Terms and Conditions for Platform Services

1. Applicability

The use of the Software and Platform Services offered by Smappee is governed by these Platform Terms. The Customer's general terms and conditions are expressly excluded.

The Customer acknowledges these Platform Terms prior to using the Platform Services. Acceptance occurs upon activation of the Subscription or first use of the Platform Services, whichever comes first. The most current version of these Platform Terms is available on the Website.

2. Definitions

App: Refers to the Smappee mobile application downloadable from designated mobile application providers.

Customer: Any person using the Software or Platform Services, whether for themselves or on behalf of an organization. If the Customer uses the App or Platform Services on behalf of an organization, that organization is also considered a Customer.

Customer Data or Feedback: Information processed or stored via the Software and/or Platform Services, including usage information, comments, ideas, suggestions, or other information related to the usability, creation, modification, correction, improvement, or enhancement of the Platform Services, excluding strictly personal data.

Dashboard: The web-based dashboard accessible to the Customer with an active account to monitor and gain insight into the Platform Services for which they have a Subscription.

Documentation: Technical documents, manuals, instructions, specifications, and other materials available to the Customer that describe the functionality, components, features, or requirements of the Software and Platform.

Essential or Essential Functionalities: Functionalities within the scope of the Platform Services that remain active at all times from the moment of Customer registration in the App or Dashboard. This includes live and historical charging sessions, whitelisting, secure OCPP, and dynamic overload protection. Some functionalities may require specific hardware modules. Smappee may expand the scope of Essential Functionalities at its discretion.

Fees: Prices payable for the Software and/or Platform Services.

Initial Subscription Term: The period, starting upon activation of the selected Smart or Business Subscription, during which the Customer can use the selected Smart or Business features. The standard term is one year, but Customers may choose a different term offered by Smappee. If no preference is indicated, the standard term is one year.

Subscription: The renewable, non-exclusive, non-transferable, revocable, limited right to use the Platform Services as part of a Smart or Business package chosen by the Customer, subject to compliance with these Platform Terms and payment of the applicable Fees.

Order: A quotation, order confirmation, or any other document outlining the Products, licensed Software, and selected Platform Services delivered to the Customer.

Platform Services: Functions for charging and energy management offered via the App and Dashboard, enabling 'smart control' of the Customer's purchased Products. This includes all functions and functionalities of the Software monitored by the Customer via the Smappee mobile App and Dashboard.

Product(s): Any Smappee hardware device purchased by the Customer (directly from Smappee or indirectly via a reseller or installer) that can be controlled by the Software developed by Smappee.

Smappee: Refers to one or more of the following companies, including their affiliated companies, depending on the Customer's registered address: Smappee NV, Smappee Services BV, Smappee Inc., Smappee PTY.

Smart Subscription: A subscription to Software functionalities specifically developed for the residential end-user of Smappee Products. Activated upon payment of the relevant Subscription Fee, it complements the Essential Functionalities. It can be selected, activated, and purchased via the Smappee mobile App.

Business Subscription: A subscription to Software functionalities specifically developed for B2B charging hub customers. Activated upon payment of the relevant Subscription Fee, it complements the Essential Functionalities and includes CPO Services. It can be selected, activated, and purchased via the Smappee Dashboard.

Software: The software embedded in the Product and/or cloud-based software licensed under these Platform Terms for operating and/or controlling the Products and Platform Services.

CPO Services: Charging point operator services facilitated by Smappee, including payment and billing for public charging sessions.

Terms of Use ('ToU'): Smappee's terms of use regarding the acceptable use of the mobile App and Dashboard by the Customer.

Website: Refers to the Smappee website www.smappee.com.

3. Subscriptions

3.1. Essential Functionalities: The initial purchase of the Product includes a perpetual right to use the Essential Functionalities for the lifespan of the Products, regardless of whether the Customer has an additional Smart or Business Subscription.

3.2. Smart and Business Subscription: Unless terminated in accordance with these Terms, the Smart and Business Subscription is not perpetual but subscription-based. Smappee grants the Customer a renewable, non-exclusive, non-transferable, non-sublicensable, revocable, and limited right to use the features and functionalities under the respective Subscription, subject to compliance with these Terms and payment of Fees.

3.3. Additional Functions or Platform Services: Smappee may, at its discretion, introduce and offer additional functions or functionalities (which the Customer can select, activate, and subscribe to) via the App and/or Dashboard to further enhance the performance and functions of Smappee-managed Products. These additional functionalities are available as optional and/or premium features.

If the Customer purchases such additional modules, functionalities, features, or extensions, these functions will be considered part of the Software and/or Platform Services (as applicable) and licensed under these Platform Terms (unless SMAPPEE provides them under different terms).

