Terms and Conditions
(A) Hubsta is an intelligent charging network back office mobile application supplied by Hubsta Limited a company registered in England under company number 11244092 of Unit 54 Consett Business Park, Consett, County Durham, DH8 6BN (“Hubsta“) and provides a smart charging network for public, private and domestic use by means of smartphone apps, website services or RFID Fobs.
(B) This Agreement regulates the relationship between Hubsta as the licenced owner of the Hubsta Software Platform and the Hubsta Software Platform user (hereinafter “the Customer“) who is connected to the Hubsta Service and/or places an order for an RFID Fob/s.
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
“Agreement Personal Data” means (i) the Driver Personal Data; (ii) any and all personal data regarding the Customer (including its employees, third party suppliers, agents, assigns or otherwise); and (iii) any and all personal data which is collected, generated or which is otherwise processed by either party as a result of or in connection with this Agreement.
“Applicable Law” all laws, statutes, regulations and codes from time to time in force applicable to a Party’s obligations herein.
“Business Day” means a day other than a Saturday or Sunday or a bank holiday or public holiday in England in the United Kingdom.
“Calendar Day” means any day of the year
“Charger” means those electric vehicle Chargers identified in the Quotation.
“Confidential Information” means information which is disclosed by Hubsta to the Customer, or by the Customer to Hubsta, in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential, or marked as such).
“Customer Information” means all information, including, without limitation, names, addresses, license numbers or information, telephone numbers, account numbers, geolocation, services data, services usage habits, customer lists, and demographic, financial and transaction information of a Driver or Fleet Driver. For the avoidance of doubt, all Customer Information is wholly owned by the Customer and will remain so even after the termination of this Agreement.
“Data Protection Legislation” means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (commonly referred to as the “GDPR”), the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, together with any and all other laws, regulations or other statutory instruments relating to the protection of personal data (including regarding electronic marketing and privacy) applicable to Elmtronics and the Customer in any relevant jurisdiction. “controller“, “processor“, “data subject“, “personal data” and “processing” shall have the meaning given to them in the Data Protection Legislation.
“Disclosing Party” means the Party that discloses or makes its Confidential Information available to Recipient.
“Drivers” means any person using a Charger to charge their vehicle.
“Driver Personal Data” means any and all personal data relating to identified or identifiable End User that is collected as a result of or generated by a Driver’s use of or interaction with a Charger or otherwise processed as a result of or in connection with the Elmtronics provision of the Hubsta Services.
“End User” means any individual employee of the Customer that has access to the Hubsta Services provided to the Customer under this Agreement.
“Effective Date” means the date on which commissioning of the Chargers has been completed, and control of the Chargers is passed to the Customer.
“Elmtronics” means Elmtronics Ltd, a company registered in England under 09002413 of Unit 52, Derwentside Business Centre, Consett, County Durham, DH8 6BN and includes all employees and agents of Elmtronics Ltd.
“Good Industry Practice” means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading software development company in respect of services which are the same as or similar to the Hubsta Services or a similar process to develop deliverables which are the same as or similar to any deliverables provided under this Agreement.
“Hubsta App” the Hubsta proprietary software application including any upgrades, updates, enhancements, developments, amendments, new versions made available by Hubsta from time to time which allow the Customer to access the Hubsta Services.
“Hubsta Services” means the services provided by Hubsta using the Hubsta Software Platform, as further specified and under the terms included in the Quotation.
“Hubsta Software Platform” means the Hubsta proprietary software platform as set out and described in clause 3.1 including any offline components and the Hubsta App, as applicable and including any upgrades, updates, enhancements, developments, amendments, new versions made available by Hubsta from time to time. Any updates, upgrades, enhancements, developments, amendments and new versions are included in the Fees unless otherwise agreed in writing by the Customer.
“Intellectual Property Right” means any intellectual property right (both registered and unregistered) existing from time to time under any applicable law, state or local law, rule or regulation, including but not limited to any patent, patentable invention, patent application, copyright, trademark, service mark, license, trade secret, moral right, publicity right, privacy right or other property or proprietary right (and any application, renewal, extension or restoration of the foregoing).
