Terms & Conditions
GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND SERVICES
1. General
1.1 General. These General Terms and Conditions for the Sale of Products and Services (“Terms”) apply to the purchase of any Products (as defined below) from and the use of any Services (as defined below) provided by Atom Power, Inc. or any of its direct or indirect subsidiaries (collectively, “Atom Power”) to Customer (as defined below) or person using or accessing such Products or Services on Customer’s behalf.
1.2 Acceptance. ATOM POWER PROVIDES THE PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THESE TERMS BY: (i) ENTERING INTO A COMMERCIAL AGREEMENT OR ORDERING DOCUMENT (AS DEFINED BELOW) WITH ATOM POWER WHICH INCORPORATES THESE TERMS BY REFERENCE; (ii) EXECUTING OR SIGNING THESE TERMS IN CONNECTION WITH A PURCHASE FROM AN AUTHORIZED RESELLER OF ATOM POWER PRODUCTS; (iii) CLICKING THE “ACCEPT” OR “I AGREE” BUTTON; OR (iv) ANY OTHER DEMONSTRATION OF CONSENT, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, ATOM POWER WILL NOT PROVIDE YOU ANY PRODUCTS OR SERVICES AND YOU MUST NOT USE ANY ATOM POWER PRODUCTS OR SERVICES. BY MAKING ANY PURCHASE FOR PRODUCTS OR SERVICES, THE PERSON OR ENTITY MAKING SUCH PURCHASE (A) ACKNOWLEDGES AND AGREES THAT THEY HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT THEY HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS ON BEHALF AN ORGANIZATION (FOR INSTANCE, THEIR EMPLOYER), THAT THEY HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT THEY ARE LEGALLY BOUND BY THEM.
2. Products and Services.
2.1 Provision of Products. Pursuant to any Ordering Document into which these Terms are incorporated (collectively, the Ordering Document and these Terms, the “Agreement”), Atom Power will sell or provide, and the party identified in such Ordering Document (“Customer”), will acquire or receive, the Products and Services specified in such Ordering Document. The Ordering Document may include additional or specific terms in connection with the Products and Services provided by Atom Power to Customer. ANY TERMS OR CONDITIONS SUBMITTED ON ANY FORM OR ACKNOWLEDGMENT BY CUSTOMER THAT DIFFER FROM OR ALTER THE TERMS AND CONDITIONS STATED IN THIS AGREEMENT ARE SPECIFICALLY REJECTED BY ATOM POWER. ATOM POWER’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM CUSTOMER WILL NOT BE A WAIVER OF THE PROVISIONS HEREOF.
2.2 Provision of Software and Services. In connection with the use of the Products, Customer will be required to access and use the Product Software to control and manage the Products. Atom Power may provide certain other management and operational services to enable use of the Product and Product Software by Customer and Vehicle Charging Users (the “Operational Services”). Additionally, Customer may elect to purchase in any Ordering Document certain other services provided by Atom Power, including Atom Power (i) using commercially reasonable efforts to make available to Customer the Atom Power Platform to manage and administer the use or access of the Product (the “Platform Services”); and (ii) providing maintenance and support services to Customer with respect to the Products (“Support Services,” and collectively with the Operational Services and Platform Services, the “Services”). Atom Power will render any Services in a professional manner in accordance with generally recognized industry standards for similar services and in accordance with this Agreement, and the manner and means to which such Services are performed shall be made in Atom Power’s sole but reasonable discretion.
2.3 EULA. Use of the Software by Customer and its End Users shall be governed by the terms of the End User License Agreement available at End User License Agreement which is incorporated by reference into this Agreement as if expressly set forth herein.
