If you use the Services as a Host or Fleet, as these terms are defined in Section 4 below, your use of the Services is governed by the separate Software as a Service Subscription Agreement entered into between you and AmpUp (the “SaaS Agreement”), in addition to these Terms. In the event of any conflict or inconsistency between these Terms and the terms of the SaaS Agreement, the terms of the SaaS Agreement prevail.
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND AMPUP THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. AGREEMENT TO TERMS. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
3.CHANGES TO THESE TERMS. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site, to the App and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. WHO MAY USE THE SERVICES? You may use the Services only if you are 16 years or older (or such other minimum age at which you can legally drive and provide consent to data processing under the laws of your territory), capable of forming a binding contract with AmpUp, and not otherwise barred from using the Services under applicable law. If you are over 16 years of age but under the age of majority in your respective jurisdiction, you hereby represent and warrant that your parent or legal guardian has read these Terms, and accepts them on your behalf. Parents and/or legal guardians are responsible for the acts of their minor children when using the Services, whether or not the parent or guardian has authorized such acts. Our Services may be used by individual EV drivers (“Drivers”), individuals or entities hosting EV charging stations (“Hosts”), companies’ fleet managers (“Fleets”), and Hosts’ and Fleets’ individual employees and contractors (“Hires”, and collectively with Drivers, Hosts and Fleets, “Users”). As a Hire, or any other individual accessing and using the Services on behalf of an entity (including Hosts and Fleets), you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will refer to that entity.
5. ACCOUNT REGISTRATION. To use certain features of the Services, you’ll need an account. It’s important that you provide us with accurate, complete and current account information and keep this information up to date. If you don’t, we might have to suspend or terminate your account. To protect your account, keep the account details and password confidential, and notify us right away of any unauthorized use. Each registration is valid for a single User only, and you’re responsible for all activities that occur under your account. Users undertake to notify the AmpUp immediately if they suspect or become aware of any unauthorized use of their access credentials. Users represent and warrant that the information they submitted for registration is complete and accurate in all respects and undertake to promptly update the submitted account information to ensure that such information is complete and current. AmpUp reserves the right to suspend, terminate, or otherwise discontinue any User’s account and/or pending registration if AmpUp has reasonable grounds to suspect that any information submitted by such User is untrue, inaccurate, not current, or incomplete, or that the User’s registration, account, or use of the Services is in violation of applicable law, regulation, or these Terms. AmpUp will not be liable for any loss or damage arising from the User’s failure (whether inadvertent or intentional) to comply with these obligations.
6. FEES AND PAYMENTS.
(a) Drivers and Hires. Drivers and Hires may pay for EV charging services made available by Hosts via the Services. The fees disclosed to you on the Site or the App include the fees set by the Hosts for the charging services they offer, and the service fee charged by AmpUp. When you choose to pay for charging services via the Services, you expressly authorize us and our payment processor to charge your payment method for the transaction. You understand that we may ask you to supply additional information relevant to your transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”) and information to verify your identity. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. By initiating a transaction, you agree to the pricing, payment and billing policies applicable to the fees and charges, as posted to the Services or otherwise communicated to you. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms, or as otherwise provided by AmpUp in its discretion. All fees and applicable taxes, if any, are payable in United States dollars.
(b) Hosts and Fleets. The fees payable by Hosts and Fleets are set forth in the SaaS Agreement.
7. CARBON CREDITS. Drivers acknowledge that the Services have the potential to generate credits (including carbon credits and renewable-energy credits), offsets, benefits, reductions or other tradable environmental air quality benefits, beneficial allowances or environmental attributes (collectively “Carbon Credits”). As a Driver, if you do not notify AmpUp in writing within 30 days from the date of your first use of the Services (the “Request Period”) of your intent to pursue Carbon Credit redemption individually or request that AmpUp do so on your behalf, you waive all rights to the receipt or transfer of any Carbon Credit in connection with your use of the Services and agrees that the right to transfer, monetize or otherwise benefit from the Carbon Credits potentially derived from your use of the Services will be retained exclusively by AmpUp. If you request that AmpUp redeem Carbon Credits on your behalf during the Request Period, AmpUp will collect said Carbon Credits and deduct all fees incurred by AmpUp in connection with the redemption process prior to transmitting the balance to you. If you choose to redeem Carbon Credits individually, AmpUp will not provide any support, advice or assistance in relation to this process.
