Terms of use
Effective as of February 1st, 2023

IMPORTANT
THIS IS A LEGAL AGREEMENT BETWEEN EACH END USER (“YOU” or “USER” or “YOUR”) AND VELOCICHARGE LLC (“VELOCICHARGE” or the “the COMPANY”). YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT (CALLED THE “TERMS OF USE” OR “TOU”).

THESE TERMS ARE IMPORTANT. THEY AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS CAREFULLY AND MAKE SURE THAT YOU UNDERSTAND EACH PROVISION AS THEY CONTAIN IMPORTANT INFORMATION ABOUT THE SERVICES PROVIDED TO YOU. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE CAREFULLY REVIEW SECTION 8 OF THESE TERMS FOR MORE INFORMATION. THESE TERMS LIMIT EVGO’S LIABILITY AND THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, do not access or use our Site, Driver Portal, Mobile App, or Services. These Terms expressly supersede prior agreements, understandings, or arrangements with you regarding the subject matter of these Terms. Separate supplemental terms may apply to certain Services, such as policies for a particular service plan, program, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Services.
This Terms of Use governs Your use of electric vehicle chargers operated by VELOCICHARGE (each of which is called a “Charger”; collectively they are called the “Network,” and the term “Network” also refers to any subset of the collection, including individual Chargers); Your use of the mobile application made available BY VELOCICHARGE (the “App”); and the website and online web portal provided by VELOCICHARGE (collectively the “Site”; and, together with the App, the “Solution”).

1. Use of Chargers.

i. 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. Velocicharge 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, Velocicharge 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 Velocicharge harmless for any damage, liability, or loss experienced by any person resulting from your failure to comply with the terms of this paragraph.
ii. 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.
iii. An electric or regular car left unattended for an extended period exceeding 2 hours will be deemed abandoned, and actions such as Police Fines, Administrative Fines or Penalties, Account suspension, Car removal by TOW, and others as decided by the State Police or regulatory agency may be applied.
2. License Grant. This TOU provides you with 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 screenshot 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.
3. Restrictions. Except as expressly provided herein, the 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 the Company for use of the Solution or the Network.

4. 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 by this TOU and liable for any breach by you. You represent that you have all the rights, power, and authority to agree to this TOU on behalf of your organization.

5. 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 the Company. Registration for access to and use of the Solution may also require access credentials, such as a username and a password, or adherence to other particular access requirements as designated by the Company in its sole discretion from time to time. You hereby agree to consider your access credentials, such as a username and password, as confidential information and not to disclose such information to any third party without the prior express written consent of the Company, which may be withheld in its sole discretion. You shall immediately notify the Company if you suspect or become aware of any loss or theft of your password or any unauthorized use of Your username and password. The 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. The Company reserves the right to suspend, terminate, or otherwise discontinue your account and/or pending registration if the 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. In the event of an account access loss, the account holder shall be required to contact Velocicharge by forwarding an email to info@velocicharge.com, delineating the circumstances of the access issue. The account holder will be obligated to provide authenticating documentation for the purpose of securely recovering the account. Such documentation shall include, but not be limited to, valid government-issued identifications, pertinent invoices, and/or any other evidentiary material deemed necessary by Velocicharge to affirm the authenticity of the claim and to guard against fraudulent activity. It is imperative that the account holder furnishes all solicited information in a comprehensive and accurate manner. Should the account holder fail to provide the requisite documentation for the verification and certification of the claim, Velocicharge shall be under no obligation to issue a refund or execute a fund transfer pertaining to the account in question. This measure is instituted to uphold the security and integrity of user accounts within the Velocicharge network, underscoring the importance of compliance with these stipulated procedures.
Furthermore, once all necessary documents have been submitted, Velocicharge reserves a period of up to ninety (90) days to complete the account recovery process. This timeline ensures a thorough and secure verification process, safeguarding both the account holder and the integrity of the Velocicharge network.

6. Submissions. The Company may permit you to provide certain information, proposals, or materials to the 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. The Company is not responsible for screening, policing, editing, or monitoring your or another user’s Submissions, and encourages all its users to use reasonable discretion and caution in evaluating or reviewing any Submission(s). Nevertheless, if you violate this TOU, the Company may, in its sole discretion, take whatever action is necessary to protect the Company’s legal or equitable rights, or otherwise enforce the terms of this TOU. Moreover, it is a policy of the 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 the Company as provided herein.