2.4 Third-Party Materials. Customer may use Third-Party Materials in connection with its use of the Products. Such Third-Party Materials are covered by the warranties provided by the original manufacturer, provider or seller thereof (any, a “Third-Party Provider”), and the use of such Third-Party Materials may be subject to additional terms and conditions provided by such Third-Party Providers to Customer. Because Third-Party Providers’ warranties may vary from product to product, it is Customer’s responsibility to consult the applicable Third-Party Materials’ product documentation for specific warranty information and determine whether such warranties, together with the warranties provided hereunder, are acceptable. Atom Power makes no representation or warranty of any kind, nor does it undertake any liability, with respect to the quality of any Third-Party Materials and related services, including but not limited to installation or site management services, provided by any Third-Party Provider or other third party installer or site manager that is selected by Customer. ATOM POWER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, NOR DOES IT UNDERTAKE ANY LIABILITY, WITH RESPECT TO THE QUALITY OF ANY THIRD-PARTY MATERIALS AND RELATED SERVICES, INCLUDING BUT NOT LIMITED TO INSTALLATION OR SITE MANAGEMENT SERVICES, PROVIDED BY ANY THIRD-PARTY PROVIDER OR OTHER THIRD PARTY INSTALLER OR SITE MANAGER THAT IS SELECTED BY CUSTOMER.
2.5 Cancellation of Ordering Documents. Atom Power may, in its sole discretion, without liability or penalty, cancel any Ordering Document placed by Customer and accepted by Atom Power, in whole or in part if Atom Power discontinues its sale of Products or Services, or reduces or allocates its inventory of Products. If Customer cancels an Ordering Document any time after shipment, Customer remains liable for all shipping and handling costs, any and all return shipping and handling costs and a restocking fee of twenty-five percent (25%) of the value of the cancelled Products.
2.6 Product Activation. Atom Power will not be responsible or liable for any delays in Product set-up and activation to the extent caused by Customer delays or failures to provide necessary access, availability and information as requested. Following installation of the Products at the Customer site, Atom Power will activate and commission the Products at a mutually agreed upon time and date.
2.7 Permitted Product Use. The Products and Services may only be used for: (i) in jurisdictions that regulate the metered sale of electricity for the powering of electric vehicles (including, without limitation, California), dispensing electricity in a manner in which the amount of electrical energy dispensed does not affect customer charges or compensation; and (ii) in all other jurisdictions, dispensing electricity by any lawful means or method (all of the foregoing, the “Permitted Use”).
2.8 Vehicle Charging User Data. In connection with providing vehicle charging to any Vehicle Charging Users, the Product, Product Software or other software of applications made available to Vehicle Charging Users may collect, store, process, and take actions based on (a) Vehicle Charging Users’ personally identifiable information (“PII”), (b) any “Cardholder Data” (which is defined to mean (i) with respect to a payment card or similar data, the account holder’s name, account number, service code, card validation code/value, PIN or PIN block, valid to and from dates and magnetic stripe data; and (ii) information relating to a payment card transaction that is identifiable with a specific account), and (c) any information regarding such Vehicle Charging Users’ vehicle data, route planning, charging station compatibility, vehicle battery charge, energy management vehicle communications and related information (“Plug & Charge Data”, and together with the PII and Cardholder Data, collectively, the “Vehicle Charging User Data”). Atom Power, through the Product, Product Software or other software of applications made available to Vehicle Charging Users, will obtain and maintain all necessary rights and consents from Vehicle Charging Users to allow Atom Power to access, monitor, manage, process, and analyze such data as required to provide the charging services.
2.9 Use Restrictions. Customer will not at any time and will not permit any person (including without limitation, any End Users) to, directly or indirectly: (i) use the Products or Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Products, Services or documentation related to the Products or Services, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Products or Services, in whole or in part; (iv) allow any person to use the Products or Services for any purpose other than in accordance with this Agreement; (v) use the Products or Services or documentation related to the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Products, the Services, or any data or content contained therein or transmitted thereby; (vii) use the Products, the Services, or any documentation related to the Products or Services for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
3. Shipment and Delivery.
3.1 Shipping Terms. Atom Power will ship orders to Customer after an Ordering Document is accepted and signed by both parties. All shipments will be Ex Works (EXW) (Incoterms 2020) Atom Power’s manufacturing facility. Although risk of loss will pass to Customer as prescribed in the foregoing sentence, title to the Products will pass to Customer only upon Atom Power’s receipt of full payment by Customer for the Products. Scheduled or stipulated shipping and delivery dates are approximate and based upon prompt receipt of all necessary information from Customer. Atom Power will not be liable for any loss or expense, whether by way of contract or tort (consequential or otherwise) incurred by Customer if Atom Power fails to meet the specified estimated delivery schedule. Atom Power may deliver Products in installments. Atom Power may substitute Products manufactured to new specifications, so long as the substituted Products are of equal or greater quality.
