These Orange OS Terms apply to the purchase by Customer and provision by Orange of Orange OS Services.
1. Rights to Use Orange OS.
For each Authorized Location, subject to payment of the Orange OS Fees (as defined below) to Orange for the Orange OS Services and the other terms and conditions of this Agreement, Orange grants to Customer for the subscription term described on Annex 1 to these Orange OS Terms (the “Subscription Term”) the limited, non-transferable, non-exclusive right to access and use the Orange OS (and to use the applicable documentation in connection with its use of the Orange OS) for the purpose of managing use of the Orange Devices and receiving Driver payments from Orange at the Authorized Location(s). Orange will host and retain physical control over the Orange OS and make the customer dashboard and other customer-facing features and functionality of the Orange OS available through the Internet for access and use by Customer through a compatible web-browser. Access to and use of the Orange OS at the Authorized Location is subject to installation and activation of sufficient Orange Devices at the Authorized Location and establishment of an Orange OS Account for the Authorized Location as provided in Section 3 of these Orange OS Terms.
2. Use Restrictions.
Customer will not (and will not permit any third party to):
· analyze, reverse engineer, decompile, disassemble, translate or convert the Orange OS or any technology used by Orange to provide the Orange OS Services (collectively “Orange OS Technology”), or apply any procedure or process to OrangeOS Technology, in order to ascertain, derive, or appropriate for any reason or purpose, the source code or source listings for software or any trade secret or other proprietary information or processes embodied by or otherwise contained in the Orange OS Technology, except to the extent this prohibition is void under applicable law;
· copy, modify, translate, or create derivative works based on any Orange OS Technology, or any documentation for the Orange OS Services,
· remove or otherwise alter any copyright,trademark, trade secret, government restricted rights, or other proprietary or confidentiality notices or legends that are applied to the Orange OS or its documentation;
· rent, lease, distribute, pledge, assign, or otherwise transfer or encumber the Orange OS Services;
· use any Orange OS Service for any purpose other than as described in Section 1 of these Orange OS Terms;
· interfere or attempt to interfere with the proper working of the Orange OS or any activities conducted on the Orange OS; or
· bypass any measures Orange may use to prevent or restrict access to the Orange OS (or other accounts, networks, systems or devices connected to the Orange OS).
3. OrangeOS Account.
3.1 General.
In order to access and use the Orange OS, Customer will be required to establish an account for each Authorized Location (an “Orange OS Account”) and provide information as prompted by the registration process. Customer represents and warrants that all information provided by or on behalf of Customer for its Orange OS Account, including any information provided in uploading and confirming energy rate information as provided in Section 4 of these Orange OS Terms, is true, accurate, current, and complete. Customer is responsible for keeping its account information updated so the representation and warranty in the prior sentence remains accurate during the Subscription Term.
3.2 Confidentiality and Security.
Customer will be responsible for maintaining the confidentiality and security of Customer’s Orange OS Account, including all sub-accounts, and all associated user IDs, passwords and credentials and for all uses of Customer’s Account, including all sub-accounts, with or without Customer’s knowledge or consent. Customer will immediately notify Orange of any actual or suspected unauthorized access to or use of its Orange OS Account, including any sub-account, or any associated user IDs, passwords, or credentials.
4. Energy Rates.
4.1 Energy Rates.
• At the time an Orange OS Account is established for an Authorized Location, Customer must upload a current energy bill for the Authorized Location to the Orange OS.The energy rates will then be set by Orange for the Authorized Location in Customer’s Orange OS Account based on the energy bill. Orange will use reasonable efforts to set rates in Customer’s Orange OS Account based on the energy bill that match the actual rates charged to Customer, including time of use rates, but Orange cannot support all special situations such as holiday rates.
- Customer will be requested to confirm the energy rates set by Orange for an Authorized Location in Customer’s OS Account. If Customer confirms the energy rates set by Orange or fails to object to the energy rates within 7 days of the confirmation request, then the energy rates set by Orange will apply for purposes of determining Driver Fees for the Authorized Location.
- Where rates have not been set pursuant to the process above, Orange may use a good faith approximation of the energy rates in the geography of the Authorized Location, which approximated energy rates will apply for purposes of determining Driver Fees for the Authorized Location until a current energy bill is uploaded and rates are set per the process described above.
