Terms of Use

Last updated January 5, 2021

Terms and Conditions of Use (“Terms & Conditions”)

FlexCharging, Inc. (“FlexCharging”, “we”, “us”, “our”) provides the FlexCharging app for use with electric vehicle telematics to track vehicle usage and charging data, and manage vehicle charging. FlexCharge is composed of (1) a mobile application (“App”), and (2) a FlexCharging user account and applications and services made available to you through mobile devices (collectively, the “Service”). Together the App and Service are called “FlexCharge”.

These Terms & Conditions govern your (“you” or “your”) use of FlexCharge. These Terms & Conditions give you specific legal rights, and you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms & Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms & Conditions may not apply to you.

THIS IS A LEGAL AGREEMENT. BY USING FLEXCHARGE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS & CONDITIONS, YOU MUST CEASE USING FLEXCHARGE.

IF YOU ARE A RESIDENT OF AUSTRALIA SOME OF THE TERMS HEREIN ARE REPLACED WITH THOSE LOCATED AT THE END OF THESE TERMS & CONDITIONS.

We reserve the right to change these Terms & Conditions at any time, and your continued use of FlexCharge following notice of changes will constitute your acceptance of such changes. When we change these Terms & Conditions, we will notify you via email and/or within FlexCharge. If you have any questions regarding these Terms & Conditions, you can contact FlexCharging as provided herein.

1. Service.

(a) Account. To use the Service, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account.

(i) Your FlexCharge Account starts as soon as you have accepted the Terms & Conditions by accepting its terms on-line or via your smartphone, and completed the account signup process. These Terms & Conditions will remain active until you or FlexCharging have terminated the Account. Upon termination of your Account, you will no longer have access to FlexCharge until you create a new Account or reactivate your previous Account, and accept the then-current version of these Terms & Conditions.

(ii) You can terminate your Account via your smartphone, or at any time by contacting FlexCharging.

(iii) We may terminate your Account at any time, without cause, and without prior notice. This means that FlexCharging can decide to cease providing FlexCharge to you at any time and for any reason, even for reasons unrelated to you or your Account with FlexCharging. This means, for example, we can terminate your Account immediately if you breach any part of these Terms & Conditions, if you interfere with our efforts to provide the Service, if you interfere with our business, or if your Account is used for illegal or improper purposes. We also reserve the right, at our sole discretion, to stop offering FlexCharge at any time without incurring any liability whatsoever.

(b) Access and Use of the Service. Subject to these Terms & Conditions, FlexCharging grants you a non-exclusive, revocable, limited, non-transferable, non-sublicensable right to access and use the Service by downloading the App available on Apple App Store and Google Play onto your device. The Service includes materials that may be provided by FlexCharging or by third party licensors which are displayed or performed on the Service, including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations. Any rights not granted herein are reserved by FlexCharging.

(i) FlexCharging Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in FlexCharge are owned by FlexCharging or our licensors. Your possession, access, and use of FlexCharge does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights except for the limited license contained herein. FlexCharging and its licensors reserve all rights not granted in these Terms & Conditions.

(ii) Feedback. You may choose to, or FlexCharging may invite you to submit comments, suggestions, or ideas about FlexCharge, including how to improve FlexCharge (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place FlexCharging under any fiduciary or other obligation. FlexCharging may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that FlexCharging does not waive any rights to use similar or related ideas previously known to FlexCharging, developed by its employees, or obtained from other sources. You hereby grant us with a nonexclusive, worldwide, royalty-free and fully paid-up, perpetual, irrevocable, sublicensable through unlimited levels of sublicensees, and transferable right to incorporate, disclose, access, display, or use without limitation your Feedback (including all related intellectual property rights) for any purpose. You hereby agree that such Feedback is provided on a non-proprietary and non-confidential basis.

(iii) Customer Data. All data collected from you and from your vehicle telematics belongs to you (“Customer Data”). FlexCharging may use the Customer Data for its business purposes and in connection with development and improvement of FlexCharge. Please review our privacy policy (available at https://www.flexcharging.com/privacy-policy) (the “Privacy Policy”) for more information relating to FlexCharging’ practices regarding the Customer Data that FlexCharging may collect from users of FlexCharge and how we will use that data.

(iv) Data protection and privacy laws where you live may impose certain responsibilities on you and your use of FlexCharge. You agree that you (and not FlexCharging) are responsible for ensuring that you comply with any applicable laws when you use FlexCharge.

