Effective: June 1, 2024
1) CONTRACTUAL RELATIONSHIP
Welcome to Dunamis Charge. Through our website located at www.dunamischarge.com (“Site”), Driver Portal, and Mobile App (as such terms are defined below), and related offers, promotions, applications, programs, and products (all of the foregoing in this sentence collectively referred to as the “Services”). The Site is owned and operated by Dunamis Charge, Inc. (collectively, with its subsidiaries and affiliates, “Dunamis Charge”, “we”, “us” or “our”). References to “you” or “your” mean you as a casual visitor, someone who has created a user account for receiving information from us, user of our Services, member, account holder, or customer, as applicable. These Terms of Service (“Terms”) govern the use of electric vehicle charging and support services for plug-in electric vehicles (“EVs”) through Dunamis Charge charging stations and related equipment, service plans, billing services, the Site, Driver Portal, and Mobile App.
THESE TERMS ARE IMPORTANT. THEY AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS CAREFULLY AND MAKE SURE THAT YOU UNDERSTAND EACH PROVISION AS THEY CONTAIN IMPORTANT INFORMATION ABOUT THE SERVICES PROVIDED TO YOU. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE CAREFULLY REVIEW SECTION 8 OF THESE TERMS FOR MORE INFORMATION. THESE TERMS LIMIT DUNAMIS CHARGE’S LIABILITY AND THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, do not access or use our Site, Driver Portal, Mobile App, or Services. These Terms expressly supersede prior agreements, understandings, or arrangements with you regarding the subject matter of these Terms. Separate supplemental terms may apply to certain Services, such as policies for a particular service plan, program, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Services.
Updates to the Terms
Dunamis Charge may amend these Terms from time to time. Amendments will be effective as of the date Dunamis Charge has posted such amendments on Dunamis Charge’s website at https://www.Dunamis Charge.com/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.
Personal Information
Dunamis Charge’s collection and use of Personal Information in connection with the Services is defined and described in Dunamis Charge’s privacy policy located at https://www.Dunamis Charge.com/privacy-policy/, which may be amended from time to time (“Privacy Policy”). Our Privacy Policy is incorporated into and forms part of these Terms.
2) ACCOUNTS
Registration
In order to use most aspects of the Services, you must register for and maintain an active personal account with Dunamis Charge (“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. Account registration requires you to submit to Dunamis Charge certain Personal Information, such as your name, address, mobile phone number, age, and at least one valid payment method supported by Dunamis Charge. By agreeing to the Terms you represent (i) that you are at least 18 years old and reside in a state, region, or country in which the Services may legally be provided, (ii) you are the person whose name and other information have been provided for the account that you have or are creating, (iii) that you have not previously been suspended or removed from the Services, and (iv) that your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are using the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization. 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.
All the information that you supply to us in creating your user account must be accurate. You are responsible for maintaining the confidentiality of your account and password. We may reject any username that violates these Terms, including any username that uses another person’s identity. You are responsible for authorizing, deauthorizing and administering Account access. You are responsible for maintaining confidentiality of all passwords. Unless otherwise permitted by Dunamis Charge in writing, you may only possess one Account. You may not authorize third parties to use your Account.
We may use the email you provide to us in your user account profile to provide you with service messages and updates. By becoming a user, you are consenting to the receipt of these communications.
Access Credential
After completing registration for an Account, you will be permitted access Services using a valid authentication method, which may include an RFID access card, a mobile authentication method, and/or other method (collectively, “Access Credential”) which will be linked to your Account. Your Access Credential will enable you to use Dunamis Charge’s electric vehicle charging stations across the Dunamis Charge network (“Dunamis Charge 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 immediately notifying Dunamis Charge by sending an email to [email protected] or calling 248-327-0257. You agree to be liable for any and all charges incurred due to usage of the lost or stolen or unauthorized access to your Access Credential (unless due to Dunamis Charge’s negligence) until Dunamis Charge has been notified.
Modification and Termination
To modify or terminate your Account or Services, (a) login to the Driver Portal or Mobile App and follow the modification and/or termination instructions provided therein, (b) email [email protected] with “Attention: Accounts” in the subject line, or (c) call 248-327-0257.
