Universal Commercial Terms

1 APPLICATION

1.1 These standard terms and conditions apply to all Evnex Customers that acquire Goods or Services from Evnex in trade or for business purposes.

1.2 If there is any conflict or inconsistency between these terms and conditions (i.e. in any section), and the terms and conditions of any Scope of Work, the terms and conditions of the Scope of Work shall prevail unless expressly stated otherwise in the Scope of Work.

1.3 Subject to clause 1.2, these terms and conditions shall take precedence over all other terms relating to the supply of Goods or Services from Evnex to the Customer, including the terms of trade attached to any correspondence from the Customer, or any invoice or purchase order terms that are used by the Customer from time to time.

1.4 A breach of these terms and conditions by the Customer’s End Users (i.e. in any section) is deemed to be a breach of these terms and conditions by the Customer.

2 INTERPRETATION

2.1 Definitions: In these terms and conditions, the following terms have the stated meaning:

   Confidential Information
       any information that is not public knowledge and that is obtained from the other party in the course of supplying Goods or Services (including the terms of each Scope of Work). Evnex’s Confidential Information includes Intellectual Property owned by Evnex (or its licensors), including copyright in the Evnex Software. The Customer’s Confidential Information includes the Data.

   Customer
       means the person or entity who is identified as the customer in the applicable Scope of Work.

   Data
       all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Customer or its End Users that is stored using, or inputted into, the Goods or Services.

   End User
       each Customer’s personnel and customers who are registered to use the Services from time to time.

   Evnex
       Evnex Limited (NZ company number 5506425).

   Evnex Software
       the software owned by Evnex (and its licensors) that is used to provide the SaaS Service.

   Fees
       the fees set out in the applicable Scope of Work, as updated from time to time in accordance with clause 4.4 of these terms and conditions.

   Force Majeure
       an event that is beyond the reasonable control of a party, excluding:
           • an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
           • a lack of funds for any reason.

   Goods
       all goods agreed to be delivered by Evnex under an applicable Scope of Work, including all smart devices for charging electric vehicles, including charging stations, power sensors and any accessories for such devices, details of which are set out in the applicable Scope of Work.

   Intellectual Property Rights
       includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

   OCPI
       means Open Charge Point Interface protocol.

   OCPP
       means Open Charge Point Protocol 1.6J or higher.

   Payment Terms
       the applicable payment terms set out in the applicable Scope of Work (if any).

   Personal Information
       has the meaning given in the Privacy Act 2020.

   Privacy Policy
       means Evnex’s privacy policy made available on the Website as updated from time to time.

   Related Services
       any service related or ancillary to the SaaS Service as described in the applicable Scope of Work.

   SaaS Service
       the software as a service having the core functionality described in the applicable Scope of Work.

   Services
       the SaaS Service and any Related Services.

   Service Levels
       means, in respect of a Service, the minimum level of performance that Evnex must achieve in performing that Service as specified in clause 6 of Evnex’s Supply of Services Terms.

   Start Date
       means the start date specified in the applicable Scope of Work or, if none is specified, the date on which the trading relationship between Evnex and the Customer begins.

   Scope of Work
       means:
           • a scope of work agreed between Evnex and the Customer in relation to the supply of Goods or Services; and
           • for some Customers, in particular Resellers and Installers, a “Scope of Work” may take the form of a “Contract” document incorporating these standard terms and conditions plus Special Terms.

   Special Terms
       means any special terms and conditions agreed between Evnex and the Customer in writing which apply in priority to these standard terms and conditions.

   Underlying Systems
       the Evnex Software, IT solutions, systems and networks (including software and hardware) used to provide the Services and operate the Goods, including any third party solutions, systems and networks.

   Website
       the internet site at the domain set out in the applicable Scope of Work, or such other site notified to the Customer by Evnex.

   Year
       a 12 month period starting on the Start Date or the anniversary of that date.

2.2 Interpretation: In these terms and conditions:

   a Clause and other headings are for ease of reference only and do not affect the interpretation of these terms and conditions;

   b Words in the singular include the plural and vice versa;

   c A reference to:

       i a party to these terms and conditions includes Evnex, the Customer and each party’s permitted assigns;

       ii personnel includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include Evnex;

       iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;

       iv including and similar words do not imply any limit; and

       v a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;

       vi these standard terms and conditions, or any section of them, is a reference to Evnex’s:
           - Universal Commercial Terms;
           - Supply of Goods Terms;
           - Supply of Services Terms;
           - Reseller Terms;
           - Installation Terms; and
           - any other standard Evnex terms and conditions made available on the Website for Customers that acquire Goods or Services from Evnex in trade or for business purposes from time to time (each of which are hereby incorporated into any Scope of Work); and

   d No term of these terms and conditions is to be read against a party because the term was first proposed or drafted by that party.

