As part of the onboarding process, You are required to choose a particular Customer Plan & Specifications (as defined below), upon agreeing to enter into this Agreement, which shall inter alia provide for the specifications in relation to the Services (as defined below), and the payment terms and conditions, which upon being chosen by You, shall form part and parcel of this Agreement. In the event You do not choose a Customer Plan & Specification, the process of execution of this Agreement shall not be concluded.
You understand that when You accept this Agreement, the Services, Equipment & Device (as defined below) and Honda e:Swap App shall be used, operated by You, as per these agreed terms and conditions.
In case You are not the actual driver of the Electric Vehicle (as defined below) (“Driver”), irrespective of nature of Driver’s employment with You, it is your obligation to ensure that the Driver of the Electric Vehicle is made aware of the terms and conditions under this Agreement and Driver agrees to strictly comply with the same at all times. All obligations under this Agreement shall, mutatis mutandis, apply to the Driver in possession of the Electric Vehicle and Equipment & Device, and You shall remain responsible for ensuring the same. Any failure from the Driver to comply with the terms and conditions of this Agreement and/or in an event of default of any of the obligations, you shall be held vicariously liable under this Agreement. In an event where the Customer has engaged any Driver, then details of such Driver should be notified well in advance to the Service Provider, in writing; and in any event before the Driver operates the Electric Vehicle, along with the Equipment & Device.
If You permit the Electric Vehicle to be used / license the use of the Electric Vehicle to any other person (“User”), it is your obligation to ensure that the User of the Electric Vehicle is made aware of the terms and conditions stated under this Agreement and User agrees to comply with the same. All obligations under this Agreement shall apply to the User who is in possession of the Electric Vehicle, and Equipment & Device. Any failure by the User while complying with the terms and conditions of this Agreement and/or default of any of its obligations, You shall be held vicariously liable under this Agreement. Details of the User should be intimated well in advance to the Service Provider, in writing.
This Agreement is an electronic record issued under the Information Technology Act, 2000 and the Rules made thereunder. This electronic record is generated by a computer system and does not require any physical or digital signatures.
The Service Provider and Customer may, hereinafter for the sake of brevity and convenience be individually referred to as a “Party” and collectively referred to as the “Parties”.
A. The Service Provider is engaged in inter alia, the business of offering the Services, by providing access to Battery (as defined hereinafter), battery chargers, and access to Battery Swapping Stations (as defined hereinafter) and establishing ancillary infrastructure thereto in India (“Business”).
B. The Customer owns / operates (either by himself or through the Drivers) / has agreed to take on lease rental basis one or more electric vehicle(s) (“EV” or “Electric Vehicle”) which is energised through a Battery that is required to be charged / swapped when discharged.
C. Subject to the provisions of this Agreement, the Customer has the right to operate the EVs through its employees or other third parties, including the Drivers / Users.
D. The Customer intends to access the Battery Swapping Stations for exchanging the discharged Batteries of the EV at the Battery Swapping Station and the Service Provider has agreed to grant the access of Battery Swapping Stations to the Customer for swapping of the discharged Batteries with charged batteries, and avail all Services that are incidental or ancillary thereto, provided under this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, covenants, representations, and warranties set forth herein and in good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
In the Agreement, unless inconsistent with or otherwise indicated by the context, (i) capitalised terms defined by inclusion in quotations and/ or parenthesis have the meanings so ascribed; and (ii) the following terms shall have the meanings assigned to them herein below:
“Activation Date” shall mean the date of activation of Services under the Agreement and the relevant Customer Plan and Specifications;
“Affected Party” shall have the meaning ascribed to it under Clause 20.1;
“Applicable Law” shall mean and include all applicable laws, statutes, enactments, acts of the state legislature or parliament, by-laws, rules, regulations, orders, ordinances, protocols, codes, guidelines, policies, notices, directions, judgments, decrees or other requirements or official directive of any Governmental Authority or Person acting under the authority of any Governmental Authority which are applicable to the respective Parties;
“Honda e:Swap App” shall mean the mobile application owned and / or developed by the Service Provider , for providing the Services;
“Battery” means the battery used for powering EVs used by the Customer and also includes discharged Battery that can be swapped with a fully charged battery at the Battery Swapping Stations;
“Battery Swapping Station(s)” means the designated area within the battery swapping infrastructure owned and/ or developed by the Service Provider or otherwise operated by a third party within the Territory and recognised by Service Provider, wherein battery chargers or other charging devices, related applications, portal, equipment for swapping the discharged Battery with a charged Battery and other infrastructure / facilities for providing Services are set up;
“Confidential Information” means without limitation (a) any information related to the Services and Honda e:Swap App, including pricing and any all information relating to the Equipment & Device; (b) trade secrets and other proprietary rights of the Parties; (c) any business, marketing, technical, scientific or other information disclosed by any Party to the other Party or Parties, orally or in writing (whatever the form or storage medium) in connection with the subject matter of this Agreement; and (d) the terms and conditions of this Agreement and the existence of any discussions between the Parties.
“Customer Plan & Specifications” shall mean the specific Services plan as chosen by the Customer, through Honda e:Swap App, which shall set out details of inter alia, the details of Equipment & Device availed by the Customer as part of the Services and consideration payable for such Services.
“Customer Representative” means such Person, the details of whom, including name, telephone number and other contact details as may be provided by the Customer to the Service Provider, at the time of entering into this Agreement, and who may be contacted by the Service Provider in case the Customer cannot be reached / contacted for any reason, during the Term.
"Damage" means any kind of external or internal harm, loss, destruction that impairs the value, usefulness, or normal functioning of Equipment and Device, other than normal wear and tear due to normal use;
“Defect” shall have the meaning ascribed to it under Clause 8.2;
“Defect Notice” shall have the meaning ascribed to it under Clause 8.2;
“Defective Battery” shall have the meaning ascribed to it under Clause 8.2;
“Dispute” shall have the meaning ascribed to it under Clause 24.1”;
“Dispute Notice” shall have the meaning ascribed to it under Clause 24.1;
“Emergent Battery Delivery Services” shall mean delivery of fully charged batteries to the Customer by the Service Provider (through itself or through any of its Affiliates or designees), in the event of breakdown or discharge of Battery due to reasons not attributable to the negligence or default by Customer, and also includes any other roadside Battery assistance for availing the Services as maybe provided by the Service Provider from time to time;
“Equipment & Device” shall mean the Battery, battery charger, the Member card and any other equipment as may be used or provided by the Service Provider to the Customer, in connection with the Services provided in terms of this Agreement;
“Force Majeure Event” means any event or combination of events or circumstances beyond the reasonable control of a Party which cannot (a) by the exercise of reasonable diligence, or (b) despite the adoption of reasonable precaution and / or measures be prevented, or caused to be prevented, and which materially impairs or otherwise renders impracticable such Party's ability to perform its obligations under this Agreement including, but without limitation: (i) acts of God, not limited to fire, drought, flood, earthquake, lockdown, pandemic / epidemics, and other natural disasters; (ii) acts of war, riots, terrorism, explosions, or accidents, lock-outs, interference by military / civil authorities; (iii) labour unrest or strikes or civil unrest that affect the industry as a whole or the relevant sector in which the Service Provider operates, generally; and (iv) any change in Applicable Law.
“Governmental Authority” means any governmental or statutory authority, government department, agency, commission, board, tribunal or court or other entity authorized to make laws, rules or regulations or pass directions having or purporting to have jurisdiction or any state or other subdivision thereof or any municipality, district or other subdivision thereof having jurisdiction pursuant to the Applicable Law;
“Indemnified Parties” shall have the meaning ascribed to it under Clause 18.1;
“Intellectual Property Rights” shall mean and include all trademarks, service marks, logos, get-up, trade names, internet domain names, patent rights, rights in designs, copyright (including rights in computer software) and moral rights, database rights, utility models, rights in know-how, trade secrets and other intellectual property rights and proprietary data, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world which are held or beneficially owned by each Party;
“Member card” shall mean the identification badge or card provided by the Service Provider through the OEM to the Customer;
“OEM” means the manufacturer of the EV used by the Customer in connection with the Services;
“Payment Period” shall have the meaning ascribed to it under Clause 9.3;
“Person” means, as appropriate and/or as applicable, an individual, sole proprietorship, a partnership, a corporation, a limited liability partnership, a limited liability company, an association (including an unincorporated association), a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Authority;
“Personal Information and Data” shall have the meaning ascribed to it under Clause 17.1;
“Security deposit” shall have the meaning ascribed to it under Clause 6.1;
“Services” as the meaning ascribed to such term in Clause 5.1;
“Service Fee” shall have the meaning ascribed to it under Clause 9.1;
“Term” shall have the meaning ascribed to it under Clause 4.1; and
“Territory” shall mean the territory as may be specified to each Customer under the Customer’s Customer Plan & Specifications.