7. Permission to Use Submissions. By using the Solution to transmit, provide, distribute, or display a Submission(s), you automatically grant the 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, the “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 the 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 the Company and/or Associated Entities as a result of or on the basis of any use or exploitation of any Submission.

8. 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 the Company in writing, or as may be required under applicable law. All transactions are void where prohibited by law and the Company may request information in order to confirm the order and method of payment. The 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.

9. 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 the Company to do so, until you direct the 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.

10. 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.
i. 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”). The Company reserves the right to discontinue the availability of Account Payments at any time, in its reasonable discretion; if the 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. The 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 the 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, the 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.
ii. 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. The Company may impose and may alter, in its reasonable discretion and without notice to you, limits on your loading of funds into 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.
iii. Complementary Free Charge Program (CFC).
   A. Complementary Free Charge Program (CFC) Overview:
   B. The funds associated with a CFC coupon become available upon coupon activation, exclusively for charging purposes. The fund amount cannot be redeemed in cash or any other form.
   C. The unique code may be provided by Velocicharge or an external entity and is non-transferable or sellable.
   D. By default, only one CFC coupon can be active per account at a time. Exceptions can be activated.
   E. Service fees, connection charges, idle fees, penalties for leaving the car without charging, or others may be deducted from this balance.
   F. A minimum balance is required to activate the account and utilize the CFC coupon.
   G. The coupon can only be assigned to one customer and/or account.
   H. The coupon may have varied expiration dates, ranging from 15 days to 365 natural days. The remaining balance expires after this expiration date and will not be refunded.

iv. 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 the Company may set for such figures. The 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 the 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 by deactivating the option by yourself.
v. Transaction History. You are responsible for checking your transaction history to ensure that both 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 Service at 787.918.3000 or write to info@velocicharge.com. The Company will review your claim and make a reasonable determination whether to adjust your Account in response. The Company has no obligation to review or correct any error unless you provide notice of the claimed error within sixty (10) days of the date of the transaction in question.
vi. Refunds. The amount in your Account is not transferable 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. If you do close your Account and cancel your registration with the Solution, the Company will return any value then held in your Account. The Company will make that refund to the payment method you used to load the funds. If such a payment method is not available, the Company will not be required to refund or return the funds by any other means.

A. User error: Users must ensure the compatibility of their vehicle connectors with our charging stations before adding funds to their wallet. Therefore, no refunds will be issued in cases where the station’s connectors are not compatible with the user’s vehicle.

However, users have the right to file a complaint by sending an email to info@velocicharge.com. To process a claim, users must include the following information: Name, Last Name, Station Location, Car Model, and a detailed description of the situation. If the refund claim is approved, the funds will be returned to the initial payment method, deducting a 5% transaction fee from the deposited balance.

B. Penalty/Idle Fee: For claims related to fines, users must submit an email to info@velocicharge.com within the first 10 calendar days of the fine occurrence. The email should include details such as Name, Last Name, Time, License Plate Number, Car Model, Station Location, Charger Name, and any other relevant information to understand the context of the situation. If the refund claim is approved, Velocicharge will return the funds to the initial payment method.

