Effective as of August 16, 2023
- Use of Chargers.
- You are permitted to use the Network, in the manner permitted by this TOU, and subject to the conditions of this TOU, including payment of the amount required for each occasion on which You use a Charger. When You use a Charger, You agree to follow all applicable product, vehicle, safety, and technical documentation for the Charger and for any vehicle that You connect to the Charger. You also agree to use the correct equipment and connector type for the vehicle. Electrify America only permits the use, with its Chargers, of adapters sold by automakers. Your use of any other adapter with the Network is prohibited. You acknowledge and agree that the Chargers are intended for use and are to be used solely for standard, industry-manufactured automotive land vehicles, and that You are prohibited from using a Charger with any other type of vehicle or electric transportation. This prohibition includes, without limitation, electric boats, home-built electric vehicles, home-built onboard chargers, and vehicles that contain personally modified chargers. To the maximum extent permitted under applicable law, Electrify America shall have no responsibility to You for any damages or losses resulting from Your failure to comply with this paragraph, including without limitation any damages to personal property or arising from personal injury or death. You further acknowledge and agree to indemnify, defend, and hold Electrify America harmless for any damage, liability, or loss experienced by any person resulting from Your failure to comply with the terms of this paragraph.
- A Charger may be located and hosted on a third party’s property, or access to a Charger may require traversing a third party’s property (either type of such third party is referred to as a “Host”). You agree to observe and obey any and all rules set by Hosts pertaining to their property and the use of or access to Chargers on such Host properties, including, but not limited to, general customer or visitor conduct, parking restrictions, parking time limitations, and hours of operation. You are solely responsible for any damage, fees, penalties or loss caused by your noncompliance with any Host rules.
- License Grant. This TOU provides to You a personal, revocable, limited, non-exclusive, non-sublicensable, and non-transferable license to use the Solution, conditioned on Your continued compliance with the TOU. You may print a single print copy or make a single screen shot of the materials and information from the Solution solely for Your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information.
- Restrictions. Except as expressly provided herein, Company does not grant any other express or implied right to You or any other person. Accordingly, You may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, reverse engineer, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Solution or the Network in any manner not expressly permitted herein. Moreover, You shall not, nor shall You permit any third party or person to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure implemented by Company for use of the Solution or the Network.
- User Obligations. You represent that You are at least eighteen years of age or the legal age of majority in Your state (whichever is greater) and will, at all times, provide true, accurate, current, and complete information (for which You have all necessary rights, permission(s), or authority) when submitting information through the Solution or through the Network, including, without limitation, when You provide information via a registration or submission form. In addition, You access the Solution of Your own volition and are responsible for compliance with all applicable laws, rules, and regulations with respect to Your use of the Solution (including use of any permitted copies of the Solution materials and information). If You access the Solution on behalf of any organization, Your organization shall be bound to this TOU and liable for any breach by You. You represent that You have all rights, power, and authority to agree to this TOU on behalf of Your organization.
- Account. You may be required to register before You can use the Solution or certain features of the Solution. Each registration (“Account”) is for a single user only, unless otherwise expressly agreed upon by Company. Registration for access to and use of the Solution may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by Company in its sole discretion from time to time. You hereby agree to consider Your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of Company, which may be withheld in its sole discretion. You shall immediately notify Company if You suspect or become aware of any loss or theft of Your password or any unauthorized use of Your user name and password. Company will not be liable for any loss or damage arising from Your failure (whether inadvertent or intentional) to comply with these obligations. By submitting the requested information to the registration form on the Solution, You represent and warrant that the information You submit for registration is complete, true, accurate, and current in all respects. You must maintain and promptly update Your submitted account information to ensure that such information is complete, true, accurate, and current. Company reserves the right to suspend, terminate, or otherwise discontinue Your account and/or pending registration if Company has reasonable grounds to suspect that any information You have submitted is untrue, inaccurate, not current, or incomplete, or that Your registration, account, or use of the Solution is in violation of applicable law, regulation, or the terms of this TOU.