2.1 In this Agreement, any reference to any statute or statutory provision shall include:
2.1.1 all subordinate legislation made from time to time under that provision (whether or not amended, modified, re-enacted, or consolidated); and
2.1.2 such provision as from time to time amended, modified, re-enacted or consolidated (whether before or after the Activation Date) and (to the extent liability thereunder may exist or can arise) shall include any past statutory provision (as from time to time amended, modified, re-enacted, or consolidated) which the provision referred to has directly or indirectly replaced.
2.2 Any reference to the singular shall include the plural and vice-versa.
2.3 Any references to the masculine, the feminine, and the neuter shall include each other.
2.4 Any references to a “company” shall include a body corporate.
2.5 The recitals, Schedules and Customer Plan & Specifications (and updates, additional terms, and all the rules and policies of the Service Provider) form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include references to the above mentioned documents. Any references to Clauses and Schedules are to Clauses of, and Schedules to this Agreement. Any references to parts or paragraphs are, unless otherwise stated, references to parts or paragraphs of the Schedules or Clauses in which the reference appears.
2.6 References to this Agreement or any other document shall be construed as references to this Agreement or that other document as amended, varied, novated, supplemented, or replaced from time to time.
2.7 The expression “this Clause” shall, unless followed by a reference to a specific provision, be deemed to refer to the whole Clause (not merely the sub-Clause, paragraph, or other provision) in which the expression occurs.
2.8 Headings, subheadings, titles, subtitles to clauses, sub-clauses, parts, and paragraphs of and Schedules are for convenience only and do not affect the interpretation of this Agreement.
2.9 References to days, months, and years are to calendar days, calendar months, and calendar years, respectively.
2.10 The words “include” and “including” are to be construed without limitation.
2.11 No provisions shall be interpreted in favour of, or against, any Party by reason of the extent to which such Party, either by itself or through its advisors / representatives, participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.
2.12 A Party being liable to another party, or to liability, includes, but is not limited to, any liability in equity, contract, or tort (including negligence).
2.13 The rule known as the ejusdem generis rule shall not apply and accordingly general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters, or things.
2.14 If there is any conflict or inconsistency between a term in the body of this Agreement and a term in any of the Schedules or any other document referred to or otherwise incorporated in this Agreement, the term in the body of this Agreement shall take precedence.
2.15 In an event where the Customer is a body corporate / entity, then, all obligations applicable to the Customer under this Agreement shall mutatis mutandis apply to any Users and Drivers, as engaged by the Customer, and the Customer shall be responsible for ensuring the Drivers / Users to comply with the terms of this Agreement; provided that, Customer shall be solely liable for all actions / omissions of the User / Driver. It shall not be a defense that the Customer had permitted a Driver or User to use the EV or avail the Services, and Customer had no control over the actions / omissions of such Driver and / or User, and any such defense is expressly waived.
3.1 The Customer hereby subscribes to the Services, and the Service Provider hereby agrees to provide the Services to the Customer, within the Territory, subject to the terms of this Agreement. The Customer hereby agrees to ensure that the Drivers / Users use the Battery provided by Service Provider at the Battery Swapping Stations, and the Service Provider has, accordingly, granted a limited right to use the Battery for running and operating the Electric Vehicle and swap such Battery, in accordance with the terms of this Agreement within the Territory.
3.2 For the purposes of availing the Services, the Customer is required to complete the following steps: (a) Customer shall download the Honda e:Swap App and apply for membership; (b) Customer shall enter into this Agreement with the Service Provider; (c) Customer shall upload a personal image as proof of identity and register its personal information (as required by Service Provider); (d) Customer shall enter the name and phone number of representatives; (e) Service Provider shall verify and confirm the Customer’s and representative’s identity and other details, within such time period as reasonably required by Service Provider (by sending a SMS message to the registered phone number of Customer and representative for verification purposes, and requiring such persons to authenticate their identity through mobile phone and such other manner as determined by Service Provider); (f) Customer shall choose the appropriate Customer Plan & Specifications, which shall then form a part and parcel of this Agreement; and (g) Customer to pay the Security deposit to Service Provider, and Service Provider shall confirm receipt of payment;. It is hereby clarified that upon successful authentication, Customer registration will be complete, and the Agreement will be activated on the Activation Date, and the terms and conditions of this Agreement will be effective from such date. If the above steps are not completed to the satisfaction of the Service Provider, no contract / agreement is deemed to have come into force between Service Provider and Customer, and the process of execution of this Agreement shall not be concluded and it shall be automatically terminated. Provided, however, Service Provider shall, at its own discretion, allow the Customer to avail the Services in terms of the Agreement, pending completion of the verification process of the representative, for a maximum period of 30 days, and in the event wherein the Service Provider is unable to complete the verification process within such time period, Service Provider shall have the right to stop providing the Services to the Customer, forthwith.
3.3 Upon subscription with the Service Provider, the Customer shall ensure that all the Drivers install the Honda e:Swap App as designated by the Service Provider on their respective mobile phone which shall enable them to avail of the Battery Swapping Services during the Term.
3.4 The Service Provider shall not be responsible for any activity that occurs under the Customer’s account on the Honda e:Swap App, including any action or omission by Customer, or any other activity by authorised or unauthorised users.
4.1 The Agreement shall come into force on the Activation Date and shall be in force unless the same is terminated in accordance with the terms of this Agreement (“Term”). The Parties acknowledge as follows:
4.1.1 Customer can select different Customer Plans & Specifications for the EVs used by them, in connection with the Services, and the Activation Date, and tenure of each Customer Plan, shall be calculated and governed under this Agreement for each Customer Plan & Specifications separately.
4.1.2 It is hereby clarified that the Parties may cancel 1 (one) Customer Plan & Specification and the same shall not have an effect on the other active Customer Plan & Specifications.
4.1.3 The term under separate Customer Plan & Specifications shall be automatically renewed for successive periods under each Customer Plan & Specification chosen by the Customer, on the same terms and conditions, unless terminated by the Customer or Service Provider, by way of a written notice on Honda e:Swap App or on the website of the Service Provider (the same shall apply hereafter)of at least 30 days prior to the expiry of the term or renewal term under the relevant Customer Plan & Specification (as the case maybe).
4.2 The Customer hereby agree that in case the Customer Plan & Specification chosen by the Customer has been terminated by the Customer on or before the expiry of such timeline as may be specified in the relevant Customer Plan & Specification chosen by the Customer, the Customer shall be liable and responsible to compensate the Service Provider by payment of such amount as set forth in Clause 21.4 of the Agreement, provided that the Customer shall not be liable to pay the amount set out in Clause 21.4 if the Customer terminates the Customer Plan & Specification (a) during the last 30 days prior to the expiry of the tenure of such Customer Plan & Specification, or (b) if such Customer Plan & Specification is renewed, at any point during such renewed term.
5. DESCRIPTION OF SERVICES
5.1 “Services” refers to all the services provided by the Service Provider (through itself or through any of its group companies or affiliates, on the sole discretion of Service Provider), encompassing access to Battery Swapping Stations for charged Battery, undertaking swapping of discharged Battery with a charged Battery, providing information on the Honda e:Swap App to locate Battery Swapping Station, and such other services as set out in Schedule A, subject to the terms and conditions mutually agreed between Parties herein.
5.2 It is expressly clarified that the Service Provider shall not be required to provide any Services outside the Territory.