• For each Authorized Location, it is Customer’s responsibility to upload an updated,then-current energy bill at least annually, whether or not an energy rate has changed, and immediately upon any change to any energy rates. Where the Driver Fees are based on the energy rates, Orange will update the energy rates in Customer’s Orange OS Account per the process described above (except if Customer fails to upload an updated,then-current energy bill, then energy rates in Customer’s Orange OS Account will remain unchanged). Customer acknowledges and agrees that it may take up to 30 days for Orange to update energy rates to Drivers after changed energy rates have been uploaded in Customer’s Orange OS Account, and that until the energy rates have been updated to Drivers, Customer will be paid pursuant to Section 7.3 of these Orange OS Terms based on the rates in effect prior to such update.
• Orange will have no responsibility for any errors in any uploaded energy bill or any variance between the actual energy rates paid by Customer and the energy rates set in Customer’s Orange OS Account for determining Driver Fee. Customer is solely responsible for the accuracy of any uploaded energy bill. Orange further provides no assurance that the rates set in Customer’s Orange OS Account for purposes of determining Driver Fees will be error free or will match actual rates and Customer acknowledges and agrees that the energy rates used for determining Driver Fees may differ from the actual energy rates paid by Customer.
5. Deactivation of Orange Devices/Non-Functioning Orange Devices/Transfer of Orange Devices or Locations.
5.1 Deactivation of Orange Devices.
Customer may de-activate an Orange Device at an Authorized Location by placing the outlet portion of the Orange Device into Always On mode in its Orange OS Account or by requesting de-activation at support@orangecharger.com. Customer may re-activate an Orange Device after a pause if Customer is in not in breach of this Agreement or any Order and the Orange Device remains compatible with the then-current Orange OS.
5.2 Non-Functioning Orange Devices.
If an Orange Device is not functioning properly at an Authorized Location, and Customer has failed to have the Orange Device repaired or replaced (whether pursuant to the applicable Orange warranty if then in effect or outside of warranty) within a reasonable time (not to exceed 30 days after being notified by Orange that the Orange Device is not functioning properly), Orange may, in its discretion, (a) place the non-functioning Orange Device or any other Orange Devices installed at Authorized Locations into Always On mode (in which case Drivers will not be charged Driver Fees) or (b) withhold payments of Driver Fees to Customer at the Authorized Location and any other Authorized Location covered by this Agreement until the Orange Device has been repaired or replaced.
5.3 Transfer of Ownership of Authorized Locations.
• If Customer transfers the ownership of or rights to operate an Authorized Location, Customer will notify Orange prior to the proposed transfer at support@orangecharger.com.
• If ownership or the rights to operate are transferred, the Authorized Location will be automatically removed as an Authorized Location under this Agreement immediately upon the transfer of ownership or the rights to operate, and the transferee will be permitted to access and use the Orange OS only with the written approval of Orange and after entering into an agreement with Orange satisfactory to Orange covering access to and use of the Orange OS by the transferee at the location. Absent that,Orange will set the Orange Devices at the location to Always On mode, at Orange’s election.
5.3 Transfer to Other Locations.
Orange Devices may be moved to a charging location other than the Authorized Location at which they were initially installed only with the prior written approval of Orange. Requests for location transfers may be made to Orange at support@orangecharger.com.
6. Drivers.
6.1 Driver Relationship.
Orange will have the sole right and responsibility to contract with users for their use of Orange Devices and the Orange OS for charging, including at the Authorized Locations(users are referred to as “Drivers”) and will have the sole right to collect payment from Drivers for charging sessions using Orange Devices and the Orange OS and to enforce its contract with users.
7. Fees; Payment of Fees; Credits.
7.1 Driver Fees. Unless otherwise agreed in writing by Orange, (a) the fees charged to Drivers for use of the Orange Devices at an Authorized Location are based on the energy rates set for the Authorized Location in Customer’s Orange OS Account pursuant to Section 4 of these Orange OS Terms and (b) in Customer’s Orange OS Account Customer may select a markup, if any, over those rates that they desire to charge to Drivers at the Authorized Location (the energy rates plus any such markup, the “Base Driver Fees” for the Authorized Location”). Orange will use reasonable efforts to contact Customer to ensure that Customer sets the Base Driver Fees at an Authorized Location within 30 days after the initial installation and activation of Orange Devices at the Authorized Location. However, if Customer fails to set Base Driver Fees for an Authorized Location within that period, Orange reserves the right to set Base Driver Fees at the energy rates established pursuant to Section 4 without a markup until Customer sets the Base Driver Fees in Customer’s Orange OS Account.