“Partner Charging Station Operator” means Partner Charging Station Operators from the Hubsta network, as changed by Hubsta from time to time, wherein charging processes can be started using the Hubsta App and/or the RFID Fob.
“Quotation” means the document agreed and signed by the Customer specifying the scope of the Hubsta Services as amended in writing by the parties from time to time.
“Recipient” means the Party that receives Confidential Information from the Disclosing Party or has Confidential Information of the Disclosing Party made available to it.
“RFID Fob” means the RFID tag with which charging processes can be started on selected chargers after it has been activated and connected to the Customer account.
“Website” means the Hubsta website, at www.hubsta.co.uk
3.1 Hubsta is a cloud-based network software platform that can be accessed through the Hubsta App or the Website which connects drivers to the charging station hardware and allows the Customer as a charge point owner to:
(i) its Chargers, including tracking the live availability status of Chargers;
(ii) individual usage of Fleet Drivers (for fleet operators)
(iii) energy supplied during each use of a Charger;
(iv) utilisation of each Charger;
(v) date, time and charging period of each Charging Session;
(b) and assign Fleet Drivers; and
(c) set and manage Tariffs charged to Drivers and/or Fleet Drivers (as applicable) through its Chargers and generate a revenue from its Chargers (see Schedule 1).
4. Licence to use the Hubsta Software Platform
4.1 In consideration for the payment of Fees set out in the Quotation and subject to the terms of this Agreement, Hubsta licenses the Customer a non-exclusive, non-transferable, worldwide right to:
(a) view, use and display the Hubsta App and the Hubsta Services on such devices solely for Customer’s internal business operations and in accordance with the terms of this Agreement;
(b) receive a personal log-in which provides access to the Customer portal.
(c) receive and use any free update of the Hubsta App incorporating “patches” and corrections of errors as Hubsta may provide to the Customer; and
(d) access and use the related online or electronic documentation (“Documentation“), as permitted under this Agreement.
5. Acceptable use restrictions
5.1 The Customer is responsible for all activity occurring under End User accounts and shall abide by all Applicable Law in connection with the Customer’s use of the Hubsta Services.
5.2 The Customer shall:
(a) promptly notify Hubsta upon becoming aware of any unauthorised use of any password or account or any other known or suspected breach of security;
(b) promptly report to Hubsta and use reasonable efforts to stop any copying or distribution of the Hubsta Services; and
(c) not impersonate another Hubsta user or provide false identity information to gain access to or use the Hubsta Service.
(d) provide a project manager that will be authorised and responsible for the Customer interaction with Hubsta;
(e) review all documents provided by Hubsta so that any mutually agreed amendments may be made by Hubsta in a timely manner;
(f) provide Hubsta with all data and information reasonably required in order to fulfil its obligations herein;
(g) ensure the cooperation of any third party with which the Customer separately engages with respect to the Chargers, such that the Customer’s software and/or Hubsta Services are required to integrate in order for Hubsta to meet its obligations herein; and
(h) where the Customer wishes to provide free workplace charging at its Chargers, complete the staff information form provided with this document
(i) Hubsta shall not be responsible for delays caused due to any act or omission including bugs or malfunctions in Chargers caused by any third party which the Customer engages with save where such bugs, malfunction or other error or fault arises as a result of an act or omission of Hubsta or any of its subcontractors.