11. 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 your 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.
12. If You fail to pay any amount owed under this TOU when payment is due, you shall reimburse the 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 the Company under the TOU shall survive the expiration or termination of the TOU for any reason.
13. Communications, and Updates. By creating an account or by providing your phone number to the Company, you agree to receive communications from the 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 the 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 the 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 the Company provides. However, you acknowledge that your refusal of an update or upgrade may impact performance of the App, and the Company reserves the right to terminate your use of the App if you refuse an update that the Company deems critical.
14. Privacy Policy. You understand, acknowledge, and agree that the operation of certain areas of the Solution and the creation of an account may require or involve the submission, use, and dissemination of various personally identifiable information including, but not limited to, your phone number, email address, and mailing address. Please see the Velocicharge Privacy Policy for a summary of the Company’s practices regarding the collection and use of personally identifiable information. Any information submitted by you through the Solution will be pursuant to the Privacy Policy and any disclosures that the Privacy Policy incorporates by reference. You agree to allow the Company to maintain, use, and disclose your personal information as described in the Privacy Policy and its incorporated disclosures, and you hereby license such uses and disclosures of your personal information.
15. Proprietary Rights. All rights, titles, and interests in and to the Solution are owned by the Company. The Solution is protected by United States copyright law and international treaty provisions governing proprietary rights, including, without limitation, the Berne Convention. This TOU provides only a limited license to access and use the Solution. Accordingly, you expressly acknowledge and agree that the Company transfers no ownership or intellectual property right, title, or interest in and to the Solution to you or anyone else. All trademarks, service marks, text, graphics, headers, icons, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including HTML, CSS, XML, and JavaScript code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Solution, unless otherwise indicated, are owned, controlled, and licensed by the Company and/or its licensors. In particular, without limitation, the Company logo, the words “Velocicharge,” all the Company product or service names, and the Company advertising slogan(s) are trademarks. Nothing contained in the Solution should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the Company’s trade names, trademarks or service marks without express prior written consent. All rights not expressly licensed hereunder are reserved by the Company.
16. Links to Third Party Content. The 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 the Company exercises no control. Your correspondence or any other dealings with third parties are solely between you and that third party. Accordingly, the 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.
17. 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 Solution, including without limitation the terms of app stores, digital distribution services, and/or third-party payment processors. Without limitation of the foregoing, you hereby agree that (a) this TOU operates in addition to any terms of use imposed or required by any digital download or user interface platform from which you download or access the Solution (“Provider Terms”); and (b) the terms of this TOU supplement and do not alter or amend any such Provider Terms.
18. 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.
19. 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 Velocicharge 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 Velocicharge’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, Velocicharge’s computer systems, or the technical delivery system of Velocicharge’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 Velocicharge or users of Velocicharge’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 Velocicharge, an Velocicharge 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.
20. Disclaimer of Warranties THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION OR THE 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. THE 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 THE 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.
21. Limitation and Liability. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND THE 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 THE 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 VELOCICHARGE (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 THE 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.
22. 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, THE 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.
23. Indemnification. You agree to indemnify, defend, and hold the 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.
24. Governing Law. This TOU has been made in and will be construed and enforced solely in accordance with the laws of the Commonwealth of Puerto Rico.
25. 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.
i. 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.
ii. To the extent permitted by applicable law, and with the sole exception of a claim or counterclaim that you or the 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 the 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 the Company), you and the 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, alternatively, may be conducted telephonically at your request.
iii. 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 the Company jointly agree, using the latest extant version of the AAA Consumer Arbitration Rules.
iv. 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 if 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 the Company each agree that such a request for such emergency equitable relief will not waive any rights to arbitrate under this TOU.
v. You and the 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, the 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 the 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.
26. Enforcing Security on the Solution. The 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. The company will also comply with all court orders or subpoenas involving requests for such information.
27. Injunctive Relief. You acknowledge that any breach, threatened or actual, of this TOU, including, without limitation, with respect to unauthorized use of the Company proprietary rights or assets, will cause irreparable injury to the Company, such injury would not be quantifiable in monetary damages, and the 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 the Company post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to the Company to enforce any provision of this TOU.
28. Term & Termination. The 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 the Company of such termination by email. The 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 the 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.
29. 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.
30. Contact Information. If you have any questions about the Solution or this TOU, or you wish to provide a notice to the Company under this TOU, please contact Velocicharge at:
Address: Carr. 176 km 6.0, Cupey Alto, Puerto Rico 00956
Email: info@velocicharge.com
31. Miscellaneous. No joint venture, partnership, employment, affiliate, or agency relationship exists between you and the Company as a result of this TOU or your utilization of the Solution. This TOU, the Company’s Privacy Policy and any applicable Plan Details represent the entire agreement between you and the Company with respect to use of the Solution, and the Network, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you the Company with respect to the Solution and the Network. You may not assign, delegate, or transfer any rights under this TOU without the prior written consent of the Company. Please note that the Company reserves the right to change the terms and conditions of this TOU by providing reasonable notice. If you have created an account through the Solution, the Company will provide such notice by emailing you a reasonable time before the change takes effect. Your continued use of the Solution or the Network after such a notice will constitute your acceptance of the revision; and if you choose not to accept the revision, you must cease using the Solution and the Network before the change takes effect. If you have not created an account through the Solution, the Company will provide notice by updating the TOU available for view at Chargers, and by consenting to the TOU through the Charger you will be assenting to the changes. If you do not assent to the changes, you must not use a Charger after the changes. In addition, the Company may add, modify, or delete any aspect, program, or feature of the Solution, but the Company is not under any obligation to add any upgrade, enhancement, or modification.