Enel X WAY Policies

THIS HARDWARE WARRANTY AND SOFTWARE LICENSE AGREEMENT (“Agreement”) IS MADE BETWEEN Enel X WAY NORTH AMERICA, INC. (“Enel X WAY”) AND THE CUSTOMER WHO HAS PURCHASED THE PRODUCT DESCRIBED BELOW (“Customer”) UNDER PURCHASE TERMS REFERENCING THIS AGREEMENT.

1. DEFINITIONS

  • “Embedded Software” means any software embedded in the Product and any updates thereto as made available to Customer by Enel X WAY. Embedded Software does not include JuiceNet.
  • “End User” means a person who uses the Product to charge an electric vehicle.
  • “JuiceNet” means Enel X WAY’s cloud-based communication, control, and intelligence platform that governs the charging functionality of a Product and allows Customer to exercise control of certain features of a Product.
  • “JuiceNet Enterprise” means the cloud-based administrative interface of JuiceNet.
  • “Product” means, collectively, the product or products sold, provided, made available or delivered to Customer.
  • “Software” means and software to be provided by Enel X WAY in connection with the Product, including, as may be applicable, JuiceNet and JuiceNet Enterprise and any Embedded Software.

2. PRODUCT AND END USERS

  • Deployment: As between Enel X WAY and Customer, Customer is solely responsible for the deployment of the Product for operation by Customer and End Users, including installation, configuration, integration, and testing.
  • Payments by End Users: The Product and/or Software may include the functionality to allow Customer to (i) set pricing in connection with an End User’s charging of a vehicle through the Product; and (ii) facilitate the receipt of payments from End Users in connection with such End User use. Enel X WAY may facilitate such payments through integrations with third party platforms. Customer’s use of such third-party platforms is subject to the applicable third party terms and conditions.
  • End Users: Customer shall indemnify, defend, and hold Enel X WAY harmless from and against any penalties, fees, expenses, losses, claims, actions or allegations brought by End Users arising out of or related to any use of the Product.

3. LICENSE; INTELLECTUAL PROPERTY RIGHTS; DATA

  • License: Access Subject to Customer’s compliance with this Agreement and during the term of this Agreement, Enel X WAY hereby grants to Customer a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement or the sale of the applicable Product to a subsequent owner) right to access the Software for Customer’s internal business needs. Enel X WAY will use commercially reasonable efforts to meet a 98% uptime goal for JuiceNet Enterprise, measured on a rolling 6-month basis, excluding maintenance and causes outside of Enel X WAY’s reasonable control. Customer hereby agrees to keep the contact information provided to Enel X WAY current. Customer will keep its login information to JuiceNet Enterprise and/or any other Software confidential and is responsible for any activity occurring under its account.
  • Embedded Software: Subject to Customer’s compliance with this Agreement, Enel X WAY hereby grants to Customer a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement or the sale of the applicable Product to a subsequent owner), non-sublicensable, perpetual license to use the Embedded Software solely as embedded in the applicable Product and solely to the extent necessary for the normal and intended use of such Product. This license is granted in addition to the license specified in clause A. above.
  • Reservation of Rights: None of Enel X WAY’s rights in or to any Software will be deemed to have been assigned or otherwise transferred to Customer, notwithstanding the fact that Product has been sold or otherwise transferred to Customer. As between Enel X WAY and Customer, Enel X WAY owns all right, title and interest in and to all intellectual property and other proprietary rights to the Software and any other technology or materials embedded in, incorporated into or provided with the Product and any accompanying documentation or information relating to or derived from the foregoing.
  • Restrictions: Customer shall prevent unauthorized access to and use of the Software and any documentation by third parties. Customer shall not, and shall not allow any third party to (i) copy, decompile, disassemble, reverse engineer the Software, or otherwise derive the source code of the Software, or attempt to do so, except to the extent required by applicable law; (ii) disclose, distribute, sell, sublicense, display, publish, modify, adapt, alter, translate, or create derivative works of the Software; (iii) remove, cover or alter any of Enel X WAY's patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials; (iv) do anything to interfere with any “call home” functionality of the Product or its interactions with the Software; or (v) otherwise use the Software for any purpose not expressly permitted by this Agreement.
  • Product Data: As between Enel X WAY and Customer, Enel X WAY owns all data that is generated, collected, or otherwise provided to Enel X WAY in connection with the use of the Product or Software ("Data"). Customer hereby assigns any and all rights that Customer may have in the Data necessary to accomplish such ownership. Any public disclosure of Data by Enel X WAY will be done in such a way that Customer cannot be reasonably identified. Subject to the terms of this Agreement, Enel X WAY hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in connection with a permitted assignment of this Agreement or the sale of the applicable Product to a subsequent owner), perpetual license to use the Data that Enel X WAY makes available to Customer through the normal interface of the Product or Software solely for Customer’s internal business purposes or any purpose agreed between Customer and Enel X WAY in a written agreement. Customer agrees not to disclose such Data to any third party (i) unless Enel X WAY's agreement thereto it set forth in a written agreement between the Parties or (ii) without the prior written consent of Enel X WAY.
  • Data Reporting: Notwithstanding the foregoing, Customer solely designates Enel X WAY as the data reporting entity, also known as fuel reporting entity, for purpose of the State of California’s, Oregon and Washington as well as British Columbia or Canada’s Low Carbon Fuel Standard Program (“LCFS”), or functionally equivalent programs, associated with the product(s). Such data may consist of Customer and Product identification numbers, Product locations and aggregated charging volumes per Product (whereas session specific data may be requested in the case of an audit). The Customer may have rights to act as its own data reporting entity; therefore, if Customer intends to -3- act as its own data reporting entity, then it shall notify Enel X WAY in writing by email, to info@evcharging.enelx.com Attention: Low Carbon Fuel Reporting Notice, within ten (10) days of initial use of the Product. Customer represents and warrants to Enel X WAY that, in the absence of providing written notice, Customer will not act as the data reporting entity.