3.2 Acceptance and Rejection. Customer will inspect the Products within seven (7) days of receipt (the “Inspection Period”) and either accept such Products or reject such Products solely if they: (i) do not match the make and model number listed in the applicable Ordering Document; (ii) materially exceed the quantity of Products ordered by Customer pursuant to the applicable Ordering Document; or (iii) were physically damaged or inoperable before shipment (damage incurred during shipment is not a valid reason if the terms of this Agreement are Ex Works) (collectively, “Nonconforming Products”). Any notice of Nonconforming Products must list the items that are not being accepted by Product number, including serial number, where applicable, and supporting photographic or other evidence of the reason they are being rejected. Customer will be deemed to have accepted the Products unless it notifies Atom Power in writing of any Nonconforming Products during the Inspection Period. If Atom Power confirms in its reasonable discretion that the Products are Nonconforming Products, it will (in its sole discretion): (a) replace such Nonconforming Products with conforming Products; or (b) refund the price paid for such Nonconforming Products, together with all shipping and handling expenses incurred by Customer in connection therewith.
3.3 Remedies. If Customer rejects the Products and Atom Power does not repair such Products or deliver substantially conforming replacement Products as provided in Section 3.2, Customer will have the right, and without waiving any of its remedies at law it is otherwise entitled to, to terminate the applicable portion of the Ordering Document to which the Nonconforming Products relate and obtain a prompt refund from Atom Power of all payments Customer has made with respect to that portion of the Ordering Document which Customer has terminated. Atom Power will pay the reasonable shipping costs Customer incurs in returning the Products. THE REMEDIES SET FORTH IN THIS SECTION 3.3 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES (AND ATOM POWER’S SOLE AND EXCLUSIVE LIABILITIES) IN CONNECTION WITH NONCONFORMING PRODUCTS. Except as provided under this Section, all sales of Products to Customer under this Agreement are final and Customer has no right to return Products purchased under this Agreement.
4. Payment Terms. Customer will pay all Fees (as defined below) in accordance with the Ordering Document and this Section 4.
4.1 Fees. Customer will pay all amounts due to Atom Power under this Agreement for access and use of the Products and Services (collectively, the “Fees”). Except as otherwise specified herein or in an Ordering Document: (i) Fees are based on the Products and Services purchased; (ii) payment obligations cannot be changed unless agreed to by Atom Power in writing; and (iii) Fees paid are non-refundable. Customer is responsible for payment of all shipping and handling and such costs are not included in the Fees.
4.2 Payment. Customer agrees to pay all Fees either by credit card, ACH transfer or other method approved by Atom Power. If a credit card or ACH transfer is provided, Customer gives Atom Power all authorizations required to charge such payment method for all Fees listed in the Ordering Document. Customer’s failure to pay timely any of the undisputed amounts payable under this Agreement will be a material breach of this Agreement.
4.3 Interest on Overdue Fees. If any Fees are not received by the due date as set forth on the applicable Ordering Document, without limiting any rights or remedies available at law, those Fees may accrue late interest at the rate of the lesser of 1.5% of the outstanding balance per month or the maximum rate permitted by law. In addition, Customer will be responsible for all costs incurred by Atom Power in efforts to recover any Fees under this Section 4.
