Schedule EVSE Program Service Agreement
Duke Energy Progress, LLC (“Duke Energy”) is excited to offer the Schedule EVSE Program known as “Charger Solution” (the “Program”) established in accordance with the Schedule EVSE tariff (the “Tariff”) to its non-residential electric customers (each, a “Customer”). Customer’s participation in the Program is subject to the terms and conditions of this Schedule EVSE Program Service Agreement and the applicable Program Statement of Work (the “SOW” and, collectively with the Schedule EVSE Program Service Agreement, the “Service Agreement”).
1. Charger Solution Program Overview
1.1 Program Overview. Duke Energy is offering eligible Customers an opportunity to participate in a worry-free and affordable program to have electric vehicle (“EV”) chargers at their business for a fee on their monthly electric bill. Under the Program, Duke Energy will provide Customer the option to select from Duke Energy’s list of pre-qualified EV charger options, all of which meet the applicable technical and safety standards considered by Duke Energy. The customer may select one or more level 2 EV chargers or direct-current fast chargers (“DCFC” and the charging equipment selected by Customer, the “Charging Equipment”). The Charging Equipment will be installed at Customer’s electric service address. A list of the approved Charging Equipment may be found on Duke Energy’s website for the Program located at: https://www.duke-energy.com/business/products/ev-complete/charger-solution In addition, Customer will be able to select various extra equipment to use in connection with its selected Charging Equipment (such selected equipment, the “Extra Facilities”), the cost of which will not be included in the EVSE Fee (as defined below) as further set forth in Article 6. The Charging Equipment and any Extra Facilities (if any) selected by Customer shall be set forth on the SOW..
1.2 Installation. Once Customer selects Customer’s Charging Equipment and is successfully enrolled in the Program in accordance with Article 3, Duke Energy will arrange to have one of Duke Energy’s third party service technicians install the Charging Equipment and Extra Facilities, if necessary, at a time convenient for Customer during working hours between 7:00 A.M. local time and 7:00 PM local time (“Working Hours”).
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1.3 General Ownership and Maintenance. Once installed, Duke Energy will continue to own and maintain the Charging Equipment and Extra Facilities. Subject to the terms and conditions set forth herein, the costs of the Charging Equipment, installation, ongoing maintenance, and annual software networking fees (if any) will be included on Customer’s monthly electric bill, as a convenient fee (such fee, the “EVSE Fee”). For the avoidance of doubt, the EVSE Fee shall not include charges for any Extra Facilities or any necessary excess facilities associated with Duke Energy’s service regulations and/or line extension deposit requirements, electrical panel or wiring make-ready costs, costs for work on either side of the meter, non-standard equipment, after Working Hours service costs, costs for electricity usage or any other costs or expenses which Customer elects to incur which are expressly indicated in this Service Agreement or any other Program materials as being in addition to or outside of the EVSE Fee. Internet connectivity, arranged by Customer and at Customer's expense, may be required for Customer to participate in certain other Duke Energy programs that may be offered in conjunction with other Duke Energy tariffs but is not required to participate in this Program.
2. Eligibility and Availability
To be eligible to participate in the Program, Customer must:
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agree to the terms and conditions contained in this Service Agreement via submission of Customer’s application to participate in the Program and execution of the SOW;
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be an electric customer in Duke Energy’s service territory and have an active Duke Energy account that receives electric service;
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request installation of the Charging Equipment in a location that is (i) readily accessible in order to support installation and maintenance of the Charging Equipment, and (ii) meets the “Site Readiness” requirements (as specified on the Program Website);
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agree to cooperate with Duke Energy and provide Duke Energy with additional information or documents, including pictures of the Site (as defined below) or meter, that Duke Energy reasonably requires to determine Customer’s eligibility to participate in the Program; and
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own or rent the property on which the Charging Equipment will be physically located; otherwise, if such Customer is renting, Customer’s property or the Charging Equipment must have separately metered service, and Customer must: (i) obtain the written consent of any third parties, including but not limited to the property owner, for Customer to participate in the Program, (ii) obtain the property owner’s signature on the Schedule EVSE Property Owner Consent form available on the Program Website or otherwise provided by Duke Energy, and (iii) agree that Customer’s participation in the Program shall be terminated in accordance with Article 7 if the property owner revokes such consent. If Customer is not the property owner then, in addition to any other releases or indemnification obligations in this Service Agreement, Customer releases and holds Duke Energy harmless from any claims arising from or through the property owner related to this Service Agreement or Duke Energy’s actions on the property.
