Contact Info
2600 Technology Drive, Suite 100
Plano, Texas, 75074
United States
Noodoe App
This hardware sales, software license and service agreement (hereafter referred to as “Agreement”) is made by and between Noodoe Inc. (hereafter referred to as “NOODOE”), a Texas Corporation with its place of business at 7700 San Felipe St., Suite 310, Houston, TX 77063, U.S.A., and XXX Inc. (hereafter referred to as “Buyer”), a California corporation with its place of business at XXXXXX, U.S.A. (hereafter collectively referred to as “Parties”).
WHEREAS, NOODOE is a provider of electric vehicle service equipment; and,
WHEREAS, NOODOE is willing to sell NOODOE Electric Vehicle Charging Stations (hereafter referred to as the “Charging Stations”), licenses software, and provide services, to Buyer; and,
Buyer is willing to buy Charging Stations, license software, and purchase services, from NOODOE.
NOW, Therefore, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
NOODOE shall sell to Buyer, and Buyer shall purchase from NOODOE, Charging Stations, Noodoe EV software and services in United States of America (U.S.A.).
Unless otherwise agreed upon between the Parties, all shipping will be FOB shipping point. Buyer shall be fully responsible for all shipping, transportation, insurance, warehousing, and other costs and fees associated with the delivery of the Charging Stations. The Charging Station prices do not include any shipping, freight, storage, insurance, taxes, excises, fees, duties, or other government charges related to the goods. All shipping dates are approximations and are based upon the timely and accurate receipt of all necessary information from Buyer. NOODOE shall not be liable for any costs related to delay in delivery of the Charging Stations. Pursuant to Section 5.6, Buyer’s sole remedy for any material delay in delivery of the Charging Stations shall be a refund of the purchase price.
NOODOE shall provide, and Buyer must participate in, training sessions for use of Noodoe EV OS. Training topics include, but not limited to the following:
Subject to all of the terms and conditions contained in this agreement, Buyer may initiate a purchase order or sign the Noodoe quotation specifying the number and models of Charging Stations the Buyer wants to purchase.
Pursuant to Section 9.3, any additional printed terms and / or conditions on the Buyer’s purchase order conflicting with, varying, or adding terms and / or conditions to this Agreement will have no force or effect unless the Parties agree in writing, in advance, to accept such terms and / or conditions.
NOODOE has the right, at its sole discretion, to accept or reject any purchase order in 7 days. NOODOE may accept any purchase order by confirming the order (whether by written confirmation, invoice, or otherwise) or by delivering the goods ordered in the purchase order, whichever occurs first. No purchase order is binding on NOODOE unless accepted by NOODOE as specified in this Section.
At its sole discretion, NOODOE may condition its acceptance of a purchase order on credit lines, prepayment terms, Buyer’s prior payment history, the size of the purchase order, or any combination thereof. In the case of any change to the applicable credit lines, prepayment terms, or both, no purchase order or acceptance of the purchase order will be effective unless and until Buyer has consented in writing to any adjustments therein.
The charging stations are designed to work with NOODOE’s cloud based EVOS. Access to NOODOE EVOS requires Buyer to enter into a Master Services and Subscription Agreement.
Buyer shall be responsible for arranging for installation and commissioning of the charging stations and all costs incurred. NOODOE may assist in providing a list of certified NOODOE installers that Buyer may contract with for installation. NOODOE makes no representation or warranty of accepts liability in respect to qualify of installation services unless specific services or contracted between NOODOE and Buyer.
Unless otherwise agreed to in writing by the Parties, NOODOE will issue an invoice to Buyer prior to the scheduled delivery date. If Buyer disputes an invoice, Buyer must notify NOODOE in writing within 21 days of the invoice date of the disputed invoice.
All invoices issued by NOODOE must be paid before NOODOE will ship the Charging Stations or deliver the Noodoe EV software and/or services. Buyer must pay to NOODOE a 30% deposit of the total purchase order amount within 7 days of NOODOE’s acceptance of Buyer’s purchase order. Invoices not paid when due are subject to the lesser of, either interest at the rate of one and one-half percent (1.5%) per month or the highest rate allowed under applicable law.