- Submissions. Company may permit You to provide certain information, proposals, or materials to Company through the Solution with respect to certain electric charging projects or programs related to automobiles, infrastructure, and other associated matters (each, a “Submission(s)”). You agree not to upload, post, display, or transmit any Submission(s) if such Submission(s), or any part thereof, or the act of making the Submission(s) would be considered defamatory, abusive, violative of any intellectual property or other property or proprietary rights of any third party, or unlawful in any other way. Company is not responsible for screening, policing, editing, or monitoring Your or another user’s Submissions, and encourages all of its users to use reasonable discretion and caution in evaluating or reviewing any Submission(s). Nevertheless, if You violate this TOU, Company may, in its sole discretion, take whatever action is necessary to protect Company’s legal or equitable rights, or otherwise enforce the terms of this TOU. Moreover, it is a policy of Company to take appropriate actions under applicable intellectual property laws. If You become aware of Submissions that violate these rules regarding acceptable behavior or content, You may contact Company as provided herein.
- Permission to Use Submissions. By using the Solution to transmit, provide, distribute, or display a Submission(s), You automatically grant Company and any current or future parents, subsidiaries, as well as any current or future corporations, business entities, trusts, commonly-owned corporations, as well as any other entity owning, owned by, controlling, controlled by or under common control or ownership of an entity (whether legally, beneficially, by agreement or through stock ownership or other equity interest, directly or indirectly) and their permitted successors and assigns (collectively, “Company and/or Associated Entities”), with or without attribution, a royalty-free, perpetual, irrevocable, non-exclusive right and license to itself or any other party to use, act upon, make, have manufactured, sell, offer for sale, import, reproduce, modify, publish, create derivative works from, distribute and display such Submission(s) (in whole or in part) worldwide and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. You also acknowledge that such Submissions (in the form received or provided by You) are non-confidential for all purposes and that Company owes no obligation of confidentiality, attribution, or approval, and has no control over the extent to which any idea or information may be used by any other party or person. You will receive no compensation for any Submission(s) and hereby waive any right to enforce any intellectual property or proprietary right against Company and/or Associated Entities as a result of or on the basis of any use or exploitation of any Submission.
- Purchases and Subscriptions. The Solution may contain the option for You to subscribe to a payment plan, membership plan, discount plan (“Plan”), or purchase other related products and services. The applicable fees (and any applicable discounts, if available), the time period a Plan, renewal terms, and permitted payment methods (e.g., credit or debit) (collectively, “Plan Details”) will be specified through the Solution at the time You subscribe to the Plan. A Plan may include an automatic renewal feature, the terms of which are those stated through the Solution in the course of Your initial subscription to the Plan. Each subscription is final with respect to the time period purchased, and each purchase is final at the time of the purchase, with no refunds or credits provided except as otherwise stated in this TOU, indicated by Company in writing, or as may be required under applicable law. All transactions are void where prohibited by law and Company may request information in order to confirm the order and method of payment. Company reserves the right to terminate or suspend access to the Solution or to terminate any plan that You have subscribed to if You fail to pay any amounts owed under this TOU when due. The Plan Details for a Plan You have purchased are considered part of this TOU.
- Payments through the Solution. The Solution may offer You the opportunity to provide payment information (“Payment Information”) in order to complete payment for a purchase or a subscription or to load funds to Your account (“Transaction”). You agree only to provide Payment Information that is accurate and that you have authority to use for Transactions, and you agree that by providing an item of Payment Information you will be representing that you have such authority and that the Payment Information is accurate. You agree that Company may execute payment for Transactions that You order by using Payment Information that You have provided, and you authorize Company to do so, until You direct Company, through the Solution, to discontinue use of particular Payment Information. You shall be responsible for payment of all taxes, tariffs, levies, or duties applicable to Your payment. All amounts loaded to Your account will be denominated in the currency of the United States, and all transactions listed through the Solution are denominated in U.S. dollars.
- Funds for Account Payments. You are responsible for maintaining the confidentiality and security of Your Account information. You should not disclose Your Account information to anyone. If Your Account information is lost or stolen, anyone who obtains possession of either could use Your Account. You are responsible for all transactions on Your Account, including unauthorized transactions.
- Loading of Funds. The Solution may enable You to load funds to Your Account and to make payments for use of Chargers by means of debits to Your Account (“Account Payments”). Company reserves the right to discontinue the availability of Account Payments at any time, in its reasonable discretion; if Company chooses to discontinue Account Payments, it will refund You the amount in Your Account, in the manner of refunds set forth in paragraph 10(e) below. To make Account Payments, You must first load a minimum dollar value to Your Account. Company may in its sole discretion adjust the minimum dollar value from time to time, without notice to You, and if the minimum increases You will need to have the new minimum amount in Your Account to engage in Account Payments. Any value that You load to Your account is a prepayment for the goods and services that You may purchase from Company or the Plans to which You may subscribe through the Solution. While You may be required to provide Payment Information to enroll in the Solution, Company might not charge Your payment method until Your first attempt to pay for use of a Charger using an Account Payment, notwithstanding any applicable subscription fee. The value You load to Your account is not insured by the Federal Deposit Insurance Corporation (FDIC) and does not earn interest. There may be a delay from the time You load value to when the value is available for Account Payments.
