InCharge
Terms & Conditions
InCharge Terms & Conditions
These Terms and Conditions apply to your use of the InCharge Platform and/or the InCharge Services. These Terms and Conditions may be changed at any time by InCharge without prior notice. All such changes shall be posted on the InCharge Site and/or otherwise made available via the InCharge Platform or the InCharge Services. You should check the InCharge Site and/or InCharge Services for such changes frequently. Your continued access to, and use of, the InCharge Site, the InCharge Platform and/or the InCharge Services, after such changes are posted, conclusively demonstrates your acceptance of those changes.
You acknowledge and agree that InCharge may collect data relating to the usage of the InCharge Site, the InCharge Platform, and/or the InCharge Services. All such information may be shared by InCharge with third parties at InCharge’s sole and absolute discretion. The way we use your information is detailed in the InCharge Privacy Policy.
1. DEFINITIONS. The following terms shall have the definitions set forth below when used in these Terms and Conditions:
2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of 50% or more of the voting interests of the subject entity.
2.2 “APIs“ means, individually or collectively, the application programming interfaces which are made available to you from time to time, as and when updated by InCharge.
2.3 “Charging Station” means the electric vehicle charging station(s) purchased or leased by you that are registered and activated on the InCharge Platform.
2.4 “Content“ means all content and data provided, collected or maintained by InCharge in connection with the operation of the InCharge Site, the InCharge Platform and/or the InCharge Services.
2.5 “Documentation” means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to the InCharge Platform and/or InCharge Services and made available from time to time by InCharge to you in any manner (including on-line).
2.6 “Fees” means the applicable fees payable by you for subscribing to or otherwise using the InCharge Platform or any InCharge Services.
2.7 “InCharge Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by InCharge.
2.8 “InCharge Platform” means the open-platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by InCharge in order to provide various services to, among others, you and your employees.
2.9 “InCharge Property” means (i) the InCharge Platform, (ii) the InCharge Services, (iii) all Content, (iv) the InCharge Marks, and (v) all other InCharge-supplied material developed or provided by InCharge for your use in connection with the InCharge Services.
2.10 “InCharge Services” means, collectively, the various cloud services offerings made available for subscription by InCharge.
2.11 “InCharge Site” means the real property location where InCharge Services are provided.
2.12 “Intellectual Property Rights” means all intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above.
2.13 “Malicious Code” means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents or programs.
2.14 “PII” means personally identifiable information regarding you or a User (e.g., name, address, email address, phone number or credit card number) that can be used to uniquely identify, contact or locate you or such User.
2.15 “Subscriber Content and Services” means any content and/or services that you provide or make available to Users and/or the general public in connection with the InCharge Services, other than InCharge Property.
2.16 “Subscriber Marks” means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by you in connection with your business and/or Charging Stations.
2.17 “Taxes” shall mean all present and future taxes, imposts, levies, assessments, duties or charges of whatsoever nature, including, without limitation, any withholding taxes, sales taxes, use taxes, service taxes, value added or similar taxes at the rate applicable for the time being imposed by any national or local government, taxing authority, regulatory agency or other entity together with any penalty payable in connection with any failure to pay or any delay in paying any of the same and any interest thereon.
2.18 “User” means any person using the InCharge Services authorized by you or otherwise using your Charging Stations.
3. SUBSCRIPTION FEES AND PAYMENT TERMS.
3.1 SUBSCRIPTION FEES. Subscription fees will payable as set forth in the applicable invoice on the first date of such subscription or the renewal thereof. All payments shall be made in U.S. Dollars by check, wire transfer, ACH payment system or other means approved by InCharge. You may not offset any amounts due to InCharge hereunder against amounts due to you from InCharge. Fees payable to InCharge do not include any Taxes imposed thereon, and you are responsible for any and all such Taxes. All such Taxes shall be set forth on the invoice provided by InCharge to you; provided that, InCharge’s failure to include any such Tax on an invoice shall not relieve your liability therefor. All payment obligations under these Terms and Conditions are non-cancelable and non-refundable.