Dunamis Charge may immediately terminate these Terms or terminate or suspend 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 Dunamis Charge 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, Dunamis Charge may collect damages from you in connection with any breach of the Terms by you and may exercise any other remedy available to Dunamis Charge 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
Dunamis Charge Charging Stations may be located and hosted on a third party’s property (such third party is referred to as 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 Dunamis Charge Charging Stations on such Host properties, including, but not limited to, general customer or visitor conduct, parking restrictions, parking time limitations, and hours of operation. You are solely responsible for any damage, fees, penalties or loss caused by your noncompliance of any Host rules.
Support
In the event of any equipment malfunction or other technical issue with your Access Credential or an Dunamis Charge Charging Station, please call 248-327-0257 or the contact number located on the Dunamis Charge Charging Station. To ensure the quality of the Services, you consent to Dunamis Charge monitoring and recording calls between you and Dunamis Charge. We normally delete the files containing these calls every ninety days but, we reserve the right to retain them if we believe retention is needed. In the event of any equipment malfunction or other technical issue with an Out-of-Network Charging Station (defined below), please call the contact number located on the Out-of-Network Equipment.
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 for Personal Use Only
Unless otherwise agreed to by Dunamis Charge in signed writing, you shall not in any manner, directly or indirectly, resell or allow your Account, the Services or any Dunamis Charge equipment to be used by another person or entity.
Restrictions
You agree to comply with all applicable laws and regulations 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 Dunamis Charge’s reputation or property, including Dunamis Charge Charging Stations, or (ii) in any way prohibited by these Terms, any supplemental terms or other Dunamis Charge policies. Additionally, you may not attempt to repair, physically modify, reverse engineer or derive source code from any Dunamis Charge Charging Station. You acknowledge and agree that the manufacturer of all Dunamis Charge Charging Station equipment has reserved all right, title, and interest in and to intellectual property associated with Dunamis Charge 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) WEBSITE; DRIVER PORTAL; MOBILE APP
License, Use & General Restrictions
Subject to your continued compliance with these Terms, Dunamis Charge grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use Dunamis Charge’s website (the “Site”), driver portal (“Driver Portal”), 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 Site, Driver Portal, and/or Mobile App, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Dunamis Charge.
The Driver Portal and Mobile App provide information regarding your Account and Dunamis Charge Charging Stations, including Dunamis Charge Charging Station locations, trip mapping, and other content and features Dunamis Charge may make available, and provide you general access to utilize the Services. You are responsible for all use of the Driver Portal and/or Mobile App under your username and/or by use of your password.
You may provide links to the Site, provided that (i) you do not remove or obscure, by framing or otherwise, any advertisements, copyright notice, or other notices on the Site, (ii) your site does not engage in illegal or pornographic activities, and (iii) you discontinue providing links to the Site immediately upon request by Dunamis Charge.
You acknowledge and agree that Dunamis Charge may modify the Site, Driver Portal and/or Mobile App in any way and at any time, with or without notice. You further acknowledge and agree that, while Dunamis Charge has attempted to provide accurate information on the Site, Driver Portal and/or Mobile App, such information may change frequently and in no event will Dunamis Charge 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. Dunamis Charge does not represent or warrant that the Site, Driver Portal or Mobile App will be error-free, free of viruses or other harmful components.
You may not: (i) remove, obscure, or modify any copyright, trademark or other proprietary notices from any portion of the Site, Driver Portal and/or 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 Site, Driver Portal, and/or Mobile App except as expressly permitted by Dunamis Charge; (iii) decompile, reverse engineer, or disassemble the Site, Driver Portal, and/or Mobile App except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Site, Driver Portal, and/or 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 Site, Driver Portal, and/or Mobile App or that unduly burden or hinder the operation and/or functionality of any aspect of the Site, Driver Portal and/or Mobile App; (vi) attempt to gain unauthorized access to or impair any aspect of the Site, Driver Portal, and/or Mobile App or its related systems or networks; (vii) impersonate or attempt to impersonate us, our employees, another user or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or, (viii) attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
Third Party Content; Merchants
Dunamis Charge may advertise certain offerings from third-party providers (“Merchants”) in connection with the Site, Driver Portal, or Mobile App. You understand that Dunamis Charge does not operate or control the products or services offered or provided by Merchants and is not responsible for information provided by you to Merchants. All agreements, rules, policies (including privacy policies), and operating procedures of Merchants will apply to you while on any Merchant sites. Merchants are responsible for all aspects of order processing, fulfillment, billing, and customer service. Dunamis Charge is not a party to the transactions entered into between you and any Merchant. Dunamis Charge 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 DUNAMIS CHARGE, EXPRESSED, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES IS DUNAMIS CHARGE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND ANY MERCHANTS, ANY INFORMATION APPEARING ON MERCHANTS’ SITES OR ANY OTHER SITE LINKED TO OUR SITE OR ANY PRODUCTS OR SERVICES OF SUCH MERCHANTS.