3. Enrollment Process
3.1 Application. To enroll in the Program, Customer will need to complete the application found on the Program Website and submit all documentation required by such application. Depending on Customer’s particular location, as part of meeting the “Site Readiness” requirements Customer may have been required to have local municipal or permitting authorities or tradesmen inspect or otherwise permit the electrical work performed to meet such “Site Readiness” requirements. If Customer has any such inspection reports or permits, Customer shall submit them to Duke Energy as part of its application. If Customer was not required to have local authorities or tradesmen inspect such electrical work or otherwise does not have any such inspection reports or permits Customer shall obtain an inspection of Customer’s electrical infrastructure and provide such report to Duke Energy or execute a waiver of any such inspection. In either case, the inspection report or waiver must be acceptable to Duke Energy in its sole discretion. Once Duke Energy has received Customer’s complete application, Duke Energy will send Customer an email confirming (or declining) Customer’s eligibility for the Program, subject to further review of the proposed Site and negotiation of an SOW. If Duke Energy confirms Customer’s initial eligibility for the Program, Duke Energy will then perform any necessary visits of the proposed Site and Duke Energy and Customer will negotiate the SOW. The date that the SOW is executed by Customer and accepted by Duke Energy via e-mail will be considered Customer’s “Enrollment Date” and each such act shall evidence the parties agreement to the terms and conditions of this Service Agreement.
3.2 Automatic Termination. If, at any time prior to the Activation Date (as defined below), Duke Energy determines that Customer is actually ineligible for the Program, or Duke Energy determines that it is not reasonably feasible to offer service or maintain Charging Equipment at the Site, Duke Energy shall notify Customer of the same and this Service Agreement will be deemed automatically terminated and will be of no further force or effect (“Automatic Termination”).
3.3 Activation Date. Once the Charging Equipment has been installed at Customer’s property (the “Site”) and one of Duke Energy’s third party service technicians confirms to Customer that the Charging Equipment has been fully commissioned (such date, the “Activation Date”), Customer can start using the Charging Equipment located at the Site. Customer will receive their first bill in connection with the Program in the first billing period following the Activation Date. This first bill may be prorated depending on the Activation Date and Customer’s billing cycle.
4. Charging Equipment Installation and Maintenance
Following the Enrollment Date, Duke Energy will, through its network of third party service technicians, provide, install, maintain, repair or replace the Charging Equipment (collectively the “Work”) on the Site. The Site will be identified in the SOW. Duke Energy, in its sole discretion, shall have the right to repair, modify, or replace the Charging Equipment at any time during Customer’s Term (as defined below). If safety, reliability, or access negatively affects delivery of service under this Service Agreement, then Duke Energy may withhold or discontinue service as it deems necessary. Duke Energy will use commercially reasonable efforts to maintain the Charging Equipment in working order, and will attempt to provide Customer reasonable advance notice of any required maintenance of the Charging Equipment. Duke Energy, or its third party service technicians, will coordinate with Customer to schedule maintenance Work during Working Hours. For an additional fee, maintenance may be scheduled after Working Hours, contingent on availability of an appropriate third party service technician, and such additional fee will be itemized on Customer’s bill separate and distinct from the EVSE Fee. Customer understands that if Duke Energy is unable to arrange for maintenance Work to be completed at a mutually agreeable time, the Charging Equipment may not function and Customer and its customers and invitees may not be able to charge EVs using the Charging Equipment.