3.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. If any amount owing by you under these Terms and Conditions is more than thirty (30) days overdue, InCharge may, without otherwise limiting InCharge’s rights or remedies, (a) terminate these Terms and Conditions, (b) suspend your use of the InCharge Services until such amounts are paid in full, and/or (c) condition your future InCharge Service renewals and other purchases on payment terms other than those set forth herein.
3.3 COLLECTION. InCharge may institute collection proceedings against you for all outstanding and unpaid balances, including all fees, costs or other expenses (including, without limitation, reasonable attorney fees) incurred by InCharge in connection with its collection efforts.
4. SUBSCRIBER’S ADDITIONAL RESPONSIBILITIES.
4.1 GENERAL.
(a) All use of the InCharge Platform and InCharge Services by you and your Users shall comply with these Terms and Conditions and all of the rules, limitations and policies communicated by InCharge to you from time to time. You shall keep all InCharge account details, passwords, and the like secure and confidential. You shall prevent, and shall be fully liable to InCharge for, any unauthorized access to or use of the InCharge Platform or InCharge Services via your account(s), your Charging Stations, or other equipment. You shall immediately notify InCharge upon becoming aware of any such unauthorized use.
(b) You shall be solely responsible for: (i) keeping your contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (ii) updating on the applicable InCharge Service, within five (5) business days, the location to which any of your Charging Stations are moved; (iii) the maintenance, service, repair and/or replacement of your Charging Stations as needed, including informing InCharge of the existence of any Charging Stations that are non-operational and not intended to be replaced or repaired by you; and (iv) compliance with all applicable laws.
4.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. You represent and warrant to InCharge that: (i) you have the power and authority to enter into and be bound by these Terms and Conditions and shall have the power and authority to install the Charging Stations and any other electrical vehicle charging products which are registered and activated on the InCharge Services); (ii) the electrical usage to be consumed by your Charging Stations will not violate or otherwise conflict with the terms and conditions of any applicable electrical purchase or other agreement including, without limitation, any lease, to which you or your Affiliates is a party; and (iii) you have not installed or attached and will not install or attach Charging Stations on or to infrastructure not owned by you without proper authority, or in a manner that will block any easement or right of way.
4.3 RFID CARDS. You may be permitted by InCharge, in InCharge’s sole discretion, to obtain InCharge-provisioned radio-frequency identification cards (“RFID Cards”) which enable the individual card recipients to access and use InCharge. You may distribute such InCharge Cards to individuals, and each individual RFID Card recipient is responsible for activating his or her InCharge Card on the InCharge Platform directly with InCharge on the InCharge Services. In no event will you create any separate InCharge accounts for any RFID Card recipients or other third parties, nor will you create anonymous InCharge accounts associated with any RFID Card.
4.4 USE RESTRICTIONS AND LIMITATIONS. You shall not:
(a) sell, resell, license, rent, lease or otherwise transfer the InCharge Services or any Content therein to any third party;
(b) interfere with or disrupt the InCharge Services, servers, or networks connected to the InCharge Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the InCharge Services;
(c) restrict or inhibit any other user from using and enjoying the InCharge Platform or any InCharge services;
(d) attempt to gain unauthorized access to the InCharge Platform or the InCharge Services or related systems or networks or any data contained therein, or access or use the InCharge Platform or InCharge Services through any technology or means other than those provided or expressly authorized by InCharge;
(e) create any InCharge Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on the InCharge Platform, or obtain or attempt to obtain multiple keys for the same URL;
(f) reverse engineer, decompile or otherwise attempt to extract the source code of the InCharge Services or any part thereof, except to the extent expressly permitted or required by applicable law;
(g) create derivative works based on any InCharge Property;
(h) remove, conceal or cover the InCharge Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for use in connection with your Charging Stations;
(i) except as otherwise expressly permitted by these Terms and Conditions or in any applicable data sheet relating to an InCharge Service, copy, frame or mirror any part of the InCharge Services or InCharge Content, other than copying or framing on your own intranets or otherwise solely for your own internal business use and purposes;
(j) access the InCharge Platform or the InCharge Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to build a competitive product or service or copy any features, functions, interface, graphics or “look and feel;”
(k) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the InCharge Services or Content or collect information about InCharge Service users for any unauthorized purpose;
(l) upload, transmit or introduce any Malicious Code to the InCharge Platform or InCharge Services;
(m) use any of the InCharge Services if you are a person barred from such use under the laws of the United States or of any other jurisdiction; or
(n) use the InCharge Services to upload, post, display, transmit or otherwise make available (A) any inappropriate, defamatory, obscene, or unlawful content; (B) any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (C) any messages, communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, these Terms and Conditions or the Documentation.
