Installation Terms and Conditions

This agreement is between company whose name is set forth in that quotation from the EVready LLC (the “Company”) and EVready LLC dba EVready Energy, a Massachusetts Limited Liability Company (the “Owner’s Representative” or “EVready Energy”). The Company desires to engage with the Owner’s Representative for the purposes of electrification installation (the “Services”).  The following terms and conditions (the “Terms”) and those specified in the quotation for Services, including the scope of the work set forth in such quotation (collectively, the “Quotation”) prepared by the Owner’s Representative for the Company shall exclusively govern the purchase of all Services as described in the Quotation.

The parties therefore agree as follows:

TERMS

Placement of Orders

    1. Installation Services. Company’s purchase of the Services shall be made by the issuance by the Company of a binding, written purchase order for the Services as described in the Quotation or by providing to the Owner’s Representative a signed acceptance of the Quotation.  If applicable, the purchase order shall specify that the Company’s purchase of the Services is subject to all of the terms and conditions contained in these Terms. Any additional printed terms and conditions in the Company’s 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.

    2. Acceptance of Signed Quotation. All signed Quotations and modifications to signed Quotations are subject to acceptance or rejection by EVready Energy at its sole discretion. No purchase order shall be binding upon EVready Energy unless and until so accepted in writing by EVready Energy. EVready Energy agrees to use commercially reasonable efforts to notify the Company of its acceptance or rejection of the Company’s order within ten (10) business days after receipt thereof. Any signed Quotation accepted by EVready Energy shall be referred to in these Terms as, an “Accepted Order.” Accepted Orders are non-cancelable, non-returnable, and non-refundable.

    3. Refusal of Purchase Orders. EVready Energy may withhold performance of the Services to the Company if the Company has exceeded its applicable credit limit, if any, and not provided prepayment, is in violation of its payment obligations, or otherwise is in material breach of these Terms.

    4. Owner’s Representative.  The Company hereby understands that the Owner’s Representative will not be performing the Services but will hire, directly or indirectly, a contractor or subcontractors to perform such Services (the “Contractors”).

    5. Site Conditions. The Company acknowledges and agrees that the Quotation, including the pricing, and these Terms are based upon EVready Energy’s initial assessment of the job location’s  (the “Site”) conditions. Conditions which EVready Energy did not or could not discover in EVready Energy’s initial assessment, including, but not limited to, rock ledge, environmental issues, termites, water issues, or other concealed conditions may require additional labor or materials other than those contemplated when providing the Quotation. If such conditions are discovered, EVready Energy will promptly notify the Company of such conditions and any necessary changes to the Services and/or Quotation. EVready Energy will prepare and submit to the Company a revised Quotation for the Services to be performed under these Terms. In addition, Any alteration or deviation from the specifications set forth in the Quotation involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.

      To the extent required for proper performance of the Services, the Company will furnish EVready Energy with reasonable access to all right-of-way and other real property or Company-owned facilities with respect to which the Services will be rendered under these Terms.

    6. Any change in the Services directed or caused by the Company which increases the cost of the Services to EVready Energy or which authorizes an item of work not within the scope of the Quotation or purchase order, if applicable, and which is not the subject of a written agreement to the Quotation or purchase order, if applicable, must be authorized and executed in advance by the Company in writing and by EVready, and when so authorized in advance and executed by both parties shall be additional Services for which EVready is entitled to be paid the additional compensation set forth in such written authorization.

Invoicing and Payment

    1. Invoicing. Unless otherwise agreed in writing by the parties, fifty percent (50%) of the fees for Services set forth in the Quotation are due upon the acceptance of the Quotation and the remaining amount of the fees is due upon the completion of the Services. EVready Energy shall issue an invoice to the Company for the fees for the Services as described herein; provided that, EVready Energy may condition its acceptance of a signed Quotation on such credit and/or prepayment terms as EVready Energy, in its reasonable discretion, determines appropriate due to, among other things, Company’s prior payment history and/or the scope of the installment project. In the case of any change to the applicable credit and/or prepayment terms, no signed quote or acceptance thereof will be effective unless and until the Company has consented in writing thereto.

    2. Payment Terms.  All invoices shall be paid within thirty (30) days of the invoice date and checks shall be sent to EVready Energy at 7 Newbury Road, Ipswich, MA 01938.  Invoices not paid when due are subject to interest at the rate of one and two percent (2.0%) per month or, if less, the highest rate allowed under applicable law.