5. Customer’s Charging Equipment Obligations and Duties
5.1 Access. During the Term (as defined below), Customer agrees to grant Duke Energy the necessary access to the Site and sufficient space to locate the Charging Equipment at the Site as may be deemed necessary or desirable by Duke Energy to perform the Work. Installations must conform to Duke Energy’s specifications.
5.2 Customer Maintenance. During the Term, Customer will maintain the area surrounding the Charging Equipment and generally inspect the Charging Equipment as specified by the Charging Equipment manufacturer and area surrounding the Charging Equipment and will promptly notify Duke Energy of any problems related to the Charging Equipment of which Customer becomes aware. For the avoidance of doubt, Customer is not responsible for the ongoing scheduled maintenance of the Charging Equipment.
5.3 Use of Charging Equipment. Customer will use the Charging Equipment only as specified by the Charging Equipment manufacturer and will be responsible for any damage caused to the Charging Equipment due to Customer’s or its customers’ or invitees’ misuse, neglect, vandalism, or abuse. Customer agrees to remedy minor issues that do not require qualified service technicians to address, such as resetting infrequently tripped circuit breakers, reconnecting the plug and vehicle to engage charging, or resetting the network connection.
5.4 Networked Charging Equipment. For networked Charging Equipment, Customer shall provide and be responsible for maintaining communication access through wi-fi, cellular or other communications capabilities and any such costs of maintaining such communication access shall not be included in the EVSE Fee.
5.5 Third Party Access. Customer agrees to provide access and assistance to Duke Energy and/or Duke Energy’s designated third-parties (including, without limitation, Duke Energy’s network of third party service technicians) to facilitate random Charging Equipment testing. Such cooperation may include, but is not limited to, periodic inspection of the Charging Equipment and the addition of monitoring hardware or software at Duke Energy’s expense.
5.6 EVSE Make Ready Infrastructure. Customer hereby represents and warrants that any and all pre-existing electrical wiring and related protective equipment at the Site from the applicable utility meter to the proposed Charging Equipment location (such wiring and protective equipment, the “EVSE Make Ready Infrastructure”) has been constructed and installed in a good and workman-like manner, free from faulty materials or defects of any kind and in accordance with all applicable laws, codes and standards.
6. Applicable Charges
6.1 Charges. Customer’s participation in the Program will require Customer to pay for all electricity usage each month separate from the EVSE Fee. Customer will also be charged a monthly EVSE Fee for the Charging Equipment, the installation and maintenance services provided by Duke Energy and/or Duke Energy’s designee, and any applicable network fees. The applicable monthly EVSE Fee is listed in the Tariff. In addition, Customer may elect to obtain certain Extra Facilities which shall not be included in the EVSE Fee. For Customer’s convenience, Customer’s monthly EVSE Fee and costs for Extra Facilities and any after Working Hours maintenance will each appear on Customer’s Duke Energy electric bill as separate line items. Duke Energy will not provide a breakdown of the EVSE Fee, other than what is legally required. For the avoidance of doubt, Customer shall also be responsible for any applicable fees and taxes. As set forth in Section 8.3, Duke Energy may provide Customer with a credit to its Duke Energy electric bill in certain instances. In the event Customer mandates specific pricing for the charging, Customer shall be solely responsible for the management and payment of any and all transactional fees as it pertains to the Customer, driver, and station network.
6.2 Deposit. Duke Energy may also, at its option, require a deposit not to exceed an aggregate amount of two (2) months of the EVSE Fees to be charged during the Term, which shall be applied to Customer’s Duke Energy electric account after the first anniversary of the Activation Date provided Customer has met all of Customer’s obligations under this Service Agreement.
7. Term and Termination
7.1 Term. This Service Agreement shall be effective as of the Enrollment Date. The term shall commence on the Enrollment Date and will continue for seven (7) years for DCFC units and 48 months for Level 2 units from the Activation Date, or until terminated in accordance with this Article 7 (the “Term”). At the end of the Term, unless this Service Agreement has already been terminated in accordance with this Article 7, Customer shall be given the option to: (i) extend the Term or enter into a new service agreement, at Duke Energy’s sole discretion, (ii) assign the Charging Equipment to another party (with the written consent of Duke Energy, which Duke Energy may withhold in its sole discretion), or (iii) promptly make the Site available to Duke Energy and/or Duke Energy’s designated third-party to access and remove the Charging Equipment from the Site.
