THESE TERMS AND CONDITIONS (“TERMS”) GOVERN THE PURCHASE OF A PRODUCT OR SOFTWARE BY CUSTOMER FROM ENEL X WAY. THE PURCHASING OF ANY PRODUCT OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, PURCHASE OF ANY WARRANTY OR MAINTENANCE PLAN) SHALL CONSTITUTE AN ACCEPTANCE BY CUSTOMER OF ALL TERMS HEREIN (“AGREEMENT”). ENEL X WAY HEREBY GIVES NOTICE THAT IT OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY CUSTOMER TO THIS AGREEMENT. Any and all additional or different terms and conditions contained in any of Customer’s purchase orders, acceptance, invoices, bills or other commercial documents are hereby rejected and shall not become part of the Contract between the parties unless agreed to, in advance and in writing, and signed by both parties.
“Contract” means these Terms and any attached purchase order or exhibit authorized and agreed to by Enel X Way.
"Commercial Customer” means customers, including but not limited to, commercial businesses, resellers, distributors, and any other third party that purchases Enel X Way’s Products and Software for use, in commercial settings or applications. For purposes of these Terms, Commercial Customers include customers that distribute or resell Product and Software that is intended for residential use.
“Customer” means the person or entity that purchases a Product or Software from Enel X Way or an authorized reseller.
“End Users” means the individual or entity using the Product or Software.
“Enel X Way” means Enel X Way USA, LLC and any parent, affiliates or subsidiaries thereof.
“Mobile App” means the application made available to Customer by Enel X Way to be used and accessed through a mobile device.
“Products” means the products made available to Customer, either by Enel X Way or an authorized seller, pursuant to an accompanying purchase order or other documentation authorized by Enel X Way.
“Residential Customer” means residential customers that purchase Enel X Way’s Products and Software intended for use under normal residential operating conditions.
“Software” means any software to be provided by Enel X Way whether connected to a Product hereunder or another application or platform.
2. Order Placement.
(a) Online Direct to Consumer Purchase. Customers may purchase Product or Software directly from Enel X Way or an authorized reseller. Products sold directly to consumers on the Enel X Way home charging store are subject to the return policy available here. Products purchased through authorized resellers shall be subject to the Terms set forth by the reseller. All other purchases and returns of the Product and Software are subject to these Terms and Conditions.
(b) Commercial Customer Purchase. A Commercial Customer’s purchase of Product that is placed through a purchase order shall be made binding by a written purchase order specifying the number and model of the Product and Software desired to be purchased, requested delivery schedule, and, if applicable, any extended warranty or operations and maintenance plan being purchased, and that Commercial Customer’s purchase shall be subject to these Terms. The purchase of Product through purchase order is subject to all of the terms and conditions contained in these Terms. Any additional terms and conditions in a purchase order conflicting with, varying or adding to the terms and conditions of these Terms, shall be of no force and effect, unless the parties hereto agree in writing, in advance, to accept such terms and conditions.
(c) Acceptance of Purchase Orders. All purchase orders and modifications to purchase orders are subject to acceptance or rejection by Enel X Way in its sole discretion. No purchase order shall be binding on Enel X Way unless and until so accepted in writing by Enel X Way. Enel X Way agrees to use commercially reasonable efforts to notify Customer of its acceptance or rejection of Customer’s order within ten (10) business days after receipt thereof. Accepted purchase orders are non-cancelable, non-returnable, and non-refundable.
(d) Refusal of Purchase Orders. Enel X Way may withhold shipments to Customer if Customer has exceeded its applicable credit limit, if any, has not provided for any prepayment if required, is in violation of its payment obligations, or otherwise is in material breach of these Terms.
(e) Enel X Way Software. The Products are designed to work with Enel X Way’s Software, which is a cloud-based application service. Purchase and use of the Software by Customer is required for all Products unless otherwise agreed to by the parties.
(a) Delivery for Residential Customers. Customer is solely responsible for the delivery and deployment of the Product for operation by Customer and End Users, including installation, configuration, integration, and testing, unless otherwise agreed to in writing between the parties.
(b) Shipping Costs for Commercial Customers. All shipping, unless otherwise agreed to by the parties in writing, shall be FOB shipping point/Ex Works (EXW). Customer shall be responsible for all costs of shipping, transportation, insurance, warehousing, and other charges and costs associated with shipment of Product to Customer. All shipping dates are approximate and are based on prompt receipt of all necessary information from Customer. In no event shall Enel X Way be liable for any costs related to delay in delivery or damage in transit of the Product.