5.3 The Services shall be activated and made available after payment of Security deposit and Service Fee (as applicable) (as defined below) and maintaining the applicable Security deposit, in case there is any shortfall, in accordance with the terms of this Agreement, and such Services shall be available within the Territory alone.
5.4 Upon discharge of the Batteries, the Customer will be provided with access to the charged Batteries at Battery Swapping Stations during the operating hours on operating days as may be displayed on the Honda e:Swap App. The Customer will be entitled to swap the discharged Battery with the charged ones available at the Battery Swapping Station only.
5.5 The Battery shall be swapped only at the Battery Swapping Station and such swapped batteries shall be inserted in the identified slot of the Electric Vehicle for which swap was requested. It is clarified that the batteries swapped from the Battery Charging Station shall not be placed anywhere else. The Customer shall take full responsibility for maintenance of the Battery while the Battery is in the possession of the Customer and shall strictly follow the safety related instructions and warnings communicated by the Service Provider through instruction manual and other material provided at the time of registration to the Customer, and such other information as may be communicated from time to time.
5.6 The Service Provider does not represent in any manner that: (a) the Services/Honda e:Swap App will be uninterrupted, functional and available and accessible at all times; and (b) the Honda e:Swap App will operate error free / bug free / defect free. The Service Provider reserves the right, but has no obligation, to add, change, edit, amend, revise, modify or remove, restrict or block access to, all or any part of the Service Provider’s website (www.honda-mpp.com/in) or the Honda e:Swap App, from time to time, at its sole discretion without notice and for any reason or for no reason at all.
6. SECURITY DEPOSIT
6.1 On or prior to the Activation Date, the Customer shall pay to the Service Provider the fixed amount corresponding to the relevant Customer Plan & Specifications, as chosen by Customer, as a non-interest bearing refundable security deposit, for the due fulfilment of the obligations and undertakings of the Customer under this Agreement (“Security deposit”). The Customer shall be required to maintain the applicable Deposit with Service Provider at all times during the Term of the Agreement. The Service Provider shall not be liable to pay any interest to the Customer on such Security deposit. It is clarified that in case the Customer chooses more than one Customer Plan & Specification, the Security deposit shall vary under each such Customer Plan & Specifications.
6.2 The Customer shall be required to pay the Security deposit to the Service Provider through the recognised payment gateway/ URL link as may be notified by the Service Provider to the Customer in writing, or otherwise provided for on the Honda e:Swap App.
6.3 A receipt shall be issued for the Security deposit made by the Customer with the Service Provider. The Parties hereby agree that the Customer shall have no right to set off the Security deposit towards any other payment or the dues of the Customer to Service Provider.
6.4 This Security deposit shall be refunded by the Service Provider to the Customer upon termination / expiry of the Agreement, and after all dues of the Customer with the Service Provider, with respect to this Agreement, have been fully and finally settled, and the obligations hereunder have been fully and properly discharged by the Customer, including surrender and return of the Equipment & Device in its possession to the Service Provider, as per the terms of this Agreement. It is hereby clarified that the Service Provider shall be entitled to deduct the outstanding amount, loss, or repair costs incurred due to mishandling or Damage to the Battery and/or Member card, or any such amount from the Security deposit. In the event wherein Customer does not return the Equipment & Device to Service Provider upon expiry / termination of this Agreement, or the Battery is otherwise damaged upon such return, the Service Provider shall be entitled to retain the Security deposit in whole or in part, as compensation for such failure to return the Equipment & Device, or damage caused to the Equipment & Device. Notwithstanding any other rights available to the Service Provider under this Agreement, the Service Provider shall be entitled to initiate criminal proceeding or any other appropriate actions against the Customer under any law for the time being in force, if at any time the Service Provider at its sole discretion has sufficient grounds to believe that the Customer has / have made wilful attempt to default the return of the Equipment & Device.
6.5 In the event the Customer fails to pay any charges/fees based on the invoice from Service Provider within the timelines set out in Schedule B read with the Customer Plan and Specifications, the Service Provider shall, without prejudice to any other rights, it may have under Applicable Law, this Agreement or otherwise; at its sole discretion, adjust / set-off such Security deposit towards any of the dues payable by Customer under this Agreement and suspend the Services under a Customer Plans & Specifications. Upon any adjustment made from the Security deposit, the Customer shall within 7 (seven) days, top-up / refurnish the said security deposit to the extent invoked by the Service Provider; failing which the Service Provider shall not be obliged to swap any Batteries to the Customer or continue with the arrangement contemplated in this Agreement. Service Provider shall be under no obligation to provide any Services to Customer in case Customer does not maintain the Security deposit or otherwise remit the Service Fees in full, in the manner required under this Agreement.
6.6 Goods and Services Tax (GST), as applicable, shall be charged separately to the Customer.
7. DELIVERY OF BATTERIES AND MEMBER CARD TO THE CUSTOMER
7.1 The Service Provider shall deliver the Member card with Electric Vehicle (EV) at the vehicle dealers. The Service Provider shall also deliver Batteries to the Customer on the Activation Date and every time the Customer seeks to swap the Battery and avail the Services, at the Battery Swapping Stations; subject to the Customer having deposited and maintaining the Security deposit with the Service Provider on such date, and Customer otherwise paying the Service Fees to Service Provider, in the manner required under this Agreement read with the relevant Customer Plan & Specifications.
7.2 The Service Provider has no responsibility or liability, towards the condition of EV delivered to the Customer pursuant to this Agreement. Further, in case of swap of Battery, Customer shall swap the discharged Battery with a charged Battery, in accordance with the terms of this Agreement.
7.3 The Service Provider shall ensure that the Battery and/or Member card provided to the Customer is in an acceptable and good condition and that there is no physical damage to the Battery and/or Member card. At the time of delivery of EV, the Customer shall be given a briefing of the Equipment & Device and details of the Services, etc. In case of any Damage to the Battery and/or Member card, the Customer shall immediately inform the Service Provider of the same before using the Battery.
7.4 Battery and Member card shall be delivered to the Customer with purchased EV at the vehicle dealers. The Customer shall ensure that any change in its phone number is intimated to the Service Provider promptly to ensure provision of the Services. The Service Provider shall not be liable for any delay or interruption in the Services arising out of Customer’s failure to update its contact details.
7.5 The Service Provider shall be responsible for ensuring that the Service is available at the Battery Swapping Station at the relevant time. Provided, however, the Service Provider shall not be liable or otherwise responsible for any delay in delivering the Battery at the scheduled time and date at the vehicle dealers or any delay in providing the Services, if such delay is attributable to any Force Majeure Event. In the event the Service Provider is of the view that there is a likelihood of delay in delivering the Battery to the Customer the Service Provider shall inform the Customer/Driver at the earliest instance of the likelihood of such delay.
7.6 If the Customer subscribes to the Services under this Agreement and the delivery of the Equipment & Device is thereafter cancelled by the Customer, the Service Provider shall have the right to terminate the Agreement and claim compensation for all expenses incurred by the Service Provider towards the fulfilment of the order placed by Customer, as per the terms of this Agreement.
7.7 The Customer hereby agrees and acknowledges that no ownership, title, proprietary rights, intellectual property rights, or any other rights of any nature whatsoever are created or intended to be created in or over the said Equipment & Device, save and except the usage for which it is granted hereunder. The Customer shall not claim or exercise ownership, lien, property rights, or any other rights in the Equipment and Device or any related material provided to the Customer. The Battery, battery charger, Member card, and any other equipment provided by the Service Provider pursuant to this Agreement shall always remain the absolute property of the Service Provider.
7.8 The Parties hereby acknowledge and agree that the Batteries are unique and specific and can only be used by the Customer, and accordingly, can only be swapped at the Battery Swapping Stations operated by the Service Provider. Any unauthorised use of the Equipment & Device, including the Battery by the Customer shall be deemed to be a material breach of this Agreement by the Customer.
7.9 The Customer shall return the battery and Member card to Service Provider at the notified Battery Swapping Stations immediately upon termination of this Agreement or upon receipt of demand to this effect from Service Provider.
8. ACCEPTANCE OF BATTERY AND MEMBER CARD
8.1 Upon receipt and use of the Battery by the Customer at the Battery Swapping Station, it shall be deemed to be received in an acceptable and good condition in accordance with the terms of this Agreement.