7.2 Termination. This Service Agreement may be terminated at any time:
(A) subject to payment of the Termination Fee (as defined below)by Customer for any reason by providing Duke Energy thirty (30) calendar days of prior written notice of such termination;
(B) by Duke Energy for any reason by providing Customer thirty (30) calendar days prior written notice of such termination;
(C) by Duke Energy immediately if: (i) Customer fails to meet any of the Program eligibility requirements or adhere to any of Customer’s obligations set forth in this Service Agreement in a manner that would make it unsafe for Customer to continue to participate in the Program, (ii) Customer rents the property where the Site is located and the property owner revokes its consent to Customer’s participation in the Program, (iii) Customer fails to pay the monthly EVSE Fee or any other charges, fees or expenses contemplated in this Service Agreement for any two consecutive months, or (iv) Duke Energy is required to terminate the Program by the Commission (as defined below), and providing thirty (30) calendar days’ notice would not be practicable or permitted by the Commission or other laws.
7.3 Automatic Termination. This Service Agreement shall be deemed terminated automatically:
(A) in the event an Automatic Termination occurs in accordance with Section 3.2; or
(B) in the event Customer sells, or no longer occupies at, the property where the Charging Equipment has been installed; provided, however, with Duke Energy’s written consent, which Duke Energy may withhold at its sole discretion, Customer may seek (i) to assign the Charging Equipment and all rights and obligations hereunder to an existing or new property owner or tenant of the Site, provided such proposed transferee is a Duke Energy electric customer (a “Permitted Assignment”), or (ii) to move the Charging Equipment to a new property for a mutually agreed cost (a “Permitted Move).
7.4 Permitted Assignment; Permitted Move. Customer must submit a request for any Permitted Assignment or Permitted Move to Duke Energy as soon as practical but at least thirty (30) calendar days prior to the requested date of such Permitted Assignment or Permitted Move and, in the case of a Permitted Assignment, shall have the proposed transferee promptly contact Duke Energy. In the case of a Permitted Assignment or Permitted Move which is consented to in writing by Duke Energy, unless Duke Energy and Customer agree in writing otherwise, Customer shall pay all of Duke Energy’s reasonable costs and expenses to move the Charging Equipment to a new property or assign the Charging Equipment and all rights and obligations hereunder to a new person, as applicable.
7.5 Hardware Change. Customer may request a change in charging equipment hardware during the Term by submitting a request to Duke Energy at least thirty (30) calendar days prior to Customer’s preferred change in equipment. Customer shall pay all of Duke Energy’s reasonable costs and expenses to remove the existing Charging Equipment and install the new charging equipment requested by Customer. Duke Energy and Customer will then terminate this Service Agreement and enter into a new Schedule EVSE Program Service Agreement for the new charging equipment hardware at the rate associated with the applicable charging equipment and associated network at the time of installation of the new charging equipment hardware.
7.6 Notice of Vacation. Notwithstanding anything to the contrary in Section 7.4, Customer shall provide Duke Energy with thirty (30) calendar days’ prior notice of Customer’s vacating of the property where the Charging Equipment has been installed, even if Customer is not interested in pursuing a Permitted Assignment or Permitted Move.
7.7 Termination Fee. In the event that (i) Customer terminates this Service Agreement in accordance with Section 7.2(a), (ii) Duke Energy terminates this Service Agreement in accordance with Section 7.2(b) or 7.2(c) if Customer fails to meet any of the Program eligibility requirements or adhere to any of Customer’s obligations set forth in this Service Agreement, or (iii) this Service Agreement is automatically terminated in accordance with Section 7.3(b), Customer shall pay a termination fee amounting to forty percent (40%) of the remaining aggregate EVSE Fees to be paid during the Term (“Termination Fee”) within thirty (30) calendar days of the termination.