4.4 Taxes. Unless otherwise specified in an applicable Ordering Document, the Fees do not include any taxes, including but not limited to, sales, use, property, value-added, or other federal, state, or local taxes based on the Products provided herein (“Taxes”). Customer is responsible for paying all applicable Taxes associated with the purchases hereunder. If Atom Power has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the Taxes will be included in an Ordering Document (or invoiced with payment by Customer due Net30 if identified after an Ordering Document is signed) and Customer will pay that amount, unless a tax exemption certificate authorized by the appropriate taxing authority is provided. Notwithstanding the above, Customer will not be responsible for taxes based on Atom Power’s net or gross income or its corporate taxes.
5. Customer Equipment, Hardware and Software Requirements. Other than for Products provided by Atom Power under an Ordering Document, Customer agrees that it will provide and maintain, at its sole cost and expense, all additional hardware, software, Internet access, services and other materials not provided by Atom Power under this Agreement, necessary or required to permit Customer’s access to and use of the Products.
6. Confidentiality; Indemnification.
6.1 Disclosure of Confidential Information. From time to time during the term of this Agreement, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information (including Customer Data), and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that is: (i) in the public domain at the time of disclosure or subsequently falls into the public domain through no fault of the receiving party; (ii) known to the receiving party at the time of disclosure; (i) rightfully obtained by the receiving party on a non-confidential basis from a third party without confidentiality obligations to the other party; or (iv) independently developed by the receiving party. Without limiting the foregoing, the existence of this Agreement is the Confidential Information of each of the parties.
6.2 Mutual Confidentiality Obligations. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, affiliates, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order or applicable law shall first (to the extent permitted by law) have given written notice to the other party and, at the request and expense of the other party, have made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Except as otherwise provided herein, on the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies. Notwithstanding the foregoing, a receiving party shall have no obligation to return or destroy copies of the disclosing party’s Confidential Information made pursuant to pursuant to its records retention policy, a disaster recovery or data backup plan or as otherwise required by law. Each party’s obligations of non- disclosure with regard to Confidential Information are effective as of the date of disclosure of such Confidential Information and will expire five (5) years from the termination or expiration of this Agreement; provided, that with respect to any Confidential Information of either party that constitutes a trade secret under applicable law, such obligations of the other party shall continue for as long as such item of Confidential Information constitutes a trade secret under applicable law.
6.3 Atom Power Materials. As between Atom Power and Customer, all right, title, and interest in and to Atom Power Materials, including all intellectual property rights therein, are and will remain with Atom Power. Customer has no right, license, or authorization with respect to any of the Atom Power Materials except as expressly set forth in this Agreement. Nothing contained in this Agreement will constitute or be construed as a transfer of ownership of any of the intellectual property rights of Customer or its licensors or to otherwise give Atom Power any proprietary rights to any of the intellectual property rights of Customer or its licensors. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE SALE OF THE PRODUCTS TO CUSTOMER DOES NOT INCLUDE AN ASSIGNMENT OR ANY OTHER TRANSFER TO CUSTOMER OF ANY RIGHT, TITLE OR INTEREST IN ANY PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS IN OR TO THE PRODUCTS.
6.4 Indemnification by Customer. To the maximum extent permitted by law, Customer will indemnify, defend and hold harmless Atom Power (including its Affiliates), its officers, employees and agents, from and against all liability, loss, costs, claims, damages, expenses, judgments, and awards, whether or not covered by insurance (“Losses”), arising or claimed by a third-party to have arisen in whole or in part from: (a) Customer’s gross negligence or willful misconduct; (b) from Customer’s use of the Products or Services in a manner inconsistent with the Agreement or inconsistent with the Permitted Use; (c) Customer Data or Vehicle Charging User Data; (d) the combination or incorporation of any Non-Qualified Product, or of the elements of any Non-Qualified Product with any other circuitry, subassembly, products, applications, equipment or materials not provided by Atom Power; or (e) Customer’s violation of law. Indemnification will include all costs, including attorneys’ fees reasonably incurred in pursuing indemnity claims under or enforcement of this Agreement.