5.3 The Customer will not:
(a) rent, lease, sub-license, loan, provide, or otherwise make available, the Hubsta App or the Hubsta Services in any form, in whole or in part to any person without prior written consent from Hubsta;
(b) use the Hubsta App or the Hubsta Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Hubsta App, the Hubsta Service or any operating system;
(c) infringe Hubsta’s intellectual property rights or those of any third party in relation to the Customer use of the Hubsta App or any Service, including by the submission of any material (to the extent that such use is not licensed by this Agreement);
(d) use the Hubsta App or Hubsta Service in a way that could damage, disable, overburden, impair or compromise Hubsta’s systems or security or interfere with other customers;
(e) collect or harvest any information or data from the Hubsta Service or Hubsta’s systems or attempt to decipher any transmissions to or from the servers running the Hubsta Service;
(f) access all or any part of the Hubsta Services and Documentation in order to build a product or service which competes with the Hubsta Services and/or the Documentation;
(g) copy, reproduce, distribute or display the Hubsta App, Documentation or Hubsta Services, except as part of the normal use of the Hubsta App or where it is necessary for the purpose of back-up or operational security;
(h) translate, merge, adapt, vary, alter or modify, the whole or any part of the Hubsta App, Documentation or Hubsta Services nor permit the Hubsta App or the Hubsta Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the Hubsta App and the Hubsta Services on devices as permitted in this Agreement; or
(i) interfere with the hosting of the Hubsta Services. For the avoidance of doubt, the Customer’s Information shall not be considered part of the Hubsta Services and shall be owned exclusively by the Customer. Hubsta shall only be permitted to use the Customer Information for the purposes of providing the Hubsta Services and licencing the Hubsta App and otherwise as expressly set out in this Agreement, and/or as permitted in writing by the Customer;
and Hubsta reserves the right, on no less than thirty (30) days’ prior written notice to the Customer, such notice specifying the breach of this clause and requiring it to be remedied within the thirty (30) day period, to disable access to the Hubsta Services for the duration of time that the breach remains unremedied.
6. Hubsta’s Obligations
6.1 The Hubsta App and the Hubsta Services have not been developed to meet each customer’s individual requirements. The Customer must check that the facilities and functions of the Hubsta App and the Hubsta Services meet the Customer’s requirements.
6.2 Hubsta warrants and undertakes that:
(a) the Service will be performed in accordance with the Quotation and this Agreement and with reasonable skill and care in accordance with Good Industry Practice;
(b) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement;
(c) it will comply with all applicable laws and regulations with respect to its obligations under this Agreement;
(d) it will co-operate with the Customer in all matters relating to the Services;
(e) it will take reasonable steps to ensure that the Hubsta Services and the Hubsta App will not contain any virus;
(f) it will maintain systems for providing the Hubsta Services that meet the security, access controls, recovery systems and data and system integrity that are consistent with the requirements in Hubsta’s industry.
6.3 If provision of the Hubsta App availability, the Hubsta Services or support for the Hubsta App or the Hubsta Services is delayed, suspended or fails due to an event outside Hubsta’s control then Hubsta will contact the Customer as soon as possible to let the Customer know and Hubsta will take steps to minimise the effect of the delay. Provided Hubsta does this Hubsta will not be liable to the Customer for delays or failure to provide the Hubsta Services or the Hubsta App availability caused by such event but if there is a real risk of substantial delay the Customer may contact Hubsta to end this Agreement with Hubsta and receive a refund for any Services the Customer has paid for but not received.
6.4 For the avoidance of doubt:
(a) an event outside Hubsta’s control shall include but is not limited to official action, change in law, war, sabotage, pandemic, epidemic, failure or delay in delivery, irregularities in the supply of electricity, telephone connections or other traffic and communications connections and transportation, strike, boycott, or other similar circumstances beyond the reasonable control of us;
(b) matters that are only within the reasonable control of Hubsta’s subcontractors shall not be deemed to be within Hubsta’s reasonable control; and
(c) the aforementioned also applies if Hubsta is the subject of a strike, boycott and/or blockade.
6.5 The Hubsta App or the Hubsta Service may contain links to other independent websites which are not provided by Hubsta. Hubsta is not responsible for and has not checked and approved the content or privacy policies (if any) of such independent sites.
6.6 If the Customer’s Chargers previously used third party software any switch over to the Hubsta Services will be implemented in accordance with Schedule 2.