7.8 Effect of Termination. If either Customer or Duke Energy terminates this Service Agreement, Customer will be responsible for all applicable charges and fees including the monthly EVSE Fee through the date of termination. In the event of a termination of this Service Agreement, on the date of termination, Customer’s right to use the Charging Equipment under this Service Agreement will automatically expire and Customer shall promptly make the Site available to Duke Energy and/or Duke Energy’s designated third-party to access and remove the Charging Equipment from the Site. Duke Energy, in its sole discretion, may waive the Termination Fee if it so desires. If this Service Agreement shall be terminated pursuant to this Article 7, all further obligations of the parties under this Service Agreement (other than the provisions which by their terms are intended to survive the expiration or termination of this Service Agreement including Sections 14.4, 14.6, 14.7, 14.8 and this Article 7) shall be terminated without further liability of any party to the other party (other than the payment of the Termination Fee if applicable or as otherwise expressly set forth herein) and the exercise of such right of termination will not be an election of remedies; provided, however, that nothing herein shall relieve any party from liability for its breach of the terms or provisions of this Service Agreement.
8. Charging Equipment and Network
8.1 Ownership. While Customer participates in the Program, Duke Energy will own and maintain the Charging Equipment and network seat (if applicable). Ownership of and title to the Charging Equipment shall remain with Duke Energy at all times, and Customer is therefore not permitted to make any alterations, changes, or modifications to the Charging Equipment without first securing prior written permission from Duke Energy. Customer will not sell or allow the Charging Equipment to become subject to any lien, security interest or other claim asserted by any of Customer’s creditors, and any sale of the Site shall not include the Charging Equipment.
8.2 Branding. Subject to Section 8.3, Customer is permitted to customize the Charging Equipment at Customer’s expense to the extent offered by the Charging Equipment manufacturer. Customer shall arrange any such branding directly with the manufacturer and pay any costs or fees for such branding. Any such costs and fees will not appear on Customer’s Duke Energy electric bill or be included in any item set forth therein and shall be paid by Customer directly to the Charging Equipment manufacturer.
8.3 Advertising. Customer shall be permitted to promote and advertise its participation in the Program; provided, however, Duke Energy reserves the right to review and approve any and all advertising, marketing, co-branding or promotional copy or materials developed or used by Customer which references Customer’s participation in the Program prior to Customer’s use of such copy or materials. Approval shall be granted by Duke Energy, unless Duke Energy in its sole discretion, determines that the copy or materials are misleading, in error, or fail to meet the requirements of the Program terms and conditions or is not in Duke Energy’s best interest. In the event that Duke Energy does not approve any such copy or materials, Customer agrees to not use any such copy or materials or, if already in circulation, remove such copy or materials from circulation. Customer shall not use, reproduce or display any trademark owned or held by Duke Energy or any of its affiliates without the prior written consent of Duke Energy.
8.4 Software Updates. Customer is required to keep any network or software versions up to date as released and requested by the manufacturer. Duke Energy will not be responsible for these software upgrades while the unit is installed on Customer property.
8.5 Incentives. To the extent the installation, ownership, use and operation of the Charging Equipment generates any tax credits or other incentives, such credits and incentives shall be the sole property of and shall inure to the benefit of Duke Energy for the period for which it owns the Charging Equipment. If, for any reason, any such credits are not received by Duke Energy, but are instead received by Customer, Customer agrees to promptly pay the dollar amount of any such credits to Duke Energy.
8.6 Repair. In the event the Charging Equipment fails to operate or otherwise requires repair, Customer agrees to promptly notify Duke Energy. Duke Energy agrees to use commercially reasonable efforts to pursue any applicable warranty claim that may exist due to the Charging Equipment’s failure to operate or need of repair.