4. HARDWARE WARRANTY

  • Hardware Limited Warranty: Enel X WAY warrants to Customer that the Product, except for any Embedded Software (such in-scope Product, the “Hardware”) will, for a period of 36 months from the date of delivery (the “Hardware Warranty Period”), materially conform to its published specifications and be free from defects in materials and workmanship under normal use (the “Hardware Limited Warranty”). The Hardware Warranty Period shall be extended by any extension thereof purchased by Customer from Enel X WAY. The Hardware Limited Warranty shall be void if the Product has been (i) used in any manner that is inconsistent with the intended purpose or design of the Product as described in Enel X WAY's published documentation; (ii) altered in any way; (iii) maintained in any manner that is inconsistent with Enel X WAY's instructions or warnings included with the Product; or (iv) subjected to any misuse, abuse, neglect, accident, or external forces. The Hardware Limited Warranty does not cover normal wear and tear.
  • Product Repair or Replacement: If any Hardware does not materially conform to or is defective under the Hardware Limited Warranty during the Hardware Warranty Period (“Nonconforming Hardware”), Enel X WAY's SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY will be for Enel X WAY (at Enel X WAY's option), to repair or replace the Nonconforming Hardware, by (i) dispatching repair personnel to repair Nonconforming Hardware at its installed location, (ii) sending a software update or other Fix, or (iii) sending a replacement part to Customer with installation instructions or an offer of remote assistance for replacement (collectively (i), (ii) and (iii) a “Correction”); provided that Enel X WAY’s obligation to issue a correction is subject to the following: (i) the Hardware Limited Warranty is not void as set forth in Section 4; (ii) Customer provides written notice of a covered, reproducible defect promptly upon discovery thereof; (iii) Customer contacts Enel X WAY to obtain an RMA number and returns all applicable Products with Nonconforming Hardware to Enel X WAY in accordance with its RMA process as applicable; (iv) Customer has paid in full all amounts payable for the Product; (v) Customer grants any repair personnel access to Nonconforming Hardware; (vi) the Nonconforming Hardware is connected to the internet and able to receive software updates (unless the inability to connect to the internet is due to a failure of the Product to comply with the Hardware Limited Warranty); and (vii) Customer is familiar with Product and willing and able to follow directions to repair Product if and when requested by Enel X WAY. A replacement Product or part assumes the remaining warranty of the original Product, or 30 days from the date of replacement or repair, whichever is longer. Customer agrees to ship the Nonconforming Hardware Enel X WAY upon request (e.g., for Enel X WAY to provide repair or if Enel X WAY ships a replacement product and requests return of the original product). If Enel X WAY requests for Customer to ship the Nonconforming Hardware to Enel X WAY, all freight, insurance, and other shipping expenses, as well as any special packing expense, shall be paid initially by Customer but shall be reimbursed by Enel X WAY if the Hardware is shown to have been defective in breach of the Hardware Limited Warranty.