- Reloading of Funds. If You are participating in the Account Payments feature, You will be able to load additional funds into Your Account, by specifying such loads through the Solution. Company may impose and may alter, in its reasonable discretion and without notice to You, limits on Your loading of funds to Your Account. Such restrictions may include, without limitation, limits on the number of times You may load funds during a given time period, limits on the dollar value of each load, limits on the total dollar value You may load during a given time period, or limits on the total amount in Your Account.
- Automatic Reloads. To make Account Payments, You may be required to permit automatic reloads. If You permit automatic reloads, You will specify a reload amount and a reload trigger, within limits that Company may set for such figures. Company will reload Your account, using Your Payment Information, by the specified reload amount whenever the value in Your Account decreases below the reload trigger. You may change Your reload amount or Your reload trigger, with such limits as Company may set from time to time. Your requested changes may take up to 24 hours to go into effect. No automatic reload transaction can be refunded or reversed. You can cancel automatic reloading only by deleting Your account.
- Transaction History. You are responsible for checking Your transaction history to ensure that Your transaction history and account balance are accurate. You can check Your transaction history and balance through the Solution. If You have questions regarding Your transaction history or balance, or if You wish to dispute any transaction, please call Customer Assistance at 1-833-632-2778. Company will review Your claim and make a reasonable determination whether to adjust Your Account in response. Company has no obligation to review or correct any error unless You provide notice of the claimed error within sixty (60) days of the date of the transaction in question.
- Refunds. The amount in Your Account is not transferrable to any other Account or any other person. The amount You have loaded to Your Account cannot be refunded or returned to You until You close Your Account and cancel Your registration with the Solution. If You do close Your Account and cancel Your registration with the Solution, Company will return any value then held in Your Account. Company will make that refund to the payment method You used to load the funds. If such payment method is not available, Company will not be required to refund or return the funds by any other means.
- Subscription Plans. The Solution may provide You the option to sign up for a monthly subscription plan that provides discounted pricing for use of the Network, for a monthly fee. The details of such discounts and the amount of the fee are set forth in the Plan Details. Company may change the Plan Details for any Plan, upon prior notice to You and an opportunity for You to decide whether to cancel or to renew Your Plan. Company may cancel a Plan, but Your Plan will continue through the end of the last time period for which You have paid.
- Automatic Renewal. Your subscription plan will continue month-to-month and automatically renew until terminated. You must cancel Your membership before it renews each month in order to avoid billing of the next month's membership fee to Your payment method on file.
- Payment. You will need to provide Company with Payment Information, and authorization to use the Payment Information for recurring subscription fees, in order to subscribe to a Plan. If You have signed up for Account Payments, Company will use the funds in Your Account for subscription payments, and then make automatic reloads into Your Account if necessary to refill Your Account to the specified minimum balance. Subscription fees are fully earned upon payment. In some cases, Your payment date may change, for example if Your payment method has not successfully settled or if Your paid membership began on a day not contained in a given month. You can find specific details on Your next payment date through the Solution by viewing your billing details. You authorize Company to charge any payment method associated to Your account in case Your primary payment method is declined or no longer available to Company for payment of Your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and You do not cancel Your account, Company may suspend Your Plan until Company has successfully charged a valid payment method.
- Cancellation. You can cancel or terminate Your Plan by using the appropriate options provided in the App, or by using the appropriate options provided on the Site. You must be logged into Your account to cancel a Plan using the App or the Site.
Company will not provide refunds or credits for subscription fees for any partial-month subscription periods.
- Limitations. A Plan is non-transferable, and You are not permitted to allow any other person to use Your Plan. The sale, barter, transfer or assignment of any subscription plan benefits is strictly prohibited. Without limiting any other remedies, Company may suspend or terminate Your Plan if it suspects, in its reasonable discretion, that You or any other person has engaged in fraudulent activity in connection with Your Plan, including without limitation by providing personal information that is untrue, inaccurate or not current.