The Site, Driver Portal, or Mobile App may contain advertising, sponsorships, or links to other websites. Dunamis Charge is not responsible for the content, accuracy, or opinions express in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Dunamis Charge. Inclusion of any linked website does not imply approval or endorsement of the linked website by Dunamis Charge. 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 Site, Driver Portal, or Mobile App is accurate and complies with applicable laws and regulations. Dunamis Charge 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 Site, Driver Portal, and Mobile App and the content and materials provided therein.
For more information about Dunamis Charge’s collection and use of Personal Information in connection with the Services, please read our Privacy Policy, located at: https://www.Dunamis Charge.com/privacy-policy/.
5) PRICING & PAYMENT
You understand that use of the Services may result in charges to you for the services or products you receive (“Charges”). Details of Services, pricing for such Services, and any supplemental terms offered by Dunamis Charge (collectively, a “Plan”) are located in your online Account and on the Site. Please login to your Account or visit the Site for further information on your Plan.
Pricing
Unless your Plan specifies otherwise, Dunamis Charge reserves the right to establish and revise Plan pricing, including membership fees and time or usage-based rates, at any time in Dunamis Charge’s sole discretion. Further, you acknowledge and agree that some aspects of Plan pricing are based on certain geographical areas, and, therefore, pricing may vary according to the location of the Dunamis Charge Charging Station. You may view current Plan pricing on the Mobile App and/or the Site. Dunamis Charge will use reasonable efforts to inform you of material changes in Plan 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 Dunamis Charge.
Dunamis Charge 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. If you are receiving a free trial or Promotional Program not associated with a Plan, you may be placed on a successor Plan at the end of such trial or program. Any such Plan will have no monthly fee and will provide you with access to Dunamis Charge Charging Stations.
Billing & Payment
Generally Dunamis Charge will charge the method of payment that you designate during the creation of subsequent modification of your Account (“Designated Payment Method”) every time you initiate a charging session on an Dunamis Charge Charging Station (“Session Payment”). Each Session Payment will be collected on the same day as the applicable charging session (“Session Payment Date”). In addition to the Session Payment, a $5.00 charge may display on the credit card used as the Designated Payment Method; provided, however, that such charge will be temporary and for authorization purposes only. Notwithstanding the foregoing, Dunamis Charge may, at its sole discretion, elect to allow for Session Payments to accrue during an applicable month, in which case Dunamis Charge will collect the accrued Session Payments on the last day of your Billing Period. As used herein, “Billing Period” means each one-month period commencing on and following the date you sign up for the Services.
For any Plan with monthly membership fees (“Membership Fees”), Dunamis Charge will charge your Designated Payment Method on a monthly basis on the last day of each Billing Period (“Membership Payment Date”). You will receive an email confirming your payment and an Account invoice each month. Since the Billing Period begins on the date you sign up for the Services under that Plan, if you sign up for multiple Plans with Membership Fees on different days of the month, each Plan will have its own corresponding Billing Period and Membership Payment Date.
If Dunamis Charge is unable to collect payment on the Session Payment Date or Membership Payment Date (each, a “Payment Due Date”), Dunamis Charge reserves the right, to be exercised In Dunamis Charge’s sole discretion, to disable your access to the Services without advanced notice. Dunamis Charge will thereafter, from time to time in its sole discretion, initiate further charges of your designated payment method until such time as your outstanding invoice is paid in full. If Dunamis Charge is unable to collect payment by the fifth day following the Payment Due Date, Dunamis Charge will add to the outstanding balance a one-time late payment fee (a “Late Payment Fee”) equal to the product of (i) the outstanding invoiced amount multiplied by (ii) the lesser of (a) five percent (5%) or (b) the maximum rate allowed by applicable law. If Dunamis Charge is unable to collect payment of the outstanding amount (including the Late Payment Fee) by the tenth day following the Payment Due Date, Dunamis Charge may suspend your Account. If Dunamis Charge is unable to collect payment of the outstanding amount (including the Late Payment Fee) by the twenty-fifth day following the Payment Due Date, Dunamis Charge may deactivate your Account. If your Account is deactivated due to non-payment as set forth above, Dunamis Charge may assess an additional fee to reactivate your Account after delinquent payment is received; provided, however, that Dunamis Charge shall have sole discretion to determine whether to reactivate a deactivated account.