5. SUPPORT AND MAINTENANCE

  • Support: For support-related issues, Customer shall contact the entity from which Customer purchased the Product. If purchased through a reseller (the “Reseller”), the reseller shall be the first contact for issue resolution. Enel X WAY maintains a manufactures passthrough warranty. Reseller shall be solely responsible for level one support. Enel X WAY maintains level 2 and 3 support-related issues (see 4)
  • Fixes: Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Fixes”) necessary for the proper function and security of the Product and Software, as such Fixes are generally released or pushed by Enel X WAY. Enel X WAY’s SOLE AND EXCLUSIVE RESPONSIBILITY AND LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY for the failure of a Product to operate due to a software-related issue or for the Software to operate as intended is for Enel X WAY to issue a Fix during Enel X WAY's normal release cycle.

6. TERMINATION

  • Enel X WAY may immediately terminate this Agreement if Customer (i) fails to make any payments due and payable for the Product or Software; or (ii) materially breaches this Agreement and does not cure such breach within fifteen (15) days from receipt of written notice of such breach from Enel X WAY. If this Agreement is terminated, without limiting any other rights which are terminated, Enel X WAY may (w) discontinue Customer’s access to any Software, (x) stop providing any support to Customer; (y) cease issuing updates to Customer; and (z) disconnect the Product from JuiceNet. Sections 1, 2, 7, 8 and 9 shall survive any termination. All licenses granted to Customer and Customer’s right to access JuiceNet Enterprise shall terminate if this Agreement is terminated. Enel X WAY may cease providing access to Software if Enel X WAY ceases making such Software generally available.

7. DISCLAIMERS

  • General: EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 4 AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE PRODUCT, INCLUDING THE EMBEDDED SOFTWARE, AND ANY SOFTWARE, AND ANY RELATED SERVICES PROVIDED BY Enel X WAY ARE PROVIDED ON AN AS-IS BASIS. Enel X WAY AND ITS SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL, STATUTORY OR OTHERWISE, REGARDING ANY SUBJECT MATTER OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, Enel X WAY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. FURTHER, Enel X WAY AND ITS SUPPLIERS DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT THE PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR-FREE, IN COMBINATION WITH ANY MATERIAL OR PRODUCTS NOT PROVIDED BY Enel X WAY, WILL BE FREE FROM BUGS, OR THAT ANY ERRORS WILL BE OR CAN BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSONNEL OR RESELLERS OF Enel X WAY SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY CONTAINED IN SECTION 4.
  • Payments: THIRD PARTY PAYMENT PLATFORMS ARE RESPONSIBLE FOR COLLECTING PAYMENTS FROM AND END USER AND REMITTING CUSTOMER’S SHARE TO CUSTOMER. CUSTOMER ACKNOWLEDGES THAT Enel X WAY IS NOT LIABLE FOR ANY ACTS OR OMISSIONS OF SUCH THIRD PARTY PLATFORM, INCLUDING FAILURE OF SUCH THIRD PARTY PLATFORM TO PAY CUSTOMER AMOUNTS DUE. FURTHER, CUSTOMER ACKNOWLEDGES THAT THE PRODUCT CHARGES AND END USER’S VEHICLE BASED ON AN ALGORITHM DESIGNED TO MAXIMIZE ENERGY EFFICIENCY AND Enel X WAY MAKES NO GUARANTEES WITH RESPECT TO THE AMOUNTS CUSTOMER MAY ACTUALLY BE PAID FOR A CHARGING SESSION.
  • LIMITATION OF LIABILITY: Enel X WAY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT (INCLUDING ANY WARRANTY EXTENDED IN CONNECTION THEREWITH) SHALL BE LIMITED TO THE AMOUNT PAID TO Enel X WAY HEREUNDER IN THE PRECEDING TWELVE (12) MONTHS. IN NO EVENT SHALL Enel X WAY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT SHALL Enel X WAY BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR OTHER NON-DIRECT DAMAGES (AND, DAMAGE TO OR LOSS OF USE OF ANY PRODUCT, LOST SALES OR PROFITS, OR DAMAGES OR LOSSES DUE TO A DELAY OR FAILURE TO PERFORM ANY WARRANTY OBLIGATION UNDER THIS AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF ANY PRODUCT), HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE) AND WHETHER OR NOT Enel X WAY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