(c) Transfer of Title for Commercial Customers. Delivery of the Product to Customer shall be completed upon delivery of the Product to the freight forwarder. Risk of loss and damage to the Product shall pass to Customer upon the delivery of such Product to the freight forwarder. Enel X Way shall user commercially reasonable efforts to deliver the Product ordered by Customer on the scheduled delivery date.
(d) Substitutions. Enel X Way shall have the right to make substitutions and modifications to Product and Software and in the specifications of Product to be delivered under the terms of any applicable purchase order, provided that such substitutions or modifications will not materially affect overall Product and Software form, fit, function, or safety specifications.
(a) Installation. Customer is responsible for installation unless otherwise agreed to in writing by the parties. At Customer’s request, Enel X Way may provide the names and contact information of one or more installers of the Products or may facilitate the installation and servicing of the Products by a third party, provided that, in providing such information or services Enel X Way makes no representation or warranty of any kind, nor does it undertake any liability, with respect to or regarding the quality of any installation or other services performed by such installer, absent an agreement in writing. EXCEPT AS SPECIFICALLY AGREED TO IN WRITING BY ENEL X WAY AND CUSTOMER, ENEL X WAY IS NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE FOR, THE QUALITY OF ANY INSTALLATION SERVICES OR ANY CLAIM IN ANY WAY RELATING TO OR RESULTING FROM SUCH SERVICES.
Certain Customers may have the option to elect installation services pursuant to a separate agreement directly with Enel X Way. Any installation services agreement entered into between Enel X Way and Customer are subject to the Terms contained herein in addition to the terms and conditions as set forth in the installation agreement.
(b) Support. For support, Customers may contact Enel X Way residential support at firstname.lastname@example.org or commercial support at email@example.com. We may also be reached by phone at +1.844.584.2329.
(c) Software Maintenance. 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. Enel X Way is not responsible for any liability, loss, damage or other issues that arise from a Customer’s failure or refusal to use the Software or accept any fixes for the Software.
(a) Residential Customers. Residential Customers shall pay for the Product and Software in full at time of purchase.
(b) Invoicing for Commercial Customers. For Commercial Customers, unless otherwise agreed to in writing by the parties, Enel X Way shall issue an invoice to Customer on the date that the Product ships; provided that, Enel X Way may condition its acceptance of a purchase order on such credit and/or prepayment terms as Enel X Way, in its reasonable discretion, determines appropriate due to, among other things, Customer’s prior payment history and/or the size of the order. Software shall be invoiced at shipment of the Product to which the Software relates. All payment for Product and Software shall be paid by Customer within thirty (30) days from the date of the invoice.
(c) No Right of Off-Set. No Right of Return. Invoiced amounts are not subject to reduction by off-set or otherwise without the express written permission of Enel X Way. All sales are final, and Customer shall have no right of return, provided that, Enel X Way shall comply with its obligations under the applicable warranty, if in effect. Any return for convenience must be agreed to, in advance, in writing by Enel X Way. A restocking fee of 30% of the original price shall apply to all agreed to returns for convenience.
(d) Taxes, duties, Etc. All amounts due to Enel X Way under these Terms and/or any applicable purchaser order are net of any duties, sales, use, excise, value-added, withholding, or similar tax of any kind and any and all other fees and charges of any nature (collectively, “Taxes”) imposed by the United States, or any foreign, state or local governmental entity, country or regional authority, or instrumentality thereof on the purchase, shipment, use or sale of the Product by or to Customer. Where applicable, Enel X Way shall bill Customer for the full amount of such taxes and shall include such amount as a separate line item on the invoice(s) sent to the Customer; provided that, Enel X Way’s failure to so bill the Customer shall not relieve Customer from the obligation to pay any Tax described in this section.
(e) All Orders Subject to Credit Approval. All orders are subject to credit approval by Enel X Way. Subject to the results of such credit approval, the amount of credit or terms of payment may be changed, or credit withdrawn by Enel X Way in its reasonable discretion without advance notice. Enel X Way may, in its discretion, withhold further performance or shipment; require immediate cash payments for past and future shipments or performance; or require other security satisfactory to Enel X Way before further performance or shipment is made.