8.2 In the event the Customer discovers any defects in the Battery (including latent defects), including in relation to its standards, specifications, quality, or performance (“Defect”), the Customer shall forthwith notify the Service Provider of such Defect on the Customer care helpline of the Service Provider (“Defect Notice”), detailing the nature of the Defect in the Battery (“Defective Battery”).
8.3 Upon issuance of a Defect Notice, the Customer shall be required to forthwith identify the Defective Battery and keep the same aside separately, and not use the same any further.
8.4 As soon as reasonably possible from the receipt of the Defect Notice, the Service Provider shall replace the Defective Battery at its own cost and expense (which may include sending its representatives to the location of the EV with the Defective Battery within the Territory and replacing the Defective Battery at such location). The Parties agree that in case the Service Provider replaces the Defective Battery under this Clause 8.4, the Customer shall not be entitled to claim any further compensation, damages, or any other remedy under Applicable Law, contract or otherwise, against the Service Provider, in respect of such Defective Battery, and any and all such rights are hereby expressly waived.
8.5 Customer shall ensure that each Battery in its possession, is swapped at least once in 30 (thirty) days. In the event a Customer does not swap the Battery in a particular month or period, the Service Provider shall have the right to contact the Customer and mandate the Customer to swap the Battery. Customer shall remain wholly responsible and liable, for any damage caused to the Equipment and Device, as may be caused on account of not complying with the provisions of this Clause 8.6.
8.6 The provisions of this Clause 8 shall mutatis mutandis be applicable for acceptance of Member card delivered to the Customer.
9. PAYMENT OF SERVICE FEE
9.1 In consideration of Services availed by the Customer, including Emergent Delivery, Customer shall pay to Service Provider such amount and in such manner, as agreed to by Customer and set out in the Customer Plan & Specifications (“Service Fees”). The Parties agree that the Service Fees specified in the relevant invoice shall constitute valid and adequate consideration for the Services to be provided by the Service Provider in relation to the Services pursuant to which the said Services are being availed by the Customer. The Service Provider shall round up the amount of the Service Fees to the nearest full rupee. The Service Provider shall have the right to revise the Service Fees and/or the method of computation of Service Fees payable by the Customer from time to time. Any modification in the Service Fees shall be communicated to Customer. In case the revision in Service Fees is unacceptable to Customer, Customer shall forthwith cease availing the Services under this Agreement read with the Customer Plan & Specification and shall comply with its post termination obligations as set forth in this Agreement or otherwise. Continued usage of the Services after the revision of the Service Fees for a period of 5 (five) days from the date of receipt communication from the Service Provider of such revision, shall be a deemed acceptance by the Customer of such revised Service Fee, and Customer shall be liable to pay such increased Service Fees.
9.2 The Service Provider shall be entitled to charge Service Fees from the Activation Date in accordance with this Agreement.
9.3 An invoice for Service Fees shall be immediately raised by the Service Provider after the Customer swap the batteries and the amount of Service Fees indicated in the invoice shall be deducted from the balance available in the digital wallet as soon as the invoice is generated(“Digital Wallet”). Customer can view the invoice from the payments page of Honda e:Swap App.
9.4 The payment of the Service Fees shall be made by Customer using the Honda e:Swap App.
9.5 All payments / credits to the Service Provider shall be made after deduction of tax at source, if applicable, in accordance with the relevant provisions of the Income-Tax Act, 1961 read with applicable Rules, Circulars, or Orders. Customer shall pay any such amounts deducted to the governmental authorities within the timelines prescribed under Applicable Law, and upon Service Provider’s request, the Customer shall provide all the documents evidencing such payment. Also, Goods and Services Tax (GST), as applicable, shall be charged separately.
10. SUSPENSION OF SERVICES
10.1 In the event an invoice raised by the Service Provider on the Customer remains unpaid on the due dates as provided under Schedule B, then, notwithstanding any other rights available to the Service Provider under this Agreement, Applicable Law or otherwise; the Service Provider shall have the right to suspend providing the Services to the Customer by issuing a notice in writing by SMS or on the Honda e:Swap App of such suspension to the Customer. Upon issuance of the notice of suspension, the Service Provider shall have the right to take custody of the Battery in the possession of the Customer; and the Customer shall cooperate and otherwise be required to handover possession of the Battery back to the Service Provider in case the Service Provider exercises its rights under this Clause 10.1. It is clarified that in case the Service Provider exercises its rights under this Clause 10.1 and suspends providing the Services to the Customer, such suspension shall not be considered a default under this Agreement.
10.2 In the event the Service Provider suspends providing the Services to the Customer under Clause 10.1, and the Customer thereafter completes payment of the entire unpaid amount to the Service Provider; the Service Provider shall resume providing the Services to the Customer on and from the date of receipt of payment confirmation by the Service Provider.
10.3 The Service Provider shall be permitted to temporarily suspend the provision of all, or part of the Services, without incurring any liability from the Customer, (a) for upgrading, maintenance, or relocation, of the Battery Swapping Stations; or (b) due to occurrence of a Force Majeure Event.
10.4 It is expressly agreed that the Service Provider shall not be liable or otherwise responsible to the Customer for any liabilities, losses, claims, or expenses as may be incurred or otherwise suffered by Customer, as a result of the suspension of the Services by the Service Provider under this Agreement.
10.5 If the Customer believes that Battery has been unlawfully removed from his possession by way of theft or otherwise or is lost, the Service Provider reserves the right to charge the Customer, and require the Customer to indemnify the Service Provider for the loss suffered by Service Provider on account of such theft / loss, including, but not limited to the cost of Battery. The Service Provider reserves the right to unilaterally suspend the Customer’s access to the Services, pending detailed investigation, if the Customer refuses to remedy the damage and/or correct the negligent behaviour or conduct in his handling of the Batteries under its / his possession from time to time. In the event of loss of the Battery / Member card, the Customer shall have the right to apply for reissue of the Battery / Member card, and shall be required to pay a reissue fee as determined by the Service Provider, in respect of such reissue.
10.6 To the maximum extent permitted by Applicable Law, Service Provider explicitly excludes or waives any statements, guarantees, and commitments, including but not limited to statements related to correctness, reliability, satisfaction, quality, suitability for specific purposes and non-infringement, guarantee or promise in connection with the Services and/or performance of the Battery.
11. CUSTOMER OBLIGATIONS AND RESTRICTIONS
11.1 Unless otherwise agreed to by the Parties in writing, the Customer shall ensure that it:
11.1.1 Uses the Battery and Member card (and any other equipment provided by Service Provider) solely for the purposes of running the Electric Vehicle that contracted and shall comply with the terms and conditions of this Agreement, and Applicable Law, including Clause 5 of this Agreement.