7.1 If the Customer wants to learn more about the Hubsta App or the Hubsta Service or has any problems using them, please take a look at the support resources at www.hubsta.co.uk
7.2 If the Customer thinks the Hubsta App or the Hubsta Services are faulty or misdescribed or wish to contact Hubsta for any other reason please email the Hubsta customer service team at email@example.com or call them on +44 (0)191 406 6375.
7.3 Hubsta can contact the Customer by email, by SMS or by pre-paid post, using the contact details the Customer has provided to Hubsta.
7.4 If the Customer has not purchased a service level agreement from Hubsta’s Affiliate, Elmtronics, the Customer will be charged for any call outs and the cost of parts that are no longer covered by a manufacturer warranty.
8. RFID Fob
8.1 If using the Hubsta Service for fleet use, the Customer may order RFID Fobs from Hubsta which the Customer may then distribute to individuals. Each individual is responsible for activating his or her RFID Fob with Hubsta directly via the Hubsta App or Website.
8.2 RFID Fobs may be ordered through the Hubsta App and/or the Website. The price for the RFID Fob, the payment requirements and estimates as to the delivery will be shown to the Customer during the order process. Acceptance of the Customer’s order, and the formation of the contract for the sale and purchase of the ordered RFID Fobs shall be deemed to take place when Hubsta ships the ordered RFID Fob and informs the Customer accordingly.
8.3 In the event of the loss of the RFID Fob or of the mobile phone of the Customer which has the Hubsta App on it, the Customer shall immediately notify Hubsta by email. If the Customer does not give notification of the loss or theft of the RFID Fob or of the mobile phone, the Customer shall be responsible for any reported purchase transactions in full.
8.4 Hubsta will block the RFID Fob following receipt of notification of the loss or theft and such blocked RFID Fob cannot be reactivated. The Customer may place an order for a new RFID Fob with Hubsta, according to the then applicable terms and conditions
8.5 If selected and paid for by the Customer in accordance with the Quotation, the RFID Fob may be used by Drivers or Fleet Drivers to access third party chargers outside of the Hubsta network.
9. Account Information and Data
9.1 The Hubsta App, Hubsta and/or our commissioned service providers collect, process and use data pertaining to the Customer for the implementation of the contractual relationship under this Agreement pursuant to the provisions of the Data Protection Legislation.
9.2 The parties acknowledge and agree that the Customer shall be the sole and exclusive owner of the Driver Personal Data. The Customer shall have sole and exclusive right, title and interest in the Driver Personal Data, including any and all related Intellectual Property Rights in the same. All Driver Personal Data will remain the confidential information the Customer.
9.3 The Customer grants to Elmtronics a non-assignable, non-transferable, and non-exclusive license to use the Driver Personal Data solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) and solely to the extent necessary for Elmtronics to provide the Hubsta Services and to perform:
(a) Hubsta Services or product enhancement or improvement
(b) research, testing, development, controls, and operations of the Hubsta Service; and
(c) share and retain information which is generated from or based on Agreement Personal Data (such as market trends and metadata), at Hubsta’s discretion with third parties, provided that such Personal Data cannot identify any individual or its specific personal information but rather focuses on market trends such as users behaviour provided that Hubsta must inform the Customer of its intended use of such Agreement Data and the Customer must consent in writing (such consent not to be unreasonably withheld). Such consent must be obtained to avoid the Customer being put in a position where it has not obtained appropriate consents from End Users.
9.4 When processing Agreement Personal Data, both parties shall at all times:
(a) comply with the Data Protection Legislation;
(b) not do, fail to do, or permit to be done, anything which causes the other party to be in breach of its obligations under the Data Protection Legislation; and
(c) when making Agreement Personal Data available to the other party in accordance with this Agreement, ensure that it has an appropriate lawful basis (in accordance with Data Protection Legislation) to do so and has complied with its applicable transparency obligations regarding the data sharing with the other party.
9.5 Each party agrees to use all reasonable endeavours to procure that it shall, and where applicable any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required to ensure that the sharing or transfer of Agreement Personal Data between the parties (and any sub-processors) is compliant with the Data Protection Legislation.