    3. No Right of Set-Off. Invoiced amounts are not subject to reduction by set-off or otherwise without the express written permission of EVready Energy.

    4. Taxes, Duties, Etc. All amounts due to EVready Energy under these Terms and/or any applicable purchase order are net of any duties, any 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, Canada or any foreign, state or local governmental entity, country or regional authority, or instrumentality thereof on the Services to Company, other than taxes measured by EVready Energy’s income, corporate franchise, or personal property ownership. Where applicable, EVready Energy shall bill the Company for the full amount of such taxes and shall include such amount as a separate line item on the invoice(s) sent to the Company; provided that, EVready Energy’s failure to so bill the Company shall not relieve Company from the obligation to pay any Tax described in this Section 2.D.

    5. Payment Currency. All amounts payable under these Terms shall be paid in United States dollars or if the Company is located in Canada, Canadian dollars. If the Company is located outside of the United States, the Company agrees to take all necessary actions required, including registration of these Terms and application for permission to make payments to EVready Energy hereunder, with the appropriate government authorities in the Company’s jurisdiction, or such other institution or official, and to take such other measures as may be necessary to comply with any government currency controls in effect in Company’s jurisdiction, as soon as reasonably practicable after execution of these Terms. Company shall remit payment to EVready Energy, at Company’s option (i) via wire or ACH transfer to an account designated by EVready Energy in writing from time to time or (ii) by check, made out to EVready Energy, Inc.

    6. Disputes. In the event Company disputes any portion or all of an invoice, it shall notify EVready Energy in writing of the amount in-dispute and the reason for its disagreement within ten (10) days of receipt of the invoice. Failure to notify EVready Energy in writing of any dispute within such time shall constitute an absolute waiver of all such disputes. 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 EVready Energy.

    7. Remedies upon Payment Default. Upon Company’s default of these terms, EVready Energy may, in addition to any other rights or remedies it may have at law or otherwise, subject to any cure rights of Company, declare the entire balance of Company’s account immediately due and payable or if applicable, foreclose any security interest in any goods delivered. If any unpaid balance is referred for collection, Company agrees to pay EVready Energy, to the extent permitted by law, reasonable attorneys’ 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 EVready Energy, and any finance charges accrued on any unpaid balance owed by Company.

No Warranty/Limitation of Liability

    1. No Warranty. EVready ENERGY makes no representations and warranties with respect to the Services whatsoever.  In addition, EVready ENERGY makes no warranties, either expressed or implied, as to any goods, machinery, parts, or tools whatsoever, including, without limitation, the condition of any equipment, its merchantability, or its fitness for any particular purpose.  The Company shall be entitled to any limited warranty of workmanship relating to the Services as the Contractors may provide.

    2. Disclaimer of Warranties. EVREADY ENERGY MAKES NO WARRANTY WITH RESPECT TO THE SERVICES OR THE PERFORMANCE OF THE CHARGING STATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EVREADY ENERGY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS BY THE CHARGING STATIONS, MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE; AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EVREADY Energy DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF CHARGING STATIONS.

    3. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, IN NO EVENT SHALL EVREADY ENERGY BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, CONCERNING GOODS, MACHINERY, PARTS, TOOLS OR SERVICES SOLD LEASED OR DELIVERED BY EVREADY ENERGY, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    4. EVready shall not be responsible for the acts or omissions of other parties engaged by the Company nor for their construction means, methods, techniques, sequences, or procedures, or their health and safety precautions and programs.

Term

    1. The Service obligations under these Terms shall remain in effect and continue in force until the later of: (i) completion of the Services, or (ii) termination of the Term by EVready upon thirty (30) days prior written notice to the Company, provided that termination of these Terms not relieve the Company of its obligation to make any payment of all fees, costs, and expenses that are accrued and payable on or prior to the date of termination. In addition, if the Company becomes insolvent, declares bankruptcy, or if the Company breaches any term or condition herein, or breaches any other agreement between EVready ENERGY and the Company, or if for any reason ENERGY deems itself insecure, EVready ENERGY may immediately terminate these Terms and the Service obligations hereunder.

General

    1. Attorneys’ Fees. If any action at law or in equity is necessary to enforce the terms of these Terms, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which the prevailing party is otherwise entitled.