11.1.2 not remove, deliver possession, encumber, transfer, pledge, create charge, or lien, sell the Battery/Member card or do anything whereby the Battery/Member card may be seized or taken in execution or attached, damaged, destroyed, or injured or whereby the title of Service Provider thereto may be in any way be affected, destroyed, or prejudiced;
11.1.3 not copy or modify, remodel, or dismantle the Battery;
11.1.4 swap the Battery at the Battery Swapping Stations, at least once every 30 (thirty) days;
11.1.5 use the Equipment & Device strictly in compliance with Applicable Laws (including obtaining all the registrations and licences) and directions provided by the Service Provider;
11.1.6 not charge or swap the Battery from any other place than the Battery Swapping Station;
11.1.7 keep the Battery secured in the Electric Vehicle which shall be parked at the suitable parking;
11.1.8 use the Services only in accordance with this Agreement and comply with all Applicable Laws including maintaining valid registration of the Vehicle under the Motor Vehicles Act, 1988 or other Applicable Laws, when availing of the Services or otherwise using the Electric Vehicle;
11.1.9 in case of Damage or loss of Battery, immediately report the incident to the Service Provider;
11.1.10 pay any losses suffered by Service Provider as a result of any Damage, mishandling, or loss to the Equipment & Device;
11.1.11 inform Service Provider immediately about any seizure / detention / attachment of Electric Vehicle by any person and/or authority;
11.1.12 not be entitled to retain or remove or repair or alter any part of the Battery, including such additions, accessions, or replacements as may be provided pursuant to this Agreement;
11.1.13 not engage in any activity that may infringe the Intellectual Property Rights of Service Provider and / or Battery Swapping Stations;
11.1.14 not in any way alter, obliterate, or modify the logo, the brands, declarations, and other statutory notices affixed on the Battery or the paint colour and body of the Battery or any part thereof;
11.1.15 not paint or affix any material on the body of the Battery or part thereof;
11.1.16 not to allow any third party to access Battery or any part of the Battery or the Battery Swapping Station;
11.1.17 not commit any fraud in relation to the transactions contemplated under this Agreement, or otherwise exhibit any violent or threatening behaviour to the Service Provider and / or its employees and representatives;
11.1.18 associate with any anti-social groups or organisations in connection with the transactions contemplated herein, or otherwise use the Equipment and Device for any illegal purposes;
11.1.19 not to disregard any type of safety related instructions and warnings notified by the Service Provider to the Customer/Driver from time to time (including through notifications on the Honda e:Swap App) and also adhere to battery manufacturer safety instructions, which shall be provided to the Customer upon subscription;
11.1.20 shall ensure strict compliance and adherence of all the terms and conditions of this Agreement and Equipment & Device user manual/standard operating procedures;
11.1.21 not gain unauthorized access of the premises of the Service Provider/Battery Swapping Station;
11.1.22 cooperate with the Service Provider in the scope necessary for the execution and performance of Parties’ obligations under this Agreement, and not otherwise obstruct the Service Provider’s ability to exercise its rights or otherwise discharge its obligations herein;
11.1.23 provide the Service Provider with all necessary access to such information as may be required by the Service Provider render the Services, including but not limited to Customer Personal Information and Data security access information and configuration of Services;
11.1.24 not undertake any action or omission, which could or is reasonably likely to adversely affect the reputation of the Service Provider or its affiliates;
11.1.25 permit and provide consent to the Service Provider to gather (and use) data in relation to the EV used by Customer along with the Equipment and Device and usage thereof from the OEM, at such time and during such periods as may be determined by the Service Provider;
11.1.26 pay the Service Fees to the Service Provider in accordance with the terms of the Agreement;
11.1.27 not engage in behaviour which could obstruct, insult, defame or disrepute the Service Provider or its business;
11.1.28 use the Equipment & Device in conformity with the limited rights granted to the Customer under this Agreement;
11.1.29 not copy, reverse engineer, decompile, translate, or modify the Equipment & Device including Honda e:Swap App, or granting any other person or entity the right to do so; and
11.1.30 to return the Battery/Member card, in proper working condition, without damage, in the event the EV is seized by any governmental authority or any other person (including banks / financial institution).
12. SERVICE PROVIDER OBLIGATIONS AND RIGHTS
12.1 The Service Provider shall render the Services as set forth in the Schedule A hereto, and in terms of this Agreement.
12.2 In the event of any material breach of any of the terms and conditions, covenants, or obligations of the Customer and/or Driver provided under this Agreement and/or the Customer Plan and Specifications, the Service Provider shall have the right to contact the Customer, at its sole discretion: (a) to require the Customer / Driver to handover possession of the Battery and Member card to the Service Provider; and/or (b) take all steps as may be required to take custody of the Battery and Member card from the Customer and/or Driver, if the Customer fails to remedy the breach and non-compliance (as the case may be) within 48 (forty eight) hours of receipt of a written notice from the Service Provider specifying such breach and/or non-compliance.
12.3 The rights of the Service Provider under this Clause, are in addition to, and without prejudice to any other rights available to the Service Provider under this Agreement and the Applicable Law, in respect of such breach of this Agreement and / or Customer Plan & Specifications, and shall survive the expiry/ termination of this Agreement.
12.4 The Customer shall ensure that its Drivers are aware of all obligations of this Agreement. Any default of obligations by the Drivers engaged by the Customer shall mean default by the Customer under this Agreement. All obligations as applicable to the Customer herein, shall equally apply to the Drivers and Users engaged by the Customer, operating the EVs which form the subject matter of the Services provided herein.
13. REPRESENTATIONS AND WARRANTIES
13.1 Each of the Parties, to the extent applicable, hereto represent and warrant that:
13.1.1 such Party has the power and authority to execute, deliver and perform this Agreement to which it is a party and to consummate the activities contemplated hereunder;
13.1.2 this Agreement, once executed, will have been duly and validly executed by each of the Parties, and each constitutes or will constitute, as applicable, legal, valid and binding obligations of such Party, enforceable against it in accordance with their terms;
13.2 In addition to Clause 13.1, the Customer represents, warrants, and covenants as on the Activation Date and as on every date during the Term that:
13.2.1 throughout the Term, the Customer shall not act in any way that is in contravention to the terms of this Agreement and user manual; and
13.2.2 throughout the Term, the Customer shall not make any separate agreement with any person that is inconsistent with any of the provisions of this Agreement.
13.2.3 the execution and delivery of this Agreement, and the consummation of the activities contemplated hereby, and the fulfilment of and compliance with the terms and conditions hereof, do not (a) violate any Applicable Law, judicial or administrative order, award, judgment, or decree applicable to it / him, or (b) conflict with the terms, conditions or provisions of its constitutive documents or any other contractual obligations or arrangements or any agreement to which such Customer is a party to or by which such Customer is bound.
13.2.4 there is no litigation, action, suit, investigation, claim, complaint, or other proceedings before any domestic/ foreign court, tribunal, or Government Authority, that has been initiated and/ or pending or threatened, against it/him, which questions the legality, validity, or binding effect of any provision of this Agreement or will restrict its performance or obligations under this Agreement and/ or any other documents contemplated hereby or thereby.
14. OWNERSHIP OF EQUIPMENT AND DEVICE AND INTELLECTUAL PROPERTY
14.1 The Customer hereby agrees, acknowledges, and confirms that the use of the Equipment & Device (including Battery) or Services by the Customer does not create in favour of the Customer any interest, goodwill, or any other intellectual property rights in the Equipment and Device (including the Battery) or trademarks, logos of the Service Provider. Unless prohibited under Applicable Law, all data generated or collected pursuant to the use of applications installed in the mobile phones/smart phones (including Honda e:Swap App), charging stations and/or in connection with the Services shall always belong to and be owned the Service Provider and the Customer (and/or Driver) shall not have any claims of whatsoever nature on the same.
14.2 The Customer hereby undertakes not to use and adopt in any manner the Service Provider's trademarks, logos, or other intellectual property at any time. Any such use of the Service Provider's trademarks, logos or intellectual property, in contravention of this Clause shall constitute a material breach on the part of the Customer of this Agreement and without prejudice to the Service Provider’s rights under this Agreement or Applicable Law, the Customer shall be liable for prosecution for infringement of such intellectual property at its cost and expenses.
14.3 All rights, title, and interest in the Battery and Member card and any other equipment provided by the Service Provider to the Customer (including the modifications as may be developed by the Service Provider) shall belong solely to the Service Provider. The Customer shall not be permitted to undertake any actions to reverse engineer or otherwise break down the components of the Equipment & Device.
15. REGISTRATION OF VEHICLE
The Parties agree that and acknowledge that all data relating to the EV on which the Battery is fitted, including but not limited to the vehicle registration number, chassis number, model of rickshaw, drive mode, speed, odometer reading, and RPM details may be collected, stored and analysed by the Service Provider on an ongoing basis to inter alia monitor the performance of the Battery and usage thereof.
The Customer shall promptly report to the Service Provider all pertinent facts relating to each accident concerning the Service during the Term. The Customer shall fully co-operate with the Service Provider and insurance agents and/or their appointed representatives in the investigation and assessment of any loss and/or circumstances giving rise to a loss due to such accident and taking actions according to the Applicable Law and the insurance policy and by conserving the evidence.