4.5 CONTENT.
(a) InCharge Content is provided for planning purposes only. You may find that various events may mean actual Charging Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition, certain Charging Station-related Content, including Charging Station name and use restrictions, is set by you or the Charging Station owner and is not verified by InCharge. You should exercise judgment in your use of the Content.
(b) Certain Content may be provided under license from third parties and is subject to copyright and other intellectual property rights of such third parties. You may be held liable for any unauthorized copying or disclosure of such third party-supplied Content. You use of such Content may be subject to additional restrictions set forth in the Documentation.
(c) You shall not copy, modify, alter, translate, amend, or publicly display any of the Content except as expressly permitted by the Documentation. You shall not present any portion of the Content in any manner, that would (i) make such Content false, inaccurate or misleading, or (ii) falsify or delete any author attributions or labels of the origin or source of Content.
(d) You shall not remove, obscure, or alter in any manner any proprietary rights notices (including copyright and trademark notices), warnings, links or other notifications that appear in the InCharge Services.
5. INCHARGE’S RESPONSIBILITIES AND AGREEMENTS.
5.1 GENERAL RESPONSIBILITIES. InCharge agrees to provide and shall be responsible for: operating, maintaining, administering and supporting the InCharge Platform and the InCharge Services and related infrastructure (other than Charging Stations and infrastructure for transmitting data from Charging Stations to any InCharge operations center unless otherwise agreed to in writing between you and InCharge) in compliance with all applicable laws. InCharge will protect the confidentiality and security of PII in accordance with all applicable laws and regulations and the InCharge Privacy Policy.
5.2 LIMITATIONS ON RESPONSIBILITY. InCharge shall not be responsible for, and makes no representation or warranty with respect to the following: (i) continuous availability of electrical service to any Charging Stations; (ii) continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by InCharge of the InCharge Platform or InCharge Services; (iii) availability of or interruption of the InCharge Network attributable to unauthorized intrusions; and/or (iv) charging stations that are not registered with and activated on the InCharge Platform.
6. INTELLECTUAL PROPERTY RIGHTS AND LICENSES.
6.1 INCHARGE PROPERTY. As between you and InCharge, InCharge retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the InCharge Property and any improvements thereto. No rights are granted to you or any User in the InCharge Property hereunder except as expressly set forth in these Terms and Conditions.
6.2 SUBSCRIBER PROPERTY. As between you and InCharge, you retain and reserve all right, title and interest (including all related Intellectual Property Rights) in and to all Subscriber Marks and all Subscriber Content. No rights are granted to InCharge in any Subscriber Marks or Subscriber Content hereunder except as expressly set forth in these Terms and Conditions.
6.3 LIMITED LICENSE TO SUBSCRIBER. InCharge hereby grants to you a royalty-free, non-assignable, non-transferable, and non-exclusive license to use the InCharge Property solely in accordance with the terms of these Terms and Conditions (including without limitation all limitations and restrictions on such use) to the extent necessary for you and your Users to access, use and receive the InCharge Services as permitted herein.
6.4 LIMITED LICENSE TO INCHARGE. You hereby grant to InCharge a non-assignable, non-transferable, and non-exclusive license to use the Subscriber Marks and the Subscriber Content solely in accordance with these Terms and Conditions (including without limitation all limitations and restrictions on such use) to the extent necessary for InCharge to provide the InCharge Services. InCharge may utilize the Subscriber Marks to advertise that you are using the InCharge Services. The foregoing license includes a perpetual and irrevocable right of InCharge to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by you in the InCharge Services, solely for the purpose of enabling InCharge to operate, market and promote the InCharge Services. InCharge shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the InCharge Services any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users relating to the InCharge Services.