- Payments for Charging. You agree to pay, for any occasion that You use a Charger, the cost determined for such use. The unit prices for Your use of a given Charger will be the unit prices stated on the face of the Charger, and applicable for the characteristics of Your charging session including the maximum charging rate, at the time You initiate a session using that Charger, less any discount applicable to Your use of the Charger such as from a subscription plan You have purchased (“Stated Prices”). Stated Prices may include, but are not limited to, a price per kilowatt-hour of energy delivered by the Charger; a price per minute of charging; and a price per minute that Your vehicle is connected in an idle, non-charging state (for example, idle fees). The cost of Your use of a Charger may also include applicable taxes added to the cost calculated from the Stated Prices, and may also include a fixed fee, stated on the face of the Charger at the time You initiate the session. You acknowledge that the information presented by the Charger governs the determination of the cost you will pay, and you agree not to rely on prices displayed for Chargers in the App or on the Site. For Chargers where Stated Prices can vary depending on the maximum charging rate for a session, You agree that the maximum charging rate is based on the maximum requested by Your vehicle. You acknowledge that the actual charging rate may vary during a session and that the highest rate achieved during a session may be lower than that maximum, due to factors such as vehicle capacity at start of charging, temperature, battery age, vehicle efficacy, vehicle usage, and power output of the charging station.
- If You fail to pay any amount owed under this TOU when payment is due, You shall reimburse Company for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts. Unless otherwise specified in this TOU, all Your obligations with respect to the amounts due to Company under the TOU shall survive the expiration or termination of the TOU for any reason.
- Communications, and Updates. By creating an account or by providing Your phone number to Company, You agree to receive communications from Company including, but not limited to email, push notifications, and/or text messages. These communications may include charging session notifications and final receipts. These communications are part of Your relationship with Company and You receive them as part of Your use of the Solution or the Network. You therefore hereby acknowledge and agree that any such notices, agreements, disclosures or other communications that Company sends to You electronically are compliant with any applicable law that requires Your consent for a given communication. Furthermore, You understand and agree that installation of the App permits the downloading of updates and upgrades for the purpose(s) of fixing product defects or providing enhancements. You will be given notice and an opportunity to accept or refuse any update or upgrade that Company provides. However, You acknowledge that Your refusal of an update or upgrade may impact performance of the App, and Company reserves the right to terminate Your use of the App if You refuse an update that Company deems critical.
- Links to Third Party Content. Company may provide links, in its sole discretion, to other applications, websites, or networks for Your convenience in locating or accessing related information and/or services. These other applications, websites or networks are maintained by third parties over which Company exercises no control. Your correspondence or any other dealings with third parties are solely between You and such third party. Accordingly, Company hereby expressly disclaims and shall not have any liability or responsibility for such applications, websites, or networks, or in connection with any such dealings between You and any third party.
- Additional Terms and Conditions for Apple Users. NOTE - The terms and conditions of this paragraph apply to You only if You downloaded the App through Apple Inc.’s App Store. You acknowledge that this TOU is between You and Electrify America, and that Apple Inc. (“Apple”) bears no responsibility for the App and its content. The license grant under paragraph 1 of this TOU is a non-transferable license to use the App on any Apple-branded Products that You own or control as permitted by this TOU and the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the App may be accessed and used by other accounts associated with You via “Family Sharing” (as defined in the Apple Media Services Terms and Conditions) or volume purchasing. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price (if any) of the App to You; provided that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by You or a third party relating to the App or Your use of the App, including without limitation: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third-party claim that the App or Your possession and use thereof infringes a third party’s intellectual property rights, Apple will not be responsible for any investigation, defense, settlement, or discharge thereof. Apple and its subsidiaries are third-party beneficiaries of this TOU, and upon Your acceptance of this TOU, Apple will have the right (and will be deemed to have accepted the right) to enforce this TOU against You as a third-party beneficiary thereof.
- Mobile Usage. The Solution offers various tools or display functionality that are available to You via Your mobile phone or other mobile computing device. Please note that Your mobile carrier’s normal messaging, data, and other rates and fees will apply to Your use of the Solution. In addition, downloading, installing, or using the Solution may be prohibited or restricted by Your mobile carrier, and not all functionality on the Solution will work with all carriers or devices or in all locations. Therefore, You are solely responsible for checking with Your mobile carrier to determine if the Solution is available for Your mobile devices; what restrictions, if any, may be applicable to Your use of the Solution; and how much such use will cost You. Nevertheless, Your use of the Solution shall be strictly in accordance with this TOU.
