In-Charge Terms and Conditions                                                                                                        

IMPORTANT: THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU OR THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT (“SUBSCRIBER”, “YOU” or “YOUR”) AND INCHARGE ENERGY, INC., A DELAWARE CORPORATION (“IN-CHARGE”, “WE” OR “US”). PLEASE READ THEM CAREFULLY.  BY USING THE IN-CHARGE PLATFORM OR ANY OF IN-CHARGE SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT USE THE IN-CHARGE PLATFORM OR ANY IN-CHARGE SERVICES.

These Terms and Conditions apply to your use of the In-Charge Platform and/or the In-Charge Services. These Terms and Conditions may be changed at any time by In-Charge without prior notice. All such changes shall be posted on the In-Charge Site and/or otherwise made available via the In-Charge Platform or the In-Charge Services. You should check the In-Charge Site and/or In-Charge Services for such changes frequently. Your continued access to, and use of, the In-Charge Site, the In-Charge Platform and/or the In-Charge Services, after such changes are posted, conclusively demonstrates your acceptance of those changes.

You acknowledge and agree that In-Charge may collect data relating to the usage of the In-Charge Site, the In-Charge Platform, and/or the In-Charge Services. All such information may be shared by In-Charge with third parties at In-Charge’s sole and absolute discretion. The way we use your information is detailed in the In-Charge 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 In-Charge.

2.3           Charging Station” means the electric vehicle charging station(s) purchased or leased by you that are registered and activated on the In-Charge Platform. 

2.4           Content means all content and data provided, collected or maintained by In-Charge in connection with the operation of the In-Charge Site, the In-Charge Platform and/or the In-Charge Services.

2.5           Documentation” means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to the In-Charge Platform and/or In-Charge Services and made available from time to time by In-Charge 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 In-Charge Platform or any In-Charge Services.   

2.7           In-Charge Marksmeans the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by In-Charge.

2.8           In-Charge 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 In-Charge in order to provide various services to, among others, you and your employees.

2.9           In-Charge Property” means (i) the In-Charge Platform, (ii) the In-Charge Services, (iii) all Content, (iv) the In-Charge Marks, and (v) all other In-Charge-supplied material developed or provided by In-Charge for your use in connection with the In-Charge Services. 

2.10        “In-Charge Services” means, collectively, the various cloud services offerings made available for subscription by In-Charge.

2.11        “In-Charge Site” means the real property location where In-Charge 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 In-Charge Services, other than In-Charge Property. 

2.16        Subscriber Marksmeans 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 In-Charge 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 In-Charge.  You may not offset any amounts due to In-Charge hereunder against amounts due to you from In-Charge.  Fees payable to In-Charge 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 In-Charge to you; provided that, In-Charge’s failure to include any such Tax on an invoice shall not relieve your liability therefor.  Except as otherwise set forth in these Terms and Conditions, 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, In-Charge may, without otherwise limiting In-Charge’s rights or remedies, (a) terminate these Terms and Conditions, (b) suspend your use of the In-Charge Services until such amounts are paid in full, and/or (c) condition your future In-Charge Service renewals and other purchases on payment terms other than those set forth herein.

3.3           COLLECTION. In-Charge 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 In-Charge in connection with its collection efforts.   

4.              SUBSCRIBER’S ADDITIONAL RESPONSIBILITIES.

4.1           GENERAL. 

(a) All use of the In-Charge Platform and In-Charge Services by you and your Users shall comply with these Terms and Conditions and all of the rules, limitations and policies communicated by In-Charge to you from time to time.  You shall keep all In-Charge account details, passwords, and the like secure and confidential. You shall prevent, and shall be fully liable to In-Charge for, any unauthorized access to or use of the In-Charge Platform or In-Charge Services via your account(s), your Charging Stations, or other equipment.   You shall immediately notify In-Charge 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 In-Charge 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 In-Charge 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 In-Charge 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 In-Charge 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 In-Charge, in In-Charge’s sole discretion, to obtain In-Charge-provisioned radio-frequency identification cards (“RFID Cards”) which enable the individual card recipients to access and use In-Charge.    You may distribute such In-Charge Cards to individuals, and each individual RFID Card recipient is responsible for activating his or her In-Charge Card on the In-Charge Platform directly with In-Charge on the In-Charge Services.  In no event will you create any separate In-Charge accounts for any RFID Card recipients or other third parties, nor will you create anonymous In-Charge 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 In-Charge Services or any Content therein to any third party;