(v) Regulatory Disclosure. You agree that FlexCharging may submit your Customer Data to applicable government organizations for the purpose of claiming low-carbon fuel standard (“LCFS”) credits or similar credit systems solely to the extent necessary to claim such credits.

(d) Certain Restrictions. The rights granted to you in these Terms & Conditions are subject to the following restrictions: you agree not to (i) licence, sell, rent, lease, distribute, host, or otherwise commercially exploit the Service; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service; (iii) access the Service in order to build a similar or competitive service or to make the Service available to third parties without permission; (iv) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post, or transmit in any form or by any means any part of the Service; (v) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Service or the Software; (vi) interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Service or violate the regulations, policies, or procedures of such networks; (vii) access (or attempt to access) any of the Service by means other than through the interface that is provided by FlexCharging; (viii) remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Service; (ix) collect or harvest of any personally identifiable information, including, but not limited to, company names, domain names, or account names, from the Service nor to use the communication systems provided by the Service for any commercial solicitation purposes; (x) use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Services; (xi) use of any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; (xii) any use of the Services other than for their intended purpose. Any future release, update, or other addition to functionality of the Service shall be subject to these Terms & Conditions.

(e) Security. FlexCharging uses industry best practices to ensure the integrity and security of your personal information. However, FlexCharging cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

(f) Modification. FlexCharging reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that FlexCharging will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.

(g) Agreed Usage and Limitations Of Service.

(i) Intended Use of Service. While we aim for the Service to be highly reliable and available, it is not intended to be reliable or available 100% of the time. The Service is subject to sporadic interruptions and failures for a variety of reasons beyond FlexCharging’s control, including Internet connectivity, vehicle telematics provider outages & design changes, mobile notifications and carriers, among others. You acknowledge these limitations and, subject to Section 2 (Warranty Disclaimer) and to the extent permitted by applicable law, agree that FlexCharging is not responsible for any damages caused by the failure or delay of the Service to reflect current status or notifications.

(ii) Reliability of Information. You acknowledge that the Service, including remote access and information, is not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive information in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. INFORMATION FROM FLEXCCHARGE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY.

(iii) Temporary Suspension. The Service may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. Subject to Section 2 (Warranty Disclaimer) and to the extent permitted by applicable law, you agree that you will not be entitled to any refund or rebate for such suspensions. FlexCharging does not offer any specific uptime guarantee for the Service.

(iv) System Requirements. The Service will not be accessible without: (i) an Account; (ii) mobile clients such as a supported phone or tablet; (iii) vehicle telematics account credentials and access; and (iv) other system elements that may be specified by FlexCharging. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Service may not work as described when the requirements and compatibility have not been met.

(v) Cost Savings and Benefits. FlexCharging does not guarantee or promise any specific level of cost savings or other monetary benefit from the use of the App or Service or any feature thereof. Actual cost savings and monetary benefits vary with factors beyond FlexCharging’ control or knowledge. From time to time, FlexCharging may use the Service to provide you with information that is unique to you and your charging behaviour and suggests an opportunity to save money if you adopt suggestions of FlexCharge. We do this to highlight an opportunity based on our analysis and information about you and your household. You acknowledge that these recommendations are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from FlexCharging if your savings differ.

(vi) Greenhouse Gas Emission Estimate. FlexCharging does not guarantee or promise the accuracy of the estimates for greenhouse gas emissions from your vehicle charging behavior. This estimate is based on information provided by third parties and assumptions on the mix of electric generation occurring during your charging period.

(h) Limitations Of the Service Due to Third Parties.

(i) General. The Service relies on or interoperates with third party products. These third party products and services are beyond FlexCharging’ control, but their operation may impact or be impacted by the use and reliability of the Service.

(ii) Third Party Service Providers Used By FlexCharging. You acknowledge that FlexCharging uses third party service providers to enable some aspects of the Service – such as, for example, data storage, synchronization, and communication through Microsoft Azure and/or Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers, and their operation may impact the use and reliability of the Service.

(iii) Vehicle Connected App. You acknowledge that the availability of the Service is dependent on (i) your vehicle and (ii) its connected app (“CarApp”). You acknowledge that you are responsible for all fees charged and the functionality of your CarApp in connection with your use of the Service. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your CarApp.