8. SHIPPING POLICY

  • Business days are Monday-Friday; Holidays, Saturday and Sunday are not included in shipping days. Shipping timelines are estimates and are not guaranteed. For a more specific delivery ETA based on the exact item(s) you want to purchase, please call us at (307) 323-3907 or send us an email at sales@smartenergyfactory.com
  • Fast Standard Shipping:
    Delivery typically in one to five business days after shipment depending on location.
  • Second Day:
    Delivery by the end of the second business day after an order has shipped. For example, if an order is shipped out on Monday, it will arrive on Wednesday. If the order is placed Monday night and ships out on Thursday, it will arrive on Monday of the following week
  • Next Day:
    Delivery the next business day after an order has shipped. An order that ships out on Thursday with Next-Day delivery would be delivered on Friday. An order shipping out on Friday with Next Day delivery would arrive on Monday
  • Shipping Cost:
    Residential EV charger shipping is free For commercial EV chargers contact us
  • Returns, Changes and Cancellations:
    Contact
    ○ (307) 323-3907
    ○ Email us at: sales@smartenergyfactory.com

9. MISCELLANEOUS

  • Compliance: Export Controls. Customer at all times shall comply with all applicable federal, state, local, and foreign laws and regulations. Without limiting the foregoing, Customer agrees to comply with all applicable export control laws and regulations related to its use of the Product.
  • Governing Law: This Agreement shall be governed by and construed under the laws of California without regard to the conflict of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
  • Notice: Any required notice shall be given in writing by customary means as follows: in the case of Customer, to the physical address or email contact information provided upon registration for JuiceNet Enterprise, and in the case of Enel X WAY, to info@evcharging.enelx.com or through any means Enel X WAY provides to contact Enel X WAY through JuiceNet Enterprise. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, three (3) days after deposit in the mail, or on the next business day after an email or other electronic communication has been sent.
  • Assignment: This Agreement may not be transferred or assigned by Customer without the prior written consent of Enel X WAY. Notwithstanding the foregoing, Customer may, upon 15 days’ prior written notice to Enel X WAY, assign or transfer this Agreement (i) to a successor of all or substantially all of Customer’s assets, stock or business to which this Agreement relates (whether by sale, acquisition, merger, change of control, operation of law or otherwise); or (ii) in connection with the sale of the Product to a subsequent owner. Any purported transfer or assignment in violation of this section shall be null and void. Enel X WAY may freely assign this Agreement without Customer’s prior written consent. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
  • Force Majeure: In no event shall Enel X WAY be in default or otherwise liable for any delay in or failure of its performance of any of its obligations under this Agreement if caused directly or indirectly by circumstances beyond control, including without limitation acts of God, fire, flood, strike or lockout or other labor dispute, or shortage of or inability to obtain material or equipment or energy services, accident, civil commotion, riot, war, governmental regulation or order.
  • Waiver; Severability: If any provision of this Agreement is found to be illegal or unenforceable, such provision shall be reformed to the extent necessary to make it enforceable, and the remaining provisions of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No waiver or modification of any provision of this Agreement shall be valid unless set forth in a writing executed by authorized representatives of both parties.
  • Entire Agreement: This Agreement constitutes the complete and exclusive agreement between Enel X WAY and Customer with respect to the subject matter herein, and supersedes all prior oral or written understandings, communications or agreements. H. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
  • Remedies Cumulative: Except as otherwise expressly stated in this Agreement, the rights and remedies of a party set forth herein with respect to failure of the other party to comply with the terms of this Agreement are not exclusive, the exercise thereof shall not constitute an election of remedies and the aggrieved party shall in all events be entitled to seek whatever additional remedies may be available in law or in equity.
  • Ethics and Anticorruption: Enel X WAY declares that in managing its business activities and its relationships, it adheres to the principles contained in its Code of Ethics, the Zero Tolerance of Corruption Plan and the Organisation & Management Model adopted pursuant to Italian Legislative Decree 231/2001 (available Here). Moreover, as a subsidiary of Enel S.p.A., Enel X WAY declares its adherence to the United Nations Global Compact. Enel X WAY wishes its counterparties to refer to the same principles in managing their business activities and relationships. Enel X WAY prohibits any promises, offers, or requests of illegal payments, in cash or other benefits, with the objective of gaining an advantage in its relationships with stakeholders, and this prohibition is extended to all of its employees.