Effective: February 12, 2020
1. CONTRACTUAL RELATIONSHIP
These Terms of Service (“Terms”) govern the use of electric vehicle charging and support services for plug-in electric or hybrid vehicles (“EVs”) through PowerFlex charging stations and related equipment, service plans, billing services, PowerFlex’s Site and Mobile App (as such terms are defined below), and related offers, promotions, applications, programs, and products (the “Services”) made available to you by PowerFlex Systems, Inc. (“PowerFlex”).
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. THESE TERMS LIMIT POWERFLEX’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 the Services. These Terms expressly supersede prior agreements or arrangements with you. 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.
PowerFlex may amend these Terms from time to time. Amendments will be effective after PowerFlex has posted such amendments on PowerFlex’s website at https://www.powerflex.com/powerflex-app/terms-of-service/. Your continued access or use of the Services after such notice and posting confirms your consent to be bound by the Terms, as amended. If you disagree with the amended terms, do not continue to use the Services.
PowerFlex reserves the right to investigate complaints or reported violations of these Terms and to take any action PowerFlex deems appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your Account, usage history, IP addresses and traffic information.
In order to use most aspects of the Services, you must register for and maintain an active personal account with PowerFlex (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account or use Services, unless a specific Service permits otherwise. Account registration requires you to submit to PoweFlex certain personal information, such as your name, email address and at least one valid payment method supported by PowerFlex. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in additional fees and/or your inability to access or use the Services.
You are responsible for all activity that occur under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by PowerFlex in writing, you may only possess one Account. You may not authorize third parties to use your Account.
After completing registration for an Account, you will be permitted access to the Services using a valid authentication method, which may include a mobile authentication method (“Access Credential”) which will be linked to your Account. Your Access Credential will enable you to use PowerFlex’s EV charging stations across the PowerFlex Adaptive Load Management Network (“PowerFlex Charging Stations”) to charge your EV. You agree that you are responsible for all charges incurred through use of the Access Credential assigned to you and linked to your Account. In the event of a lost or stolen Access Credential, you are responsible for notifying PowerFlex by sending an email to email@example.com or calling 650-469-3392. You agree to be liable for any and all charges incurred due to usage of the lost or stolen Access Credential until PowerFlex has been notified.
Modification & Termination
To modify or terminate your Account or Services, login to the Mobile App, email firstname.lastname@example.org or call 650-469-3392.
PowerfFex may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason in its sole discretion. If PowerFlex elects to terminate your Account and/or your use of the Services, then you will be responsible for payment for any Services used, but not yet paid for, and any other fees due hereunder, as of the date of such termination. In addition, if applicable, PowerFlex may collect damages from you in connection with your breach of these Terms, and may exercise any other remedy available to PowerFlex hereunder, at law or in equity.
Upon termination of Services or your Account, your method of payment will be charged for any unbilled amounts and any other fees due hereunder.
3. CHARGING SERVICES
Host Property Restrictions
PowerfFex Charging Stations may be located and hosted on a third party’s property (any such third party, a “Host”). As such, you agree to observe and obey any and all rules set by Hosts pertaining to their property and the use of PowerFlex Charging Stations, 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 of any Host rules.
In the event of any equipment malfunction or other technical issue with your Access Credential or an PowerFlex Charging Station, please call 650-469-3392 or the contact number located on the PowerFlex Charging Station. To ensure the quality of the Services, you consent to PowerFlex monitoring and recording calls between you and PowerFlex. IN THE EVENT OF AN EMERGENCY OR ANY SITUATION THREATENING SERIOUS INJURY TO PROPERTY OR HUMAN LIFE, IMMEDIATELY DIAL 9-1-1 AND FOLLOW THE INSTRUCTIONS YOU ARE GIVEN.
Services Not for Commercial Use
Unless otherwise agreed to in writing, the Services are provided for the personal use of your EV and are not to be used in connection with the conduct of any commercial enterprise or for financial gain. You shall not in any manner, directly or indirectly, resell or allow the Services or any PowerFlex equipment to be used by another person or entity.
You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes.