6.5 ADDITIONAL TERMS REGARDING INCHARGE MARKS.
(a) USE LIMITATIONS. You may display the InCharge Marks in connection with your Charging Stations as required in these Terms and Conditions. You shall not use any of the InCharge Marks for or with any products other than your Charging Stations. From time to time, InCharge may provide updated InCharge Mark usage guidelines, and you shall thereafter comply with such updated guidelines. For any use of the InCharge Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the InCharge Mark, you must obtain InCharge’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, you may use the InCharge Mark in the approved manner. All use by you of InCharge’s Marks (including any goodwill associated therewith) will inure to the benefit of InCharge.
(b) PROHIBITIONS. You shall not use or display any InCharge Mark:
(i) as a part of the name under which your business is conducted or in connection with the name of a business of you or your Affiliates;
(ii) in any manner that (x) implies a relationship or affiliation with InCharge other than as described under these Terms and Conditions, (y) implies any sponsorship or endorsement by InCharge, or (z) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of InCharge or InCharge personnel;
(iii) in any manner intended to disparage InCharge, the InCharge Platform, or the InCharge Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to InCharge;
(iv) in any manner that violates any law, rule or regulation; or
(v) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by InCharge.
(c) NO REGISTRATION OF INCHARGE MARKS. You shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any InCharge Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to an InCharge Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of InCharge, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to you by InCharge. At no time will you challenge or assist others to challenge the InCharge Marks (except to the extent such restriction is prohibited by law) or the registration thereof by InCharge.
(d) TERMINATION AND CESSATION OF USE OF INCHARGE MARKS. Upon termination of these Terms and Conditions, you will immediately discontinue all use and display of all InCharge Marks.
7. LIMITATIONS OF LIABILITY.
7.1 DISCLAIMER OF WARRANTIES. THE INCHARGE PLATFORM AND THE INCHARGE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INCHARGE DOES NOT WARRANT THAT (A) YOUR USE OF THE INCHARGE PLATFORM OR THE INCHARGE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET YOUR REQUIREMENTS; (B) ALL CONTENT AND OTHER INFORMATION OBTAINED BY YOU FROM OR IN CONNECTION WITH THE INCHARGE SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE INCHARGE SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE INCHARGE SERVICES IS OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.
7.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL INCHARGE BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE INCHARGE PLATFORM OR ANY INCHARGE SERVICES, OR THESE TERMS AND CONDITIONS, OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES NOT SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS.
7.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither you nor InCharge shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical outages, power surges, brown-outs, utility load management or any other similar electrical service interruptions, whatever the cause; (ii) interruptions in wireless or cellular service linking Charging Stations to the InCharge Platform; (iii) interruptions attributable to unauthorized intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with InCharge; or (v) the inability of a Charging Station to access the InCharge Platform or any InCharge Services as a result of any change in product offerings (including, without limitation, the any network upgrade or introduction of any “next generation” services) by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions.
7.4 LIMITATION OF LIABILITY. InCharge’s aggregate liability under these Terms and Conditions shall not exceed the aggregate Fees paid by you to InCharge in the twelve (12) calendar months prior to the event giving rise to the liability.
7.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE INCHARGE SERVICES, INCHARGE HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE “UNDERLYING CARRIER”). YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING CARRIER AND YOU ARE NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN INCHARGE AND THE UNDERLYING CARRIER. YOU UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO YOU, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THESE TERMS AND CONDITIONS. YOU HAVE NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. YOU UNDERSTAND THAT INCHARGE AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE INCHARGE PLATFORM OR THE USE OF THE INCHARGE SERVICES.