8.7 Network Change. Customer agrees not to request a network change within one (1) calendar year following the Activation Date. In the case of a network change consented to in writing by Duke Energy, unless Duke Energy and Customer agree in writing otherwise, Customer shall pay all of Duke Energy’s reasonable costs and expenses incurred to change the charging network. The Parties hereby agree that any change in network will not effect the Term.
9. Cooperation
9.1 General Cooperation. Successful implementation of the Program depends on Customer’s cooperation with Duke Energy’s service technicians, equipment providers, and Duke Energy and their respective agents and affiliates. To help Duke Energy to continue to improve the Program and its EV offerings, Duke Energy needs to be able to easily communicate with Customer and solicit Customer’s feedback. By applying for the Program, Customer consents to receive communications from Duke Energy and participate in surveys relating to the Program and other service offerings in electronic form sent to the email address Customer provided. Customer is solely responsible for ensuring that the Charging Equipment is accessed and used only by Customer or individuals who Customer authorizes to use the Charging Equipment.
9.2 Disclosure to Installers. By applying for the Program, Customer consents to Duke Energy’s disclosure of Customer’s name, address, telephone number, EV charging data, and any EV charging or electrical usage patterns concerning the Program with any of Duke Energy’s service technicians as reasonably necessary for Duke Energy to perform its obligations under this Service Agreement.
9.3 Future Programs. Customer may be eligible for participation in future programs or initiatives offered by Duke Energy, including certain managed charging offerings.
10. Duke Energy’s Disclosure and Use of Charging Equipment Data
Customer consents and acknowledges that Duke Energy owns and may use any and all of the data recorded through the Charging Equipment for any purpose consistent with applicable laws, including Commission rules. Such purposes include administering and providing Customer services through the Program, supporting regulatory filings (in accordance with customer data privacy requirements), responding to discovery or audit requests from the Commission, and developing regulated programs or offerings.
11. Tariff
In addition to this Service Agreement, the terms, conditions, and rates provided in the Tariff will apply to the Customer’s participation in the Program. Duke Energy is regulated by the applicable state utility commission (the “Commission”), and the Commission has the authority to establish just and reasonable rates, terms, and conditions between Duke Energy and its customers. It is possible that during the Term, there will be a change to the Tariff that could conflict or be inconsistent with the terms of this Service Agreement. If there is any conflict or inconsistency between this Service Agreement and the Tariff, the Tariff governs.
12. Insurance Coverage
Throughout the Term, Customer shall procure and maintain in full force and effect a standard all risk property insurance policy with amounts sufficient to cover the full replacement cost of the Site. Duke Energy and Customer hereby waive any and all claims and rights of action (by way of subrogation or otherwise) against the other (and against any insurance company insuring the other party) which may hereafter arise on account of bodily injury or damage to the Charging Equipment or to the Site, resulting from any fire, or other perils or claims of the kind covered by standard all risk property insurance policies with extended coverage (Causes of Loss Special Form) regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the parties, or either of them. Customer agrees that Duke Energy may self-insure against any loss or damage which could be covered by a commercial general public liability insurance policy and or a property policy. Customer will give written notice of this mutual waiver to each insurance company which issues insurance policies to Customer with respect to the items covered by this waiver, and shall have Customer’s insurance policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by such insurance policies by reason of such waiver.
By Duke Energy not requiring Customer to provide certificates of insurance this shall not be deemed a waiver of any rights of Duke Energy under the Service Agreement or with respect to any insurance coverage required hereunder.
If there is a claim related to the services under this Service Agreement, Customer shall, upon Duke Energy’s request, provide a copy of any or all of its required insurance policies, including endorsements in which Duke Energy is included as an additional insured.