You may not use the Services (i) in any way that could cause harm, nuisance, annoyance, inconvenience, damage or adversely affect any person or PowerFlex’s reputation or property, including PowerFlex Charging Stations, or (ii) in any way prohibited by these Terms, any supplemental terms or other PowerFlex policies. Additionally, you may not attempt to repair, physically modify, reverse engineer or derive source code from any PowerFlex Charging Station. You acknowledge and agree that the manufacturer of all PowerFlex Charging Station equipment has reserved all right, title, and interest in and to intellectual property associated with PowerFlex Charging Station equipment and that you shall take no action that would cause, or by inaction permit, any impairment of any right, title, and interest of the manufacturer in such intellectual property and to otherwise respect the legal rights of the manufacturer.
4. MOBILE APP
License, Use & General Restrictions
Subject to your compliance with these Terms, PowerFlex grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use PowerFlex’s mobile application (the “Mobile App”) and related services solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Mobile App, solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by PowerFlex.
The Mobile App provides information regarding your Account and PowerFlex Charging Stations, including features PowerFlex may make available, and general access to utilize the Services. You are responsible for all use of the Mobile App under your user name and/or by use of your password.
You acknowledge and agree that PowerFlex may modify the Mobile App in any way and at any time, with or without notice. You further acknowledge and agree that, while PowerFlex has attempted to provide accurate information on the Mobile App, such information may change frequently and in no event will PowerFlex be responsible for the accuracy, timeliness, reliability, usefulness or completeness of any information, materials or other content, or that any such information, materials, or other content is the most up-to date. PowerFlex does not represent or warrant that the Mobile App will be error-free, free of viruses or other harmful components.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Mobile App; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Mobile App except as expressly permitted by PowerFlex; (iii) decompile, reverse engineer or disassemble the Mobile App except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Mobile App; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Mobile App or unduly burdening or hindering the operation and/or functionality of any aspect of the Mobile App; or (vi) attempt to gain unauthorized access to or impair any aspect of the Mobile App or its related systems or networks.
Third Party Content; Merchants
PowerFlex may advertise certain offerings from third-party providers (“Merchants”). You understand that PowerFlex does not operate or control the products or services offered by Merchants and is not responsible for information provided by you to Merchants. All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on any third-party Merchant sites. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. PowerFlex is not a party to the transactions entered into between you and Merchants. PowerFlex and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other. You agree that use of or purchase from such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY POWERFLEX, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS, ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE OR ANY PRODUCTS OR SERVICES OF SUCH THIRD PARTY PROVIDERS.
The Mobile App may contain advertising, sponsorships or links to other websites. PowerFlex is not responsible for the content, accuracy or opinions express in such web sites, and such web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website does not imply approval or endorsement of the linked website by us. If you decide to access these third party sites, you do so at your own risk. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Mobile App is accurate and complies with applicable laws. PowerFlex is not responsible for the illegality or any error, inaccuracy or problem in the advertiser’s or sponsor’s materials.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Mobile App and the content and materials provided therein.
5. PRICING & MOBILE WALLET
You understand that use of the Services may result in charges to you for the services or goods you receive (“Charges”). Details of Services, pricing for such Services, and any supplemental terms offered by PowerFlex are located in your Account and on the Mobile App. For the purposes of these Terms, the term “Charging Session” shall mean a session during which you use a PowerFlex Charging Station to charge an EV and which lasts for a continuous period of time commencing when you have accessed a PowerFlex Adaptive Charging Station and expiring when you have terminated such access.
PowerFlex reserves the right to establish and revise pricing, including membership fees and time or usage-based rates, at any time in PowerFlex’s sole discretion. Further, you acknowledge and agree that some aspects of pricing are based on certain geographical areas, and therefore, pricing may vary according to the location of the PowerFlex Charging Station. You may view current pricing on the Mobile App. PowerFlex will use reasonable efforts to inform you of material changes in pricing that may apply to you, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of pricing. All Charges paid by you are final and non-refundable, unless otherwise determined by PowerFlex.
PowerFlex may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
The Mobile Wallet is replenished when you add funds using your method of payment. Any Charges accumulated over the period of your Charging Session will be deducted from your Mobile Wallet at the end of your Charging Session. You understand that PowerFlex reserves the right to deny Services to users whose Mobile Wallets have insufficient funds.