7.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 7, ONE OR MORE OF THE ABOVE LIMITATIONS MAY NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, INCHARGE’S LIABILITY AND/OR IMPLIED WARRANTIES GRANTED IN SUCH CASES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. TERM, RENEWAL AND TERMINATION.
8.1 TERM OF AGREEMENT. These Terms and Conditions shall become effective on the date of Subscriber’s acceptance of the purchase order and issuance of an invoice and continue until all automatic renewals have been terminated or otherwise have expired. For an Order with an Initial Term greater than twelve months, InCharge shall have the right to increase the Fee at the annual anniversary of the Service Term start date in an amount equal to the greater of (i) the Consumer Price Index in the prior twelve-month period and (ii) 6%.
8.2 NOTICE OF AUTO-RENEWAL.
Except as otherwise set forth on the Order Form and unless earlier terminated as set forth herein, this Agreement is effective from the Effective Date through the Initial Term set forth on the Order Form and shall automatically renew for subsequent one-year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) at the end of the initial term unless either party provides written notice of non-renewal at least 60 days prior to the expiration of the then-current term.
8.3 NOTICE OF TERMINATION.
This Agreement may be terminated, in whole or in part, by written notice to the other Party as follows: (i) for a material breach that remains uncured after thirty (30) days following the receipt of a written notice, which shall include a detailed description of the alleged breach; and (ii) if the other Party becomes insolvent or bankrupt, liquidated, or is dissolved, or ceases substantially all of its business, or (iii) upon providing 60 days prior written notice.
InCharge has the right to promptly suspend Services to Subscriber and this Agreement if (i) InCharge does not receive payment from the Subscriber thirty (30) days past the due date of any invoice, and all such past-due amounts will become promptly due; provided that InCharge shall provide at least thirty (30) days’ notice before suspending the Services for non-payment.
Upon any termination or expiration of this Agreement, Subscriber must cease use of the Services.
8.4 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of InCharge, limitations of liability and disclaimers, restrictions of warranty, applicable law and those other provisions which by their nature or terms are intended to survive the termination of these Terms and Conditions will remain in full force and effect as between the Parties hereto regardless of the termination of these Terms and Conditions.
8. INDEMNIFICATION. You hereby agree to indemnify, defend and hold InCharge, its stockholders and commercial partners and its and their respective officers, directors, agents, affiliates, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) suffered or incurred by such indemnified parties resulting from or arising out of your actual or alleged use (directly, or through your Users) of the InCharge Services, the InCharge Platform or the Subscriber Content and Services. You will cooperate as fully as reasonably required in the defense of any claim. InCharge reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
9. CREDITS AND CHARGING DATA.
9.1 NOTICE TO CALIFORNIA CUSTOMERS.
(a) California’s Low Carbon Fuel Standard (“LCFS”) was enacted to ensure that the mix of fuels sold by California oil refiners and distributers meets applicable greenhouse gas emissions targets.
(b) The InCharge Network can track the fueling of electric vehicles, which positively contributes to reducing California’s carbon intensity. If applicable reporting requirements are met, LCFS credits are issued by the California Air Resources Board. An available LCFS credit may be claimed by certain owners and operators of electric vehicle charging stations, including both you and InCharge. However, the LCFS credits are only available to one party, meaning any available credits may be claimed by either you or InCharge, but not by both. InCharge intends to claim available LCFS credits generated from use of the Charging Stations connected to the InCharge Platform, and you represent, warrant and covenant to InCharge that you will not claim any such credits unless InCharge notifies you that it no longer intends to claim such credits and consents in writing to having you claim such credits. If, after receiving such consent, you intend to claim LCFS credits, you will be solely responsible for the reporting and other administrative obligations necessary to generate such credits.
9.2 NOTICE TO OREGON CUSTOMERS
(a) Oregon’s Clean Fuel Program (“OCFP”) was created with the purpose of reducing greenhouse gas emissions in the transportation sector.
(b) The fueling of electric vehicles, and the operation of the InCharge Platform, contributes to reducing Oregon’s greenhouse gas emissions and is eligible for OCFP credits, which are issued by the Oregon Department of Environmental Quality. By reporting the amount of electric vehicle fueling, InCharge is able to help Oregon track the growing use of electric vehicles in the state, for which InCharge will receive OCFP credits.