Invoiced amounts are not subject to reduction by set-off or otherwise without the express written permission of NOODOE. All sales are final, and Buyer will have no right of return, provided that NOODOE complies with its obligations under the Warranty (as defined below in Article 5).
In the event of non-payment of invoices issued by NOODOE, Buyer shall pay all costs of collection. In addition to any other right or remedy provided by law, if Buyer fails to pay the invoices when due, NOODOE may treat such failure to pay as a material breach of this Agreement and may terminate this Agreement and seek legal remedies.
NOODOE may require Buyer to complete a business credit application supplied by NOODOE, dependent on the size of the Initial Order request prior to the execution of a purchase order between the parties.
All applicable taxes pursuant to the transactions under this Agreement, including but not limited to sales and use taxes, shall be collected by NOODOE and paid to the appropriate taxing authority.
The Charging Stations contemplated in this Agreement are designed to work with credit card processing services of a 3rd Party Payment Processor (Payment Processor). Buyer agrees that it must open an account with this Payment Processor and enter into a Master Services and Subscription Agreement with Payment Processor to process all customer credit card transactions.
Each customer credit card transaction at a NOODOE Charging Station will be processed by Payment Processor and incur a service fee as set forth in the Master Services and Subscription Agreement between the Buyer and Payment Processor/NOODOE.
NOODOE will transfer funds due to Buyer’s Payment Processor account by the 5th day of each month, or by end of each quarter if Buyer does not open Payment Processor account with payment methods accepted by both parties.
If a credit card reader is added to the charger, service fees stipulated by the credit card reader supplier and transaction processor may apply.
NOODOE products are warranted against manufacturing defects in materials or workmanship for a period of TWO (2) YEARS, PARTS ONLY.
5.1.1 The limited warranty shall be applicable only on products that have been installed, operated, and maintained according to the instructions furnished with the product(s).
5.1.2 Replacement parts are warranted against manufacturing defects for the remaining portion of the original product warranty or for NINETY (90) DAYS, whichever is longer. All replaced parts are the property of NOODOE and must be returned to NOODOE upon termination of this Agreement.
NOODOE is not responsible for damages resulting from any breach of warranty including but not limited to loss of use, loss of revenue, and loss of anticipated profits.
Buyer may purchase optional extensions of the Warranty. Pricing for the Warranty extension is set forth in Appendix B.
THE WARRANTY SET FORTH IN THIS ARTICLE 5 IS SUBJECT TO CERTAIN EXCLUSIONS MORE FULLY SET FORTH IN THE WARRANTY. BUYER HAS BEEN INFORMED AND UNDERSTANDS THAT, IN THE EVENT ANY SUCH EXCLUSION BECOMES APPLICABLE, ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THESE TERMS SHALL IMMEDIATELY BECOME NULL AND VOID. WARRANTY EXCLUSIONS MAY INCLUDE AND NOT BE LIMITED TO THE FOLLOWING:
5.4.7 Damage occurred in transit.
EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 5, NOODOE MAKES NO WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE CHARGING STATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOODOE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS BY THE CHARGING STATIONS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NOODOE DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE CHARGING STATIONS.
IN NO EVENT WILL:
(1) NOODOE BE LIABLE TO BUYER OR ANY THIRD PARTY 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 NOODOE, BUYER, OR ANY THIRD PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
(2) NOODOE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE TO NOODOE FOR THE CHARGING STATIONS.
BUYER’S SOLE REMEDY FOR ANY BREACH BY NOODOE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL BE LIMITED TO, AT NOODOE’S OPTION, REPAIR OR REPLACEMENT OF THOSE CHARGING STATIONS TO WHICH SUCH BREACH IS APPLICABLE, OR REFUND BY NOODOE OF ALL OR A PART OF THE PURCHASE PRICE OF THE NON-CONFORMING CHARGING STATIONS.
NOODOE will provide product liability insurance for the Charging Stations.
Buyer is not permitted to:
(1) create derivative works based on the Charging Stations;
(2) copy, frame, or mirror any part or content of the Charging Stations;
(3) reverse engineer any Charging Stations; or
(4) access the Charging Stations for any improper purpose whatsoever, including, without limitation, in order to build a competitive product or service, or copy any features, functions, interface, graphics, or “look and feel” of the Charging Stations.
