. The Customer hereby grants to metroEV and its third-party providers an exclusive license to connect and administer the EVCS via the Software Services during the Term.

2.               Restrictions.

The Customer shall not, and shall not permit any other person to: (a) copy, reproduce, or duplicate the Software Services; (b) modify, correct, adapt, translate, enhance, or create derivative works or improvements of the Software Services; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Services to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Software Services or attempt to gain access to any portion of the source code; (e) circumvent or breach any security measures or protection mechanisms of the Software Services; (f) remove, alter, obscure, or change any trademarks, terms, warranties, disclaimers, proprietary rights, or other symbols, notices or marks related to the intellectual property rights in the Software Services; (g) use the Software Services in any manner that infringes, misappropriates, or violates the intellectual property rights or other rights of any person, or that violates any applicable laws; (h) use the Software Services for benchmarking, developing competing software products or services, or any purpose that is detrimental to metroEV or its licensors; (i) use the Software Services where failure thereof could result in personal injury or severe property damage; or (j) use the Software Services in any manner or for any purpose not expressly permitted by the Agreement.

3.               Technical Support.

metroEV will use commercially reasonable efforts to provide Customer with technical support services as follows:

(a)             First, metroEV or its agent will respond as quickly as possible through a provided toll-free number. metroEV may provide support through SMS, in-chat app and/or email support; and

(b)            If necessary, second-level support will be provided by qualified technicians will respond to all site host inquiries sent to the designated metroEV email address within twenty-four hours of request (excluding weekends or holidays).

Outside of regular office hours, metroEV will use commercially reasonable efforts to respond to calls for End Users who are unable to charge their vehicle. metroEv will not be held responsible for support failures caused by failures in telecommunications networks, misuses of the EVCS or other events beyond its reasonable control. Support resulting from unsupported, third-party hardware/network problems and/or issues associated with third-party products or services (i.e., not provided by metroEV under this Agreement) will be billed to the Customer at metroEV’s then-current hourly rates.

4.               Proprietary Rights. 

As between the Customer and metroEV, the Customer shall own all right, title and interest in and to any data entered or submitted by the Customer by means of the Software Services (the “Customer Data”). metroEV may use anonymized and aggregated Customer Data and information derived from the Customer’s use of the Software Services, the EVCS and related equipment for product improvement, resource allocation, internal planning, machine learning algorithms, product performance, security verification, industry trend identification, and anonymous benchmarking purposes. At all times, as between metroEV and the Customer, metroEV and its licensors shall own: all intellectual property rights in and to the Software Services; any software (other than any third-party components) to which access may be provided by means of the Software Services; all upgrades, enhancements and modifications to the Software Services; and any software, applications, inventions or other technology developed in connection with the Software Services. metroEV and its licensors have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any suggestions, enhancement requests, recommendations, or other feedback provided by the Customer, its employees, contractors, and agents regarding the operation or functionality of the Software Services (“Customer Input”). metroEV is not obligated to incorporate Customer Input, and the Customer is not obligated to provide it.

5.               Payment Terms.

(a)             Billing of Transaction Fees. Transaction Fees are twenty-five percent (25%) of the EVCS usage fees ("EVCS Usage Fees") that the Customer charges to, and collects from, condominium owners, residents or EVCS users, as applicable ("End Users"). All such transaction fees will be calculated and invoiced through the Software Services. Transaction Fees are deducted from the EVCS Usage Fees before usage revenue is remitted to the Customer. Sales taxes may apply on top of the Transaction Fees. Transaction Fees will be invoiced in arrears at the beginning of each month for the previous month. All payments made under the Agreement shall be made in Canadian Dollars by way of electronic funds transfer.

(b)            Invoice Disputes; Late Payment. The Customer has the right to review and request amendments to unpaid invoices. However, any invoice disputes must be initiated by the Customer in good faith and in writing within fifteen (15) days of the due date of the invoice. After this time, the invoice shall be deemed accepted by the Customer and will be due and payable. If the Customer disputes a particular invoice, any undisputed amounts charged on that invoice will continue to be due and payable. metroEV and the Customer agree to use reasonable efforts to resolve any invoice dispute within thirty (30) days after metroEV's receipt of the Customer's notice regarding the dispute. metroEV reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month on any late payments of undisputed fees. If it is determined that metroEV properly charged any amount disputed and withheld by the Customer, the late fee may be assessed and paid on the disputed, withheld amount. If the Customer is entitled to a credit, metroEV will apply the credit to the Customer's next invoice.