9.7 Hubsta may use non-personal data collected in the provision of the Hubsta Service in order to:
(a) improve the Service and its other products and services; and/or
(b) share statistical information with Hubsta’s cooperation partners.
10. Updates to the Hubsta App and changes to the service
10.1 From time to time Hubsta may automatically update the Hubsta App and change the Hubsta Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, Hubsta may ask the Customer to update the Hubsta App for these reasons.
10.2 If the Customer chooses not to install such updates or if the Customer opts out of automatic updates the Customer may not be able to continue using the Hubsta App and the Hubsta Services.
10.3 The Hubsta App will always work with the current or previous version of the operating system (as it may be updated from time to time) but the Customer should endeavour to keep web browsers and operating systems up to date to ensure they are operating the latest version.
11. Intellectual Property Rights
11.1 Hubsta (and its licensors, where applicable) shall exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to:
(a) the Hubsta Software Platform currently existing or as shall be developed thereafter including in connection with this Agreement;
(b) Hubsta’s proprietary technology in existence at the date of this Agreement or developed by it and/or its subcontractors independently of this Agreement;
(c) any software proprietary to Hubsta and in existence at the date of this Agreement or developed by it and/or its subcontractors independently of this Agreement; and
(d) the Hubsta Services and any enhancement requests, feedback, recommendations or other information provided by Customer, (the “Hubsta Intellectual Property Rights“).
11.2 This Agreement shall not constitute and does not convey to the Customer any rights of ownership in or related to the Hubsta Software Platform, the Hubsta App, the Hubsta Services, Hubsta Intellectual Property Rights other than the right to access and use the Hubsta Services pursuant to the terms of this Agreement. The Hubsta name, Hubsta logo, and the product names associated with the Hubsta Services are trademarks of Hubsta or third parties, and no right is granted to use them except with the prior written authorisation of Hubsta.
11.3 The Customer does not grant Hubsta any license or ownership rights in the Customer’s Intellectual Property Rights except to the extent required in order to provide the Hubsta Services herein.
12. Contractual amendments
12.1 Hubsta may need to change the terms of this Agreement to reflect changes in law or best practice or to deal with additional features which Hubsta introduces.
12.2 Hubsta will inform the Customer in writing or through the Hubsta App of amendments to this Agreement at least 45 days before such changes are planned to come into effect.
12.3 The Customer and Hubsta acknowledge that both the electric vehicle charging sector and website and mobile application software technology sectors are rapidly developing. Amendments may be made, without limitation, in order to adapt the operation of the Hubsta Service or this Agreement to new or modified technologies, devices, standards, legislation, policies, or to appropriate technical, information security, administrative, business, operations, or other relevant procedures.
12.4 If the Customer does not agree to the changes in the terms of this Agreement, the Customer has the right to terminate the contractual relationship with Hubsta and therefore the application of this Agreement.
12.5 Provided that the proposed change to this Agreement is only to reflect certain new features, functions and updates to the Hubsta App, if the Customer does not accept the notified changes the Customer may continue to use the Hubsta App and the Hubsta Service in accordance with the existing terms but certain new features may not be available to the Customer.
13.1 Hubsta will charge the Customer subscription fees for the Hubsta Service in accordance with the terms of this Agreement and the Quotation (“Fees“).
13.2 If the Customer elects to charge a Tariff the Customer will be obliged to pay Hubsta for Hubsta’s management, collection and/or processing services related to such Tariff in accordance with Schedule 1.
13.3 The Customer will pay the initial setup fee and the annual subscription fee per socket as set out in the Quotation, within fourteen (14) days from its receipt of an invoice unless otherwise stipulated in the Quotation.
13.4 All fees for the Hubsta Services are net and exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes“).
13.5 The Customer is required to pay each undisputed invoice submitted to the Customer by Elmtronics by the date specified in the Quotation or otherwise the due date as shown on the invoice. Where neither the Quotation nor the invoice specify a payment date, the Customer shall pay Hubsta within fourteen (14) Calendar Days of invoice receipt to a bank account nominated in writing by Hubsta.