3.4. Updates and Upgrades: Smappee may, at its discretion, update the Software and Platform Services (including any components thereof) at any time. If remote updates are possible, Smappee may implement them remotely. If the Customer chooses to continue using an older version of the Software and Platform Services, Smappee does not guarantee that any malfunctions or problems arising from that version will be resolved. Unless expressly stated otherwise by Smappee, these Platform Terms apply to all new versions, releases, updates, or upgrades of the Software and Platform Services.

3.5. Open Source: If any part of the Software or Platform Services is subject to open-source license terms, the use and license of that part are governed by those open-source license terms. In case of any conflict or ambiguity between these license terms and the open-source license terms, the open-source license terms shall prevail.

3.6. Restrictions: Copies of the Software made or transferred under these Terms are licensed, not sold. The Customer receives no title or ownership of any copy of the Software or Platform Services. The Customer receives no rights to the Software or Platform Services other than those specifically granted in these Terms.

4. Fees

4.1. Initial Purchase: The initial purchase of the (hardware) Product by the Customer includes the Essential Functionalities, which remain active on a cost-free basis. The Customer can activate and purchase the Smart and/or Business Subscription for a chosen subscription period. The functionalities of the Smart Subscription are free for the first twelve (12) months.

4.2. Renewals: Customer acknowledges that renewals of the Smart and/or Business Subscription after the chosen Initial Subscription Term are subject to payment of the applicable Fees ('Renewal Fees'). Payment of Renewal Fees for the Smart or Business Subscription is required to ensure continued use of the selected Platform Services. If the Smart or Business Subscription is not renewed, the continued use of the (hardware) Product and Software will be limited to the Essential Functionalities.

4.3. Additional Features: If applicable and offered by Smappee, the Customer may choose to activate additional paid functionalities or features in their account by paying the applicable Fees.

4.4. Pricing: All Fees are expressed in EUR (or local currency) and exclude VAT or other taxes, import duties, export duties, customs costs, or other taxes.

If the Customer is a consumer, all Fees are all-inclusive. The term 'consumer' refers to the definition in Article 1.1, 2° of the Belgian Code of Economic Law.

4.5. Non-Refundable Fees: All Fees owed for a Subscription are non-refundable and must be paid in advance for the Initial Subscription Term or any subsequent Renewal Term. Fees are forfeited in case of early termination.

4.6. Discount Revisions: Smappee may unilaterally revise any discounts on Fees and/or prices for products or services offered via the Platform at any time without prior notice.

4.7. Late Payment: In case of non-payment or late payment, Fees will be increased by a flat rate of 15% on the unpaid invoice amount (minimum €250), without prejudice to Smappee's right to claim higher damages. Interest of 15% per year will be due on the outstanding amount.

If the Customer is a consumer: In case of payment arrears, a free reminder will be sent. If payment is not received within 15 days of the reminder date, the outstanding debt will be increased by a default interest of 10% per year. Additionally, a late payment fee will apply, calculated as follows:

• €20.00 if the outstanding balance is €150.00 or less.
• €30.00 plus 10% of the outstanding amount for the portion between €150.01 and €500.00.
• €65.00 plus 5% of the outstanding amount for the portion exceeding €500.00, with a maximum of €2,000.00 if the outstanding balance exceeds €500.00.

5. Usage Restrictions

5.1. Restrictions: The Customer shall not, directly or indirectly: (i) provide passwords or login credentials to third parties; (ii) share non-public features of the Platform Service with third parties; (iii) copy, modify, resell, or distribute the Software; (iv) reverse-engineer, disassemble, decompile, or attempt to derive the source code of the Software; (v) rent, lease, use for timesharing or service bureau purposes, or use the Platform Services on behalf of third parties; (vi) use the Platform Services for the development of other products or services; or (vii) use the Platform Services for comparative tests or benchmarking activities.

The Customer agrees to take reasonable steps to prevent unauthorized access to the Platform Services, including protecting their passwords and login information. The Customer must immediately notify Smappee of any suspected unauthorized use or security breach.

5.2. Proprietary Notices: The Customer shall retain all proprietary notices on or in the Software or Platform Services. All rights in the Software, the Smappee App, the Smappee Dashboard, and the Platform Service remain with Smappee. The Customer is granted no license other than for the use of the Software and Platform Services as expressly stated in the Agreement. The Smappee name, logo, and product names are trademarks of Smappee or third parties and may not be used without Smappee's prior written consent.

5.3. Modification or Termination of Services: Smappee reserves the right to modify or terminate the Platform Services or certain features thereof at any time (with termination of subscription-based licenses only occurring at the end of the then-current term).

6. Term and Termination

6.1. Term: Essential Functionalities are active on a perpetual basis from the date of Customer registration. The Smart or Business Subscription, upon payment of the relevant Subscription Fee, begins on the activation date and continues for the Initial Subscription Term selected by the Customer, unless terminated in accordance with these Terms.