3 SCOPE OF WORK

3.1 Customer Request: The Customer may at any time request that Evnex provides a draft Scope of Work in respect of an electric vehicle charging solution required by the Customer (for itself and/or on behalf of its End Users).

3.2 Evnex Acceptance: Nothing in these terms and conditions requires Evnex to provide or accept any Scope of Work, which it may agree to provide or accept in its discretion.

4 FEES

4.1 Fees: The Customer must pay to Evnex the Fees in accordance with these terms and conditions and the applicable Scope of Work.

4.2 Invoicing and payment:

   a Evnex will provide the Customer with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.

   b The Fees exclude GST, which the Customer must pay on taxable supplies under these terms and conditions.

   c The Customer must pay the Fees:

       i on the dates set out in the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and

       ii electronically in cleared funds without any set off or deduction.

4.3 Overdue amounts: Evnex may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Evnex’s primary trading bank as at the due date (or, if Evnex’s primary trading bank ceases to quote that rate, then the rate which is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

4.4 Increases:

   a By giving at least 60 days’ notice, Evnex may increase the Fees once each Year in respect of Services under an existing Scope of Work (but not the first Year) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice.

   b If the Customer does not wish to pay the increased Fees, it may terminate these terms and conditions on no less than 10 days’ notice, provided the notice is received by Evnex before the effective date of the Fee increase. If the Customer does not terminate these terms and conditions in accordance with this clause, it is deemed to have accepted the increased Fees.

5 INTELLECTUAL PROPERTY

5.1 Ownership:

   a All Intellectual Property Rights (including copyright and trademarks) which is owned by each party at the Start Date, or which was created, developed or acquired independently of these terms and conditions, shall remain owned exclusively by the respective parties.

   b Subject to clause 5.1c, title to, and all Intellectual Property Rights in, the Goods, the Services, the Website, and all Underlying Systems is and remains the property of Evnex (and its licensors). The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

   c Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Customer.

   d The Customer grants Evnex a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these terms and conditions,, subject to the limited exceptions set out in clauses 7.2 and 11.3d.

   e Evnex grants the Customer a limited, worldwide, non-exclusive, fully paid up licence to use, Evnex's Intellectual Property for any purpose reasonably required in connection with receipt of the Goods and Services in accordance with these terms and conditions and the applicable Scope of Work, including to receive and enjoy the full benefit of the Goods and Services.

5.2 Know-how: To the extent not owned by Evnex, the Customer grants Evnex a royalty-free, transferable, irrevocable and perpetual licence to use for Evnex’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Evnex in the provision of the Goods or Services.

5.3 Feedback: If the Customer provides Evnex with ideas, comments or suggestions relating to the Goods or Services or Underlying Systems (together feedback):

   a All Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Evnex; and

   b Evnex may use or disclose the feedback for any purpose.

5.4 Indemnity: Evnex indemnifies the Customer against any claim or proceeding brought against the Customer to the extent that claim or proceeding alleges that the Customer’s use of the SaaS Service in accordance with these terms and conditions constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Customer:

   a Promptly notifying Evnex in writing of the IP Claim;

   b Making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Evnex’s prior written consent; and

   c Giving Evnex complete authority and information required for Evnex to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for Evnex’s account.

5.5 Limitations: The indemnity in clause 5.4 does not apply to the extent that an IP Claim arises from or in connection with:

   a The Customer’s breach of these terms and conditions or breach by any End User;

   b Use of the SaaS Service in a manner or for a purpose not reasonably contemplated by these terms and conditions or otherwise not authorised in writing by Evnex; or

   c Any third-party data or any data.

5.6 Evnex Rights: If at any time an IP Claim is made, or in Evnex’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, Evnex may (at Evnex’s option):

   a Obtain for the Customer the right to continue using the items which are the subject of the IP Claim; or

   b Modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

6 CONFIDENTIALITY

6.1 Security: Each party must, unless it has the prior written consent of the other party:

   a Keep confidential at all times the Confidential Information of the other party;

   b Effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

   c Disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 6.1a and 6.1b.

6.2 Permitted disclosure: The obligation of confidentiality in clause 6.1 does not apply to any disclosure or use of Confidential Information:

   a For the purpose of performing an applicable Scope of Work or exercising a party’s rights under these terms and conditions;

   b Required by law (including under the rules of any stock exchange);

   c Which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

   d Which was rightfully received by Evnex or the Customer from a third party without restriction and without breach of any obligation of confidentiality; or

   e By Evnex if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Evnex enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.