You understand if you have an unpaid balance to Dunamis Charge and do not make satisfactory payment arrangements, your account may be placed with an external collection agency. You will be responsible for reimbursement of the fee of any collection agency, which may be based on a percentage at a maximum of 35% of the debt, and all costs and expenses, including reasonable collection and attorney’s fees incurred during collection efforts.
In order for Dunamis Charge or their designated external collection agency to service your account, and where not prohibited by applicable law, you agree that Dunamis Charge and the designated external collection agency are authorized to (i) contact you by telephone at the telephone number(s) you are providing, including wireless telephone numbers, which could result in charges to you, (ii) contact you by sending text messages (message and data rates may apply) or emails, using any email address you provide and (iii) methods of contact may include using pre-recorded/artificial voice message and/or use of an automatic dialing device, as applicable. Furthermore, you permit and consent to the designated external collection agency to share personal contact and account related information with third party vendors to communicate account related information via telephone, text, e-mail, and mail notification.
Suspension of Service
Suspension. We may suspend your account and access to the Service, with or without notice, if you violate any provision of these Terms.
The Effects of Account Suspension. Upon any suspension of your account, all Service associated with your account will be suspended or otherwise made inaccessible until and unless all issues are addressed and resolved by you, to our satisfaction, and within the time frame we specify. During any suspension of your account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade or modify any of the Service; (ii) request an emergency restoration; (iii) transfer any Service; (iv) access any of the websites, email accounts or Content associated with the suspended Service or account. You agree to hold us harmless from and against any and all claims, losses or damages arising from any suspension of your account or the individual Service.
Term; Termination
Taxes
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 Dunamis Charge 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 Dunamis Charge 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 for the Services will require a valid exemption certificate. Tax exemptions will not be applied retroactively.
6) COPYRIGHT & SERVICE MARKS
The content, organization, software code, graphics, design, compilation, magnetic translation, digital conversion, and other aspects related to the design, function, performance, or operation of the Site, Driver Portal, Mobile App, and/or Dunamis Charge Charging Stations are protected under applicable copyright, trademark and other proprietary intellectual property rights. The copying, redistribution, use, or publication by you of any such matters or part of such matters, except as allowed by the license granted under Section 2, is strictly prohibited. You do not acquire ownership rights to any content, document, or other materials viewed through the Site, Driver Portal or Mobile App.
“Dunamis Charge”, “EZ-Charge”, the Dunamis Charge logo, and our other brands are our service marks or registered service marks or trademarks. Some of the content, products and company names mentioned on the Site, Driver Portal and 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 service marks or trademarks owned by Dunamis Charge or a third party mentioned on the Site, Driver Portal, and/or Mobile App, except as allowed by the license under Section 2, is strictly prohibited.
COOPERATION WITH LAW ENFORCEMENT AND GOVERNMENT AGENCIES; REQUIRED DISCLOSURES
You acknowledge that we have the right to investigate complaints and prosecute reported violations of these Terms, including intellectual property, publicity and privacy rights infringement and website security issues, to the fullest extent of the law. We may report violations to, and involve and cooperate with law enforcement authorities, regulators, or other agencies or third parties in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Site or the Services, but we have the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body.
You understand and agree that we may disclose your Personal Information, usage history, IP addresses, traffic information, or any other information relating to your Account or your use of our Site, Mobile App, or Services, if required to do so by law, regulation, regulatory agency request or order, court order, legal process, or subpoena, including to respond to any government or regulatory request (after, if permitted, giving reasonable notice to you and using commercially reasonable efforts to provide you with the opportunity to seek a protective order or the equivalent (at your expense), or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce these Terms (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our Site; or, (c) to exercise or protect the rights, property, or the safety of us, our users or others.
7) DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
Availability
Dunamis Charge shall use commercially reasonable efforts to provide continuous access to the Services and/or (ii) make available the Dunamis Charge Charging Stations, in each case pursuant to these Terms. Dunamis Charge does not guarantee that the Services will be accessible at all times. The Services may be unavailable during maintenance periods or during an emergency. In addition to normal maintenance, there may be events that will make the Service inaccessible for a limited amount of time due to unforeseen circumstances. Dunamis Charge reserves the right to change your password if Dunamis Charge believes it is not secure. Dunamis Charge has the right to refuse access to the Services. Dunamis Charge has right to cease offering the Services at any time and in Dunamis Charge’s sole discretion.
DISCLAIMERS
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 DISCLAIMED WITH RESPECT TO (I) DUNAMIS CHARGE CHARGING STATIONS AND RELATED EQUIPMENT, (II) INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE SITE, DRIVER PORTAL, OR MOBILE APP, AND (III) THE SERVICES, EXCEPT AS SET FORTH IN THESE TERMS. IN ADDITION, DUNAMIS CHARGE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE OR OPERATIONAL AT ANY PARTICULAR LOCATION OR AT ANY PARTICULAR TIME, OR THAT THEY WILL BE ERROR-FREE OR VIRUS-FREE. FURTHER, DUNAMIS CHARGE AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED BELOW.
DUNAMIS CHARGE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF MERCHANTS OR THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR PRODUCT REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
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.
Exclusive Remedy
Your sole and exclusive remedy for any claim arising out of or relating to Dunamis Charge’s breach of these Terms or the terms of a Plan shall be for Dunamis Charge, upon receipt of written notice, to use commercially reasonable efforts to cure the breach at its expense or, at Dunamis Charge’s election, return the fees you paid to Dunamis Charge for the Services in the month during which the breach occurred, and, at Dunamis Charge’s option terminate the Plan.
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 DUNAMIS CHARGE 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, THE TERMS OF A PLAN, ANY ERRORS IN OR OMISSIONS FROM THE SITE, DRIVER PORTAL, MOBILE APP, OR ANY SERVICES OR PRODUCTS OBTAINABLE THEREFROM, THE UNAVAILABILITY OR INTERRUPTION OF THE SITE, DRIVER PORTAL, MOBILE APP, OR ANY FEATURES THEREOF, YOUR USE OF THE SITE, DRIVER PORTAL, OR MOBILE APP, THE CONTENT CONTAINED ON THE SITE, DRIVER PORTAL, OR MOBILE APP OR ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE CONTROL OF ANY AFFILIATE, INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM THE PERFORMANCE OR NONPERFORMANCE OF DUNAMIS CHARGE’S OBLIGATIONS UNDER THESE TERMS OR THE TERMS OF A PLAN, YOUR USE OF ANY DUNAMIS CHARGE EQUIPMENT, INSTALLATION OF DUNAMIS CHARGE EQUIPMENT, DUNAMIS CHARGE’S ACTS OR OMISSIONS RELATED TO A PLAN 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 DUNAMIS CHARGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU HEREBY RELEASE DUNAMIS CHARGE FROM ANY SUCH EXCLUDED DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIMIT OF DUNAMIS CHARGE’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, THE TERMS OF A PLAN, YOUR USE OF DUNAMIS CHARGE EQUIPMENT, THE INSTALLATION OF DUNAMIS CHARGE EQUIPMENT, THE MOBILE APP, THE DRIVER PORTAL, AND THE SITE 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 DUNAMIS CHARGE 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 SITE, DRIVER PORTAL, MOBILE APP, OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Indemnification
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS DUNAMIS CHARGE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND AGAINST ALL THIRD-PARTY ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, LOSSES, COSTS, DAMAGES, DEFICIENCIES, JUDGMENTS, LIABILITIES, PENALTIES, FINES, ASSESSMENTS, AND 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 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 DUNAMIS CHARGE 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 SITE, DRIVER PORTAL, OR MOBILE APP.
8) ARBITRATION AGREEMENT
This Section 8 sets forth the terms of an arbitration agreement between you and Dunamis Charge.
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. YOU AGREE THAT NEITHER YOU NOR DUNAMIS CHARGE WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY, AND EACH PARTY HEREBY WAIVES ANY RIGHT TO ASSERT CONSOLIDATED CLAIMS WITH RESPECT TO ANY DISPUTES SUBJECT TO ARBITRATION UNDER THESE TERMS OR ANY DISPUTES BETWEEN THE PARTIES. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. ALSO, YOU AGREE THAT YOU ARE PRECLUDED FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST DUNAMIS CHARGE BY SOMEONE ELSE.