- Prohibited Uses. In addition to any other representations and warranties contained in this TOU, and as a condition of Your use of the Solution or the Network, You represent and warrant to Electrify America that You will not use the Solution or the Network to:
- Attempt to exploit or harm others in any way;
- Engage in any activity or conduct that is unlawful, offensive, obscene, threatening, harassing, abusive, misleading, malicious, discriminatory, or that violates the terms, conditions, or notices of this TOU, or any right of any third party;
- Attempt to circumvent the security systems of the Solution or the Network;
- Do anything harmful, unlawful, misleading, malicious, or discriminatory;
- Solicit login information or access an account belonging to someone else without their prior authorization;
- Monitor, gather or copy any user information, content, or material on the Solution or the Network, without our prior written permission, on a manual or automated basis, including, but not limited to, by using any robot, “bot,” spider, crawler, spyware, scraper, harvesting bots, engine, device, software, extraction tool or any other automatic device, utility or manual process of any kind.
- Attempt to probe, scan, or test the vulnerability of any of Electrify America’s system or network;
- Upload or submit any data or information that contains viruses, or any other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications, networks, servers or other equipment;
- Access, tamper with, or use non-public areas of the Solution or the Network, Electrify America’s computer systems, or the technical delivery system of Electrify America’s third-party service providers;
- Engage in any activity or conduct through or in connection with the Solution or the Network that restricts, inhibits, or interferes with anyone’s access to or use of the Solution or Network, the proper operation of the Solution or Network, or, as determined by us, would harm Electrify America or users of Electrify America’s Solution or Network or expose them to liability;
- Transmit, or procure sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
- Impersonate or attempt to impersonate Electrify America, an Electrify America employee, another user, or any other person or entity, including, without limitation, by using email addresses or usernames associated with any of the foregoing;
- Facilitate or encourage any violations of this TOU or our policies; and,
- Otherwise attempt to interfere with the proper working of the Solution or the Network.
- Disclaimer of Warranties COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION OR COMPANY’S CHARGERS WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE SOLUTION, THE NETWORK, AND ANY INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT CHARGERS WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS; THAT CHARGERS WILL PROVIDE SPECIFIED RATES OF ENERGY TRANSFER; OR THAT CHARGERS WILL DELIVER ENERGY IN ACCORDANCE WITH THE SPECIFICATIONS OF MANUFACTURERS OF CHARGERS OR OF VEHICLES. COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOLUTION AND REGARDING THE CHARGERS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, COMPANY EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY THIRD PARTY PROVIDED MATERIALS, PROGRAMS, PRODUCTS, AND SERVICES SET FORTH, DESCRIBED ON, OR ACCESSED THROUGH THE SOLUTION, AND YOU AGREE THAT COMPANY SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS BETWEEN YOU AND A THIRD PARTY.
- Limitation and Liability. COMPANY SHALL NOT BE RESPONSIBLE FOR ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND COMPANY’S CONTROL. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOLUTION OR THE USE OF CHARGERS OR FOR ANY INFORMATION AND MATERIALS AVAILABLE THROUGH THE SOLUTION, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF COMPANY FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SOLUTION OR THE USE OF CHARGERS SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO ELECTRIFY AMERICA (DURING THE TWELVE (12) MONTHS) PRECEDING YOUR CLAIM OR TEN U.S. DOLLARS ($10 USD), WHICHEVER IS GREATER. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE SERVICES THAT COMPANY PROVIDES UNDER THIS TOU WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATION. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
- No Liability for Negligence. YOU HEREBY AGREE THAT, ABSENT PROOF OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY COMPANY, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE TO PROPERTY, INJURY OR DEATH, OR OTHER HARM, TO YOU OR TO ANY OTHER PERSON, RESULTING OR ARISING FROM THE NEGLIGENT ACTS OR OMISSIONS OF COMPANY OR OF ANY OTHER PERSON, INCLUDING SUCH NEGLIGENT ACTS OR OMISSIONS BY YOU. YOU SPECIFICALLY AGREE THAT, ABSENT PROOF OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY COMPANY, COMPANY SHALL NOT BE LIABLE FOR ANY HARM RESULTING OR ARISING FROM ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF INFORMATION THAT YOU HAVE PROVIDED TO COMPANY OR THAT COMPANY HAS OBTAINED ABOUT YOU FROM THIRD PARTIES.
- Indemnification. You agree to indemnify, defend, and hold Company (and its affiliated companies, contractors, employees, agents, and suppliers and partners) harmless from any and all claims, suits, actions, liabilities, losses, costs, damages, expenses, and any other liabilities, including without limitation attorneys’ fees, arising out of or related in any manner to Your breach or alleged breach of this TOU or for any violation or alleged violation of the rights of any other person or entity.