6.               Taxes.

The Customer is responsible for payment of any applicable sales, use, and other taxes (excluding taxes based on metroEV's income) related to the grant of access rights, hardware purchase and installation, or the delivery of related services, if any. The Customer must make all required payments to metroEV free and clear of any withholding taxes. Any taxes imposed on payments to metroEV will be the sole responsibility of the Customer.

7.               Software Services Warranty.

metroEV shall, and shall procure that its licensors, use commercially reasonable efforts to maintain the Software Services in a manner which minimizes errors and interruptions in the Software Services. The Software Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by metroEV or by third-party providers, or because of other causes beyond metroEV’s reasonable control, but metroEV or its licensors shall use reasonable efforts to provide advance notice in writing, including by way of the Software Services or by e-mail, of any scheduled service disruption.

8.               Disclaimer.

Except for the warranties explicitly stated in Section 7 (Software Services Warranty) of this Agreement, to the maximum extent permitted by applicable law, the Software Services and any other services performed by metroEV or its licensors, contractors or agents, including, without limitation, installation and implementation services, are provided "as is." metroEV disclaims any and all other promises, representations, and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, system integration, continuous connectivity and/or data accuracy. metroEV does not warrant that the Software Services and any other services performed will necessarily meet the Customer's requirements, be uninterrupted or error-free, or that all errors will be corrected.

9.               Confidentiality.

(a)             Definition. "Confidential Information" means any non-public information or data whether in written, electronic, or other tangible form, or provided orally or visually, that is disclosed by or on behalf of one party (a "Discloser") to the other party (a "Recipient"), whether owned by the Disclosing Party or a third party, pursuant to this Agreement. Confidential Information of the Customer includes, but is not limited to its financial and business information. Confidential Information of metroEV includes, but is not limited to, its financial and business information; metroEV's pricing, sales, proposals, implementation, and training materials, and procedures; and, as between the Customer and metroEV, the structure, organization, design, source code, algorithms, methods, templates, databases, data models, data structures, flow charts, logic flow, and screen displays associated with Software Services.

(b)            Protection. Recipient will not use any Confidential Information of the Discloser for any purpose not expressly permitted by this Agreement, and will disclose Confidential Information only to its officers, directors, employees, contractors, licensors, agents, financing sources and potential financing sources who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient's duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

(c)             Exceptions. Recipient's obligations under this Section 9 (Confidentiality) with respect to any Confidential Information of Discloser will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by Discloser, (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is, or through no fault of Recipient has become, generally available to the public, or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law (including public records request) or by the order of a court or similar judicial or administrative body, provided that Recipient, to the extent legally permissible, notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

(d)            Return of Confidential Information. Except as otherwise expressly provided in this Agreement, Recipient will return to Discloser or destroy all Confidential Information of Discloser in Recipient's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of Discloser; provided, however, Recipient may retain one (1) archival copy for record retention purposes and compliance with applicable law. Upon the request of Discloser, Recipient will certify in a writing signed by an officer of Recipient that it has fully complied with its obligations under this Section 9(d) (Return of Confidential Information).

(e)            Specific Performance. Each party acknowledges that a breach or threatened breach of this Section 9 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 9 by the other party or any of its employees or agents.

10.             Indemnification.

(a)      General Indemnification. A party (the “Indemnifying party”) shall indemnify, defend and hold harmless, the other party, its affiliates and each of their officers, directors, employees, attorneys, agents, licensors and successors and assigns (each an “Indemnified party”) from and against any and all losses suffered by an Indemnified party as a result of a claim brought by a third-party based upon injury to persons or damage to property (but not loss of use) arising out of or resulting from the Indemnifying party’s negligence or breach of its obligations under this Agreement (including reasonable attorneys’ fees, but excluding any losses for which liquidated damages are explicitly provided for pursuant to this Agreement) (“Indemnified Losses”); provided, however, that no party shall be indemnified hereunder for any Indemnified Loss to the proportional extent arising from its own negligence, fraud, willful misconduct, violation of law, or breach of this Agreement.

