General Terms – CloudCharge
These Terms were updated on Oct 1, 2023.
1 GENERAL
1.1
CloudCharge is a cloud-based platform providing services for the management and administration of charging electrical vehicles at public and private charge points, including facilitation of payment. The services may include, but are not limited to, web sites and applications, mobile applications, and application interfaces, operated by CloudCharge under its own brand and/or its partners’ brand (the “Service”). CloudCharge and the Service are developed, owned and provided by CLOUDCHARGE AB, a company registered with organization number 559432-5507 (“CLOUDCHARGE”, “we” or “us”).
1.2
These General Terms for CloudCharge (“these Terms”) form an integral part of the agreement with the Customer (the “Agreement”) and are applicable to the Customer’s (the “Customer” or “you”) access to and use of the Service.
1.3
CLOUDCHARGE and the Customer are hereafter also referred to individually as a “Party” and collectively as the “Parties”.
1.4
The scope of the Service (the number of outlets and any additional services) is presented together with other subscription and fee details in CloudCharge.
2 ACCESS TO AND USE OF THE SERVICE
2.1
The Customer is given a non-transferable, non- exclusive and revocable access to the Service. The Service shall be used by the Customer solely for its intended purposes and for the direct benefit of the Customer’s operations, in accordance with these Terms.
2.2
The Service is dependent on access to the equipment necessary for internet connection, which is under the responsibility of the Customer.
2.3
CLOUDCHARGE shall use its best efforts to provide availability to the Service 24/7/365. CLOUDCHARGE does not guarantee a continuous availability to the Service without any interruptions since the availability might be disturbed or affected by factors outside CLOUDCHARGE’s control. Furthermore, CLOUDCHARGE has the right to temporarily limit the availability to the Service due to maintenance and shall endeavor to perform such maintenance when causing the least interruption of the Service for the Customer.
2.4
The Customer shall not directly or indirectly copy, decompile, disassemble, decrypt, alter, reverse engineer or use any other means to attempt to discover any source code, underlying ideas, techniques of the Service. The Customer shall not use the Service in any way which could lead to the risk the occurrence of viruses, Trojans or other forms of code or any other technology that may harm the Service, or the interests or property of the Service or other users of the Service.
2.5
If CLOUDCHARGE has reasons to suspect that the Customer’s use of the Service is causing damage or harm to the Service, us or other customers, CLOUDCHARGE reserves the right to suspend or limit the Customer’s access to the Service. This may include, but not exclusively, suspicion of use of the Service for other than intended purposes of if unauthorized users have been given access to the Service.
3 USER ACCOUNTS AND USERS
3.1
The Service is accessed and used via accounts. The Customer’s main user account shall be created in the on-boarding process (the “Owner Account”). Additional user accounts (the “User Accounts”) for the Customer’s employees or other related persons (the “Users”) can be created in the on-boarding process or later on. Owner Account and User Accounts are jointly referred to as the “Customer Accounts”. (End-users of your charging stations are able to create individual end-user accounts in CloudCharge to be able to charge and pay.)
3.2
The Customer is responsible for (i) keeping all login details to the Customer Accounts secure and not disclosing such login details to any third party, (ii) all activities on the Customer Accounts undertaken with the Customer’s log in details, (iii) informing its Users of these Terms and ensure compliance by its Users, and (iii) any breach of these Terms by itself and/or its Users.
3.3
CLOUDCHARGE is not responsible for any damage or loss caused by any unauthorized use of the Customer Accounts. The Customer shall notify CLOUDCHARGE immediately of any unauthorized use of the Customer’s login details or any other known or suspected breach of security and immediate take all other actions needed to prevent misuse. The Customer shall hold CLOUDCHARGE harmless for any claims against CLOUDCHARGE due to the Customer’s and its Users’ use of the Service.
4 PAYMENT METHODS FOR CHARGING
4.1
In the registration process, the Customer shall elect available payment methods for charging (e.g. card, invoice or other digital payment), if applicable. The payment methods are provided by the payment method provider and the Customer shall enter into a separate agreement regarding elected payment methods with such payment method provider (the “Third Party Agreement”). CLOUDCHARGE is not a party to Third Party Agreement and assumes no liability for any services related to payment for charging or for the Third Party Agreement.