17. PERSONAL INFORMATION AND DATA OF CUSTOMER AND DRIVER
17.1 The Customer shall from time to time provide to and the Service Provider may have access to certain personal information and Confidential Information of the Customer and/or Driver and / or User and / or the Customer’s Representative, including but not limited to name, address, contact number, finance and credit information, vehicle location details (“Personal Information and Data”), which may be disclosed to the Service Provider, and stored, processed, used and / or otherwise transferred to any other person, for such purposes that the Service Provider may deem fit for provisioning of services. The Customer permits Service Provider to access and use all or any of such Personal Information and Data provided either directly or through OEM / relevant dealer shop owner. Provided, further, by providing details of the Customer’s Representative to the Service Provider, the Customer represents and warrants to the Service Provider, that: (i) it is authorised to provide details of the Customer Representative to the Service Provider, and has disclosed to the Customer Representative that his / her details has been disclosed to the Service Provider; (ii) the Customer Representative has consented to such disclosure; and (iii) the Customer Representative is aware that the Service Provider shall have the right to contact the representative in case the Customer is not reachable by the Service Provider, for any reason whatsoever.
17.2 The Customer further provides an unconditional consent and no-objection to the Service Provider to collect, store and process such Personal Information and Data for purpose of its business undertaking in accordance with Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 or any other Applicable Law in force, including for the following purposes:
17.2.1 to transfer the Personal Information and Data and other information related to the Customer to any person / entity, in connection with providing the Services (either directly or indirectly), and any additional services as may be provided to the Customer by Service Provider;
17.2.2 to access and gather information about the location of the EV in which the Battery is fitted;
17.2.3 to advertise, market and promote the Service Provider and its Services;
17.2.4 to analyse the data in relation to usage status of Battery;
17.2.5 to send out questionnaire related to the Services to Customer;
17.2.6 to provide Customer support to the Customer either by itself or through any third- party;
17.2.7 to establish, exercise, defend legal rights in connection with any legal disputes (including prospective legal disputes) and for seeking professional legal advice for the purposes of resolving such legal disputes; and
17.2.8 to comply with any Applicable Laws.
17.3 The Customer may or upon request of the Service Provider, review, access, update, correct, or amend the Personal Information and Data submitted and provided to the Service Provider, to ensure that any such information found to be inaccurate or deficient is corrected/updated. The Customer may either (a) contact the Service Provider/ Customer support or (b) update such information on the Honda e:Swap App or on the Service Provider’s website (www.honda- mpp.com/in), forthwith upon knowing such Personal Data and Information so submitted, is inaccurate and latest within 30 (thirty) days upon knowledge of such change. It is clarified that the Service Provider shall not be held responsible or liable due to any false, incorrect, old, or inaccurate information provided by the Customer. The Customer hereby agrees and unconditionally consents and permits the Service Provider to access the Personal Information and Data of the Customer and / or the Driver, and to provide such information to any third-party service providers as may be engaged by Service Provider in connection with providing the Services.
17.4 The Customer agrees and consents and shall procure that each of the Drivers / User agrees and consents that the Personal Information and Data shall be:
17.4.1 retained by the Service Provider up to the completion of the purposes for which the Personal Information and Data is collected and processed and/or for such longer time, in accordance with legal, regulatory, contractual, or statutory obligations as applicable.
17.4.2 transferred to, and stored at, any of the subsidiaries/affiliates/group companies, partners or service providers, authorized third party agents, or contractors, data centres in or outside India of the Service Provider in accordance with Applicable Law.
17.5 If applicable, the Customer shall procure that each of the Drivers as may be engaged by it to use the EV along with the Battery shall consent to the Service Provider’s rights under this Clause 17 and cause such Drivers to execute such documents as may be required under Applicable Law to give effect to such consent.
18. INDEMNITY AND LIABILITY
The service is provided on an “as is” basis. Service provider makes no representations, warranties or guarantees with respect to the service, including, but not limited to, the accuracy, currency or completeness or the service. To the maximum extent permitted by applicable law, service provider disclaims all warranties, whether express or implied, including but not limited to implied warranties of merchantability, quality, accuracy, title, non- infringement, fitness for a particular purpose, and interference with the enjoyment of the service or against infringement.
18.1 The Customer shall indemnify and keep fully and effectively indemnified and hold harmless, on demand, Service Provider, its directors, officers, employees, successors, and assigns (“Indemnified Parties”) from and against any and all loss, claims, suits, actions, legal and other proceedings, demands, damages, liabilities, interest, attorneys’ fees, costs, expenses and consequences of whatsoever nature (including but not limited to third party claims), arising out of or in connection with or in relation to or in any way arising out of any claim, suit or proceeding brought against Service Provider, as a result of: (a) death or injury to any person or property, (b) violation of any Applicable Laws; (c) any breach of the obligations, responsibilities, commitments, representations, warranties or covenants of the Customer under this Agreement, including any inappropriate or unauthorised use of the Battery and / or Equipment & Device by Customer/Driver; (d) performance of the services / obligations by Service Provider in accordance with the terms of this Agreement; (e) any fraud, wilful misconduct or gross negligence by the Customer/Driver; (f) Battery/Member card and Device are lost, stolen or cannot be returned to Service Provider.
18.2 The rights of the Indemnified Parties under this Agreement are independent of, and in addition to, such other rights and remedies as the Indemnified Parties may have at law or in equity or otherwise, including the right to seek specific performance, rescission, or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby.
18.3 Service Provider will not be liable for any special, indirect, incidental, consequential or punitive damages, however caused, on any theory of liability, including product liability and whether or not the Customer/Driver has been advised of the possibility of such damages, arising under any cause of action and arising in any way out of this Agreement. In no event will Service Provider’s aggregate liability under this Agreement exceed the amount actually paid to Service Provider by you under this Agreement.
19. FORCE MAJEURE EVENT
19.1 In the event either Party is rendered unable, in whole or in part, to perform any of its obligations hereunder ("Affected Party"), other than any obligation to make payment, due to any Force Majeure Event, upon the Affected Party giving written notice as soon as reasonably possible after the occurrence of the event relied upon, such obligations of the Affected Party shall be wholly or partially suspended during the continuance of such Force Majeure Event, provided that notice of such happenings or events is given to either Party, as soon as reasonably practicable.
19.2 On continuance of such Force Majeure Event for a period exceeding 30 (thirty) days, the affected Party shall be entitled to terminate this Agreement by giving written notice to the other Party.
19.3 Suspension of Services on account of Force Majeure Event. In the event the Service Provider is the affected Party facing the Force Majeure Event, the Service Provider may at its sole and absolute discretion discontinue the Services and terminate this Agreement, without any advance notice under Clause 20 above and with only an intimation to the Customer of such termination. The Customer/Driver shall not claim any compensation from the Service Provider on account of Force Majeure Event.
19.4 Upon the occurrence of any circumstances of Force Majeure, the Parties shall use all reasonable endeavours to perform their respective obligations under the Agreement and to minimize the adverse effects of such circumstances.
20.1 Except as provided under this Agreement, neither Party shall disclose to any third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement, any Confidential Information made available to it under this Agreement including the existence of this Agreement. Each of the Parties shall take all commercially reasonable precautions to prevent any unauthorised disclosure of Confidential Information and shall use generally recognized industry standards to encrypt and otherwise protect electronically maintained or transmitted Confidential Information and provide physical security measures to prevent unauthorised disclosure of Confidential Information.
20.2 The above-mentioned limitations shall not apply to Confidential Information that:
20.2.1 is or becomes generally available in the public domain other than as a result of a disclosure in breach of the confidentiality obligations contained herein; and / or
20.2.2 disclosure, after giving prior notice to the other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any stock exchange or by Applicable Law or governmental regulations or judicial process or generally accepted accounting principles applicable to any Party or if a Party is legally compelled or requested, pursuant to any applicable law, rule, regulation, act, order or request of any judicial, governmental, regulatory or supervisory body or authority;
20.2.3 was disclosed by a third-party without breach of any obligation of confidentiality;
20.2.4 disclosure in connection with the performance of obligations or the exercise of rights (including remedies) under this Agreement; and
20.2.5 is shared by the Service Provider with its affiliates or officers, employees, partners, advisors, and consultants on need-to-know basis.
