Effective as of March 26, 2019
1. 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 terms and conditions of this 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.
2. 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, 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 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.
3. 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, including, without limitation, when You provide information via a registration or submission form. In addition, You access the Solution on 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.
4. Account. You may be required to register to use the Solution or certain features of the Solution. Each registration 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.
5. 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 You will not 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.
6. 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, 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 its parent, affiliates, and subsidiaries as a result of or on the basis of any use or exploitation of any Submission.
7. Purchases. The Solution may contain the option for You to purchase a payment plan, membership plan, subscription, or other related products and services. The applicable fees (and any applicable discounts, if available), period of plan or subscription, renewal opportunities, and permitted payment methods (e.g., credit or debit) will be specified through the Solution at the time of order. All purchases are final and there will be no refunds or credits except as otherwise provided in this Agreement, 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 any related plan, subscription, product, or service if You fail to pay any amounts when due. You shall reimburse Company for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts. Unless otherwise specified herein, all obligations with respect to the amounts due to Company under the TOU shall survive the expiration or termination of the TOU for any reason.
8. Payments through the Solution. Upon placing an order, You agree to pay using the payment methods indicated and grant authorization to Company and/or the applicable third party payment-processor to charge Your payment methods indicated. Company and/or the applicable third-party payment processor shall charge and 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. You are responsible for: (a) the accuracy of all credit and debit card information that You provide to us; and (b) 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.
8.1. Loading of Funds. The Solution may require You to load a dollar value to Your account using Your credit or debit card on file in order to make payments at Company’s electric vehicle charging stations using the Solution. Any value that You load to Your account is a prepayment for the goods and services offered to You through the Solution. While you may be required to provide your credit and debit card information to enroll in the Solution, the Solution may not charge your payment method until your first attempt to purchase time at one of Company’s electric vehicle charging stations using the Solution, notwithstanding any applicable subscription fee. Any dollar value You have previously loaded to Your account will be refunded back to your payment method on file if you cancel your enrollment in the Solution. The value You load to Your account is not insured by the Federal Deposit Insurance Corporation (FDIC) and does not earn interest. Company may impose limits on the amount of value that You may load to Your account, and at no time may more than $2,000 be associated with Your account on a single day. Company may require that You load a minimum amount to Your account in order to use the account’s payment functionalities or other features. Company may change these limits in its sole discretion and at any time without notice to You. There may be a delay from the time You load value to when the value is available for use through the Solution.
8.2. Reloading of Funds. To use the Solution to make payments, You may be required to agree to the Solution’s automatic reload feature. The Solution will reload Your account by automatically charging the credit or debit card credentials that You have stored through the Solution whenever Your account balance falls below a certain, defined amount indicated at sign up. The Company will send You an email confirming the details of the automatic reload terms after You sign up. When the funds in Your account fall below the defined threshold the Company will automatically charge Your credit or debit card the reload amount You have selected. Company will send You a confirmation email after each reload purchase. You can change Your reload preferences at any time through the Solution, but changes may take up to twenty-four (24) hours to go into effect. Once Your payment method is charged, the transaction cannot be reversed. You may cancel automatic reloading by deleting your account, either by calling Customer Assistance at 1-833-632-2778, or (on the Site) by selecting Settings Profile Delete account, or (on the App) by selecting Settings Edit Profile Delete account, but You may not be able to use the App to initiate a charging session when automatic reloading is disabled.
8.3. Fees. Except as provided in this Agreement or by the Company in writing, Company does not charge any activation, service, dormancy or inactivity fees in connection with Your account. There is no expiration date for the value on Your account.
8.4. 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 correct any error promptly after finishing its review. Company has no obligation to review or correct any billing error unless You provide notice within sixty (60) days of the date of the transaction in question.
9. Subscription Plans. The Solution may provide You the option to sign up for a monthly subscription plan that provides discounted pricing at Company’s network of electric vehicle charging stations for a monthly fee. Discounts may vary depending on the region, so please check the Plan Details for more information regarding the discounts offered for charging stations located in your region. There is no minimum purchase obligation for this subscription, so the specified discounts will remain in effect regardless of how many charging sessions you purchase during the subscription term. In order to begin Your subscription plan, Company may require You to provide an acceptable means of payment, such as a valid credit or debit card. Some subscription plans may have differing conditions and limitations, which will be disclosed at Your sign-up or in other communications made available to You. You can find specific details regarding Your subscription through the Solution by accessing the “Plan details” menu item under the Profile menu in the Solution.
9.1. 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.