13. Limited Warranty
Duke Energy warrants that Work performed by Duke Energy’s service technicians will be performed in a safe and professional manner in accordance with all applicable laws. In the event that any Work performed is found to be defective and Customer notifies Duke Energy of such defect, Duke Energy shall repair or replace such defective Work at Duke Energy’s expense. THE REPAIR OR REPLACEMENT OF SUCH DEFECTIVE WORK IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND DUKE ENERGY’S ENTIRE LIABILITY UNDER THIS SERVICE AGREEMENT FOR ANY FAILURE OF DUKE ENERGY TO COMPLY WITH DUKE ENERGY’S OBLIGATIONS. OTHER THAN ITS OBLIGATION TO MAKE REASONABLE EFFORTS TO MAINTAIN THE CHARGING EQUIPMENT WHILE CUSTOMER PARTICIPATES IN THE PROGRAM, DUKE ENERGY IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE CHARGING EQUIPMENT OR THAT THE CHARGING EQUIPMENT WILL OPERATE ERROR FREE, AND DUKE ENERGY HEREBY DISCLAIMS ANY RESPONSIBILITY OR WARRANTY FOR THE CHARGING EQUIPMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 13, DUKE ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, AND UNLESS OTHERWISE SPECIFIED IN WRITING, DUKE ENERGY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE WORK OR CHARGING EQUIPMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
14. Other Terms and Conditions
14.1 Indemnification. To the extent permitted by applicable law (but except to the extent excluded by the terms of this Service Agreement), each party shall indemnify and hold the other party harmless against any third party claim of liability or loss from bodily injury (including mental or emotional distress or death of any person) or property damage (whether real, personal, tangible or intangible including without limitation real or personal property of any third party, the Charging Equipment and any associated equipment hardware) resulting from or arising out of the use of the Site by the party, its servants or agents (“Losses”), except however, such claims or damages as may be due to or caused by the negligence or willful misconduct of the other party, its servants, or its agents.
14.2 Cap. The maximum amount that either party shall be required to pay in aggregate in respect to all Losses shall not exceed two times the EVSE Fee paid in one (1) year (“Cap”); provided, however, that the Cap shall not apply with respect to (i) the Termination Fee (or claims, or causes of action, relating to a failure of Customer to pay the Termination Fee), or (ii) claims of, or causes of action from, intentional fraud or willful misconduct of the indemnifying party and any Losses incurred as a result of any such claims or causes of action.
14.3 Limitation of Liability. Notwithstanding anything herein to the contrary, under no circumstances or legal theory, whether arising in contract, tort, strict liability, warranty, infringement, or otherwise, shall either party be liable to the other party or any other person or entity for any indirect, consequential, secondary, incidental, special, reliance, exemplary, or punitive damages, including without limitation any such damages in connection with: (i) any property damage (real, personal, tangible, or intangible) or personal injury (including mental or emotional distress) arising from or alleged to have arisen under this Service Agreement; (ii) any damages arising or alleged to have arisen from any electrical malfunction or the repair or replacement of such malfunctioning items; or (iii) any environmental claims, damage, or causes of action.
14.4 Non-Reliance. Under no circumstances will Duke Energy or its agents be held liable to Customer or any other person or entity for matters involving (i) the installation or use of the EVSE Make Ready Infrastructure, (ii) the purchase, lease, use, non-use, or devaluation of any EV or any other vehicle of any nature, or (iii) any non-compliance with any applicable laws, codes or standards with respect to Customer’s use of the Charging Equipment or any EV or vehicle. Duke Energy will not pay for any costs incurred or damages sustained by Customer (i) for purchasing any vehicle or equipment, software license or otherwise in reliance upon Duke Energy being able to provide the Charging Equipment, or (ii) due to any faulty or improperly installed EVSE Make Ready Infrastructure. In no event will Duke Energy be liable to Customer for any claims, expenses, losses, damages, or lawsuits arising out of any interruptions or disturbances in electric service.
14.5 Assignment. Duke Energy may assign this Service Agreement or any benefit, interest, right or cause of action arising under this Service Agreement to any person without restriction. Customer shall not assign this Service Agreement except with the prior written consent of Duke Energy, which Duke Energy may withhold in its sole discretion. Any assignment without Duke Energy’s consent shall be null and void.
14.6 Governing Law. This Service Agreement shall be governed by the laws of the state where the Site is located, without reference to its conflict-of-law principles.