20.3 The obligations set forth in this Clause 20 shall survive the termination of this Agreement.
21.1 This Agreement and each Customer Plan & Specification may be terminated upon mutual written consent of the Parties, including by way of online application on the Honda e:Swap App. It is clarified that termination of Customer Plan and Specification shall separate and independent of the other Customer Plan & Specifications.
21.2 This Agreement and and each Customer Plan & Specification may also be terminated by the Service Provider with immediate effect on the occurrence of the following events:
21.2.1 breach of any of the terms, covenants, or obligations of this Agreement by Customer/Driver, provided if breach is capable of being remedied, this Agreement shall be terminated if the Customer fails to remedy the breach within such period as notified by Service Provider under the notice of breach or such permitted period notice;
21.2.2 If the Service Fees (and any accrued interest / penalty thereon) and any rescue fee / emergent fee payable for providing Emergent Battery Delivery Services, under the Customer Plan & Specifications remains overdue after the agreed due dates, such Customer Plan & Specifications may be terminated by Service Provider, forthwith;
21.2.3 Misuse of the Battery and/or Member card and/or Services by the Customer and / or the Driver, including any usage in violation of Applicable Law or this Agreement, or in connection with any crime or other illegal purposes;
21.2.4 If the Equipment & Device is significantly damaged (including on account of accidents and / or natural disasters), stolen or lost;
21.2.5 If the Customer has performed actions that significantly obstruct the provision of Services in terms of this Agreement;
21.2.6 If Customer and/or Driver becomes insolvent;
21.2.7 If Customer and/or Driver is be convicted of a criminal offence; or is convicted of any criminal offence;
21.2.8 If there is any revocation / cancellation / modification or suspension of Customer to carry out the obligations / activities in terms of this Agreement;
21.2.9 if the Electric Vehicle of Customer are seized or an attachment is levied on any goods belonging to Customer and for the time being used in the Electric Vehicle or any wrongful attachment or arrest of the Electric Vehicle by the authorities
21.2.10 If the Customer and / or Driver in possession of the Battery has disappeared / absconded and is otherwise not traceable;
21.2.11 In case of death of the Customer/Driver;
21.2.12 On occurrence of Force Majeure Event in accordance with Clause 20. In case of termination for reasons mentioned under Clauses 21.2.11 above, penalty will not be charged if a [specified certificate] is submitted. In all other cases, a fixed penalty amount as provided under respective Customer Plan & Specifications shall be payable by the Customer to the Service Provider which may be paid by the Customer to the Service Provider or be utilised from the Security deposit at the sole discretion of the Service Provider.
21.3 In the event that Service Provider cannot continue to carry on business, Service Provider may terminate this Agreement and each Customer Plan & Specification by giving a prior written notice of at least three 3 months to the Customer.
21.4 The Agreement may also be terminated in accordance with Clause 4.1.3 and / or 4.2. In the event of termination under Clause 4.2, the Customer shall be liable to pay to the Service Provider an amount equivalent to INR 6,000 as penalty for early cancellation) which may be paid by the Customer to the Service Provider or be set-off from the Security deposit. The Parties agree that the Services shall be subject to a free cancellation provided the Customer cancels the Service before activation of Member Card.
21.5 Subject to Clause 21.5, in the event of termination of this Agreement:
21.5.1 all amounts due and payable to the Service Provider hereunder as of the effective date of termination of this Agreement, shall be paid to the Service Provider by the Customer within 30 days from the effective date of termination;
21.5.2 such termination shall be without prejudice to any accrued rights or obligations of any Party under this Agreement;
21.5.3 The Customer shall promptly return the Battery and Member card in its possession and Confidential Information (in all such forms, including electronic) to the Service Provider, in good and proper working condition, and not retain the same for any purpose whatsoever. Further, the Customer shall also be liable to pay a penalty/damage cost to the Service Provider in case of breach of terms of this Agreement or in case the Battery and Member card is stolen or lost, or damaged, and cannot be returned to the Service Provider upon cancellation/termination under Clause 21 or cannot be used.
21.6 The provisions of this Clause 21 shall survive the expiry / termination of this Agreement.
22. GOVERNING LAW AND JURISDICTION
This Agreement and the relationship between the Parties hereto shall be governed by, and interpreted in accordance with, the laws of India, without regard to the conflict of law provisions thereof. Subject to the provisions of Clause 24 (Dispute Resolution), the courts at Delhi, India shall have jurisdiction in relation to all matters arising out of or in connection with this Agreement.
23. DISPUTE RESOLUTION
23.1 If any dispute, disagreement, or claim arises out of or in connection with this Agreement, including any question regarding its existence, validity or termination (a “Dispute”), the Parties shall use all reasonable endeavours to resolve the matter amicably. If a Party issues a written notice to the other Party that a Dispute has arisen (“Dispute Notice”), and the Parties are unable to resolve the Dispute within 30 (thirty) days of service of the Dispute Notice, then the Dispute shall be referred for arbitration in accordance with the terms of Clause 24.2 below. This Agreement and the rights and obligations of the Parties shall remain in full force and effect pending the award in such arbitration proceeding, which award, if appropriate, shall determine whether and when any termination shall become effective.
23.2 Arbitration Procedure
23.2.1 The seat and venue of arbitration shall be Delhi and shall be conducted under and in accordance with this Clause 23.2 and the arbitration provisions of the Arbitration and Conciliation Act, 1996 , as may be amended from time to time (which are deemed to be incorporated herein).
23.2.2 The arbitration shall be conducted before an arbitral tribunal composed of a [sole arbitrator] appointed in accordance with the arbitration act.
23.2.3 The language of the arbitration shall be English and any document not in English submitted by any Party shall be accompanied by an English translation.
23.2.4 The award rendered shall be in writing and shall set out the reasons for the arbitral tribunal’s decision. The arbitral tribunal shall decide on the costs and reasonable expenses (including reasonable fees of counsel retained by the Parties) incurred in the arbitration.
23.2.5 The award shall be final and binding on the Parties and enforceable in any competent court of Law.
23.2.6 The provision of this Clause 23.2 shall survive termination of this Agreement.
The provisions of this Agreement and each Customer Plan and Specifications shall inure to the benefit of and be binding on the Parties and their respective successors (including, without limitation, any successor by reason of amalgamation, scheme of arrangement, merger, de- merger or acquisition of any Party), nominees, legal heirs, executors, administrators, personal representatives, and permitted assignees.
Unless otherwise indicated in the Agreement, the Service Provider may give You all notices (including legal process) that the Service Provider is required to give by any lawful method, including without limitation by: (a) posting notice on the Service Provider’s website (www.honda-mpp.com/in); or (b) sending it through SMS on your registered mobile number that You provided to the Service Provider; or (c) through communication on the Honda e:Swap App. You hereby acknowledge that it is Your responsibility to keep your mobile number updated to receive SMS(s) and periodically check for notices posted on the Service Provider’s website (www.honda-mpp.com/in). You agree to receive notice through SMS(s) from Service Provider at registered mobile number.
The Parties expressly agrees and acknowledges that the Parties are acting as independent contractors and not as an agent, employee or partner of the other Party and shall not have the right, power or authority to create any obligations of any kind or duty, whether express or implied, or to bind the other Party in any respect whatsoever.
24.4 Limitation of Liability and Assumption of Risk
The Service Provider, its officers, director, or employees shall not be liable for any form of incidental or consequential damages, claims, liabilities, damages, costs, suits, and/or disbursements of any kind, or nature whatsoever, including loss of data, lost revenue or lost profits, whether such claims arise in contract or tort, irrespective of fault, negligence or strict liability, whether foreseeable or unforeseeable, and whether known or unknown. You acknowledge that the Services are being provided to You on an "as-is" basis and without any warranties of any kind, and you have chosen to avail the Services at Your own risk. You expressly agree and acknowledge that You fully understand the risks associated with Your use of the Services and/or related Equipment & Device, including use of the Honda e:Swap App, and that You assume such risk.
The rights and obligations under this Agreement are not assignable or transferable by the Customer to any Person, without prior consent of the Service Provider. The Service Provider shall be entitled to assign the rights and obligations under this Agreement.