(b) interfere with or disrupt the In-Charge Services, servers, or networks connected to the In-Charge Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the In-Charge Services;

(c) restrict or inhibit any other user from using and enjoying the In-Charge Platform or any In-Charge services;

(d) attempt to gain unauthorized access to the In-Charge Platform or the In-Charge Services or related systems or networks or any data contained therein, or access or use the In-Charge Platform or In-Charge Services through any technology or means other than those provided or expressly authorized by In-Charge;

(e) create any In-Charge Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on the In-Charge 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 In-Charge Services or any part thereof, except to the extent expressly permitted or required by applicable law;

(g) create derivative works based on any In-Charge Property;

(h) remove, conceal or cover the In-Charge 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 In-Charge Service, copy, frame or mirror any part of the In-Charge Services or In-Charge Content, other than copying or framing on your own intranets or otherwise solely for your own internal business use and purposes;

(j) access the In-Charge Platform or the In-Charge 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 In-Charge Services or Content or collect information about In-Charge Service users for any unauthorized purpose;

(l) upload, transmit or introduce any Malicious Code to the In-Charge Platform or In-Charge Services;

(m) use any of the In-Charge 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 In-Charge 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) In-Charge 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 In-Charge.  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 In-Charge Services.

 

5.     IN-CHARGE’S RESPONSIBILITIES AND AGREEMENTS.

5.1           GENERAL RESPONSIBILITIES.  In-Charge agrees to provide and shall be responsible for: operating, maintaining, administering and supporting the In-Charge Platform and the In-Charge Services and related infrastructure (other than Charging Stations and infrastructure for transmitting data from Charging Stations to any In-Charge operations center unless otherwise agreed to in writing between you and In-Charge) in compliance with all applicable laws.  In-Charge will protect the confidentiality and security of PII in accordance with all applicable laws and regulations and the In-Charge Privacy Policy.

5.2           LIMITATIONS ON RESPONSIBILITY.  In-Charge 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 In-Charge of the In-Charge Platform or In-Charge Services; (iii) availability of or interruption of the In-Charge  Network attributable to unauthorized intrusions;  and/or (iv)  charging stations that are not registered with and activated on the In-Charge Platform.

6.     INTELLECTUAL PROPERTY RIGHTS AND LICENSES.

6.1           IN-CHARGE PROPERTY.   As between you and In-Charge, In-Charge retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the In-Charge Property and any improvements thereto.   No rights are granted to you or any User in the In-Charge Property hereunder except as expressly set forth in these Terms and Conditions.

6.2           SUBSCRIBER PROPERTY.  As between you and In-Charge, 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 In-Charge in any Subscriber Marks or Subscriber Content hereunder except as expressly set forth in these Terms and Conditions.

6.3           LIMITED LICENSE TO SUBSCRIBER.   In-Charge hereby grants to you a royalty-free, non-assignable, non-transferable, and non-exclusive license to use the In-Charge 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 In-Charge Services as permitted herein.

6.4           LIMITED LICENSE TO IN-CHARGE.   You hereby grant to In-Charge 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 In-Charge to provide the In-Charge Services.  In-Charge may utilize the Subscriber Marks to advertise that you are using the In-Charge Services.  The foregoing license includes a perpetual and irrevocable right of In-Charge to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by you in the In-Charge Services, solely for the purpose of enabling In-Charge to operate, market and promote the In-Charge Services.  In-Charge shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the In-Charge Services any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users relating to the In-Charge Services.

6.5           ADDITIONAL TERMS REGARDING IN-CHARGE MARKS. 

(a)        USE LIMITATIONS.  You may display the In-Charge Marks in connection with your Charging Stations as required in these Terms and Conditions.  You shall not use any of the In-Charge Marks for or with any products other than your Charging Stations.  From time to time, In-Charge may provide updated In-Charge Mark usage guidelines, and you shall thereafter comply with such updated guidelines.  For any use of the In-Charge Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the In-Charge Mark, you must obtain In-Charge’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, you may use the In-Charge Mark in the approved manner.   All use by you of In-Charge’s Marks (including any goodwill associated therewith) will inure to the benefit of In-Charge.