    2. Force Majeure. Neither party shall be liable hereunder to the other party by reason of any failure or delay in the performance of its obligations hereunder (except for any obligations of the Company to make payments to EVready Energy) on account of strikes or labor issues affecting EVready Energy’s employees or subcontractors performing the Services hereunder, adverse weather conditions, any delays in transportation related to materials or otherwise, delays in procuring supplies or materials, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, governmental action, labor conditions, earthquakes, Force Majeure, acts or omissions of the Company, or any other cause which is beyond the reasonable control of such party (the “Impacted Party”).  The Impacted Party shall give notice within sixty (60) days of the Force Majeure event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon thirty (30) days’ written notice.

    3. Waiver. 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.

    4. Severability. In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted as to best accomplish the objectives of such provisions within the limits of applicable law or applicable court decisions.

    5. Assignment. The rights and liabilities of the parties hereto shall bind and inure to the benefit of their successors, executors or administrators, provided, however, that neither EVready Energy nor Company may assign or delegate these Terms or any of its licenses, rights or duties under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party in its reasonable discretion; provided, however, that Company and EVready Energy shall each be entitled to assign these Terms to an affiliate or to its success, or in interest by way of merger, acquisition of substantially all of the assets of assignor or any similar event (collectively, “Acquisition Transactions”); and provided further, however, that notwithstanding any Acquisition Transaction, Company shall not assign these Terms to any competitor of EVready Energy without EVready Energy’s prior written consent, in its sole discretion. Any attempted assignment in violation of this provision shall be void.

    6. INDEMNITY: Company shall indemnify and hold EVready ENERGY harmless from any and all liability, claims, losses, damages or expenses, including without limitation attorney fees and costs, arising from Company’s negligence, breach, or willful misconduct, resulting in the death or bodily injury of any person, or the damage or destruction of any property.

    7. Notices. Any notice, request, demand or other communication by the terms hereof required or permitted to be given by one part to the other shall be given in writing by email with confirmation of receipt, certified or registered mail, return receipt requested, fax or courier addressed to such other party or delivered to the address for each party set forth below their respective signatures, or at such other fax, email address or office address as may be given from time to time by either of the parties.

    8. Governing Law, Jurisdiction and Dispute Resolution. EVready Energy entering into this Agreement, the address to which Company should direct notices under this Agreement, the governing law, and place of jurisdiction, shall be the Commonwealth of Massachusetts, Essex County. The EVready Energy entity entering into this Agreement is: EVready LLC.  Notices should be addressed: 7 Newbury Road Ipswich, MA 01938.  Governing law: Essex County, Massachusetts, U.S.A. Place of jurisdiction: Essex County, Massachusetts, U.S.A. Forum: The United States of America – EVready Energy, a Massachusetts corporation Attn: Legal Department: Inc. 7 Newbury Road Ipswich, MA 01938, and controlling United States federal law Essex County, Massachusetts, U.S.A.

      Any disputes related to this Agreement, will be governed by the applicable Governing Laws above, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods.  Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be submitted to and finally settled by arbitration using the English language in accordance with the Arbitration Rules and Procedures of the applicable Forum above then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. All claims shall be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. With respect to any matter relating to the intellectual property rights of EVready Energy, such claim may be litigated in a court of competent jurisdiction. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys’ fees and costs.  Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief.

    9. Business Purpose. The Company represents and warrants that all goods and the Services purchased by the Company from the Owner’s Representative are for personal, business, commercial or agricultural purposes.

    10. Entire Agreement. These Terms and the attachments hereto constitute the entire agreement between the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. These Terms shall not be modified unless done so in a writing signed by an authorized representative of each party.

    11. Any and all contracts, certificates, invoices and other writings signed on behalf of Company by any employee of Company shall be deemed to have been executed on behalf of Company with full authority. Company acknowledges that by transmitting a facsimile copy, electronic copy or photocopy of this document to EVready ENERGY, Company, and any Guarantor (if applicable) agree to be bound by these Terms to the same extent as if an original were transmitted to EVready ENERGY. A $30 service charge applies to each dishonored check, similar instrument, or electronic payment received by EVready ENERGY. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and these Terms shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

    12. English Language Agreement Governs. Where EVready Energy has provided Subscriber with a translation of the English language version of this Agreement, Company agrees that the translation is provided for Subscriber’s convenience only and that the English language version of this Agreement governs Company’s relationship with EVready Energy. If there is any conflict between the English language version of this Agreement. It is the express wish of the Parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only.
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