4.2
The Customer is liable for paying any fees for elected payment method directly to the payment method provider, in accordance with the Third Party Agreement.
5 SUB SUPPLIERS
5.1
CLOUDCHARGE may engage sub suppliers for the provision of the Service or parts thereof. CLOUDCHARGE shall be liable for the performance of its sub suppliers as if it was CLOUDCHARGE’s own performance.
6 SUPPORT AND RESPONSIBILITIES
6.1
The Customer is responsible for:
6.1.1
The charging service you offer the end- users, which includes support to end- users regarding your settings of your Charge system(s) in CloudCharge. This includes, but is not limited to charging prices, payment options, refunds, access to chargers, and potential limitations in charging capacity or charging time.
6.1.2
basic fault troubleshooting and basic fault resolvent by restart or user guidance of the charging points, as well as determining the need for physical onsite service by a technician.
6.2
CLOUDCHARGE is responsible for:
6.2.1
support to the Customer for the Customer’s use of the Service. Applicable and updated information about contact and support hours is at all time found at cloudcharge.tech/support.
6.2.2
providing support in accordance with the standards of skill and care reasonably expected from a leading service provider in CLOUDCHARGE’s industry, on an “as is” and “as available” basis.
6.3
If the Customer requests custom development and/or support services from CLOUDCHARGE beyond what is included in these Terms, CLOUDCHARGE will upon such request make an estimate of time, material and price in a quote, which shall be subject to approval by the Customer.
7 MODIFICATIONS OF THE SERVICE
7.1
CLOUDCHARGE shall be entitled to make changes to the Service as part of its continuous development without further notice. This may include new or changed functionalities, changes to the user interface of the Service. CLOUDCHARGE may also elect to release new functionalities as separate services that will be in additional services, or only applicable to specific customers or groups of users, and which may be subject to separate agreements or fees.
7.2
CLOUDCHARGE and the Customer may agree on customisations of the Service, without or with connection to third party service. Any such customisation, including maintenance and implementation of such customisation, shall be subject to one or more separate agreements between the Customer and CLOUDCHARGE (or a partner to CLOUDCHARGE).
7.3
CLOUDCHARGE shall make reasonable efforts to ensure the continued compatibility of the Service with any such customisation. CLOUDCHARGE shall however not be liable for the continued compatibility of such customisations with the Service, and any changes to the Service or customisations necessitated by changes to the Service shall be at the risk and cost of the Customer.
8 FEES FOR THE SERVICE AND PAYMENT TO CLOUDCHARGE
8.1
The fees include 1) a subscription fee and 2) potential fee for any additional features or services or transaction fees. The fees are subject to changes in case of adjustments of the scope of the Service (e.g. change of the number of outlets and/or additional services etc.). The applicable fees for the Service are presented in the user interface prior to signing up for the Service in CloudCharge.
8.2
All fees stated in or in relation to this Agreement are, unless otherwise stated, exclusive of any applicable value added taxes.
8.3
CLOUDCHARGE may adjust the fees once per year by giving three (3) months notice to the Customer in advance.
8.4
The fee shall be paid to CLOUDCHARGE by the Customer in accordance with the chosen billing period, or in connection with adjustment of the scope of the Service. The invoice shall be paid within 30 days from the invoice date. Interest on overdue payment shall accrue to the applicable statutory interest rate for late payments (Swe. Räntelagen) annually from the invoice date until the invoice is paid in full. Further in case of late payment, the Supplier is entitled to payment fee in accordance with applicable legislation.
9 INTELLECTUAL PROPERTY RIGHTS
9.1
CLOUDCHARGE owns all rights, including intellectual property rights, to CloudCharge and the Service, including but not limited to patents, copyrights, design rights, know-how and trademarks, and nothing in these Terms shall be interpreted as any transfer of such rights, or part of such rights, to the Customer.
9.2
All intellectual property rights and other rights which CLOUDCHARGE, alone or in cooperation with the Customer or third party, is creating in relation to the Customer’s use of the Service (e.g. changes or adjustments specific for the Customer’s needs) shall accrue to CLOUDCHARGE with full ownership and right of use without any restrictions.