If you fail to dispute a Charge to your account within sixty (60) days of the date such Charge was made by calling 650-469-3392 or emailing PowerFlex at email@example.com, then such charge shall be deemed to be correct.
You agree that you will be solely responsible for paying all direct or indirect federal, state and local taxes, duties, levies, premiums, fees and other assessments of any kind even if PowerFlex is required by law to collect and remit to the applicable governmental authority with respect to your use of the Services (including any charging station, if applicable) that PowerFlex provides to you, together with all interest, penalties or other additional amounts imposed thereon, including, without limitation, any gross receipts, sales, consumption, use, value added, commercial activity or other privilege, property, road or other transportation tax or any other taxes of any kind whatsoever imposed by any governmental authority. These charges may change from time to time without advance notice. Tax exemptions will not be applied without a valid exemption certificate or applied retroactively.
6. COPYRIGHT & SERVICE MARKS
The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Mobile App and/or PowerFlex Charging Stations are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or part of such matters is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Mobile App.
“PowerFlex”, “Adaptive Load Management” and others are our service marks or registered service marks or trademarks. Some of the content, products and company names mentioned on the Mobile App may be copyrighted work of third parties and/or trademarks of their respective owners. Use, reference, copying or publication by you of any registered service marks or trademarks owned by PowerFlex or a third party mentioned on the Mobile App is strictly prohibited.
7. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
Standard of Performance
Except as otherwise set forth herein, PowerFlex’s sole and exclusive standard of performance with respect to all actions hereunder shall be to use reasonable efforts to (i) arrange for the Services and/or (ii) make available the PowerFlex Charging Stations, in each case pursuant to these Terms.
PowerFlex makes no, and hereby disclaims any, representation or warranty, express or implied, that PowerFlex Charging Stations will be available or operational at any particular location or at any particular time. You are solely responsible for ensuring that your EV’s battery is sufficiently charged to meet your needs and that all charging is done in accordance with the manufacturer’s recommendations regarding the type, frequency and duration of charging.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ALL OTHER SIMILAR WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED WITH RESPECT TO (I) POWERFLEX CHARGING STATIONS AND RELATED EQUIPMENT, (II) INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE MOBILE APP AND (III) THE SERVICES, EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS. IN ADDITION, POWERFLEX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE. FURTHER, WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED BELOW.
POWERFLEX DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Your exclusive remedy for any claim relating to PowerFlex’s breach of these Terms shall be for PowerFlex, upon receipt of written notice, to use commercially reasonable efforts to cure the breach at its expense or, at PowerFlex’s election, return the fees paid to PowerFlex for the Services in the month during which the breach occurred.
Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISIONS OF THE TERMS OF A PLAN TO THE CONTRARY, REGARDLESS OF THE LEGAL OR EQUITABLE BASIS OF ANY CLAIM, IN NO EVENT SHALL POWERFLEX OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THESE TERMS, MOBILE APP OR ANY SERVICES OR PRODUCTS OBTAINABLE THEREFROM, THE UNAVAILABILITY OR INTERRUPTION OF THE MOBILE APP OR ANY FEATURES THEREOF, YOUR USE OF THE MOBILE APP, THE CONTENT CONTAINED ON THE MOBILE APP OR ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE CONTROL OF ANY AFFILIATE, INCLUDING DAMAGES THAT RESULT FROM THE PERFORMANCE OR NONPERFORMANCE OF POWERFLEX’S OBLIGATIONS UNDER THESE TERMS, YOUR USE OF ANY POWERFLEX EQUIPMENT, INSTALLATION OF POWERFLEX EQUIPMENT, POWERFLEX’S ACTS OR OMISSIONS WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW, BREACH OF CONTRACT, BREACH OF INDEMNITY PROVISIONS, BREACH OF WARRANTY OR ANY OTHER THEORY OR SOURCE WHETHER OR NOT FORESEEABLE AND EVEN IF POWERFLEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU HEREBY RELEASE POWERFLEX FROM ANY SUCH EXCLUDED DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMIT OF POWERFLEX’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO YOU FOR ANY MATTER RELATED TO THESE TERMS, YOUR USE OF POWERFLEX EQUIPMENT, THE INSTALLATION OF POWERFLEX EQUIPMENT, AND THE MOBILE APP SHALL NOT IN THE AGGREGATE EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU WITH RESPECT TO THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POWERFLEX AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE MOBILE APP OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS.