13.6 If the Customer does not make payment to Hubsta by the due date as shown on the relevant invoice, Hubsta may charge the Customer interest on the overdue sum at the rate of 2.5% per annum above the base lending rate of Barclays Bank UK PLC from time to time but at 2.5% a year for any period when that base lending rate is below 0%. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. The Customer must pay any interest due when paying an overdue sum.
13.7 The provisions of sub-clause 14.6 will not apply to such sums in relation to which the Customer has promptly contacted Hubsta to dispute in good faith. No interest will accrue in relation to the disputed sum while such a dispute is ongoing.
14.1 Nothing in this Agreement shall limit or exclude either party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents, or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) anything which by law cannot be limited or excluded under this Agreement.
14.2 Subject to clause 15.1 and unless otherwise set forth herein, to the extent the Customer or Hubsta are held legally liable to other and upon all claims or causes of action hereunder, a Party’s entire liability is limited to direct damages for any claim based on a breach of any other term of this agreement or any Applicable Law or regulation, and either:
(a) the maximum amount actually paid in respect of the Hubsta Services under the Quotation during the twelve (12) calendar month period prior to date of such claim or £100,000 whichever is the greater figure; or
(b) in the event of damages to the Customer resulting from a breach of its Data Protection rights, Hubsta liability shall not exceed £2,000,000; or
(c) where the liability is for damage to tangible property of the other Party, liability is limited to the maximum of the value of such property in the respective Party’s accounting records and/or books in respect of such items damaged.
14.3 If defective digital content that Hubsta has supplied damages a device or digital content belonging to the Customer, Hubsta will either repair the damage or pay the Customer reasonable compensation. However, Hubsta will not be liable for damage that the Customer could have avoided by following Hubsta’s advice to apply an update offered to the Customer free of charge or for damage that was caused by the Customer failing to correctly follow installation instructions or to have in place the minimum system requirements advised by Hubsta.
14.4 Hubsta will have no liability to the Customer for any loss of profit, loss of revenue, loss of business, business interruption, or loss of business opportunity, whether an action is in contract or tort and regardless of the theory of liability.
14.5 Hubsta shall not be responsible for, and thus, shall have no liability hereunder in respect of:
(a) the continuous availability and operability of:
(i) the Hubsta App or Website; and
(ii) the charging stations of the Partner Charging Station Operators;
(b) the suspension of the Hubsta App or availability of the Hubsta Service for reasons which ultimately prove to be incorrect, but, Hubsta had, at the time of suspension, reason to believe that there were grounds for suspension;
(c) the consequences of a RFID Fob or the Customer’s mobile phone being lost or stolen and misused by another person;
(d) any unauthorised use of the Hubsta Service through the Customer’s Hubsta account, either through the Hubsta App, the Website or RFID Fob;
(e) any loss or damage to vehicle or charging leads during any Charging Session;
(f) any parking charges that may occur during a Charging Session;
(g) vehicle overstays or misuse of parking bays where the Customer’s Chargers are located;
(h) any recovery costs of a vehicle where the vehicle fails to properly charge whether as a result of human error or a Charger error;
(i) for any special, indirect or consequential damages or losses, such as loss of income or damage to the relationship between the Customer and third parties, except if the damage or loss is caused by gross negligence or wilfulness of Hubsta.
14.6 This clause describes Hubsta’s entire liability. The only exception to this is mandatory legal provisions that apply to liability for defects (to the extent these cannot be excluded by mutual agreement).
15.1 The Recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to:
(a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
(b) except as otherwise authorised by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Recipient containing protections not materially less protective of the Confidential Information than those herein.
15.2 Neither Party will disclose the terms of this Agreement or the Quotation to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Confidentiality clause.
15.3 This Clause 15 shall not apply to any information which the Recipient demonstrates:
(a) is now or becomes in the future through no act or failure to act on the part of the Recipient, in the public domain;
(b) is authorised by the Disclosing Party in writing and in advance for disclosure;
(c) is already in the possession of the Recipient at the time of disclosure by the Disclosing Party;
(d) is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality;
(e) is related to ideas, concepts, methodologies, know-how, techniques and/or work procedures which are generic and/or not unique to the Disclosing Party; or
(f) is developed by the Recipient without reference to or use of the Confidential Information.