9.2. Payment. You will need to provide Company with authorization to charge Your credit or debit card on a recurring basis. The fee for the subscription plan will be charged to Your payment method on file at the time of enrollment and then each month thereafter until Your Account is funded following Your first use of the Solution at one of Company’s electric vehicle charging stations. Once Your Account is funded, the monthly subscription fee will be deducted from Your Account balance each month on the calendar day corresponding to the commencement of the paying portion of Your subscription until Your membership is cancelled. 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 access to the service until Company has successfully charged a valid payment method.
9.3. Cancellation. You can cancel or terminate Your subscription plan at any time as follows: In the App:
- After logging into the Electrify America Mobile app, navigate to Profile icon in top right hand corner of map.
- Select the Plan details menu item.
- Click on the Choose a different plan button.
- A screen will appear with tabs for each plan option available. Select the Electrify America Pass tab and click the button that says Change plan.
- A text box will appear titled Confirm change and will include text advising that the requested change to Electrify America Pass memberships will go into effect on the 1st day of the next billing cycle. Select Confirm.
- Your Plan details will now display a text box advising of the date Your switch to Electrify America Pass membership will occur. After that date, the monthly subscription fee will not be charged to Your card on file and You will not receive the relevant discounts.
In the Site:
- After logging into the Electrify America Customer Portal, navigate to Manage Accounts.
- Select the Plan details tab on the left hand side of the screen.
- Click on the Choose a different plan button.
- A window will appear with tabs for each plan option available. Select the Electrify America Pass tab and click the button that says Change plan.
- Your Plan details will now display a text box advising of the date your switch to Electrify America Pass membership will occur. After that date, the monthly subscription fee will not be charged to your card on file and you will not receive the relevant discounts.
Company will not provide refunds or credits for subscription fees for any partial-month subscription periods.
9.5. Limitations. Use of the subscription plan is non-transferable. The sale, barter, transfer or assignment of any subscription plan benefits is strictly prohibited. Without limiting any other remedies, Company may suspend or terminate any subscription plan if it suspects, in its sole discretion, that any member or other person has engaged in fraudulent activity in connection with the subscription plan, including without limitation by providing personal information that is untrue, inaccurate or not current.
10. Charging Pricing. The pre-tax charging pricing shown when logged onto the Site, the App, or at a charging station (“Charging Pricing”) represents the per-minute pricing charged during entire charging session and is based on the rate of charge Your vehicle communicates to the charging station that it can receive. Actual speed of charge may vary during the charging session and may fall below the Charging Pricing 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. By using the Solution or any other payment mechanism to purchase time at a charging station, You understand these factors and agree to pay the Charging Pricing disclosed through the Solution or at the charging station.
11. Data Collection, Communications, and Updates. By installing, accessing, or using the Solution, You agree to allow Company to collect (on behalf of itself and its business partners) certain information regarding Your use of the Solution (including, without limitation, certain data regarding Your mobile device (e.g., type of device, unique device ID, etc.), operating software, feature utilization, navigation, and personal information (e.g., name, email, etc.)). In particular, if You elect to use certain location-based features or services, Company may collect Your precise location. You authorize Company to locate Your device and to record, compile, and/or display Your location. Company may use and/or share location information with third parties for purposes of targeting advertising to the device. By creating an account, 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. You therefore hereby agree that any such notices, agreements, disclosures or other communications that Company sends to You electronically will satisfy any legal communication requirements. 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, Your refusal of an update or upgrade may impact performance of the App.
14. 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.
16. 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 onany 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.
17. 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.
18. Disclaimer. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, 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.
19. 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 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 SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR USE OF THE SOLUTION (DURING THE LAST TWELVE (12) MONTHS) OR TEN U.S. DOLLARS ($10 USD), WHICHEVER IS GREATER.
20.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.
21. 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. Any dispute will be resolved by arbitration, with the losing party to pay all costs and fees.
22. Enforcing Security on the Site. 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.
23. 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.
24. Term & Termination. This TOU will take effect (or re-take effect) at the moment You click “I AGREE” or begin downloading, accessing, or using the Solution, whichever is earliest. 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 Solution or to any portion thereof in order to protect its name and goodwill, its business, and/or others, and 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. 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 ceasing to use the Solution, but all applicable provisions of this TOU will survive termination, as identified below, and each re-access or use of the Solution will reapply this TOU (then in effect) to You. 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.
25. 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.
26. 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.
27. Contact Information. If You have any questions about the Solution or this TOU, please contact Electrify America at:
Address: 3800 Hamlin Road, Auburn Hills, MI 48326
Email: [email protected]merica.com