(b)     Indemnification Procedures. Any Indemnified party seeking indemnification under this Agreement for any Indemnified Loss shall give the Indemnifying party notice of such Indemnified Loss promptly but in any event on or before thirty (30) days after the Indemnified party’s actual knowledge of such claim or action. Such notice shall describe the Indemnified Loss in reasonable detail and shall indicate the amount (estimated if necessary) of the Indemnified Loss that has been, or may be sustained by, the Indemnified party. To the extent that the Indemnifying party will have been actually and materially prejudiced as a result of the failure to provide such notice, the Indemnified party shall bear all responsibility for any additional costs or expenses incurred by the Indemnifying party as a result of such failure to provide notice. In any action or proceeding brought against an Indemnified party by reason of any claim indemnifiable hereunder, the Indemnifying party shall assume the defence at the Indemnifying party’s expense and shall have the right to control the defence thereof and to determine the settlement or compromise of any such action or proceeding.

(c)      Infringement Claims. metroEV or its licensor(s) will indemnify the Customer and its officers, directors, employees, attorneys, agents and successors and assigns in respect of any claim alleging that the Software Services infringe any copyright of a third party, provided the Customer gives metroEV prompt notice of such claim and the right for metroEV or its licensor(s) to control its defence. If following notice of such a claim, metroEV and/or its licensor(s) cannot settle it on reasonable terms, metroEV may terminate this Agreement with the sole obligation to refund to the Customer any prepaid fees for any future period during which the Customer will not be entitled to access the Software Services. These obligations do not apply in connection with changes to, or use of, the Software Services in a manner not authorized by metroEV. The Customer will indemnify metroEV and each of their officers, directors, employees, attorneys, agents and successors and assigns in respect of any claim arising out of Company hosting Customer Data or unauthorized changes to, or use of, the Software Services by the Customer.

11.              Limitation of Liability.

Except in connection with the Customer’s violation of Section 2 (Restrictions), in no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source, even if a party has been advised of the possibility of such damages. metroEV, its directors, officers, shareholders, employees, agents, subcontractors, or affiliates shall not be liable for: loss or damage to materials stored at Customer’s premises; misuse of equipment or Software Services: use of non-recommended parts or devices. The cumulative liability of metroEV to Customer for all claims arising from or relating to this Agreement, including, without limitation, any claim for indemnification or any cause of action sounding in contract, tort, or strict liability, will be limited to direct damages in an amount not to exceed the total amount of all fees paid or to be paid to metroEV by the Customer during the twelve (12)-month period preceding the event giving rise to such liability. This limitation of liability is intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective. The Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this paragraph form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement, including pricing, would be substantially different.

12.             Term and Termination.

  • Term. This Agreement commences on the hereof (the “Effective Date”). Subject to earlier termination as provided in Section 11(b) (Termination), the initial term of this Agreement shall continue for three (3) years from the Effective Date (“Initial Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Term (each, a “Renewal Term” and, the Initial Term, together with each renewal term, collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
  • Termination. In addition to any other remedies it may have, either party may terminate this Agreement if (i) the other party breaches a material term of this Agreement and fails to remedy such breach within thirty (30) days of receiving notice to do so from the non-defaulting party or (ii) if a receiver, administrator, controller or a liquidator is appointed with respect to the other party, the other party assigns its property for the benefit of creditors or any class of them or if proceedings have been commenced by or against the other party under any bankruptcy, insolvency or similar laws.
  • Early Termination. In consideration of the implementation and investment costs which are intended to be amortized over the Initial Term, as well as the pricing structure set out herein, the Customer agrees to pay liquidated damages if the Customer elects early termination during the Initial Term (other than pursuant to Section 11(b) (Termination) equal to the average monthly fees paid or payable to metroEV by the Customer during the preceding three-month period multiplied by the number of months remaining in the Initial Term, along with any outstanding fees for services ordered but not yet paid for by the Customer since the date of this Agreement. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. The Customer acknowledges that the actual damages likely to result from a breach of the Initial Term by the Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty.
  • Effect of Termination. Upon any termination of this Agreement, the Customer will (a) immediately discontinue all use of the Software Services; and (b) promptly pay to metroEV all amounts due and payable under this Agreement. Upon termination of this Agreement, all Customer Data associated with such subscription may be requested for download by Customer for a period of ninety (90) days, after which point metroEV may delete all Customer Data without notice and Customer will no longer be able to retrieve it. At metroEV’s option, upon termination of this Agreement, metroEV may elect to remove all information identifying the Customer and End Users and any personally identifiable information contained in the Customer Data stored in the Services (“Anonymized Content”) and retain the Anonymized Content. The Customer hereby grants to metroEV a perpetual, worldwide, non-exclusive, irrevocable, transferable, royalty free, fully paid up right and license to use, modify, reproduce and distribute, in any form, the Anonymized Content.
  • Survival. The provisions of Sections 2 (Restrictions), 4 (Proprietary Rights), 5 (Payment Terms), 6 (Taxes), 9 (Confidentiality), 10 (Indemnification), 11 (Limitation of Liability), 12(d) (Effect of Termination), 12(e) (Survival), 12(f) (Suspension of Services), 13 (Governing Law; Arbitration) and 14 (General Provisions) will survive the termination of this Agreement.
  • Suspension of Services. If the Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof within thirty (30) calendar days of the invoice date, metroEV shall have the right, in addition to any of its other rights or remedies, to suspend the Customer’s access to any services under this Agreement, including the Software Services and technical support, without liability to the Customer until such amounts are paid in full.