6.2. Renewal: Unless terminated in accordance with Article 6, the Smart or Business Subscription will be renewed for the Customer's chosen term ('Renewal Term'), commencing upon the expiry of the Initial Subscription Term.

6.3. Termination by Smappee: Smappee may suspend the Subscription and prevent further use of the Software and/or Platform Services if the Customer fails to pay Fees, fails to comply with obligations within thirty (30) days of written notice, or becomes subject to bankruptcy or insolvency proceedings.

6.4. Consequences of Early Termination or Non-Renewal: Early termination of the Subscription does not entitle the Customer to a refund of paid Subscription Fees. The relevant Platform Services or functionalities will be terminated. If the Customer terminates or does not renew the Subscription, the Customer may continue to use the (hardware) Product, but use will be limited to the Essential Functionalities.

7. Support and Updates

7.1. Monitoring: The Customer acknowledges that the Platform allows Smappee to remotely identify, track, and analyze certain aspects of Platform usage and performance.

7.2. Updates and Upgrades: SMAPPEE reserves the right to make changes and updates to the functionality and/or Documentation of the Platform and/or Platform Services at its discretion, without prior notice. Such updates are included in the License Fee. Smappee is not obligated to provide free local updates or bug fixes.

Paid updates and/or upgrades for the Platform Services must be purchased separately by the Customer via the App or Dashboard.

7.3. Feedback: The Customer grants Smappee a perpetual, irrevocable, royalty-free license to use, display, reproduce, distribute, and otherwise exploit any feedback provided by the Customer for any purpose. All feedback is provided 'AS IS'.

8. Ownership and Copyright

Smappee and its licensors retain all intellectual property rights in the Software, Platform, and Platform Services. The Smappee name, logo, and product names are trademarks of Smappee or third parties.

9. Warranties and Limitation of Liability

Smappee warrants that it has the authority and all necessary licenses to provide the Platform Services and that the Platform Services will be rendered with professional diligence and in accordance with industry best practices.

EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 9, SMAPPEE PROVIDES THE SOFTWARE 'AS IS' AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.

CERTAIN ASPECTS OF THE PLATFORM SERVICES MAY INCLUDE ARTIFICIAL INTELLIGENCE. THE CUSTOMER ACKNOWLEDGES THAT ARTIFICIAL INTELLIGENCE SYSTEMS ARE RAPIDLY EVOLVING. WHILE SMAPPEE CONTINUOUSLY WORKS TO IMPROVE THE SOFTWARE, THE PLATFORM MAY PRODUCE INACCURATE OUTPUT DUE TO THE PROBABILISTIC NATURE OF MACHINE LEARNING. THE CUSTOMER ACKNOWLEDGES THAT SMAPPEE PROVIDES NO WARRANTIES REGARDING THE OUTPUT (OR ITS USE BY THE CUSTOMER) OF GENERATIVE AI FUNCTIONS OF THE PLATFORM SERVICES.

Third-party services offered via the Platform are provided by third parties, and Smappee is not liable for these services, which may be subject to specific terms and conditions. Smappee provides no warranty for third-party services.

THE WARRANTIES AND LIABILITY DESCRIBED HEREIN ARE THE EXCLUSIVE OBLIGATIONS AND REMEDIES OF THE CUSTOMER. THEY REPLACE ALL OTHER WARRANTIES. SMAPPEE PROVIDES NO OTHER WARRANTIES, REMEDIES, OBLIGATIONS, RIGHTS, OR CLAIMS, WHETHER ARISING FROM TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, INCLUDING ANY WARRANTY THAT THE SOFTWARE AND/OR PLATFORM SERVICES ARE ERROR-FREE.

TO THE EXTENT PERMITTED BY LAW, SMAPPEE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF EXPECTED SAVINGS, LOSS OF DATA, OR ANY ECONOMIC ADVANTAGE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE AND/OR PLATFORM SERVICES OBTAINED HEREUNDER, OR HIGHER ENERGY COSTS, OPERATIONAL INEFFICIENCY, OR ANY OTHER DIRECT OR INDIRECT DAMAGE SUFFERED BY THE CUSTOMER AS A RESULT OF THE CUSTOMER NOT RENEWING THEIR (SMART OR BUSINESS) SUBSCRIPTION. IT IS SOLELY THE CUSTOMER'S RESPONSIBILITY TO ENSURE TIMELY RENEWAL OF SUCH SUBSCRIPTIONS TO MAINTAIN FULL FUNCTIONALITY AND PERFORMANCE OF THE RESPECTIVE PLATFORM SERVICES. Smappee provides no guarantees regarding cost savings in the absence of an active subscription.