7 DATA

7.1 Evnex access to Data:

   a The Customer acknowledges that:

       i Evnex may require access to the Data to exercise its rights and perform its obligations under these terms and conditions; and

       ii to the extent that this is necessary but subject to clause 6, Evnex may authorise a member or members of its personnel to access the Data for this purpose.

   b The Customer must arrange all consents and approvals that are necessary for Evnex to access the Data as described in clause 7.1a.

7.2 Analytical Data: The Customer acknowledges and agrees that:

   a Evnex may:

       i use Data and information about the Customer’s and the Customer’s End Users’ use of the Goods and Services to generate anonymised and aggregated statistical and analytical data (Analytical Data);

       ii use Analytical Data for Evnex’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

       iii supply Analytical Data to third parties provided that such data in no way personally identifies the Customer or the Customer’s End Users;

   b Evnex’s rights under clause 7.2a above will survive termination of expiry of these terms and conditions; and

   c Title to, and all Intellectual Property Rights in, Analytical Data is and remains Evnex’s property.

7.3 Agent:

   a The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Evnex is acting as an agent of the Customer for the purposes of the Privacy Act 2020 and any other applicable privacy law. Personal Information included in the Data shall be stored in accordance with the Privacy Policy.

   b The Customer must obtain all necessary consents from the relevant individual to enable Evnex to collect, use, hold and process that information in accordance with these terms and conditions.

7.4 Backups of Data: While Evnex will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.

7.5 International storage of Data: The Customer agrees that Evnex may store Data in secure servers in the Asia Pacific region and may access that Data in the Asia Pacific region from time to time. Personal Information included in the Data shall be stored in accordance with the Privacy Policy.

7.6 Indemnity: The Customer indemnifies Evnex against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Evnex’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the data is objectionable, incorrect or misleading.

8 Privacy Policy: If the Customer provides Evnex with any Personal Information it shall be treated in accordance with the Privacy Policy. In the event of any conflict between the terms of these terms and conditions and the Privacy Policy the terms of the Privacy Policy will prevail to the extent that it concerns collection, storage, processing, use and disclose of Personal Information.

9 WARRANTIES

9.1 Mutual warranties: Each party warrants that it has full power and authority to enter into each applicable Scope of Work and perform its obligations in accordance with it and these terms and conditions.

9.2 No implied warranties: To the maximum extent permitted by law:

   a Evnex’s warranties are limited to those set out in these terms and conditions, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded; and

   b Other than as specified in these terms and conditions Evnex makes no representation concerning the quality of the Goods or Services and does not promise that the Goods or Services will meet the Customer’s requirements or be suitable for a particular purpose, including that the use of the Goods or Services will fulfil or meet any statutory role or responsibility of the Customer.

9.3 Consumer Guarantees Act: The Customer agrees and represents that it is acquiring the Goods or Services, and entering these terms and conditions, for the purposes of trade. The parties agree that:

   a To the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Goods or Services, the applicable Scope of Work, or these terms and conditions; and

   b It is fair and reasonable that the parties are bound by this clause 9.3.

9.4 Limitation of remedies: Where legislation or rule of law implies into these terms and conditions a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these terms and conditions. However, the liability of Evnex for any breach of that condition or warranty is limited, at Evnex’s option, to:

   a Supplying the Goods or Services again; and/or

   b Paying the costs of having the Goods or Services supplied again.

10 LIABILITY

10.1 Maximum liability: The maximum aggregate liability of either party to the other party under or in connection with these terms and conditions, or the supply of Goods or Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not in any Year exceed an amount equal to the Fees paid by the Customer in the previous 24 months, unless the parties agree otherwise in a Scope of Works.

10.2 Unrecoverable loss: Neither party is liable to the other under or in connection with these terms and conditions or the supply of the Goods or Services for any:

   a Loss of profit, revenue, savings, business, and/or goodwill; or

   b Consequential, indirect, incidental or special damage or loss of any kind.

10.3 Unlimited liability:

   a Clauses 10.1 and 10.2 do not apply to limit Evnex’s liability:

       i under the indemnity in clause 5.4; or

       ii under or in connection with these terms and conditions for:
           • personal injury or death;
           • fraud or wilful misconduct; or
           • a breach of clause 6.

   b Clause 10.2 does not apply to limit the Customer’s liability:

       i to pay the Fees;

       ii under the indemnity in clause 7.6; or

       iii for those matters stated in clause 10.3aii.

10.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these terms and conditions for any failure to perform its obligations under these terms and conditions or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these terms and conditions, or by the negligence or misconduct of the other party or its personnel.

10.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these terms and conditions.

11 TERM, TERMINATION AND SUSPENSION

11.1 No fault termination: Subject to any minimum term set out in the applicable Scope of Work, either party may terminate a Scope of Work by giving at least 90 days’ prior notice to the other party.

