Terms – APS SmartCharge Terms
Terms and Conditions for APS SmartCharge Program Participants
Thank you for your interest in the APS SmartCharge program (“APS SmartCharge” or the “Program”) that is being made available to Arizona Public Service (“APS”) by APS’s service provider Geotab Inc., carrying on business as Geotab Energy (“Geotab Energy” or “we”).
Your participation in the Program is expressly conditioned on your acceptance of these Terms and Conditions (the “Terms and Conditions” or this “Agreement”). Your participation in the APS SmartCharge, however, is completely voluntary.
PARTICIPANTS IN THE PROGRAM MUST BE AT LEAST 18 YEARS OLD. If you are not at least 18 years old OR you do not agree with any of these Terms and Conditions, including the Privacy Policies and wireless terms linked below, do not participate in the Program.
BY DOWNLOADING, USING, OR ACCESSING ANY OF GEOTAB ENERGY’s DEVICES, SOFTWARE, SERVICES AND OTHER PRODUCTS, INCLUDING UPDATES AND UPGRADES THEREOF (COLLECTIVELY “PRODUCTS”), OR BY PARTICIPATING IN THE PROGRAM YOU CONCLUDE A LEGALLY BINDING AGREEMENT BASED ON THE TERMS OF THIS AGREEMENT WITH GEOTAB ENERGY ON BEHALF OF YOURSELF.
Geotab Energy reserves the right to modify these Terms and Conditions at any time. Any modifications to these Terms and Conditions will be made available for viewing at the following web address: https://www.smartchargerewards.com/aps/terms/. Please check this page periodically. Your continued participation in the Program after any changes will constitute your acceptance of any modifications to these Terms and Conditions.
Overview of the Program
Geotab Energy is the owner of the SmartCharge RewardsTM program.
APS has engaged Geotab Energy to provide APS with SmartCharge RewardsTM Products in order for APS to learn more about Electric Vehicles (EVs) that are being charged in its service territory, to learn more about the EV driving and charging patterns and preferences of EV drivers, and to provide an incentive for EV owners to charge their vehicles during times that are beneficial for APS. If you are selected to participate in SmartCharge RewardsTM, you will either be provided with a Geotab branded ‘GO’ Device or equivalent (“Connected Car Device”) for installation in the on-board diagnostics port of your vehicle OR prompted to connect your own device [charging station (“3rd Party Device”) or vehicle manufacturer (“OEM”) account] at the discretion of Geotab Energy and APS. Either type will be considered the participant’s “Device” or “Devices” for the purposes of participation in this program.
By connecting a Device to your SmartCharge RewardsTM account, you permit Geotab Energy to access data from that Device for the purpose of your participation in this program as described below in the Data Collected by the Device; Privacy section.
Each applicant whose applications are accepted by APS and who agree to these Terms and Conditions will be a participant in the Program (“Participant” and together the “Participants”). Participants may be eligible to earn cash equivalent rewards known as “SmartCharge RewardsTM” for things such as: joining the Program, activating a Device, sharing data, and charging at specific times of day. Each program will have a specific rewards structure which will be communicated to the participants upon joining the program.
During and after your participation in the Program, you may be asked to participate in follow up surveys, studies, audits, evaluations or verifications conducted by Geotab Energy or APS or their agents or service providers in connection with the Program. While we hope that you choose to participate in these surveys, your participation will be completely voluntary.
Participants will be able to view certain data about their vehicle charging behavior and track her/his SmartCharge RewardsTM through personal log-in access to the Geotab Energy SmartCharge RewardsTM portal (the “Portal”). To log into the Portal, Participants must have access to a computer, smartphone, or other mobile device, with Internet access.
Vehicle Manufacturer (“OEM”) Account
To connect your OEM Account to SmartCharge RewardsTM without the need of a physical device provided by APS, you will be asked to input your OEM username and password (“Credentials”) into an interface within your SmartCharge Rewards account portal. This information will be used to retrieve an authentication token unique to you. The authentication token will be stored and used to retrieve your vehicle data. The Credentials are not saved within SmartCharge RewardsTM.
SmartCharge RewardsTM is unable to remotely start a vehicle as Credentials are not stored.
OEM authentication tokens can be revoked at any time by changing your OEM password. This will result in SmartCharge RewardsTM no longer being able to access your vehicle data unless and until you provide a new OEM authentication token again. You accept all responsibility for safeguarding your OEM password and abiding by any agreed upon contractual obligations between you and your vehicle manufacturer.
Data Collected by the Device; Privacy
To conduct the Program and provide participants with the Products and services outlined in this Agreement, facilitate appropriate customer service, and to enhance and improve Products and services, Geotab Energy will collect information through the Device.
Any Device type will collect at minimum the following information to ensure accurate calculation of charging information:
- About your Charging – Charging start and end date and time, charging power (kW), charging energy (kWh), GPS coordinates or address of where the charging session occurred.