- In consideration for the rights to access and use the Orange OS at Authorized Locations during the Subscription Term as provided in Section 1, Orange will further be paid the fees described on Annex 1 to these Orange OS Terms or as otherwise agreed in an Order (the “Orange OS Fees”). In Customer’s Orange OS Account, Customer may elect to pay the Orange OS Fees without passing such Orange OS Fees on to the Drivers. If not, the Orange OS Fees will be added to the Base Driver Fees and charged to Drivers at the Authorized Location (the Base Driver Fees, together with such Orange OS Fees if passed through to the Drivers, the “Driver Fees”).
7.2 Responsibility for Compliance. Customer is responsible for ensuring that the Driver Fees established for any Authorized Location comply with applicable laws, and will defend, indemnify and hold harmless the Orange and its officers, directors, employees, agents, and representatives from and against any claims, demands, actions, proceedings, liabilities, losses, damages, costs, and other expenses arising from any actual or alleged failure of the Driver Fees to comply with applicable laws.. 7.3 Payment of Driver Fees.
- At the end of each calendar month during the Subscription Term, Orange will create a property statement for the month for each Authorized Location and make the property statement available to Customer through Customer’s Orange OS Account. The property statement will include a calculation of (a) the amount of Base Driver Fees for use of the activated (not Always On) Orange Devices by Drivers for charging at the Authorized Location during the calendar month, whether or not such Base Driver Fees have been collected by Orange (the “Base Driver Fee Amount”) and (b) the Orange OS Fees for the calendar month (the “Orange OS Fee Amount”).
- If Customer has elected to pass the Orange OS Fees through to Drivers as part of the Driver Fees, then Orange will pay the Base Driver Fee Amount to Customer and will retain the Orange OS Fee Amount.
- If Customer has not elected to include the Orange OS Fees in the Driver Fees, then:
if the Driver Fee Amount exceeds the Orange OS Fee Amount for an Authorized Location for the calendar month then, within 30 days after the first day of the subsequent month, Orange will pay to Customer the excess amount and will retain the Orange OS Fee Amount; and if the Orange OS Fee Amount exceeds the Driver Fee Amount for the calendar month, then Orange will issue an invoice to Customer for the excess amount, and Customer will pay the invoice on the payment terms provided in the Agreement.
7.4 Bank Account Information. Unless otherwise agreed in writing, payments by Orange to Customer pursuant to Section 7.2 will be made by ACH to Customer’s designated bank account for the Authorized Location. Customer is responsible for providing Orange with the bank account information for each Authorized Location and for updating such information as needed in a timely manner. Where Customer has failed to provide bank account information to Orange for an Authorized Location within 30 days after the Authorized Location has been activated, Orange reserves the right to withhold payment of any Driver Fees to Customer with respect to such Authorized Location until the bank account information has been provided and to solely invoice Customer for the Orange OS Fees during such period.
7.5 Credits. Unless otherwise agreed in writing, Orange will have the right to apply for and receive any LCSF (Low Carbon Fuel Standard), ZEV (Zero Emission Vehicle) or other credits that are generated as a result of the energy flowing through the Orange Devices and tracked by the Orange OS at the Authorized Locations.
8. Upgrades and Updates.
During the Subscription Term, Orange may introduce upgrades, updates and/or add-on modules or other additions to the Orange OS, which may include enhanced or new features or functionality (collectively “Upgrades”). All bug fixes and other Upgrades that Orange makes available to all customers at no additional cost are mandatory and will be made available to Customer at no additional cost. Orange may elect to charge an additional or separate fee for any Upgrades other than bug fixes that it makes available for the Orange OS,such as enhanced or new features or functionality, and Customer may choose whether or not to purchase those Upgrades. Examples of enhanced or new features or functionality that may be provided as purchasable Upgrades include more frequent reporting/payment of Driver Fees,energy management functionality or ESG features.
Annex 1 to Orange OS Terms – Subscription Term and Orange OS Fees
Subscription Term
The subscription term for an Authorized Location will be for a calendar month, with the initial term commencing on initial installation and activation of the Orange Devices at the Authorized Location and pro-rated if initiated on a day other than the first day of a calendar month. Upon expiration of each calendar month, the subscription term will automatically renewal for another calendar month, unless either Orange or Customer notifies the other in writing of its election not to renew the subscription for the Authorized Location at least 15days prior to the start of the new calendar month.
Orange OS Fees
For a calendar month, $0.08/kWh for all use of Orange Devices by Drivers for charging at the Authorized Location during the calendar month (regardless of whether those amounts are passed through to Drivers or not).
Orange reserves the right to change the Orange OS Fees on written notice to Customer.