YOU AGREE TO BE LIABLE FOR AND INDEMNIFY AND HOLD HARMLESS POWERFLEX, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS AND AGENTS HARMLESS FROM AND AGAINST ALL ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, LOSSES, COSTS, DAMAGES, DEFICIENCIES, JUDGMENTS, LIABILITIES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS OF LITIGATION) WHICH THEY OR ANY OF THEM SUFFER OR INCUR RESULTING FROM, BY REASON OF, ARISING OUT OF OR IN CONNECTION WITH: (I) PERSONAL INJURY, BODILY INJURY, INCLUDING FATAL INJURY OR DISEASE TO, OR LOSS OF OR DAMAGE TO THE PROPERTY OF, ANY PERSON OR ENTITY WHATSOEVER (INCLUDING THE PARTIES HERETO) ARISING OUT OF OR IN CONNECTION WITH YOUR, OR ANYONE USING YOUR ACCESS CREDENTIAL (II) YOUR NEGLIGENT USE OF THE SERVICES, (III) ANY BREACH BY YOU OF ANY REPRESENTATION, WARRANTY, AGREEMENT, OBLIGATION OR COVENANT MADE BY YOU TO POWERFLEX INCLUDING IN ANY PLAN, AGREEMENT, CERTIFICATE, DOCUMENT, SCHEDULE, ANNEX OR OTHER INFORMATION RELATING TO OR DELIVERED PURSUANT HERETO, (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON AGREEMENT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY YOU, OR (V) YOUR USE OF THE MOBILE APP.
8. ARBITRATION AGREEMENT
BY AGREEING TO THESE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST POWERFLEX ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION AGREEMENT. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST POWERFLEX, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST POWERFLEX BY SOMEONE ELSE.
Agreement to Binding Arbitration Between You & PowerFlex
You and PowerFlex agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and PowerFlex, and not in a court of law.
You acknowledge and agree that you and PowerFlex are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and PowerFlex otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and PowerFlex each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
Rules & Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
Location & Procedure
Unless you and PowerFlex otherwise agree, the arbitration will be conducted in Santa Clara County, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and PowerFlex submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. PowerFlex will not seek, and hereby waives all rights PowerFlex may have under applicable law to recover, attorneys’ fees and expenses if PowerFlex prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $10,000, PowerFlex will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the aforementioned provisions of this Section, regarding consent to be bound by amendments to these Terms, if PowerFlex changes this Arbitration Agreement after the date you first agreed to the Terms, you may reject any such change by providing PowerFlex written notice of such rejection within 30 days of the date such change became effective. This written notice must be provided either (a) by mail addressed to PowerFlex at 392 1st Street, Los Altos, California 94022 or (b) by email from the email address associated with your Account to firstname.lastname@example.org. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and PowerFlex in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
Severability & Survival
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
9. OTHER PROVISIONS
Choice of Law
These Terms, your use of PowerFlex equipment and/or the Services, and any dispute you may have with Powerflex Systems, Inc. related to the Mobile App shall be governed by and construed in accordance with the internal laws (and not the law of conflicts) of the state of California, except as may be otherwise provided in the above Arbitration Agreement. The foregoing choice of law provision does not apply to the arbitration clause in Section 8 or to any arbitrable disputes as defined therein. Instead, as described in Section 8, the Federal Arbitration Act shall apply to any such disputes.
You may not assign these Terms or your Account and password without PowerFlex’s prior written approval. PowerFlex may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of PowerFlex’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, PowerFlex or any third party provider as a result of these Terms or use of the Services. If any provision of these Terms are held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. PowerFlex’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PowerFlex in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms. Applicable provisions of these Terms will continue in effect after termination or expiration of a Plan or Account to the extent necessary, including those for billing adjustments and payments, indemnification, limitations of liability, and dispute resolution. PowerFlex’s rights under these Terms shall survive any termination of these Terms.