11.2 Other termination rights:

   a Either party may, by notice to the other party, immediately terminate an applicable Scope of Work and these terms and conditions if the other party:

       i breaches any material provision of an applicable Scope of Work or these terms and conditions and the breach is not:
           • remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
           • capable of being remedied;

       ii becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

       iii is unable to perform a material obligation under an applicable Scope of Work or these terms and conditions for 30 days or more due to Force Majeure.

   b If the remedies in clause 5.6 are exhausted without remedying or settling the IP Claim, Evnex may, by notice to the Customer, immediately terminate these terms and conditions.

   c The Customer may terminate these terms and conditions in the circumstances set out in clause 6.11 of Evnex’s Supply of Services Terms for failure to meet Service Levels.

11.3 Consequences of termination or expiry:

   a Termination or expiry of these terms and conditions does not affect either party’s rights and obligations that accrued before that termination or expiry.

   b On termination or expiry of these terms and conditions, the Customer must pay all Fees for Goods and Services provided prior to that termination or expiry.

   c Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of these terms and conditions and subject to clause 11.3d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.

   d At any time prior to one month after the date of termination or expiry, the Customer may request:

       i a copy of any Data stored using the SaaS Service, provided that the Customer pays Evnex’s reasonable costs of providing that copy. On receipt of that request, Evnex must provide a copy of the data in a common electronic form. Evnex does not warrant that the format of the data will be compatible with any software; and/or

       ii deletion of the data stored using the SaaS Service, in which case Evnex must use reasonable efforts to promptly delete that data.

       To avoid doubt, Evnex is not required to comply with clause 11.3di to the extent that the Customer previously requested deletion of the data.

   e Clause 11.3di will not apply to the extent that it relates to data deleted or removed under clause 4.1 of Evnex’s Supply of Services Terms.

11.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of these terms and conditions or an applicable Scope of Work, including clauses 5, 6, 7.5, 10, 11.3, 11.4 and 12, continue in force.

12 DISPUTES

12.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these terms and conditions through good faith negotiations.

12.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these terms and conditions even if there is a dispute.

12.3 Right to seek relief: This clause 12 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

13 GENERAL

13.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under an applicable Scope of Work or these terms and conditions (other than an obligation to pay Fees) to the extent caused by Force Majeure, provided that the affected party:

   a Immediately notifies the other party and provides full information about the Force Majeure;

   b Uses best efforts to overcome the Force Majeure; and

   c Continues to perform its obligations to the extent practicable.

13.2 Rights of third parties: No person other than Evnex and the Customer has any right to a benefit under, or to enforce, these terms and conditions.

13.3 Waiver: To waive a right under these terms and conditions, that waiver must be in writing and signed by the waiving party.

13.4 Independent contractor: Subject to clause 7.3, Evnex is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists.

13.5 Notices: A notice given by one party to the other must be delivered to the other party via email using the contact details set out in the applicable Scope of Work, or otherwise notified by the other party for this purpose.

13.6 Severability:

   a If any provision of these terms and conditions is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.

   b If modification under clause 13.6a is not possible, the provision must be treated for all purposes as severed from these terms and conditions without affecting the legality, enforceability or validity of the remaining provisions of these terms and conditions.

13.7 Variation and updates: Any variation to these terms and conditions must be in writing and signed by both parties, provided that:

   a Evnex may update these terms and conditions from time to time by notifying the Customer in writing; and

   b These terms and conditions (as updated) shall apply to any new Scope of Work or agreement to supply Goods or Services between Evnex and the Customer.

13.8 Entire agreement: These terms and conditions sets out everything agreed by the parties relating to the supply of Goods or Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.

13.9 Representations: The Customer has not relied on any representation, warranty or agreement by Evnex that is not expressly set out in these terms and conditions or the applicable Scope of Work.

13.10 Contracting out: Without limiting the previous clause, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and agree that it is fair and reasonable that the parties are bound by this clause 13.10.

13.11 Subcontracting and assignment:

   a The Customer may not assign, novate, subcontract or transfer any right or obligation under an applicable Scope of Work or these terms and conditions without the prior written consent of Evnex, that consent not to be unreasonably withheld. The Customer remains liable for its obligations under these terms and conditions despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.

   b Any change of control of the Customer is deemed to be an assignment for which Evnex’s prior written consent is required under clause 13.11a. In this clause change of control means any transfer of shares or other arrangement affecting the Customer or any member of its group which results in a change in the effective control of the Customer.

13.12 Law: Each applicable Scope of Work and these terms and conditions are governed by, and must be interpreted in accordance with, the laws of New Zealand.

13.13 Jurisdiction: Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with an applicable Scope of Work and these terms and conditions.