(iv) App Stores. You acknowledge and agree that the availability of the App is dependent on the third party websites from which you download the App, e.g., the app store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms & Conditions are between you and FlexCharging, and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms & Conditions, the more restrictive or conflicting terms and conditions in these Terms & Conditions apply.

(i) Trademarks. “FlexCharging”, “FlexCharge,” any FlexCharging logo, and any other product or service name or slogan displayed on FlexCharge, may be trademarks of FlexCharging and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of FlexCharging or the applicable trademark holder. You may not use any metatags or any other “hidden text” using “FlexCharging” or any other name, trademark or product or service name of FlexCharging without our prior written permission. In addition, the look and feel of FlexCharge, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of FlexCharging and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names and FlexCharging names or logos displayed through FlexCharge are the property of their respective owners.

(j) Copyright Policy. FlexCharging respects the intellectual property rights of others and expects users of FlexCharge to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to inform you if we receive a notice from a third party that, where applicable, user content you have posted infringes upon such third party’s copyright and to inform such third party that we have provided you with such notice. Email: Info@FlexCharging.com

(k) Hyperlinks. You are granted a limited, non-exclusive, non-transferable right to create a text hyperlink to FlexCharge, provided such link does not portray FlexCharging or any of its products and services in a false, misleading, derogatory, or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time. You may not use a FlexCharging logo or other proprietary graphic to link to FlexCharge without the express written permission of FlexCharging. Further, you may not use, frame, or utilize framing techniques to enclose any FlexCharging trademark, logo, or other proprietary information, including the images found through FlexCharge, the content of any text, or the layout/design of any page or form displayed through FlexCharge without FlexCharging's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright, or proprietary right of FlexCharging or any third party.

(l) Third Party Content. FlexCharging or its customers may provide links to web pages and content of third parties as a service to those interested in such links and content, and FlexCharging may post third party content or allow users to post their content. FlexCharging does not monitor or have any control over any third party content or third party websites. FlexCharging does not endorse or adopt any third party content or third party website and can make no guarantee as to its accuracy or completeness. FlexCharging does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any third party content or third party websites. You understand that by using FlexCharge you may be exposed to content that you may find offensive, indecent or objectionable and you use links, third party content and third party websites at your own risk. When you leave FlexCharge, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website or services to which you navigate from FlexCharge.

FlexCharging is not the publisher or author of third party content. It is a passive service for storage and dissemination of the ideas and opinions that FlexCharging users and vendors may choose to post. FlexCharging does not screen works before they are posted, and no prior approval is required for posting. In the United States, FlexCharging’s activities are subject to the protections of Section 230 of the Communications Decency Act and the safe harbor provisions of Section 512 of the Digital Millennium Communications Act.

2. Warranty Disclaimer.

TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE FLEXCHARGE PRODUCT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FLEXCHARGING AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW FLEXCHARGING AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT FLEXCHARGING: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR CARAPP OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE OR PRODUCE SPECIFIC RESULTS. WHEN YOU INSTALL, SIGNUP OR USE FLEXCHARGE YOU MAY BE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS IN YOUR CARAPP SYSTEM. YOU ACKNOWLEDGE THAT THE CHOICES YOU MAKE CAN CAUSE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR VEHICLE. YOU ASSUME ALL LIABILITY OF NON-RECOMMENDED OPERATION WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.

FlexCharge provides you information regarding charging behavior of your vehicle. All such information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.

3. Indemnity.

You agree to defend, indemnify and hold FlexCharging, its corporate affiliates, independent contractors, service providers and consultants and licensors and suppliers, and each of their respective directors, employees, and agents, harmless from any damages, costs, expenses, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of FlexCharge, (ii) your violation of these Terms & Conditions, (iii) Feedback you provide; or (iv) your violation of any law or the rights of any third party. FlexCharging reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify FlexCharging and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without FlexCharging’ prior written consent. FlexCharging will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

4. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) FLEXCHARGING BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR ANY DAMAGES FOR LOST DATA, LOST PROFITS, LOST INCOME, OR LOST GOODWILL, ARISING FROM OR RELATING TO FLEXCHARGE, EVEN IF FLEXCHARGING KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FLEXCHARGING’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO FLEXCHARGE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), UNDER STATUTE OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO FLEXCHARGING FOR FLEXCHARGE IN THE PRIOR SIX (6) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. FLEXCHARGING DISCLAIMS ALL LIABILITY OF ANY KIND FOR THE ACTS OR OMISSIONS OF FLEXCHARGING’S LICENSORS AND SUPPLIERS.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