10 CONFIDENTIALITY
10.1
“Confidential Information” shall mean any information and material in whatever form disclosed by a Party to the other Party that is either marked as confidential, or that should reasonably be understood to be confidential by its nature or circumstances in which the information or material is disclosed.
10.2
Each Party shall keep in confidence all Confidential Information and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of the Agreement.
10.3
The confidentiality obligation shall not be applied to any material or information: (a) which is generally available or otherwise public other than by a breach of the Agreement on the part of the receiving Party; or (b) which the Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or (d) which a Party has developed independently without using material or information received from the other Party.
10.4
Notwithstanding the foregoing either Party shall be entitled to disclose Confidential Information, where such disclosure is required pursuant to law, decree or order issued by competent authorities, or juridical order.
11 PERSONAL DATA
11.1
For providing the Service: CLOUDCHARGE is data controller for the processing of personal data necessary to provide the Service, including processing of personal data when creating the Customer Accounts and providing support to you. More information about CLOUDCHARGE’s processing of personal data as data controller is found in the CloudCharge Privacy Policy.
11.2
For providing charging to end-users: CLOUDCHARGE is collecting charging data such as identity of the end-user, relevant charge point, amount of kWh’s used when charging and date, time and cost for charging.
- CLOUDCHARGE is data controller for the processing of such personal data stored on relevant end-user account in CloudCharge.
- CLOUDCHARGE is data processor and the Customer is data controller for the processing of such personal data when stored on the Customer Accounts. The Customer is using this data primarily to charge payment from the end-user. A Data Processing Agreement is attached as Annex A to these Terms.
12 TERM AND TERMINATION
12.1
The Agreement shall come into force when these Terms are accepted by the Customer and shall continue in force until terminated. Either Party may terminate this Agreement for convenience with three (3) months’ prior written notice.
12.2
Either Party shall have the right to terminate this Agreement immediately by a written notice to the other Party in any of the following events:
a) if the other Party becomes insolvent, has a receiver appointed or distraint levied upon its assets or if an order is made or a resolution passed for winding-up or liquidation of the other Party;
b) if there is any major change in the other Party’s control, management, legal structure or financial position which would be detrimental to the terminating Party’s business interests;
c) if the other Party is in material breach of this Agreement and fails to remedy such breach or default to the satisfaction of the requesting Party within thirty (30) days of receipt of written notice from the requesting Party; or
d) if any other justifiable reason for immediate termination exists under applicable law.
12.3
The Customer shall have the right early termination of the Agreement by a written notice to CLOUDCHARGE if the Customer does not accept (i) adjustment of the fees (Section 8.3), or (ii) changes to these Terms (Section 15.1). Such early termination shall be made available to CLOUDCHARGE within four (4) weeks from CLOUDCHARGE’s notice of (i) adjustment of the fees, or (ii) changes to these Terms.
12.4
In case of termination by the Customer under Section 12.1 or 12.3, or by CLOUDCHARGE under Section 12.2, the Customer shall not be entitled to refund of any prepaid fees.
12.5
The rights and obligations under Sections 9 (Intellectual Property Rights), 10 (Confidentiality), 17 (Applicable law and dispute resolution) shall survive the termination of the Agreement.
13 LIMITATION OF LIABILITY
13.1
Neither Party shall be liable under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (i) loss of profits; (ii) loss of sales; (iii) loss of turnover; (iv) loss of or damage to business or reputation; (v) loss of contracts or customers; (vi) loss of any software or data; (vii) wasted management or other staff time; (viii) losses or liabilities under or in relation to any other contract; or (ix) any indirect, punitive, special or consequential loss or damage.
13.2
Each Party’s total liability arising from or in connection with this Agreement will be limited to the amount paid or payable for the Service during the last three (3) months prior the cause for the claim has arisen.
13.3
Notwithstanding what is stated here above in this Section 13 nothing in this Agreement excludes either Party’s liability for death or personal injury resulting from negligence or fraud, to pay sums properly due and owing to the other Party in the course of normal performance of this Agreement, breach of confidentiality, breach of non-competition, breach of intellectual property rights of the other Party, damages caused by willful misconduct or gross negligence or for any liability which cannot be excluded or limited under any mandatory applicable law.