(c) An available OCFP credit may be claimed by certain owners and operators of electric vehicle charging stations. However, the OCFP credits are only available to one party. This means any available credits may be claimed by either you or InCharge, but not by both. InCharge intends to claim available OCFP credits generated from use of the Charging Stations connected to the InCharge Platform, and you represent, warrant and covenant to InCharge that you will not claim any such credits unless InCharge notifies you that it no longer intends to claim such credits and consents in writing to having you claim such credits. If, after receiving such consent, you intend to claim OCFP credits, you will be solely responsible for the reporting and other administrative obligations necessary to generate such credits.
9.3 NOTICE TO CUSTOMERS IN OTHER STATES. To the extent other states adopt programs similar to California’s LCFS program or the OCFP, InCharge intends to deal with the credits generated under such programs in the same manner as it deals with the LCFS credits and the OCFP credits. To the extent any such credits may be claimed by either you or InCharge, but not both parties, InCharge intends to claim such credits generated from use of the Charging Stations connected to the InCharge Platform, and you represent, warrant and covenant to InCharge that you will not claim any such credits unless InCharge notifies you that it no longer intends to claim such credits and consents in writing to having you claim such credits.
9.4 NOTICE REGARDING RIN DATA. InCharge will participate in an application to the U.S. Environmental Protection Agency (“EPA”) to permit vehicle charging data (“Charging Data”) collected by InCharge from centrally networked charging stations to be utilized in a process to generate an environmental credit called a Renewable Identification Number (“RIN)” under the Renewable Fuel Standard program. InCharge must establish its exclusive right to utilize the Charging Data and the associated environmental attributes underlying the charging events represented by the Charging Data (Charging Data and such environmental attributes referred to collectively as, the “RIN Data”) for the purposes of RIN generation. You confirm that you will not pursue utilizing RIN Data for the purposes of RIN generation and that, as between you and InCharge, InCharge has the exclusive right to use the RIN Data for the purpose of RIN generation.
10. GENERAL.
10.1 WAIVER. The failure of either party at any time to enforce any provision of these Terms and Conditions shall not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
10.2 FORCE MAJEURE. Except with respect to payment obligations, neither you nor InCharge will be liable for failure to perform any of its obligations hereunder due to causes beyond such party’s reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of such party’s condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a party from performing its obligations under these Terms and Conditions; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts.
10.3 ARBITRATION.
(a) YOU AND INCHARGE EACH ACKNOWLEDGE AND AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN YOU AND INCHARGE ARISING OUT OF OR RELATING TO (1) THESE TERMS AND CONDITIONS, INCLUDING THE VALIDITY OF THIS SECTION 11.3, AND (2) YOUR USE OF THE INCHARGE PLATFORM OR THE INCHARGE SERVICES UNDER THESE TERMS AND CONDITIONS (COLLECTIVELY, THE “DISPUTE”) SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS, A NATIONALLY RECOGNIZED ARBITRATION AUTHORITY. EACH PARTY UNDERSTANDS THAT WITHOUT THIS PROVISION IT WOULD HAVE HAD A RIGHT TO LITIGATE A DISPUTE THROUGH A COURT BEFORE A JURY OR JUDGE, AND THAT EACH PARTY HAS EXPRESSLY AND KNOWINGLY WAIVED THOSE RIGHTS AND AGREE INSTEAD TO RESOLVE ANY DISPUTES THROUGH BINDING ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION 11.3.