16.1 This Agreement will commence on the Effective Date and will continue until the date for expiry set out in the Quotation or earlier termination in accordance with this Agreement (the “Term“).
16.2 Either Party may terminate this Agreement immediately by giving written notice to the other Party as follows:
(a) if the other Party is in a material breach of this Agreement provided that the alleged breaching party fails or refuses to remedy such breach within 30 days following notice of such breach from the non-breaching Party. Material breach shall include failure to meet payment obligations;
(b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors;
(c) the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986);
(e) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
(j) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within fourteen (14) days;
(k) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.2 (b) to (j) (inclusive);
(l) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.3 Without prejudice to either party’s rights of termination in the rest of this Agreement, Hubsta may terminate this Agreement immediately and refuse to provide the Hubsta Services (including charging processes) to the Customer where:
(a) the Customer uses the Hubsta Service contrary to this Agreement;
(b) Hubsta has cause to suspect that the Hubsta Service is being misused by the Customer; and
(c) Hubsta ceases to carry on business, including the operation of the Hubsta App.
16.4 Without prejudice to its other rights of termination and cancellation under this Agreement, the Customer may terminate this Agreement by providing written notice of no less than one (1) calendar month from the date the termination notice is sent.
16.5 Any termination or cancellation notice from the Customer should be sent to: Hubsta, Unit 54 Consett Business Park, Consett, County Durham, DH8 6BN, email: support@Hubsta.co.uk
16.6 If this Agreement is terminated for any reason, neither Party will be relieved of any obligation that accrued prior to the effective date of the termination. The Customer will pay Hubsta the Fees for all Hubsta Services performed up to and including the effective date of any termination of this Agreement and Hubsta will (subject to any ongoing rights of suspension under this Agreement) continue to provide to the Customer all Hubsta Services up to and including the effective date of any termination of this Agreement.
16.7 The termination of this Agreement does not affect the existing legal consequences with respect to the charging processes that have taken place prior to termination.
17. Consequences of termination
17.1 On termination or expiry of this Agreement:
(a) the Customer will no longer have access to the back office log in to access the Hubsta Services;
(b) all End User or Driver information and/or Customer Information will be delivered to the Customer in a secure, professional and reliable manner no later than twenty (20) Business Days after termination of this Agreement and any record of it shall be deleted by Hubsta, including from any other backup servers unless otherwise restricted as a matter of Applicable Law or not reasonably possible.
17.2 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
17.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
18.1 The Customer may not transfer or assign the Customer’s obligations and rights under this Agreement without Hubsta’s express written permission (such permission not to be unreasonably withheld).
18.2 The Customer and Hubsta are each independent contractors, and nothing contained in this Agreement shall constitute or be construed as creating any partnership, joint venture, agency relationship, or employment relationship between the Parties.
18.3 This Agreement is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of this Agreement.
18.4 If any of the provisions of this Agreement are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that/those provision(s) shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
18.5 No failure or delay by Hubsta or the Customer in exercising any of the respective rights under this agreement means that such right has been waived, and no waiver by Hubsta or the Customer of a breach of any provision of this Agreement means that either Party will waive any subsequent breach of the same or any other provision.
18.6 Where agreement, approval, acceptance, consent or similar action by either Party is required by any provision of this Agreement, such action will not be unreasonably delayed or withheld. No waiver of rights under this Agreement by either Party shall constitute a subsequent waiver of such right or any other right under this Agreement.
18.7 This Agreement may be modified only by a written instrument duly executed by the Parties. No delay or omission by either Party to exercise any right or power under this Agreement will impair such right or power or be construed to be a waiver of the delay or omission.
19. Governing Law and Jurisdiction
19.1 This Agreement and the relationship between the Customer and Hubsta (whether contractual or otherwise) shall be governed by and construed in accordance with English Law.