- Governing Law. This TOU has been made in and will be construed and enforced solely in accordance with the laws of the Commonwealth of Virginia, U.S.A as applied to agreements entered into and completely performed in the Commonwealth of Virginia.
- ARBITRATION. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Except to the extent governed or preempted by federal law, this arbitration and class action/jury trial waiver will be governed by and construed in accordance with the laws of the State of Virginia, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
- To the extent permitted by applicable law, and with the sole exception of a claim or counterclaim that You or Company litigates in a small-claims court or equivalent court, for any and all controversies, disputes, demands, claims, or causes of action between You and Company (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to Your Account, relating to Your use of the Solution or Your use of the Network, or relating to this TOU (or any related or prior agreement that You may have had with Company), You and Company agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. The arbitration will take place in Virginia, or, in the alternative, may be conducted telephonically at Your request.
- Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one arbitrator and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules as they are amended from time to time. If the AAA is unavailable, the arbitration will be administered by such other administrator as You and Company jointly agree, using the latest extant version of the AAA Consumer Arbitration Rules.
- You should review this provision carefully. To the extent permitted by applicable law, You are GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend Your rights EXCEPT for matters that You file in small claims court in Your state or municipality within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief in a court located in Virginia, and You hereby agree to submit to the personal jurisdiction of courts in Virginia for such purposes. You and Company each agree that such a request for such emergency equitable relief will not waive any rights to arbitrate under this TOU.
- You and Company must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR COMPANY MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of Your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) the arbitrator will honor claims of privilege and privacy recognized at law; (e) the arbitration will be confidential, and neither You nor Company may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (f) the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law, subject to the limitations set forth elsewhere in this TOU.
- Enforcing Security on the Solution. Company reserves the right to view, monitor, and record activity on the Solution without notice or permission from You. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Solution as well as to disclosures required by or under applicable law or related government agency actions. Company will also comply with all court orders or subpoenas involving requests for such information.
- Injunctive Relief. You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of Company proprietary rights or assets, will cause irreparable injury to Company, such injury would not be quantifiable in monetary damages, and Company would not have an adequate remedy at law. You therefore agree that Company shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Your obligations under any provision of this TOU. Accordingly, You hereby waive any requirement that Company post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Company to enforce any provision of this TOU.
- Term & Termination. Company reserves the right at any time and on any grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate any term or condition of this TOU, to deny Your access to the Network, Solution or to any portion thereof in order to protect its name and goodwill, its business, and/or others. This TOU will also terminate automatically if You fail to comply with its terms and conditions, subject to the survival rights of certain provisions identified below. Such a termination will be effective without prior notice and may impact (and prohibit) submission of any information. You may also terminate this TOU at any time by notifying Company of such termination by email. Company may also terminate this TOU at any time, by providing You reasonable prior notice through email if You have provided an email address, or if You have not provided an email address by providing public notice on the Site. All applicable provisions of this TOU will survive termination, as identified below. If You consent to the TOU again through use of a Charger or by means of the Solution You will be consenting to the TOU in such form as is available at such time. Upon termination of this TOU for any reason, You must destroy all copies of any aspect of the Solution in Your possession. The provisions concerning Company’s proprietary rights, Submissions, disclaimers of warranty, limitations of liability, waiver and severability, entire agreement, injunctive relief, and governing law will survive the termination of this TOU for any reason.
- Waiver & Severability. Failure to insist on strict performance of any of the terms and conditions of this TOU will not operate as a waiver of any subsequent default or failure of performance. No waiver by Company of any right under this TOU will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. If any part of this TOU is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and the liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most clearly matches the intent of the original provision and the remainder of this TOU shall continue in effect.
- Export Controls. You represent and warrant that You are not (a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties. You hereby agree that (i) You will comply with all applicable Sanctions and Export Control Laws, (ii) You are solely responsible for ensuring that the Solution is used, disclosed, and/or transported only in accordance with all applicable Sanctions and Export Control Laws, and (iii) You will not re-export or transfer the Solution, in any form, directly or indirectly, to any person or entity based in Cuba, Iran, Syria, Sudan, South Sudan, or North Korea.
- Contact Information. If You have any questions about the Solution or this TOU, or You wish to provide a notice to Company under this TOU, please contact Electrify America at:
Address: 2003 Edmund Halley Drive, 2nd Floor, Suite 200, Reston, Virginia 20191
Email: [email protected]