(f) Disputes. In the event Customer disputes any portion or all of an invoice, it shall notify Enel X Way in writing of the amount in dispute and the reason for its disagreement within twenty-one (21) days of receipt of the invoice. The undisputed portion shall be paid when due, and finance charges on any unpaid portion shall accrue, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to Enel X Way. For disputed residential invoices, Customers shall contact Enel X Way at firstname.lastname@example.org. For disputed commercial invoices on pricing, discount, quantity, or shipping issues, Customers shall contact Enel X Way at email@example.com.
(g) Remedies upon Payment Default. Upon Customer’s default of these Terms, Enel X Way may, in addition to any other rights or remedies it may have at law or otherwise, subject to any cure rights of Customer, declare the entire balance of Customer’s account immediately due and payable or foreclose any security interest in the Products delivered. If any unpaid balance is referred for collection, Customer agrees to pay Enel X Way, to the extent permitted by law, reasonable attorney fees in addition to all damages otherwise available, whether or not litigation is commenced or prosecuted to final judgment, pay any court costs or expenses incurred by Enel X Way, and any finance charges accrued on any unpaid balance owed by Customer.
(h) Suspended Shipments and Software. Enel X Way reserves the right to suspend further shipments of Product if Customer has a past due balance on an undisputed invoice. Enel X Way reserves the right to suspend access to Software of a Product if customer has not paid for services within thirty (30) days of the invoice date. Enel X Way reserves the right to terminate the order if Customer is over thirty (30) days late in payment of an undisputed invoice.
6. Hardware Limited Warranty.
(a) Hardware Limited Warranty. Enel X Way warrants to Customer that the Products, except for any embedded software (such in-scope Product, the “Hardware”) will, for a certain period from the date of purchase, subject to proof of purchase (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 thirty-six (36) months from the data of purchase, subject to proof of purchase, for all Residential Products. The Hardware Warranty Period for Commercial Products shall be up to thirty-six (36) months from the date of purchase, depending on the type of Product, and subject to proof of purchase. The Hardware Warranty Period may be extended (“Extended Standard Warranty”) upon purchase of such extension by Customer from Enel X Way (“Extended Standard Warranty Period”). 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. All applicable warranties with respect to the Product are set forth in the Hardware Limited Warranty (and as may be extended) and are hereby incorporated by reference into these Terms. A proof of purchase is required for the Hardware Limited Warranty and Extended Standard Warranty to have effect.
(b) 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 or under the Extended Standard Warranty during the Extended Standard 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 or Extended Standard Warranty is not void as set forth in Section 6(a) above and Customer has proof of purchase; (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 to 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 or Extended Standard Warranty.
(c) Disclaimers. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 6 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 THIS SECTION 6.
7. Intellectual Property Rights and License.
(a) Ownership of Intellectual Property. All right, title, and interest in and to any intellectual property related in any way to the Products is, and shall remain, the exclusive property of Enel X Way. For these purposes, the term “Intellectual Property” shall mean, all of Enel X Way’s patents, patent applications, patent rights, copyrights, moral rights, algorithms, devices, application programming interfaces, databases, data collections, diagrams, inventions, methods and processes (whether or not patentable), know-how, trade secrets, trademarks, services marks, and other brand identifiers, network configurations and architectures, proprietary information, protocols, schematics, specifications, software (in any form, including source code or executable code), techniques, interfaces, URLs, web sites, works of authorship, and all other forms of technology, in each case whether or not registered with a governmental entity or embodied in any tangible form and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world in any way arising prior to or during the term of these Terms.
(b) 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 personal use as authorized by Enel X Way. Customer hereby agrees to keep the contact information provided to Enel X Way current. Customer will keep its login information to any Enel X Way Software confidential and is responsible for any activity occurring under its account. Access to and use of password protected and/or secure areas is restricted to authorized users only. Unauthorized individuals attempting to access these areas may be subject to prosecution.
(c) 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 (b) above.
(d) 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 Hardware, 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.
(e) 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.
(f) Accuracy & Completeness. Enel X Way may modify its website and Mobile Apps in any way and at any time, with or without notice. In no event will Enel X Way be responsible for the accuracy, usefulness or completeness of any information, materials or other content on its website or Mobile Apps. Enel X Way may change the programs or products mentioned at any time without notice.
(g) Analysis of Usage Data. Customer agrees that its Enel X Way website and Mobile Apps usage may be used by Enel X Way to analyze averages, trends, and other anonymized patterns of usage. Enel X Way will use reasonable and commercially-justifiable measures to ensure personal information remains confidential, protected and secure.
(h) 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.
