Effective as of November 30, 2018
1. License Grant. This TOU provides to You a personal, revocable, limited, non-exclusive, non-sublicensable, and non-transferable license to use the Site, conditioned on Your continued compliance with the terms and conditions of this TOU.
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 Site 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 Site.
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 Site, including, without limitation, when You provide information via a registration or submission form. In addition, You access the Site on Your own volition and are responsible for compliance with all applicable laws, rules, and regulations with respect to Your use of the Site (including use of any permitted copies of the Site materials and information). If You access the Site 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 Site or certain features of the Site. Each registration is for a single user only, unless otherwise expressly agreed upon by Company. Registration for access to and use of the Site 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 Site, 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 Site 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 Site 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 this Site 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. Purchase and Payment. The Site may contain the option for You to purchase a payment 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 at the time of order. All plans and subscriptions are billed immediately in advance and are final unless otherwise indicated by Company or as may be required under applicable law. Except as otherwise expressly indicated by Company in writing, there will be no refunds or credits for partial months, upgrades/downgrades, or non-use. Company and/or Company’s third party payment processor shall charge and You shall be responsible for payment of all taxes, tariffs, levies, or duties applicable to Your payment. Unless otherwise expressly indicated by Company in writing, all amounts are immediately due and payable upon order (or renewal, as applicable). Upon placing an order, You therefore agree to pay using the payment method indicated and grant authorization to Company and/or Company’s third party payment processor to charge the applicable fee to Your payment provider. However, all transactions are void where prohibited by law, and Company may request particular information in order to confirm the order and method of payment. Company also reserves the right to terminate or suspend access to the Site 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. Data Collection, Communications, and Updates. By accessing or using the Site, You agree to allow Company to collect (on behalf of itself and its business partners) certain information regarding Your use of the Site (including, without limitation, certain data regarding Your personal computer or 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 Site. 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.
11. Links to Third Party Content. Company may provide links, in its sole discretion, to other websites, networks, or applications for Your convenience in locating or accessing related information and/or services. These other websites, networks, or applications 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 websites, applications, or networks in connection with any such dealings between You and any third party.
12. Other Terms and Conditions. Additional notices, terms, and conditions may apply to products, services, receipt of (or access to) certain materials, participation in a particular program, and/or to specific portions or features of the Site, including without limitation the terms of third party payment processors.
13. Mobile Usage. The Site 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 Site via such mobile device. In addition, using or accessing the Site may be prohibited or restricted by Your mobile carrier, and not all functionality on the Site 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 Site is accessible to Your mobile devices; what restrictions, if any, may be applicable to Your use of the Site; and how much such use will cost You. Nevertheless, Your use of the Site shall be strictly in accordance with this TOU.
14. Disclaimer. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL OPERATE ERROR-FREE OR ON AN UNINTERRUPTED BASIS. THE SITE 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 SITE, 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.
15. 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 SITE OR FOR ANY INFORMATION AND MATERIALS AVAILABLE THROUGH THE SITE, 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 SITE SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR USE OF THE SITE DURING THE LAST TWELVE (12) MONTHS OR TEN U.S. DOLLARS ($10 USD), WHICHEVER IS GREATER.
16.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.
17. 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.
18. Enforcing Security on the Site. Company reserves the right to view, monitor, and record activity on the Site 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 Site 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.
19. 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.
20. Term & Termination. This TOU will take effect (or re-take effect) at the moment You begin accessing or using the Site. 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 Site 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 Site, but all applicable provisions of this TOU will survive termination, as identified below, and each re-access or use of the Site 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 Site 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.
21. 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.
22. 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 Site 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 Site, in any form, directly or indirectly, to any person or entity based in Cuba, Iran, Syria, Sudan, South Sudan, or North Korea.
23. Contact Information. If You have any questions about the Site or this TOU, please contact Electrify America at:
Address: 3800 Hamlin Road, Auburn Hills, MI 48326
Email: [email protected]