13.4
CloudCharge and the Service are provided on an “as is” and “as available” basis. Except as expressly set out in this Agreement, CLOUDCHARGE expressly disclaims and excludes all representations, conditions, warranties or guarantees, express or implied, statutory or otherwise, oral or written, with respect to this Agreement, CloudCharge and the Service.
14 FORCE MAJEURE
14.1
“Force Majeure Event” means any failure by a Party to perform its obligations under this Agreement caused by an impediment beyond its control, which it could not have taken into account at the time of conclusion of the Agreement, and the consequences of which it could not reasonably have been avoided or overcome. Such impediments may include, but are not limited to, acts of government in its sovereign or contractual capacity, fires, floods, extreme weather, epidemics, quarantine restrictions, strikes, lock-outs and industrial disputes, riots, acts of terror or specific threats of terrorist activity, shortage of transportation or energy.
14.2
Save for the obligation to pay money properly due and owing, neither Party shall be liable for any non- performance caused by a Force Majeure Event.
15 CHANGES TO THESE TERMS
15.1
CLOUDCHARGE reserves the right in its sole discretion, to modify, update, or otherwise revise these Terms at any time. We will notify you of any changes to these Terms by e-mail at least two (2) months in advance.
16 ASSIGNMENT AND TRANSFER
16.1
CLOUDCHARGE has the right to assign this Agreement and any of its rights and obligations hereunder to a third party. The Customer is entitled to assign this Agreement and any of its rights and obligations hereunder to its solvent affiliated company upon CLOUDCHARGE’s prior written consent.
17 APPLICABLE LAW AND DISPUTE RESOLUTION
17.1
This Agreement is interpreted, construed and governed exclusively in accordance with the laws of Sweden, without reference to its choice of law rules.
17.2
The Parties shall primarily attempt to resolve any dispute, controversy or claim under or in relation to this Agreement through amicable negotiations.
17.3
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be resolved in the district court of Stockholm.
Annex A – General Terms – CloudCharge
DATA PROCESSING AGREEMENT
This data processing agreement (“DPA”) is entered between:
– the Customer as Data Controller, and
– CLOUDCHARGE as Data Processor
Background
The parties have entered into an agreement regarding the Customer’s access to and use of the CloudCharge and services available on CloudCharge, (the “Agreement”) under which CLOUDCHARGE will process the Customer’s Personal Data on the Customer’s behalf (“Personal Data). If terms concerning processing of Personal Data of the DPA and the Agreement are in conflict, the terms of this DPA shall prevail.
Definitions
Terms used but not defined herein, such as ”processing”, ”data subject”, ”personal data breach” and ”supervisory authority”, shall have the same meanings as in the EU General Data Protection Regulation (679/2016) (“GDPR”), and their cognate terms shall be construed accordingly.
Processing
The parties undertake to fulfil its obligations under the GDPR and any laws implementing or supplementing the GDPR (“Applicable Laws”).
CLOUDCHARGE shall only process the Personal Data in accordance with appendix 1 and/or the written instructions of the Customer.
CLOUDCHARGE shall, without undue delay, notify the Customer if any conflict with Applicable Laws is detected in the instructions or in the event that CLOUDCHARGE, in its opinion, lacks the necessary instructions in order to fulfil this DPA.
Security and confidentiality
CLOUDCHARGE shall implement and maintain the appropriate technical and organisational measures in accordance with article 32 of the GDPR.
CLOUDCHARGE shall ensure that everyone with authorization to process Personal Data abides by the appropriate non-disclosure commitments.
Personal Data Breaches
CLOUDCHARGE shall without undue delay (if possible, no later than 24 hours) notify the Customer upon receiving information of a personal data breach affecting Personal Data.
CLOUDCHARGE shall provide the Customer with the information necessary for the Customer to fulfil its obligations according to article 33–34 of the GDPR.
Data Protection Impact Assessments and Prior Consultations
CLOUDCHARGE shall, upon the Customer’s request, help the Customer in its performance of data protection impact assessments and prior consultations with supervisory authorities in accordance with article 35–36 of the GDPR.