19.2 Any dispute, controversy, proceedings or claim between the Customer and Hubsta relating to this Agreement or the relationship between the Customer and Hubsta (whether contractual or otherwise) shall be subject to the exclusive jurisdiction of the courts of England.
Schedule 1 – Charging Tariffs
1.1 The following definitions shall apply to this Schedule 1:
“Charging Fee” means the total amount of Tariffs collected on behalf of the Customer by Hubsta, less Tariff Admin Fee and taxes, if any, required by law to be collected by Hubsta from Drivers or Fleet Drivers in connection with the use of Chargers. Except as required by law, Customer shall be responsible for the payment of all taxes incurred in connection with use of Customer’s Chargers.
“Charging Session” means the period of time during which a Driver or Fleet Driver uses Customer’s Charger to charge his or her electric vehicle for a continuous period of time not less than two (2) minutes commencing when a Driver or Fleet Driver has accessed such Charger and ending when such Driver or Fleet Driver has terminated such access.
“Tariff” means as set out in paragraph 2.1 below.
“Tariff Admin Fee” means a fee of fifteen per cent (15%) of the Tariff charged by Hubsta in exchange for its collection and processing of Tariffs on behalf of the Customer.
2. Setting a Tariff
2.1 If the Customer wishes to derive a revenue from its Chargers the Customer may choose to charge Drivers a fee per kWh of electricity (“Tariff“).
2.2 If the Customer chooses to set a Tariff for use of its Chargers the Customer authorises Hubsta to deduct from all Tariffs collected the Tariff Admin Fees and to the extent required by Section 3, applicable taxes. For example, if the Tariff is set at £0.25p per kW the Customer would receive £0.22p per kW (exclusive of VAT).
2.3 The Customer shall be responsible for determining and charging the Tariff in compliance with all applicable laws and regulations. Hubsta is not responsible for informing the Customer of applicable laws nor will Hubsta be liable to the Customer or any third party for any alleged or actual failure of the Customer to comply with applicable laws and regulations.
3. Payment to the Customer
3.1 Hubsta will pay Customer the Charging Fee. Hubsta shall pay the Customer the Charging Fee by direct bank transfer to the Customer’s nominated bank account. Charging Fees will be processed by Hubsta and paid to the Customer monthly in arrears for Charging Fees received in the previous month.
4.1 Network subscription will be automatically renewed annually. Please contact us to terminate the agreement by email: firstname.lastname@example.org
5.1 Hubsta is not responsible for remittance of any taxes on behalf of the Customer and the Customer shall report and remit any and all applicable taxes. Where Hubsta is required by law to collect and/or remit the taxes for which Customer is responsible, the appropriate amount shall be deducted from the Charging Fees, unless the Customer has otherwise provided Hubsta with a valid tax or regulatory exemption certificate or authorisation from the appropriate taxing or regulatory authority.
6.1 Upon the reasonable request of the Customer to Hubsta, Hubsta will provide details of how the Charging Fees and the Tariff Admin Fees have been calculated, with supporting evidence including a breakdown of the transactions at each Charger per day. The Customer and its employees, agents and auditors may inspect financial records of Hubsta in order to verify the monthly reports and Hubsta shall provide any party exercising such rights with all such reasonable assistance and access as is reasonably required, subject to appropriate confidentiality obligations as reasonably required by Hubsta.
7.1 If the Customer disputes any calculation of the Charging Fees or the Tariff Admin Fees Hubsta and the Customer shall provide each other with such information in their possession and control relevant to the calculation of the Charging Fees or the Tariff Admin Fees to substantiate their position and shall meet in good faith no later than thirty (30) days from the date of which the Customer sends notice of the disputed Charging Fees or Tariff Admin Fees. Where the Customer and Hubsta fail to agree on the correct Charging Fees or Tariff Admin Fees due in any month or months, the parties may appoint an independent adjudicator to evaluate the evidence and to conclude the correct amounts and such evaluation shall be final and binding on the parties.