(b) PRIOR TO SUBMITTING A CLAIM FOR ARBITRATION, A PARTY SHALL FIRST NOTIFY THE OTHER PARTY TO TRY TO RESOLVE THE DISPUTE. IF THE DISPUTE IS NOT RESOLVED WITHIN 60 DAYS OF SUCH NOTIFICATION, THEN THE CLAIM WILL BE SUBMITTED FOR ARBITRATION. THE ARBITRATION OF ANY DISPUTE OR CLAIM SHALL BE CONDUCTED IN ACCORDANCE WITH THE THEN-CURRENT AND APPLICABLE RULES OF JAMS AS MODIFIED BY THESE TERMS AND CONDITIONS. THE ARBITRATION SHALL OCCUR BEFORE A SINGLE ARBITRATOR, WHO MUST BE A RETIRED JUDGE OR JUSTICE, IN LOS ANGELES, CALIFORNIA. ANY DECISION OR AWARD BY THE ARBITRATOR RENDERED IN AN ARBITRATION PROCEEDING SHALL BE FINAL AND BINDING ON EACH PARTY, AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. IF EITHER PARTY BRINGS A DISPUTE IN A COURT OR OTHER NON-ARBITRATION FORUM, THE ARBITRATOR OR JUDGE MAY AWARD THE OTHER PARTY ITS REASONABLE COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES) INCURRED IN ENFORCING COMPLIANCE WITH THIS BINDING ARBITRATION PROVISION, INCLUDING STAYING OR DISMISSING SUCH DISPUTE. ANY ARBITRATION SHALL BE CONFIDENTIAL, AND NEITHER YOU, NOR BELKIN NOR THE ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT OR RESULTS OF ANY ARBITRATION, EXCEPT AS MAY BE REQUIRED BY LAW OR FOR PURPOSES OF ENFORCEMENT OR APPEAL OF THE ARBITRATION AWARD. JUDGMENT ON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING PROPER JURISDICTION. IF ANY PORTION OF THIS ARBITRATION CLAUSE IS DETERMINED BY A COURT TO BE INAPPLICABLE OR INVALID, THEN THE REMAINDER SHALL STILL BE GIVEN FULL FORCE AND EFFECT.
10.4 NOTICES. Other than the notices required in Section 10, any notice required or permitted by these Terms and Conditions shall be sent (a) if by InCharge, via electronic mail to the address indicated by you in your InCharge Services account; or (b) if by you, via electronic mail to the current email address set forth in your InCharge account.
10.5 INJUNCTIVE RELIEF. You acknowledge that damages for improper use of the InCharge Services may be irreparable; therefore, InCharge is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.
10.6 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of these Terms and Conditions or the application thereof to either party hereto will to any extent be determined jointly by the parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of these Terms and Conditions, or the application of such term or provision to these Terms and Conditions, the parties hereto or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby.
10.7 ASSIGNMENT. You may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of InCharge (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, InCharge shall be entitled, at its sole discretion, to terminate these Terms and Conditions upon written notice given to you. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. InCharge may assign its rights and obligations under these Terms and Conditions.
10.8 NO AGENCY OR PARTNERSHIP. InCharge, in the performance under these Terms and Conditions, is an independent contractor. In performing its obligations under these Terms and Conditions, InCharge shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by you and InCharge to be created by these Terms and Conditions. Neither party hereto has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.9 ENTIRE AGREEMENT. These Terms and Conditions contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. The invoice and purchase order relating to these Terms and Conditions may be executed in two or more counterparts (including scanned and/or electronic copies and/or electronic signatures), all of which together shall be considered a single instrument. To the extent of any conflict or inconsistency between the terms and conditions of these Terms and Conditions and any invoice or purchase order, these Terms and Conditions shall prevail except to the extent that such invoice or purchase order expressly amends or modifies as identified section of these Terms and Conditions. Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation shall be incorporated into or form any part of these Terms and Conditions, and all such purported terms and conditions shall be null and void.
10.10 COPYRIGHT POLICIES. It is InCharge’s policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.
10.11 THIRD PARTY RESOURCES. The InCharge Services may include hyperlinks to other websites or resources. InCharge has no control over any web sites or resources that are provided by companies or persons other than InCharge. You acknowledge and agree that InCharge is not responsible for the availability of any such web sites or resources, InCharge does not endorse any advertising, products or other materials on or available from such web sites or resources, and InCharge is not liable for any loss or damage that may be incurred by you as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources.
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