Smappee makes no representations or warranties regarding a specific level of cost savings or reduction in electricity consumption resulting from the use of its Software or Platform Services. Actual energy costs and savings may vary and depend on numerous factors beyond Smappee's control, including but not limited to customer behavior, consumption patterns, energy tariffs, and external environmental or market conditions.

TO THE EXTENT PERMITTED BY LAW, SMAPPEE'S LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOFTWARE OR SERVICE OBTAINED UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY AND FOR ALL CLAIMS COMBINED, SHALL IN NO EVENT EXCEED THE AMOUNT OF THE LICENSE FEES PAID BY THE CUSTOMER FOR THE SOFTWARE AND PLATFORM SERVICES UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

If the Customer is a consumer, they may rely on mandatory legal warranty provisions as set forth in the Belgian Code of Economic Law, which take precedence over these Platform Terms (including the right of withdrawal in accordance with Article VI.47 of the Belgian Code of Economic Law in case of distance selling, provided all other legal conditions are met). Smappee offers these warranties only to Customers who purchase directly from Smappee.

The parties exclude the possibility of a non-contractual liability claim against Smappee. The parties also exclude the possibility for the Customer to hold Smappee's directors, employees, independent service providers, or any other Smappee personnel liable on a non-contractual basis (pursuant to Article 6.3, § 2 of the new Civil Code). This exclusion does not apply in case of a criminal offense by the relevant personnel, or for subcontractors/independent service providers who are not Smappee directors and are bound by a fixed-term contract or a contract for a clearly defined work.

For clarity, Smappee can only be held liable towards the Customer who is also a buyer from Smappee, i.e., a Customer who purchases directly from Smappee.

10. Confidentiality and Data Protection

10.1. Confidential Information: All information relating to the Software and Platform Services, or otherwise disclosed by SMAPPEE, that is marked as confidential, or that the Customer should reasonably understand to be confidential, is 'Confidential Information' of SMAPPEE. The Customer shall keep Confidential Information confidential and shall not disclose it to third parties unless specifically approved in writing by SMAPPEE. The Customer shall only use Confidential Information for the purposes of their relationship with SMAPPEE hereunder.

10.2. Personal Data: To the extent that the Customer's Personal Data (as defined in Regulation (EU) 2016/679) is processed by SMAPPEE in the deployment or use of the Software and/or Platform Services, such processing shall be carried out in accordance with Smappee's Privacy Policy, available on the Website.

10.3. Security Measures: SMAPPEE shall maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the Customer's (personal) data, as described in the documentation. These measures include safeguards to prevent unauthorized access to or disclosure of the Customer's (personal) data.

11. Governing Law and Jurisdiction

These Platform Terms and any disputes or claims arising out of or in connection with them shall be governed by and construed in accordance with Belgian law. Any disputes arising out of or in connection with these Platform Terms shall be settled by the court of Kortrijk.

12. Miscellaneous

12.1. Modification of Terms: Smappee reserves the right to modify its Platform Terms for a justified reason and after notifying the Customer (via email, on the Website, or the SMAPPEE Platform). The Customer may refuse these changes, in which case the Customer must immediately cease using the Platform and Platform Services, and the License shall automatically terminate.

12.2. Severability: If any provision of the Agreement is declared invalid or unenforceable by a competent court, that provision shall be reformed to the maximum extent possible to reflect the intent of the invalid or unenforceable provision, while all other provisions remain in full force and effect.

12.3. No Partnership: No joint venture, partnership, employment, or agency relationship exists between the Customer and SMAPPEE based on the Order or use of the Service.

12.4. Waiver: The failure of a Party to enforce any right or provision in the Order shall not constitute a waiver of that right or provision, unless acknowledged in writing by that Party.

12.5. Force Majeure: If the performance of the Order is prevented, hindered, delayed, or otherwise rendered impossible by events beyond a Party's control, such as floods, riots, fire, judicial or governmental measures, labor disputes, epidemics/pandemics, or natural disasters, that Party shall be excused from performance to the extent that such performance is prevented, hindered, delayed, or rendered impossible.

12.6. Assignment: The Order may not be assigned by the Customer without Smappee's prior written consent, but may be assigned by Smappee to (i) a parent or subsidiary; (ii) an acquirer of all or substantially all of Smappee's assets involved in the activities relevant to these Terms; or (iii) a successor by merger. Any purported assignment in violation of this article is void.

12.7. Entire Agreement: These Terms, along with any applicable appendix(es), constitute the entire agreement between the Customer and SMAPPEE and supersede all prior or contemporaneous negotiations, discussions, or agreements between the Parties regarding the subject matter of the Order. Any amendment or modification of the Order shall only be binding if made in writing and signed by authorized representatives of the Parties.