8. OWNERSHIP AND GRANT OF RIGHTS. AmpUp reserves and, as between you and AmpUp will solely own all rights, title and interest in and to the Services and all intellectual property rights therein or related thereto. Subject to your compliance with the terms and conditions of this Agreement, AmpUp hereby grants you a limited, non-exclusive, non-transferable right to use the Services until you or we cancel or terminate your access to the Services. No other rights are granted to you hereunder (whether by implication, estoppel, exhaustion or otherwise). We may also make available through the Services content that is subject to intellectual property rights. As between you and AmpUp, we are the sole and exclusive owner of this content and retain all rights thereto and you are not granted any rights in this content aside from your right to use the Services.
9. USE RESTRICTIONS AND AMPUP’S ENFORCEMENT RIGHTS.
(a) Use Restrictions. You agree not to do any of the following: (i) use, display, mirror or frame the Services or any individual element within the Services, AmpUp’s name, any AmpUp trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without AmpUp’s express written consent; (ii) access, tamper with, or use non-public areas of the Services, AmpUp’s computer systems, or the technical delivery systems of AmpUp’s providers; (iii) attempt to probe, scan or test the vulnerability of any AmpUp system or network or breach any security or authentication measures; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by AmpUp or any of AmpUp’s providers or any other third party (including another user) to protect the Services; (v) attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by AmpUp or other generally available third-party web browsers; (vi) use any meta tags or other hidden text or metadata utilizing a AmpUp trademark, logo URL or product name without AmpUp’s express written consent; (vii) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services; (viii) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (iv) violate any applicable law or regulation; or (x) encourage or enable any other individual to do any of the foregoing.
(b) Enforcement Rights. AmpUp is not obligated to monitor access to or use of the Services. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right to disable your access to the Services at any time and without notice including, but not limited to, if we, at our sole discretion, consider your use of the Services objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conducts that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute Users who violate the law.
10. RIGHTS AND TERMS FOR APPS.
(a) App License. If you comply with these Terms, AmpUp grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
(b) Additional Information: Apple App Store. This Section applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation 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 App purchase price to you (if applicable) and, 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 any third party relating to the App or your possession and use of it, including, but not limited to: (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 or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (1) you are not 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
11. LINKS TO THIRD PARTY WEBSITES OR RESOURCES. The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
12. FEEDBACK. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
13. TERMINATION. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your account, at our sole discretion, at any time and without notice to you. You may cancel your account at any time by sending us an email at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your account, the following Sections will survive: 7, 8, 9, 13, 14, 15, 16, 17, 18, 19 and 20.
14. WARRANTY DISCLAIMERS. YOU ACKNOWLEDGE THAT YOU ARE USING THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES. WITHOUT LIMITING THE FOREGOING, AMPUP IS NOT RESPONSIBLE FOR ANY DAMAGES TO ANY VEHICLES OR CHARGING STATIONS RESULTING FROM THE CHARGING OF VEHICLES THROUGH THE USE OF THE SERVICES.
15. INDEMNITY. You will indemnify and hold AmpUp and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, (b) your violation of these Terms, or (c) your violation of any applicable law.
16. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER AMPUP NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AMPUP OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AMPUP’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS OF SERVICES COLLECTED FROM YOU IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM GIVING RISE TO LIABILIT OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AMPUP AND YOU.
17. GOVERNING LAW AND FORUM CHOICE. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and AmpUp are not required to arbitrate will be the state and federal courts located in the Northern District of California, and you and AmpUp each waive any objection to jurisdiction and venue in such courts.
18. DISPUTE RESOLUTION.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and AmpUp agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and AmpUp are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 18(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in San Francisco, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 18(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND AMPUP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 18(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
19. GENERAL TERMS
(a) Reservation of Rights. AmpUp and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between AmpUp and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between AmpUp and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without AmpUp’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. AmpUp may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
(c) Notices. Any notices or other communications provided by AmpUp under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. AmpUp’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AmpUp. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
CONTACT INFORMATION. If you have any questions about these Terms or the Services, please contact AmpUp at 833-692-6787 or firstname.lastname@example.org .