5. Electronic Communications.

As long as you maintain an account, you may not "opt out" of receiving account-related emails from FlexCharging. The parties hereto may give legal notice by means of electronic mail, which electronic mail shall be considered delivered when sent, or where we are the notifying party by giving you notice through the App. The notice address of FlexCharging shall be Legal@FlexCharging.com (or such other address as is provided by FlexCharging to you) via email at the current email address listed by you in your Account and your address for the receipt of notices pursuant to these Terms & Conditions shall be the current email address listed by you in your Account.

You also agree, unless you opt-out, to receive marketing emails and text messages related to the Service. You may opt out of receiving marketing emails and text messages related to the Service at any time. If you are experiencing issues please contact info@FlexCharging.com. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions regarding privacy, please read our privacy policy: https://www.flexcharging.com/privacy-policy

6. Force Majeure.

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic (including without limitation the COVID-19 pandemic) or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

7. Severability.

If any part of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between you and FlexCharging. The legality, validity or enforceability of the remainder of these Terms & Conditions will remain in full force and effect.

8. Survivability.

Any provision of these Terms & Conditions that contemplates performance or observance subsequent to any termination or expiration of these Terms & Conditions, including, without limitation, all provisions with respect to confidentiality, intellectual property, limitation of liabilities, and indemnification shall survive any termination or expiration of these Terms & Conditions and continue in full force and effect in perpetuity.

9. Waiver.

No waiver of any term, provision or condition of these Terms & Conditions, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.

10. Successors and Assignment.

These Terms & Conditions are binding upon each parties’ respective successors and assigns. These Terms & Conditions may not be assigned by you without the prior written approval of FlexCharging but may be assigned without your consent by FlexCharging to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any attempt by you to assign these Terms & Conditions without the prior written approval of FlexCharging shall be void.

11. Dispute Resolution.

In the event of any controversy between the parties, the parties hereto shall consult and attempt to reach a solution satisfactory to both parties. If they fail to do so within a period of thirty (30) days, then either party may, by notice to the other, demand mediation under the mediation rules of the American Arbitration Association. If resolution is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim (other than claims identified in the FlexCharging Privacy Policy) shall be settled by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Seattle, Washington. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously. This Section shall not apply to claims concerning the ownership, validity, infringement, misappropriation, disclosure, misuse or enforceability of any confidential information, patent right, copyright, mask work, trademark or any other trade secret or intellectual property. To the fullest extent permitted by applicable law, no arbitration or claim shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. In no event shall any claim, action or proceeding by you related in any way to the Service be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section (Dispute Resolution) is held to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified automatically to comply with such provision and the remainder of this Section shall not be affected.

12. Governing Law and Jurisdiction.

These Terms & Conditions shall be governed by the laws of the State of Washington without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction and you. You agree that with respect to any disputes or claims not subject to arbitration (as set forth above), any action at law or in equity arising out of or relating to the Services or these Terms & Conditions shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.

13. Language.

It is the express wish of the parties that these Terms & Conditions and all related documents be drawn up in English.

14. Entire Agreement.

15. Relationship.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and FlexCharging.

For Australian Users

If you are a resident of Australia, certain provisions of these Terms & Conditions are replaced by the sections with the same headings, to the extent listed below:

We reserve the right to change these Terms & Conditions at any time by notice to you. Unless a change is required sooner in order for us to comply with law, we will provide you with at least 30 days prior notice of any such change. If you do not accept any such change, you may terminate your account via your smartphone, or at any time by contacting FlexCharging. Your continued use of FlexCharge following the date on which such changes become effective will constitute your acceptance of such changes. If you have any questions regarding these Terms & Conditions, you can contact FlexCharging as provided herein.

1. Service.

(a) Account. To use the Service, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service does not violate any Australian or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account.

(i) Your Account starts as soon as you have accepted the Terms & Conditions by accepting its terms on-line or via your smartphone, and completed the account signup process. These Terms & Conditions will remain active until you or FlexCharging have terminated the Account.