(i) Data Reporting: Notwithstanding the foregoing, for commercial Low Carbon Fuel Standard (“LCFS”) programs, Customer solely designates Enel X Way as the data reporting entity, also known as fuel reporting entity, for purposes of the State of California’s, Oregon’s and Washington’s, as well as British Columbia’s or Canada’s LCFS Programs, 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 act as its own data reporting entity, then it shall notify Enel X Way in writing by email, to firstname.lastname@example.org 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. For residential LCFS programs, reported data may include the Customer’s vehicle registration number (VIN), in addition to the above data, and Enel X Way shall be the sole reporting entity.
8. Confidential Information.
Customer may be exposed to certain confidential or proprietary information of Enel X Way. Customer agrees not to use or disclose such information without the prior written consent of Enel X Way, either during or after the Term. Customer agrees not to decompile, deconstruct or reverse engineer any information provided by Enel X Way to Customer.
9. 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 FOR THE APPLICABLE PRODUCT GIVING RISE TO THE CLAIM. 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.
Warranty Exclusions. The Hardware Limited Warranty (and any extension of the Hardware Limited Warranty, or Extended Standard Warranty) referenced to and incorporated by reference herein may be subject to certain exclusions as more fully set forth in the Hardware Limited Warranty. CUSTOMER HAS BEEN INFORMED AND UNDERSTANDS THAT, IN THE EVENT OF ANY SUCH EXCLUSION BECOMES APPLICABLE, ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THESE TERMS SHALL IMMEDIATELY BECOME NULL AND VOID.
Exclusive Remedies. THE REMEDIES CONTAINED IN SECTION 6 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND ARE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST ENEL X WAY WITH RESPECT TO NONCONFORMANCE OF THE PRODUCTS.
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 (a) discontinue Customer’s access to any Software, (b) stop providing any support to Customer; (c) cease issuing updates to Customer; and (d) disconnect the Product from its platforms and services. All licenses granted to Customer and Customer’s right to access any software or platforms 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. Customer shall pay Enel X Way for the Services performed and Products ordered up through the date of termination plus any reasonable termination or cancellation fees assessed by Enel X Way.
11. Independent Contractor.
It is understood and agreed that each of the Parties hereto is an independent contractor and that neither Party is, nor shall be considered to be, an agent, distributor or representative of the other. Neither Party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
12. 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 at https://www.enel.com/investors/a/2016/08/code-of-ethics). Moreover, Enel X Way declares its adherence to the United Nations Global Compact. Enel X Way expects 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.
13. Assignment and Subcontracting.
Customer shall not assign its rights or obligations hereunder without Enel X Way's advance written consent. Enel X Way shall be able to assign this Agreement to any affiliate of Enel X Way or by operation of law at any time during the term of this Agreement.
In connection with the Agreement, Customer hereby consents to Enel X Way’s use of Customer’s name and logo in Enel X Way’s promotional materials, including, but not limited to, website, presentations and other printed materials. Enel X Way acknowledges that Customer is the owner of all right, title and interest in and to Customer’s name and logo and shall not take any action that is inconsistent with such ownership
15. Privacy Laws.
The Parties shall comply at all times with the requirements of applicable data privacy laws, including, but not limited to, Regulation (EU) 2016/679 known as the General Data Protection Regulation and the California Consumer Privacy Act, each as may be amended from time to time.
16. 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 Products.
17. 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 Enel X Way’s control, including without limitation acts of God, fire, flood, earthquake, pandemic, strike or lockout or other labor dispute, or shortage of or inability to obtain material or equipment or energy services, accident, explosions, civil commotion, riot, war, governmental regulation or order.
The failure of either party to require performance by the other party of any provision hereof shall not affect such party’s full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Any notice provided or permitted to be given under this Agreement must be in writing and be served either by (i) deposit in the mail, addressed to the party to be notified, postage prepaid, and registered or certified, with a return receipt requested, or (ii) deposit with an internationally-recognized overnight delivery carrier, with notice of delivery to the recipient party. Notice given by registered or certified mail or overnight carrier shall be deemed delivered and effective on the date of delivery shown on the return receipt or proof of receipt. For purposes of notice the addresses of the Parties shall be as follows:
If to Enel X Way:
Enel X Way USA, LLC
Attn: Head of e-Mobility North America
360 Industrial Road
San Carlos, CA 94070
With copy to:
Enel X Way USA, LLC
c/o Enel X Way North America, Inc.