Requests from Data Subjects
CLOUDCHARGE shall, upon receipt of a request from a data subject, supervisory authority or other regarding Personal Data, immediately refer the request to the Customer.
Data Subjects’ Rights
CLOUDCHARGE shall, if possible and with regard to the art of the processing, through technical and organisational measures assist the Customer in responding to requests regarding Data Subjects’ rights in accordance with the GDPR.
Sub-processors
CLOUDCHARGE shall have the right to subcontractors for the processing of Personal Data (”Sub-processors”).
CLOUDCHARGE shall enter into written data processing agreements with its Sub-processors that ensure as a minimum the same commitments and obligations with regards to data protection obligation as set out in this DPA.
CLOUDCHARGE shall give notice to the Customer if CLOUDCHARGE intends to engage another sub-processor. The Customer has the right to object to such changes. The Customer shall notify CLOUDCHARGE of such objection within ten (10) days of CLOUDCHARGE’s notice to the Customer. If the Customer does not object, the Customer shall be deemed to having accepted the use of the new Sub- processor. If the Customer’s objection, in CLOUDCHARGE’s opinion, prevents effective provision of CLOUDCHARGE’s services in the Service Agreement, CLOUDCHARGE may terminate the Service Agreement without penalty or liability, with thirty (30) days’ notice.
CLOUDCHARGE is fully liable toward the Customer for the Sub-processor’s actions and any failure by the Sub- processor to adhere to its data protection obligations when processing Personal Data.
A list of Sub-processors deemed approved when this DPA is concluded is attached in appendix 1.
Transfer of Personal Data outside the EU/EEA
CLOUDCHARGE may transfer Personal Data outside the EU/EEA provided that CLOUDCHARGE ensures that the transfer follows Applicable Laws.
If the safeguard for transfer used would be declared invalid or illegal by the European Court of Justice, the European Commission or any other competent EU institution or national court or authority, CLOUDCHARGE shall ensure that the of Personal Data outside the EU/EEA is based on another permitted safeguard under Applicable Laws.
Audit
CLOUDCHARGE shall provide the Customer with access to all information that the Customer needs to verify that CLOUDCHARGE complies with its obligations under this DPA.
CLOUDCHARGE shall enable and contribute to inspections and audits that the Customer, with at least thirty (30) days’ notice conducts itself or through a third party (however not a competitor of CLOUDCHARGE).
The audits may only be conducted at CLOUDCHARGE’s premises during normal office hours. The representatives of the Customer and all others assisting in the audit must sign conventional non-disclosure commitments.
CLOUDCHARGE has the right to invoice the Customer for CLOUDCHARGE’s costs (cost price) associated to the audit, unless the audit reveals a material breach by CLOUDCHARGE of its obligations under this DPA.
Return or deletion
Upon termination of the Agreement, or upon the Customer’s written request, CLOUDCHARGE shall without undue delay (and if possible, at least within thirty (30) days), return to the Customer or, at the choice of the Customer, delete the Personal Data.
Notwithstanding the above obligation, CLOUDCHARGE may retain/process Personal Data if necessary
Limitation of liability
The terms regulating liability in the Agreement shall apply to this DPA.
Compensation
CLOUDCHARGE has the right to invoice the Customer for costs incurred by CLOUDCHARGE when assisting the Customer with data protection impact assessments, prior consultations, requests from data subjects and when deleting and returning Personal Data.
APPENDIX 1 – Data Processing Agreement
Nature and purpose of processing
Processing for the purpose of providing the Service in accordance with the Agreement and in accordance with the Customer’s instructions. CLOUDCHARGE will store Personal Data on behalf of the Customer on CloudCharge. The Personal Data is accessible for the Customer via its Customer Accounts.
Categories of data subjects
- End-users of the Customer, who have charged vehicles at the Customer’s charge points
Categories of Personal Data
- Identity of the end-user (e.g. name and/or telephone number)
- Charging data (charge point, amount of kWh’s and time and date for charging)
- Cost for charging
- Payment status
Retention periods
Processing shall take place during the duration of the Agreement.
Personal Data shall be deleted on a regular basis, after 84 months (7 years).
Sub-processors
- Amazon Web Services EMEA SARL
Data storage of personal data in the European Economic Area