14.7 Waiver. Duke Energy’s failure to insist on performance of any of the terms and conditions herein or to exercise any right or privilege or Duke Energy’s waiver of any breach hereunder shall not thereafter waive any of Duke Energy’s rights or privileges under this Service Agreement or at law. Any waiver of any specific breach shall be effective only if given expressly by Duke Energy in writing.
14.8 Entire Agreement. This Service Agreement, any waiver delivered in accordance with this Service Agreement and any tariffs and/or rate schedules applicable to Customer’s service, embodies the entire agreement between Customer and Duke Energy. The parties shall not be bound by or liable for any other statement, writing, representation, promise, inducement, or understanding. No changes, modifications, or amendments of any terms and conditions of this Service Agreement are valid or binding unless agreed to by the parties in writing and signed by the parties.
14.9 Power Outages. Customer acknowledges and understands that power outages may occur, and therefore Charging Equipment under this Service Agreement may not be operable during such outage. The Parties acknowledge and agree that Duke Energy does not guarantee continuity of service to the Charging Equipment and is not responsible or liable for interruption, failure, or defect in the supply or character of electricity furnished to the Charging Equipment.
14.10 Accessibility Requirements. Customer understands and accepts that Charging Equipment that are publicly accessible shall comply with the Americans with Disabilities Act (“ADA”) and any applicable North Carolina building standards. Customer understands and accepts that such standards may impact parking layouts and potentially change the number of non-accessible parking spaces available. Customer understands and accepts that changes to initial design representations may occur during the design, construction and operational phases of the Program and may be dictated by design constraints, by law or regulation or by local jurisdictional authorities. Customer shall be responsible for any construction upgrades to the Site required in order for the property to be ADA complaint and hereby agrees that Duke Energy will not be responsible for any construction upgrades required for the Charging Equipment or the Site to be ADA compliant, including but not limited to, the construction of ADA-compliant ramps or the inclusion of certain signage or paint markings.
15. Questions
If Customer has questions regarding these terms or the Program, or is required to provide Duke Energy notice pursuant to this Service Agreement, please contact Duke Energy using the information and instructions on the Program Website.
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Product Specifications
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Warranty
All other goods sold are guaranteed to be free from defects in material and workmanship for a period of 60 days from shipment. Some products may include a longer warranty period; please refer to product packaging or specification sheets for more detailed information. To request a copy of warranty information for a specific product, please call customer service at 1-800-777-5655 or email customercare@amconservation.com. Other than this warranty, seller makes no warranty of any kind, express or implied, including any warranty of merchantability, fitness for purpose or otherwise. The seller shall in no event be liable for any incidental, indirect, special or consequential damages or any kind, in contract, tort or otherwise. The seller’s liability and buyer’s exclusive remedy is limited to the replacement of non-conforming products or payment in an amount not to exceed the purchase price of the specific products for which damages are claimed at the option of the seller.
Governing Law
Jurisdiction and applicable law governed by and interpreted according to the internal laws of the State of South Carolina without regard to choice of law provisions. The parties consent to the jurisdiction of the State and Federal Courts of South Carolina and the effectiveness of Service of Process by Certified United States Mail.
CHARGER SOLUTION PROGRAM
EXHIBIT A - STATEMENT OF WORK
Application Submitted Date: xx/xxx/xxxx
Business Name:
DE Account Number:
Address
City, State, Zip
Site address
Site City, Site State, Site Zip
This Statement of Work includes the following attachments:
Application dated: xx/xx/xxxx
Sketch of proposed location (submitted with application) dated: xx/xx/xxxx
Site Plan dated: xx/xx/xxxx
Single Line Drawing dated: xx/xx/xxxx
Site Readiness Survey Part A, submitted by customer dated: xx/xx/xx
Site Readiness Survey Part B submitted by Program Installation Contractor dated: xx/xx/xxxx
The parties agree that the EVSE Fee shall be: xxxxx
Customer agrees to the Statement of Work provided in the above attachments
Customer:
Print Name _____________________________
Signature _____________________________
Title _____________________________
Date _____________________________
US Dollars