Service Provider has the right to amend the terms of this Agreement, from time to time at its sole discretion without notice. The updated version of the Agreement and/or respective Customer Plan & Specifications will be effective on the date of posting on the Honda e:Swap App and/or Service Provider’s website (www.honda-mpp.com/in) unless indicated otherwise. Customer’s continued use of the Services for 5 days after such revision will constitute Customer’s agreement and acceptance of the changes.
If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or the applicable part of such provision and the remaining part of such provision and all other provisions of this Agreement shall continue to remain in full force and effect. The Parties shall then use all reasonable endeavours to replace the invalid or unenforceable provision by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
24.8 Third Party Benefit
Nothing herein expressed or implied is intended, nor shall it be construed to confer upon or give to any third party any right, remedy or claim under or by reason of this Agreement or any part hereof.
The waiver of any default or breach under this Agreement by any Party shall not constitute a waiver of any substantial default of a similar nature or under any other terms and conditions of this Agreement.
24.10 Surviving Provisions
This Clause and Clauses 1 (Definitions), 2 (Interpretation), 13 (Representations and Warranties), 14 (Ownership of Equipment and Device and Intellectual Property), 18 (Indemnity and Liability), 20 (Confidentiality), 21 (Termination), 22 (Governing Law and Jurisdiction), 23 (Dispute Resolution), and 24 (Miscellaneous) shall survive consummation of the transactions contemplated under this Agreement and/ or termination of this Agreement.
24.11 Entire Understanding
This Agreement, along with all agreements entered into in connection herewith (including the Customer Plan & Specification), constitutes the whole agreement between the Parties and supersedes any previous written or oral agreements, understandings, negotiations and discussions between the Parties in relation to the transactions contemplated under this Agreement.
24.12 Specific Performance
The Parties agree that damages may not be an adequate remedy and the Service Provider shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain the Customer/Driver from committing any violation or enforce the performance of the covenants, representations and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies that the Service Provider may have at law or in equity, including without limitation a right for damages.
CUSTOMER ACCEPTANCE OF AGREEMENT
I certify that I am the Customer, I am legally permitted to enter into this Agreement, and I have read and expressly agree to the terms and conditions set forth in this Agreement.
We accept digital acceptance of this agreement as a sign off from Customer.
If you encounter any problem using Honda e:Swap App, you can report it with our Customer support by calling at Customer care number mentioned on Honda e:Swap App. The regular business hours of Customer support is informed on the Honda e:Swap App
If the service is temporarily unavailable due to maintenance, etc., or if the time changes, Service Provider will inform you through the app. If a failure or delay occurs due to a strike, riot, fire, natural disaster, or other factor beyond Service Provider's control, it may be suspended without prior notice.
SCOPE OF SERVICES
The scope of Services to be provided by the Service Provider to the Customer under this Agreement shall be as follows:
Battery swapping Service.
(a) The Customer shall be permitted to swap the discharged Battery with a Battery from the Battery Swapping Station within the Territory in accordance with the terms of this Agreement.
(b) Place where Service is provided. The Customer will be provided the location information of the Battery Swapping Station that the Customer has access to on the Honda e:Swap App and accessible for convenience purpose. In case of any temporary suspension/stoppage of service for maintenance or otherwise or in case of change of location if the location changes, the Customer will be informed via notification on the Honda e:Swap App.
(c) Service Time. The Services shall be available at the regular business hours of the Battery Swapping Station on a regular basis. The Service time is subject to change depending on the station, date, and season. The information on operating hours of the Battery Swapping Station will be provided on the Honda e:Swap App. In case of any temporary suspension/stoppage of service for maintenance or otherwise, the Customer will be informed via notification on the Honda e:Swap App.
(d) Use and storage of Battery. At the time of delivery of Battery, the Customer shall be briefed on the usage and storage protocols and procedures of Equipment & Device and will also be provided with a instruction manual for reference. In case of any inappropriate use of the Battery, Customer shall be charged for the damage cost in accordance with the terms of the Agreement.
Information service of the Battery Swapping Station
The information of the Battery Swapping Station and Services will be provided on the Honda e:Swap App.
The business hours of Support Service shall be informed on the Honda e:Swap App. In case of any temporary suspension/stoppage of any service, the Customer will be informed on the Honda e:Swap App. The Customer Support shall provide supports such as user registration, charging, contract changes, the matters on Honda e:Swap App by phone. If the Battery runs out of battery charge while driving the EV, spare batteries will be delivered to the Customer by the Customer calling the Customer Support. For more details of this matter, see Emergent Battery Delivery Service
Emergent Battery Delivery Service
The Customer can also avail the Emergent Battery Delivery Service for a consideration set out under the Customer Plan & Specifications. In the event the Customer uses this Services and it’s due to the Customer, the Service Provider shall charge the Customer the service fee for this Service.
(a) The Service Provider shall use the Honda e:Swap App system for the purposes of invoicing for the Services under this Agreement. Upon the Customer choosing the Customer Plan & Specification the Customer will be required to pay such amounts as prescribed under the Customer Plan & Specification in the manner prescribed under the Customer Plan & Specification. The payments made by the Customer to the Service Provider shall be reflected in the Digital Wallet maintained by the Customer with the Service Provider. The account statement related to the Digital Wallet shall be available on the Honda e:Swap App.
(b) The Customer will need to maintain a minimum balance ("Minimum Recharge"), of such amount as prescribed under the Customer Plan & Specification, at all times to be able to avail the Services. In case of a prepaid plan, the Activation Date shall be the date on which the Service Provider receives the Minimum Recharge. In case the balance maintained in the Customer's account with the Service Provider falls below the Minimum Recharge, the Swapping Service under the Customer Plan & Specification shall be automatically suspended and the Honda e:Swap App will notify the Customer that the Swapping Service have been suspended. Once the balance in the Customer's account is increased to the Minimum Recharge amount, the Services shall be resumed.
(c) Upon the Customer swapping the discharge battery for a charged battery or returning a discharged battery, the invoice for the Service Fees shall be immediately raised by the Service Provider and generated on the Honda e:Swap App. The amount of Service Fees indicated in the invoice shall be deducted from the balance available in the Digital Wallet as soon as the invoice is generated. The Customer authorises the Service Provider to debit the Service Fees from the Digital wallet. If the Service Fees is more than the balance available in the Digital Wallet then the Customer shall top-up the balance in the Digital Wallet to enable the Service Provider to deduct the entire Service Fees from the Digital Wallet. If the Customer does not top up the balance in the Digital Wallet to enable the Service Provider to deduct the total amount of the Service Fees, the Services under the Customer Plan & Specification shall be automatically suspended and the Honda e:Swap App will notify the Customer that the Services have been suspended. The Services shall be resumed on payment of the Service Fees by the Customer.
(d) If the Customer does not use the amount credited to the Digital Wallet for a period of 365 days, then on the expiry of 365 days the balance lying in the Digital Wallet shall be automatically refunded to the account from which the Digital Wallet was credited.
(e) In the event the Customer avails the Emergent Battery Delivery Services, the Service Provider shall raise an invoice for the Service Fee applicable for such Emergent Battery Delivery Services. The invoice shall be issued to the Customer on SMS and on the Honda e:Swap App. The Customer shall be required to pay the Service Fee within 7 days of receipt of issue of invoice. If the Service Fee is not received by the Service Provider within 7 days of the issue of invoice, a reminder shall be issued to the Customer on the Honda e:Swap App. If the Service Provider does not receive the Service Fee within 7 days from the issue of the reminder, the Service Provider shall take such actions as it may deem fit including suspending or cancelling the Customer Plan & Specifications.
(f) The Honda e:Swap App will determine such plan as “unpaid” and suspend the use of Services associated with the Customer Plan & Specifications upon non-payment. The Honda e:Swap app will notify the Customer that the Service has been stopped. Once payment is made by the Customer, Services shall be permitted.
(g) On suspension of Services, the Customer may contact the Customer support and inform them that he/she wants to resume the Customer Plan & Specifications. Upon such request, the Service Provider shall generate a deposit compensation request on the Honda e:Swap App and facilitate Customer to make such payment of dues. On payment of dues, the Honda e:Swap App will notify the Service Provider of the payment of the Customer Plan & Specifications. Once the same is received by the Service Provider, the Services will be resumed.