(iii) We may terminate your Account at any time, without cause, upon notice. This means that FlexCharging can decide to cease providing FlexCharge to you at any time and for any reason, even for reasons unrelated to you or your Account with FlexCharging. This means, for example, we can terminate your Account immediately if you breach any part of these Terms & Conditions, if you interfere with our efforts to provide the Service, if you interfere with our business, or if your Account is used for illegal or improper purposes. We also reserve the right, at our sole discretion, to stop offering FlexCharge at any time without incurring any liability whatsoever.

(f) Modification. FlexCharging reserves the right, at any time, to modify the Service or any part thereof with or without notice. You agree that FlexCharging will not be liable to you or to any third party for any modification of the Service or any part thereof.

2. Warranty Disclaimer.

Nothing in these Terms & Conditions excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. If any guarantee, warranty, term or condition is implied or imposed in relation to these Terms & Conditions under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a “Non-Excludable Provision”), and FlexCharging is able to limit your remedy for a breach of the Non-Excludable Provision, then the liability of FlexCharging for breach of the Non-Excludable Provision is limited to one or more of the following at FlexCharging’s option: (i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and (ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

3. Indemnity.

You agree to defend, indemnify and hold FlexCharging, its “Related Bodies Corporate” (as that term is defined in the Corporations Act 2001 (Cth)), independent contractors, service providers and consultants and licensors and suppliers, and each of their respective directors, employees, and agents, harmless from any damages, costs, expenses, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of your violation of any law or the rights of any third party. FlexCharging reserves the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify FlexCharging and you agree to cooperate with our defence of such claims. You agree not to settle any such claim without FlexCharging’ prior written consent. FlexCharging will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

4. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS AND SUBJECT TO FLEXCHARGING’S OBLIGATIONS UNDER THE NON-EXCLUDABLE PROVISIONS, IN NO EVENT WILL (A) FLEXCHARGING BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR ANY DAMAGES FOR LOST DATA, LOST PROFITS, LOST INCOME OR LOST GOODWILL, ARISING FROM OR RELATING TO FLEXCHARGE, EVEN IF FLEXCHARGING KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) FLEXCHARGING’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO FLEXCHARGE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), UNDER STATUTE OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO FLEXCHARGING FOR FLEXCHARGE IN THE PRIOR SIX (6) MONTHS (IF ANY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. FLEXCHARGING DISCLAIMS ALL LIABILITY OF ANY KIND FOR THE ACTS OR OMISSIONS OF FLEXCHARGING’S LICENSORS AND SUPPLIERS.

10. Successors and Assignment.

These Terms & Conditions are binding upon each parties’ respective successors and assigns. These Terms & Conditions may not be assigned by you without the prior written approval of FlexCharging but may be assigned without your consent by FlexCharging to (i) a Related Bodies Corporate, (ii) an acquirer of its assets, or (iii) a successor by merger. Any attempt by you to assign these Terms & Conditions without the prior written approval of FlexCharging shall be void.

11.Dispute Resolution.

In the event of any dispute between the parties, the parties hereto shall consult and attempt to reach a solution satisfactory to both parties. If they fail to do so within a period of thirty (30) days, then either party may, by notice to the other, demand mediation under the mediation rules of the Resolution Institute. If resolution is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim (other than claims identified in the Privacy Policy) may be instituted non-exclusively in the federal courts of Australia or the courts of New South Wales. This Section shall not apply to claims concerning the ownership, validity, infringement, misappropriation, disclosure, misuse or enforceability of any confidential information, patent right, copyright, mask work, trademark or any other trade secret or intellectual property. To the fullest extent permitted by applicable law, no court proceedings or claim shall be joined to any other court proceedings or claim, and no class action proceedings shall be permitted. In no event shall any claim, action or proceeding by you related in any way to the Service be instituted more than two (2) years after the cause of action arose. In the event that any term of this Section (Dispute Resolution) is held to be in conflict with a mandatory provision of applicable law, such conflicting term shall be modified automatically to comply with such provision and the remainder of this Section shall not be affected.

12. Governing Law and Jurisdiction.

These Terms & Conditions shall be governed by the laws of New South Wales, Australia.

14. Entire Agreement.

These Terms & Conditions, constitute the complete and exclusive statement of the agreement between the parties with respect to the use of the Services and any acts or omissions of FlexCharging and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties. However, nothing in these Terms & Conditions limits any liability you or we may have in connection with any communications, representations, statements and understandings, whether oral or written, made prior to or during the term of these Terms & Conditions, where such liability cannot be lawfully excluded.