13.             Governing Law; Arbitration.

  • Governing Law. This Agreement, its subject matter, and its formation (and any non-contractual disputes or claims) are governed by and construed under the laws of the Province of Ontario and the federal laws of Canada applicable therein, in each case, excluding any body of law governing conflicts of laws. Each party irrevocably waives any objection on the grounds of venue, forum or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. The parties also waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

  • Arbitration. Excluding claims for injunctive or other equitable relief, any disagreement or dispute arising out of or relating to this Agreement, or the breach thereof, including any question regarding its existence, validity, or termination, such arbitration shall be settled by final and binding arbitration which will be held in accordance with the rules of arbitration of the Arbitration Act, 1991 (Ontario) and conducted in Toronto, Ontario. The arbitration shall be heard by one (1) arbitrator appointed in accordance with the applicable rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. The language of the arbitration shall be English. Each party shall bear one half of the costs associated with the arbitration proceedings. The costs shall exclude experts’ costs and each party’s legal costs. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

14.             General Provisions.

  • Liability Insurance. metroEV agrees to maintain liability insurance of at least $2,000,000 while carrying out work at a Customer Site.
  • Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements (including, without limitation, any Customer purchase order terms), communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
  • Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The waiver by either Party of a breach of any provision of this Agreement in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
  • Assignment. Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; provided that (i) metroEV may, without the prior written consent of the Customer use subcontractors (such as electricians) to carry out certain of its obligations under this Agreement; (ii) either party may, without the prior written consent of the other party, assign this Agreement and its rights hereunder to one or more of its affiliates, or a successor in interest to such party; and (iii) each party may, without the prior written consent of the other party, assign any of its rights or delegate any of its obligations to any person acquiring all or substantially all of its assets. Any purported assignment or delegation in violation of this paragraph shall be null and void.
  • Independent Contractor. No agency, partnership, joint venture, or employment is created because of this Agreement and neither party has any authority of any kind to bind the other party in any respect.
  • Non-Exclusivity. The Customer acknowledges and agrees that metroEV retains the right to provide similar services to other customers.
  • Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.
  • English. It is the express will of the Parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais. Unless, and only to the extent, prohibited by applicable law, all disagreements (and any documentation related thereto), disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language.
  • Publicity. The Customer provides metroEV with permission to use its trademark, logo and trade name (“Branding”) within metroEV’s promotional and marketing materials. metroEV is granted no other right to the Branding and acknowledges that it shall not gain any proprietary interest in the same.
  • Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
  • Counterparts. This Agreement may be executed in several counterparts, all of which together shall for all purposes constitute one agreement, binding on the parties. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be executed in written form or using electronic or digital technology, whether it is a computer-generated signature, an electronic copy of the party’s true ink signature, DocuSign, AdobeSign or similar technology. Delivery of an executed counterpart of the Agreement by email transmission via portable document format (.pdf), DocuSign, AdobeSign or other electronic means will be equally as effective and binding as delivery of a manually executed counterpart.

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