All rights, titles, and interests in and to any Intellectual Property related in any way to the Charging Stations is, and will remain, the exclusive property of NOODOE. For these purposes, the term “Intellectual Property” shall mean all of a party’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, service marks and other brand identifiers, network configurations and architectures, proprietary information, protocols, schematics, specifications, software (in any form, including source code and executable code), techniques, interfaces, URLs, web sites, works of authorship, 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 this Agreement.
All notices, requests, demands, or other communications (hereafter referred collectively as “Notices”) will be given by writing, via personal delivery, registered mail, fax, or email. Except as otherwise provided in this Agreement, Notices are effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Article 8. Any Notices will be sent to the party at the respective contact information below or to such other person and contact information as the party to receive the notice designates:
(1) If to NOODOE:
Jennifer Chang
NOODOE INC.
7700 San Felipe, Suite 310,
Houston, TX 77063
(1) If to NOODOE:
Name:
Title:
Buyer Name:
Buyer’s Address:
Phone:
Email:
All notices, requests, demands, or other communications (hereafter referred collectively as “Notices”) will be given by writing, via personal delivery, registered mail, fax, or email. Except as otherwise provided in this Agreement, Notices are effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Article 8. Any Notices will be sent to the party at the respective contact information below or to such other person and contact information as the party to receive the notice designates:
In the event any litigation arises from this Agreement, the prevailing party will have the right to collect from the other party reasonable attorneys’ fees incurred in enforcing this Agreement.
This Agreement will become effective when all parties have signed it. The effective date of this Agreement will be the date of the last signature on this Agreement as indicated by the date associated with that last party’s signature.
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 cannot be modified unless done so in a writing signed by an authorized representative of each party.
The terms of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any general terms and conditions contained in any purchase order or other document issued by Buyer. In the event of any conflict between the terms of this Agreement and the terms of any purchase order or any other document issued by Buyer, the terms of this Agreement will prevail.
In the event that any provision of this Agreement shall be found to be invalid or unenforceable for any reason, such provision shall be modified or interpreted in such a manner as to make this Agreement, as modified, legal and enforceable under applicable laws, while best accomplishing the objectives of such provision.
Buyer may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without NOODOE’s prior written consent. Any purported assignment or delegation in violation of this Section 9.5 will be null and void. No assignment or delegation shall relieve Buyer of any of its obligations under this Agreement.
Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of such party.
The captions of the various paragraphs and subparagraphs of this Agreement and on any attachments or exhibits hereto are for convenience of reference only and shall not affect the meaning or construction of any provision of this Agreement or of any such attachments or exhibits.
This Agreement may be executed in counterparts and authentic signatures to this Agreement transmitted by electronic means shall be deemed to be original signatures for all purposes.
Either party may terminate this Agreement effective immediately by notice in writing without liability except for that listed in this section. Additionally, as set forth in Section 2.1(2), this Agreement will be automatically terminated if Buyer does not make its first order within three months of the execution of this Agreement.
In the event of termination of this Agreement for any reason, unless otherwise directed by the other party, Buyer shall cease use of NOODOE’s intellectual property and each party shall return or destroy all confidential information of the other party and certify such return or destruction if requested to do so by the other party.
In the event this Agreement is terminated for any reason, Buyer shall be responsible for any and all purchase orders accepted by NOODOE prior to the date of termination and NOODOE shall be responsible for fulfilling any such accepted and outstanding purchase orders.
Each party is signing this Agreement on the date stated opposite that party’s signature:
NOODOE INC.
Date: ____________________
By: ______________________________
Jennifer Chang
CEO
And
XXX Inc.
Date: ____________________
By: ______________________________
Name
Title
The product is warranted by Noodoe against manufacturing defects in materials or workmanship for the limited warranty period of:
Two (2) years parts only
This limited warranty is valid only on products that have been installed, operated, and maintained according to the instructions furnished with the product.
Replacement parts are warranted for the remaining portion of the original products warranty or ninety (90) days, whichever is longer. All replaced parts are the property of Noodoe and must be returned to Noodoe.
This limited warranty covers manufacturing defects in materials or workmanship encountered in normal use of this product and shall not cover the following:
The cost of parts replacement under these excluded circumstances shall be the customer’s responsibility.
The statements above are only applicable in the United States.