Agreement to Binding Arbitration Between You and Dunamis Charge
You and Dunamis Charge agree that any dispute, claim or controversy arising out of or relating to (a) these Terms and the Terms of any Plans 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 Dunamis Charge, and not in a court of law.
You acknowledge and agree that you and Dunamis Charge are each waiving the right to a trial by jury. However, you and Dunamis Charge each retain the right to bring an individual action 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, breach of confidentiality, or other breach of these Terms for which equitable relief may be available.
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 https://adr.org/Mediation or by calling the AAA at 1-800-778-7879. Unless both you and Dunamis Charge otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.
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.
Process
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 parties agree that one (1) arbitrator shall arbitrate the dispute. 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 and Procedure
The arbitration will be conducted in Detroit, Michigan. If either party’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Dunamis Charge submit to the Arbitrator, unless either party requests a hearing, or the Arbitrator determines that a hearing is necessary. If a party’s claim exceeds $10,000, the 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.
Arbitrator’s Decision
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 will have no authority to award punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The Arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition. Only declaratory or injunctive relief may be awarded by the Arbitrator 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 reasonable attorneys’ fees and expenses, to the extent provided under applicable law. The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes
Notwithstanding the aforementioned provisions of this Section 8 Arbitration Agreement, regarding consent to be bound by amendments to these Terms, if Dunamis Charge materially changes the terms of the Arbitration Agreement after the date you first agreed to the Terms, you may reject any such change by providing Dunamis Charge 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 Dunamis Charge at 19785 W 12 Mile Road, Suite 345 Southfield, MI 48076, Attn: Legal Department, or (b) by email from the email address associated with your Account to [email protected], with the words “Attention: Legal Department” in the subject line. 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 Dunamis Charge in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or agreed to any subsequent changes to the Terms).
Severability and Survival
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, then: (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) 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, (iii) 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 Dunamis Charge equipment and/or the Services, the terms of your Plan, and any dispute you may have with Dunamis Charge related to the Site, Driver Portal, or 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. Where permitted under the Arbitration Agreement of Section 8, you agree to irrevocably submit in any legal proceeding relating to these Terms to a court of competent jurisdiction sitting in Los Angeles, California. The foregoing choice of law and forum selection provisions do 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.
General
These Terms, including, but not limited to, the Privacy Policy (and updates to these Terms and the Privacy Policy), and any other terms agreed to in writing by the parties or by way of your use of the Site or the Services shall constitute the entire and exclusive understanding and agreement between you and Dunamis Charge regarding this subject matter, and shall supersede any and all prior or contemporaneous representations or understandings relating to this subject matter. The headings of sections and paragraphs in these Terms are for convenience only and shall not affect its interpretation. You may not assign, transfer or convey (collectively, “assign” or its variants) these Terms, in whole or in part, your Plan, or your Account, Login Credential, or password without Dunamis Charge’s prior written approval Dunamis Charge may assign these Terms, in whole or in part, without your consent. Any purported assignment in violation of this section shall be of no power or effect. No joint venture, partnership, employment, or agency relationship exists between you, Dunamis Charge or any third-party provider as a result of these Terms, your Plan or use of the Services. If any provision of these Terms or the terms of any Plan 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. Dunamis Charge’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 Dunamis Charge 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. Dunamis Charge’s rights under these Terms shall survive any termination of these Terms.
Communications
By creating an Account or giving us any contact information, you agree to and do hereby consent to receive mail and electronic communications (email, text/SMS and by telephone) from Dunamis Charge, in addition to any postings of communications by Dunamis Charge on the Site (e.g., by posting notices on your account profile page), concerning information and/or our Services (collectively, “Communications”). For account holders, Communications may be those that Dunamis Charge is required to send to you by law concerning us, your Account or information, the Site, or the Services (“Required Communications”). The Communications may also be those that Dunamis Charge sends to you for other reasons. You may change the email or mobile phone number on file for your account by visiting your account profile page or by contacting Dunamis Charge. You may opt out of receiving all Communications, other than Required Communications, via email by sending a notice to us that identifies your full name, user name and email address; however, you will not receive any further electronic notices from Dunamis Charge (other than Required Communications), which notices may include important notices or announcements.