6.5 Data Security. To the extent Customer is elected to purchase or obtain a right use the Atom Power Platform or any Services, Atom Power will (via its third-party provider(s)) use commercially reasonable efforts to: (i) protect the security and integrity of any Customer Data that is collected, accessed, stored or received in connection with the performance of the Services; and (ii) process, store and collect all such Customer Data in compliance with all applicable laws.
7. Warranties; Disclaimer
7.1 Products Warranty. Warranty information for the Products is set forth at Limited Warranty.
7.2 Services Warranty. To the extent Customer has purchased or obtained any Services pursuant to any Ordering Document, Atom Power represents and warrants that it will perform such Services: (a) using personnel of commercially reasonable standard skill, experience, and qualifications; and (b) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
7.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 7.1 and 7.2 ABOVE, THE PRODUCTS, ATOM POWER MATERIALS, SERVICES, THIRD-PARTY MATERIALS, AND ANY DOCUMENTATION PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. THE LIMITED WARRANTIES ABOVE ARE EXCLUSIVE AND ATOM POWER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS AND TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, TRADE USAGE OR COURSE OF DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE. THE LIMITED WARRANTIES ABOVE DO NOT COVER NON-DEFECT DAMAGE, DAMAGE CAUSED BY IMPROPER INSTALLATION, OPERATION OR CARE (INCLUDING, BUT NOT LIMITED TO ABUSE, MISUSE, FAILURE TO PROVIDE REASONABLE AND NECESSARY MAINTENANCE, OR ANY ALTERATIONS OR MODIFICATIONS TO THE PRODUCT) OR LABOR CHARGES FOR REMOVING OR REINSTALLING A REPAIRED OR REPLACED ITEM. ATOM POWER HEREBY DISCLAIMS ALL LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON WITH RESPECT TO ANY USE OF THE PRODUCTS BY CUSTOMER, ITS AGENTS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS OR CONTRACTORS FOR ANY USE OTHER THAN THE PERMITTED USE.
8. Limitations on Liability.
8.1 Waiver of Consequential Damages; Maximum Liability. IN NO EVENT SHALL ATOM POWER OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. CUSTOMER ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF ATOM POWER PRODUCTS IN CRITICAL APPLICATIONS, SUBJECT ONLY TO APPLICABLE LAWS AND REGULATIONS GOVERNING LIMITATIONS ON PRODUCT LIABILITY. ATOM POWER SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGE ARISING FROM OR IN CONNECTION WITH THE USE, INSTALLATION, OR IMPLEMENTATION OF NON-QUALIFIED PRODUCTS IN ANY MANNER WHATSOEVER, EVEN IF ATOM POWER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL ATOM POWER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM AND/OR SERIES OF CLAIMS, WHETHER RELATED OR UNRELATED, UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO ATOM POWER PURSUANT TO THE APPLICABLE ORDERING DOCUMENT TO WHICH THIS AGREEMENT RELATES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.2 Electrical Power. THE PRODUCTS USE ELECTRICAL POWER PROVIDED BY INDEPENDENT ELECTRIC COMPANIES WHICH MAY BE SUPPLEMENTED BY BACK-UP BATTERY POWER. THE ELECTRIC POWER PROVIDED BY THE INDEPENDENT PROVIDERS MAY HAVE OUTAGES FROM TIME TO TIME, AND DURING ANY SUCH OUTAGE, THE ATOM POWER SYSTEM WILL BE UNABLE TO OPERATE AFTER ANY AVAILABLE BACKUP BATTERY POWER IS EXHAUSTED. IF THERE IS AN ELECTRICAL POWER OUTAGE AFTER ANY AVAILABLE BACKUP BATTERY POWER IS EXHAUSTED, THE PRODUCTS WILL CEASE TO OPERATE DURING THE OUTAGE, PREVENTING ANY COMMUNICATION, COLLECTION OF DATA OR USE OF THE PRODUCTS. NEITHER ATOM POWER NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY RESULTING FAILURE OR DAMAGE DUE TO SUCH POWER OUTAGE.