Attn: General Counsel
101 Seaport Blvd., 12th Floor
Boston, MA 02210
20. General Terms.
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then such provision shall be null and void but each other provision hereof not so affected shall be enforced to the full extent permitted by applicable law. No waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion. The provisions of this Agreement shall be governed by and construed in accordance with the laws of California, without giving effect to its choice of law rules. Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representatives of both Parties. This Agreement sets forth the entire agreement and understandings between the Parties hereto with respect to the subject matter hereof. The captions and headings throughout this Agreement are for convenience and reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify, or add to the interpretation, construction, or meaning of any provision of or the scope or intent of this Agreement, nor in any way affect the Agreement. This Agreement may be executed in multiple counterparts, all of which taken together will constitute one single Agreement between the parties hereto.
21. Dispute Resolution and Arbitration Agreement (“Arbitration Agreement”)
(a) Scope of the Arbitration Agreement. Mindful of the high cost of legal disputes, not only in dollars but in time and energy, both you, Customer, and Enel X Way agree that any legal dispute between you and Enel X Way concerning or arising in any way out of a purchase from Enel X Way or an authorized reseller, any communications between you and Enel X Way, or your participation in any other program or service provided by Enel X Way shall be resolved through binding individual arbitration unless you opt out of this Arbitration Agreement using the process explained below. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. However, either you or Enel X Way may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. The term “dispute” means any dispute, action, claim, or other controversy between you and Enel X Way whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
(b) Informal Dispute Resolution. Either party asserting a dispute shall first try in good faith to resolve it by providing written notice as specified below to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Notice shall be made by first class or registered mail (1) to Enel X Way, Attention: Legal Department, Enel X Way USA, LLC, 360 Industrial Road, San Carlos, CA 94070 or (2) to you at the billing address on file with Enel X Way. Both you and Enel X Way agree that this dispute resolution procedure is a condition precedent, which must be satisfied before initiating any arbitration against the other party.
(c) Right to Opt Out of this Arbitration Agreement. You may opt out of this Arbitration Agreement within the first 30 days after the earliest of the first time you (a) make a purchase from Enel X Way or authorized reseller; or (b) create an account or otherwise sign up for any program or service provided by Enel X Way. You may also opt out of this Arbitration Agreement within 30 days after we notify you regarding a material change to this Arbitration Agreement. You may opt out by sending an email to Enel X Way to email@example.com. You should include your printed name, mailing address, and the words “Reject Arbitration.”
(d) How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available on the AAA’s website at www.adr.org, or by calling the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the dispute, the parties shall agree to, or the court shall select, another arbitration provider. Unless you and Enel X Way agree to conduct arbitration by teleconference, videoconference, or otherwise, any arbitration hearing shall take place in the United States county where you live. Except for a dispute determined by the arbitrator to be frivolous or initiated in bad faith, payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules unless otherwise stated in this Arbitration Agreement.
(e) Waiver of Right to Bring Class Action and Representative Claims. All arbitrations shall proceed on an individual basis. YOU AND ENEL X WAY ALSO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER IN ARBITRATION ONLY IN YOUR OR THEIR RESPECTIVE INDIVIDUAL CAPACITIES AND IN SO DOING YOU AND ENEL X WAY HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY, TO ASSERT OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT OR CLASS ACTION ARBITRATION, ANY PRIVATE ATTORNEY GENERAL LAWSUIT OR PRIVATE ATTORNEY GENERAL ARBITRATION, AND ANY JOINT OR CONSOLIDATED LAWSUIT OR JOINT OR CONSOLIDATED ARBITRATION OF ANY KIND. The arbitrator is empowered to resolve the dispute with the same remedies available in court, including public injunctive relief. If a court decides that the limitations of this particular paragraph regarding class action waiver are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
(f) Governing Law and Other Terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. To the extent state law applies to any aspect of this Arbitration Agreement, or to any disputes and claims that are covered by the Arbitration Agreement, the law of the state of your residence (determined by your billing address on filed with Enel X Way) will govern. Enel X Way will provide notice of any material changes to this Arbitration Agreement. Except as set forth above with respect to the class action waiver, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of the Arbitration Agreement, including whether any dispute falls within its scope. However, the parties agree that any issue concerning the validity of the class action/representative waiver above must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver. This Arbitration Agreement survives the end of the relationship between you and Enel X Way, including, without limitation, termination of your membership or participation in any Enel X Way loyalty program or contest or promotion, cancellation or deletion of your Enel X Way account, opt out of marketing, or end of participation in any Enel X Way program or service.