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2 January 2024
<br />3.2 Customer shall own all right, title and interest in and to
<br />the Customer Data. Company shall own and retain all right, title
<br />and interest in and to (a) the EV Cloud Subscription Service and
<br />Software, all improvements, enhancements or modifications
<br />thereto, (b) any software, applications, inventions or other
<br />technology developed in connection with implementation
<br />services, such as custom API development (“Implementation
<br />Services”) or support, and (c) all intellectual property rights
<br />related to any of the foregoing.
<br />3.3 Notwithstanding anything to the contrary, Company
<br />shall have the right collect and analyze data and other
<br />information relating to the provision, use and performance of
<br />various aspects of the EV Cloud Subscription Service and related
<br />systems and technologies (including, without limitation,
<br />information concerning Customer Data and data derived
<br />therefrom), and Company will be free (during and after the term
<br />hereof) to (i) use such information and data to improve and
<br />enhance the EV Cloud Subscription Service for other
<br />development, diagnostic and corrective purposes in connection
<br />with the EV Cloud Subscription Service and other Company
<br />offerings, and (ii) disclose such data solely in aggregate or other
<br />de-identified form in connection with its business. No rights or
<br />licenses are granted except as expressly set forth herein.
<br />4. CONSIDERATION; PAYMENT OF FEES;
<br />FINANCIAL LIABILITIES
<br />4.1 As used in this Section 4, the following definitions shall
<br />apply:
<br />
<br />(i) “Base Session Fees” means the gross fees
<br />charged to Drivers for Drivers’ use of Customer’s electric
<br />vehicle service equipment, according to the pricing policy
<br />designated by Customer via the Admin Portal, less any Driver
<br />Discounts.
<br />
<br />(ii) “Charge Backs” means any costs or loss
<br />incurred by Company in connection with the expected collection
<br />of the Base Session Fees, including but not limited to payment
<br />reversals, chargeback fees or refunds issued to Drivers.
<br />
<br />(iii) “Driver Discounts” means any applicable
<br />discounts to charging session rates that have been designated by
<br />the Customer via the Admin Portal.
<br />
<br />(iv) “Drivers” means end users that have created an
<br />account with Company to utilize Customer’s electric vehicle
<br />service equipment that has been integrated with the EV Cloud
<br />Subscription Service.
<br />
<br />(v) “Net Deficit” means the quarterly sum of the
<br />(a) Transaction Fees, (b) Charge Backs, and (c) Tax and
<br />Compliance Costs less the Base Session Fees.
<br />
<br />(vi) “Net Session Fees” means the quarterly Base
<br />Session Fess less the quarterly sum of the (a) Transaction Fees,
<br />(b) Charge Backs, and (c) Tax and Compliance Costs.
<br />(vii) “Set-Off” means the agreement by Company to
<br />collect any Net Deficit owed by Customer from future Net
<br />Session Fees.
<br />
<br />(viii) “Tax and Compliance Costs” means any Taxes
<br />and Compliance Costs paid by the Company (as such terms are
<br />defined in Sections 4.7 and 4.8).
<br />
<br />4.2 Customer will pay Company the then applicable Fees
<br />for the EV Cloud Subscription Service and Implementation
<br />Services described in the Sales Order.
<br />4.3 Company reserves the right to change the Fees or
<br />applicable charges and to institute new charges and Fees at the
<br />end of the Initial Service Term or then-current renewal term,
<br />upon thirty (30) days prior notice to Customer (which may be
<br />sent by email). If Customer believes that Company has billed
<br />Customer incorrectly, Customer must contact Company no later
<br />than sixty (60) days after the closing date on the first billing
<br />statement in which the error or problem appeared, in order to
<br />receive an adjustment or credit. Inquiries should be directed to
<br />Company’s customer support department
<br />(service@powercharge.com).
<br />4.4 So long as the quarterly Base Session Fees exceed the
<br />quarterly sum of all Transaction Fees, Charge Backs and Tax and
<br />Compliance Costs, Customer shall be entitled to any Net Session
<br />Fees, less any applicable Set-Offs, on a quarterly basis, which
<br />shall be payable by Company to Customer on or by the thirtieth
<br />(30th) day following the end of each fiscal quarter.
<br />4.5 In the event the quarterly sum of Transaction Fees,
<br />Charge Backs and Tax and Compliance Costs exceeds the
<br />quarterly Base Session Fees, Company shall be entitled to the
<br />Net Deficit, on a quarterly basis, which, unless the Company has
<br />agreed to a Set-Off, shall be payable by Customer to Company
<br />on or by the thirtieth (30th) day following Company’s issuance of
<br />an invoice for such Net Deficit. In the event a Net Deficit occurs
<br />on an on-going basis (more than twice in a twelve-month period),
<br />Company may require Customer to provide authorization for
<br />Company to automatically debit a bank account or charge a
<br />credit card for such Net Deficits fees.
<br />4.6 The Commissioning Fee shall be immediately due and
<br />payable upon the Effective Date. Company may choose to bill
<br />through an invoice, in which case, full payment for invoices
<br />issued must be received by Company thirty (30) days after the
<br />mailing date of the invoice. Unpaid amounts are subject to a
<br />finance charge of 1.5% per month on any outstanding balance, or
<br />the maximum permitted by law, whichever is lower, plus all
<br />expenses of collection and may result in immediate termination
<br />of Service.
<br />4.7 Customer shall be financially responsible for all taxes
<br />associated with EV Cloud Subscription Service, Base Session
<br />Fees and Net Session Fees (including but not limited to any
<br />obligations that arise in connection with the sale of electricity,
<br />import or export) other than U.S. taxes based on Company’s net
<br />income (“Taxes”).
<br />Docusign Envelope ID: 17376B40-F266-4EAA-9C62-48006BF43380
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