8.3 Third Party Carriers. THE PRODUCTS COMMUNICATE VIA CELLULAR DATA SERVICE PROVIDED BY AN INDEPENDENT CARRIER. THE CELLULAR DATA SERVICE PROVIDED BY THE INDEPENDENT CARRIER MAY FAIL OR GO OFF-LINE FROM TIME TO TIME, AND DURING ANY SUCH OUTAGE THE PRODUCTS WILL BE UNABLE TO TRANSMIT AND RECEIVE INFORMATION. ATOM POWER MAY NOT RECEIVE TIMELY NOTICE OF THE COMMUNICATIONS OUTAGE FROM THE INDEPENDENT CARRIER. ATOM POWER IS NOT OBLIGATED TO PROVIDE SERVICES DURING ANY SUCH OUTAGES. CELLULAR NETWORKS ARE REGULATED BY FEDERAL AND STATE AGENCIES AND CHANGES IN RULES AND REGULATIONS MAY REQUIRE ATOM POWER TO MODIFY OR TERMINATE ITS SERVICES. NEITHER ATOM POWER NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY RESULTING FAILURE OR DAMAGE DUE TO SUCH CELLULAR NETWORK OUTAGE.
9. Term and Termination.
9.1 Term. The term of the Agreement shall begin on the effective date of the Ordering Document and shall continue in effect for the period set forth on the Ordering Document.
9.2 Termination for Cause. Either party has the right to terminate this Agreement, for the other party’s material breach of the Agreement if the breaching party does not cure the applicable material breach within thirty (30) days after receipt of a termination notice (or such longer period, not to exceed sixty (60) days, if such default is not curable within such thirty (30) day period, and the breaching party is diligently and in good faith pursuing a cure of such default).
9.3 Effect of Termination. Upon the effective date of any expiration or termination of this Agreement, Atom Power will immediately cease performing any Services under this Agreement. Atom Power has no obligation to retain any Customer Data following termination and may delete or destroy the same. The provisions of Section 4, 6, 7.3, 8, 9, 10 and 11 of this Agreement will survive the termination, cancellation, or expiration of the Agreement.
10. General.
10.1 Independent Contractors. The relationship of Atom Power and Customer is that of independent contractors. Nothing in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the parties. Except as otherwise provided in this Agreement, neither party will have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
10.2 Export and Applicable Law Compliance. This Agreement is subject to any export laws, regulations, orders, or other restrictions imposed by the U.S. government (including the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State) or by any other governmental entity on the Products or any related information. Customer will comply with all laws, rules, and regulations applicable to Customer and the performance of Customer’s obligations under this Agreement including all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITA.
10.3 Choice of law; Jurisdiction. This Agreement is to be construed in accordance with and governed exclusively by the internal laws of the State of North Carolina without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of North Carolina to the rights and duties of the parties. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be commenced exclusively in a federal court or state court with jurisdiction over Charlotte, North Carolina, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding. The parties expressly agree that the UN Convention on the International Sale of Goods shall not apply to this Agreement. EACH OF ATOM POWER AND CUSTOMER HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT.
10.4 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Customer without the prior written consent of Atom Power. Subject to the preceding sentence, the rights and liabilities of the parties hereto will bind, and inure to the benefit of, their respective assignees and successors. Any attempted assignment other than in accordance with this Section 9.4 will be null and void.
10.5 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
10.6 Severability. If the application of any provision of this Agreement to any particular facts or circumstances is held invalid or unenforceable by a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of the other provisions of this Agreement will not in any way be affected or impaired thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
10.7 Changes or Modifications to these Terms. From time to time, Atom Power may, in its sole discretion, modify or amend these Terms. We will provide notice to you (either through the Software, via email or posted at atompower.com/legal of any such modifications or amendments. Continued use of the Products and/or Services (including any Software) after receipt of such notice constitutes your acceptance of the modified or amended Terms. Notwithstanding the foregoing, if you reasonably believe than any such modifications or amendments will materially impact your use of the Products and/or Services or your rights under the Agreement, you may contact us within thirty (30) days of the modifications or amendments taking effect, and Atom Power will cooperate in good faith with you to address your concerns with the modifications or amendments to the Terms.