(b)        PROHIBITIONS.  You shall not use or display any In-Charge 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 In-Charge other than as described under these Terms and Conditions, (y) implies any sponsorship or endorsement by In-Charge, 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 In-Charge or In-Charge personnel;

(iii) in any manner intended to disparage In-Charge, the In-Charge Platform, or the In-Charge Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to In-Charge;

            (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 In-Charge.

(c)        NO REGISTRATION OF IN-CHARGE MARKS.  You shall not, directly or indirectly, register or apply for, or cause to be registered or applied for, any In-Charge Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially or confusingly similar to an In-Charge Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of In-Charge, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to you by In-Charge. At no time will you challenge or assist others to challenge the In-Charge Marks (except to the extent such restriction is prohibited by law) or the registration thereof by In-Charge.

(d)        TERMINATION AND CESSATION OF USE OF IN-CHARGE MARKS.  Upon termination of these Terms and Conditions, you will immediately discontinue all use and display of all In-Charge Marks.

7.              LIMITATIONS OF LIABILITY.

7.1           DISCLAIMER OF WARRANTIES.  THE IN-CHARGE PLATFORM AND THE IN-CHARGE 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, IN-CHARGE DOES NOT WARRANT THAT (A) YOUR USE OF THE IN-CHARGE PLATFORM OR THE IN-CHARGE 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 IN-CHARGE SERVICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE IN-CHARGE SERVICES WILL BE CORRECTED.  ALL CONTENT OBTAINED THROUGH THE IN-CHARGE 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 IN-CHARGE 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 IN-CHARGE PLATFORM OR ANY IN-CHARGE 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 In-Charge 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 In-Charge Platform; (iii) interruptions attributable to unauthorized intrusions; (iv) interruptions in services provided by any Internet service provider not affiliated with In-Charge; or (v) the inability of a Charging Station to access the In-Charge Platform or any In-Charge 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.  In-Charge’s aggregate liability under these Terms and Conditions shall not exceed the aggregate Fees paid by you to In-Charge 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 IN-CHARGE SERVICES, IN-CHARGE 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 IN-CHARGE 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 IN-CHARGE AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE IN-CHARGE PLATFORM OR THE USE OF THE IN-CHARGE 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, IN-CHARGE’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 Provider’s acceptance of the purchase order and issuance of an invoice and continue until all automatic renewals have been terminated or otherwise have expired.  Unless otherwise set forth in the applicable purchase order, each subscription covered by these Terms and Conditions will automatically renew for additional terms of the same length as the initial term of the subscription unless either party notifies the other party of its intention not to renew such subscription at least thirty (30) days prior to the expiration of the then-current term for such subscription.

8.2           TERMINATION BY IN-CHARGE. 

(a)  These Terms and Conditions may be immediately terminated by In-Charge:  (i) if you are in material breach of any of its obligations under these Terms and Conditions and have not cured such breach within 30 days (or within five days in the case of any payment default) of your receipt of written notice thereof; (ii) you become the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; (iii) upon the determination by any regulatory body that the subject matter of these Terms and Conditions is subject to any governmental regulatory authorization or review that imposes additional costs of doing business upon In-Charge; or (iv) as otherwise explicitly provided in these Terms and Conditions.  Regardless of whether you are then in breach, In-Charge may, in its reasonable discretion, determine that it will not accept any renewal by you of your subscription to In-Charge Services.  In such case, these Terms and Conditions shall terminate upon the later of the expiration of all of your subscriptions to In-Charge Services.      

(b)  In-Charge may in its discretion suspend your continuing access to the In-Charge Services or any portion thereof if (A) you have breached any provision of these Terms and Conditions, or have acted in manner that indicates that you do not intend to, or is unable to, comply with any provision of these Terms and Conditions; (B) such suspension is required by law (for example, due to a change to the law governing the provision of the In-Charge Services); or (c) providing the In-Charge Services to you could create a security risk or material technical burden as reasonably determined by In-Charge.

8.3           TERMINATION BY SUBSCRIBER. 

These Terms and Conditions may be immediately terminated by you without prejudice to any other remedy of yours at law or equity:  (i) if In-Charge is in material breach of any of its obligations under these Terms and Conditions, and has not cured such breach within 30 days of the date of its receipt of written notice thereof, (ii) In-Charge becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors, or (iii) upon providing 30 days prior written notice.