10.8 Force Majeure. Except for the payment of amounts due under this Agreement, neither party will be liable for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, pandemics and epidemics, utility or power outages, riots, war, and acts of civil and military authorities; provided, however, that such party gives the other party prompt written notice of the delay or failure and the reason for the delay or failure, and uses its reasonable efforts to limit the resulting delay or failure.
10.9 Subcontracting. Atom Power may provide any Products or Services via a third party, including through the use of subcontractor(s). Atom Power shall be fully responsible to Customer for the acts and omissions of such subcontractor(s). Nothing contained herein shall: (i) create any contractual relationship between any subcontractor or vendor and Customer; or (ii) obligate Customer to pay or cause the payment of any amounts to any subcontractor or vendor.
10.10 Notices. Any notice, request, demand, or other communication required or permitted hereunder will be in writing, will reference this Agreement and will be deemed to be properly given: (a) when delivered personally; or (b) upon acceptance or rejection if delivered by nationally-recognized overnight courier. All notices will be sent to the address set forth on the cover page of this Agreement and to the notice of the person executing this Agreement (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section 9.8).
10.11 Counterparts. This Agreement (including the exhibits to this Agreement, which are incorporated by reference) may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, oral or written, regarding such subject matter. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. In the event of any conflict between the provisions of this Agreement, an Ordering Document, and the EULA, the following order of precedence will apply (i) the EULA (solely in connection with the Software); (ii) this Agreement; and (iii) an Ordering Document (except to the extent to which an Ordering Document specifically states that it supersedes this Agreement by Section number, in which case it shall control to the extent identified).
11. Definitions.
“Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.
"Atom Power Platform” means the web-based application provided by Atom Power pursuant to an Ordering Document to enable Customer to manage, monitor, and provide analysis regarding the use and operation of the Products.
“Atom Power Materials” means, collectively, (a) the Software; (b) all information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Atom Power in connection with the Services or that otherwise comprise or relate to the Services; and (c) User Materials.
“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all data, files, input materials, reports, forms and other such items that may be received, transmitted, computed, developed, used or stored by the Software, for or on behalf of Customer in connection with the Products.
“Effective Date” means the date on which Atom Power receives full payment from Customer of an Ordering Document.
"End User” means Customer and any end user or licensee authorized by Customer to use the Software. In the case of the Product Software, “End User” shall also include Vehicle Charging Users.
“Non-Qualified Product” means any hardware prototype that is developed, designed, or manufactured by Atom Power that has not been qualified by either Atom Power or another qualifying agency.
“Ordering Document” means the price quotation, purchase order, purchase agreement, and/or equivalent document through which Customer orders any Products from Atom Power. No Ordering Document will be binding on Atom Power without Atom Power’s signature.
“Product(s)” means the Qualified Products and Non-Qualified Products created and sold by Atom Power, together with any services provided directly or indirectly by Atom Power to Customer in connection therewith, as identified in the Ordering Document.
"Product Software” means software that is offered and provided by Atom Power from time to time (including without limitation Atom Insight, Atom Driver, or Atom Cloud), the executable form of Atom Power’s proprietary software that has been customized by Atom Power for use in Atom Power Products, and any modification, upgrade, new version, update or enhancement that Atom Power provides thereafter.
“Qualified Product(s)” will mean any Product sold by Atom Power that (a) has been listed by a third party testing agency for its advertised use (including, but not limited to, UL, CSA, ITS-ETL, or MET Labs); or (b) otherwise identified by Atom Power in the Ordering Document or User Materials as a Product which is qualified for its advertised use.
“Software” means the Atom Power Platform and the Product Software, collectively.
“Third-Party Materials” means materials, services and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Products that are not proprietary to Atom Power.
“User Materials” means any documentation, installation guides, help files or written instruction manuals regarding the use of the Products or Software provided to Customer by Atom Power.
“Vehicle Charger Users” means a third party that uses the Products to charge a vehicle.