8.4           REFUND OR PAYMENT UPON TERMINATION.  Upon any termination of these Terms and Conditions for cause by you pursuant to Section 8.3(i) or by In-Charge pursuant to Section 8.2(a)(iii), In-Charge shall refund to you a pro-rata portion of any pre-paid Fees based upon the remaining term.  Upon any termination for any other reason, you shall not be entitled to any refund of any Fees as a result of such termination.   Except as otherwise set forth in these Terms and Conditions, in no event shall any termination relieve you of any unpaid Fees due In-Charge. 

8.5           SURVIVAL.  Those provisions dealing with the Intellectual Property Rights of In-Charge, 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.

9.              INDEMNIFICATIONYou hereby agree to indemnify, defend and hold In-Charge, 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 In-Charge Services, the In-Charge Platform or the Subscriber Content and Services.  You will cooperate as fully as reasonably required in the defense of any claim. In-Charge reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

 

10.           CREDITS AND CHARGING DATA.

10.1        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 In-Charge 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 In-Charge.  However, the LCFS credits are only available to one party, meaning any available credits may be claimed by either you or In-Charge, but not by both.  In-Charge intends to claim available LCFS credits generated from use of the Charging Stations connected to the In-Charge Platform, and you represent, warrant and covenant to In-Charge that you will not claim any such credits unless In-Charge 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.

10.2        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 In-Charge 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, In-Charge is able to help Oregon track the growing use of electric vehicles in the state, for which In-Charge 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 In-Charge, but not by both. In-Charge intends to claim available OCFP credits generated from use of the Charging Stations connected to the In-Charge Platform, and you represent, warrant and covenant to In-Charge that you will not claim any such credits unless In-Charge 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.

10.3        NOTICE TO CUSTOMERS IN OTHER STATES.  To the extent other states adopt programs similar to California’s LCFS program or the OCFP, In-Charge 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 In-Charge, but not both parties, In-Charge intends to claim such credits generated from use of the Charging Stations connected to the In-Charge Platform, and you represent, warrant and covenant to In-Charge that you will not claim any such credits unless In-Charge notifies you that it no longer intends to claim such credits and consents in writing to having you claim such credits.

10.4        NOTICE REGARDING RIN DATA.   In-Charge will participate in an application to the U.S. Environmental Protection Agency  (“EPA”) to permit vehicle charging data (“Charging Data”) collected by In-Charge 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. In-Charge 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 In-Charge, In-Charge has the exclusive right to use the RIN Data for the purpose of RIN generation.

11.           GENERAL.

11.1        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.

11.2        FORCE MAJEURE.  Except with respect to payment obligations, neither you nor In-Charge 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.

11.3        ARBITRATION. 

(a)            YOU AND IN-CHARGE EACH ACKNOWLEDGE AND AGREE THAT ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN YOU AND IN-CHARGE 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 IN-CHARGE PLATFORM OR THE IN-CHARGE 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.

11.4        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 In-Charge, via electronic mail to the address indicated by you in your In-Charge Services account; or (b) if by you, via electronic mail to the current email address set forth in your In-Charge account.  

11.5        INJUNCTIVE RELIEF.  You acknowledge that damages for improper use of the In-Charge Services may be irreparable; therefore, In-Charge is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.

11.6        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.

11.7        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 In-Charge (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, In-Charge 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.  In-Charge may assign its rights and obligations under these Terms and Conditions.     

11.8        NO AGENCY OR PARTNERSHIP.  In-Charge, in the performance under these Terms and Conditions, is an independent contractor.  In performing its obligations under these Terms and Conditions, In-Charge shall maintain complete control over its employees, its subcontractors and its operations.  No partnership, joint venture or agency relationship is intended by you and In-Charge 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.

11.9        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.

11.10      COPYRIGHT POLICIES.  It is In-Charge’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.

11.11      THIRD PARTY RESOURCES. The In-Charge Services may include hyperlinks to other websites or resources. In-Charge has no control over any web sites or resources that are provided by companies or persons other than In-Charge. You acknowledge and agree that In-Charge is not responsible for the availability of any such web sites or resources, In-Charge does not endorse any advertising, products or other materials on or available from such web sites or resources, and In-Charge 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.