When possible, a Device may also collect additional information to enhance participant experience, provide additional services to APS, or enhance and improve Products and services. This information may include:
- About your EV – VIN (Vehicle Identification Number), make, model and model year.
- About your driving – basic trip metrics such as duration, times, energy consumption (gas/diesel and electricity), and GPS.
- GPS data collected while driving is not stored in the SmartCharge Rewards product and is not shared with your utility.
A subset of the collected data outlined above will be used to populate an online dashboard made available for you to view in the SmartCharge RewardsTM Portal (aps.smartchargerewards.com) so that you can monitor your own vehicle’s charging and driving.
Geotab Energy will have access to all the collected data. APS will have access to some, and possibly all, of this data, depending upon what data APS deems pertinent to the goal of its participating in a SmartCharge RewardsTM program.
Data that is collected through the Connected Car Device will be erased from the device once the data is transferred to Geotab Energy. The data collected by the Device is encrypted when transmitted to Geotab Energy servers. Data will also be encrypted when Geotab Energy sends it to APS.
In addition to the data listed above, APS and Geotab Energy will collect the information you provide on your Program application and any surveys or other Program evaluations that you choose to complete and submit during your participation in the Program.
Collected information that is transferred to Geotab Energy and APS will be retained by Geotab Energy and APS for the period necessary to fulfill the service to you and satisfy APS and SmartCharge RewardsTM objectives.
Please see the SmartCharge RewardsTM Privacy Statement available at smartchargerewards.com/privacy-policy for further information on data collected by Geotab Energy and how it may be used by Geotab Energy. Please also see APS’s Privacy Statement which is available at www.aps.com/en/Utility/Regulatory-and-Legal/Privacy-Policy for further information on how APS collects and may use and share your information, including any of the above-described data and information that APS receives about you in connection with your participation in the SmartCharge RewardsTM program.
Without limiting the terms of the Privacy Policies referenced above, Geotab Energy and APS may use the information they obtain about you through your participation in the Program, including data collected through the Device provided to you (collectively, “Participant Information”), in order (a) to operate, administer, market, evaluate, analyze, change or improve the Program, the Devices and the SmartCharge RewardsTM Portal, and (b) to prepare and present general, aggregated or anonymized results and information about the Program to third parties, including governmental entities such as public service commissions. Geotab Energy and APS may also use and publish information regarding your participation in the Program, your use of the Device, and your use of the SmartCharge RewardsTM Portal as long as the information is presented in an aggregated or anonymized format (i.e., in a manner that does not identify you).
EV OWNER CONSENT TO DATA COLLECTION AND USE
YOU ARE RESPONSIBLE FOR NOTIFYING EVERYONE WHO OWNS OR USES (AS A DRIVER OR A PASSENGER) THE EV IN WHICH A DEVICE HAS BEEN INSTALLED THAT THE INFORMATION DESCRIBED ABOVE WILL BE COLLECTED AND AVAILABLE TO YOU, APS AND GEOTAB ENERGY.
BY PARTICIPATING IN THE PROGRAM, YOU REPRESENT THAT YOU HAVE THE CONSENT OF THE REGISTERED VEHICLE OWNER AND THE USERS OF EACH EV IN WHICH A DEVICE IS INSTALLED TO (A) INSTALL THE DEVICE IN THE EV, AND (B) PERMIT YOU, APS AND GEOTAB ENERGY TO VIEW AND USE THE DATA AND INFORMATION COLLECTED BY THE INSTALLED DEVICE, AS MORE PARTICULARLY DESCRIBED IN THE PREVIOUS SECTIONS OF THESE TERMS (I.E., THE DEVICE: HOW IT WORKS; DATA COLLECTED BY THE DEVICE; PRIVACY) AND THE APS AND GEOTAB ENERGY PRIVACY POLICIES REFERENCED ABOVE.
YOU AGREE NOT TO PARTICIPATE IN THE PROGRAM OR USE ANY DEVICE OR THE SMARTCHARGE REWARDSTM PORTAL SERVICE IN ANY WAY THAT IS ILLEGAL, FRAUDULENT OR ABUSIVE, INCLUDING TO HARASS, THREATEN, ABUSE, DEFAME OR SLANDER ANY INDIVIDUAL.
Ownership of Products; Licenses; Protective Measures
All Connected Car Devices used in the Program will be purchased by APS and given to eligible Participants selected for the SmartCharge RewardsTM Program. APS will provide, free of charge to those who require one, a Connected Car Device for each EV registered in the Program. In addition, for so long as the Program is in effect and the Participant continues her/his participation in the Program, APS, on behalf of such Participant, shall purchase SmartCharge RewardsTM Portal license rights so that the Participant has the right to access the Portal. However, if a person receives a Device and decides not to install the device and participate in the Program, APS requests that the person return the Device so that APS may provide the device to another eligible Participant. To organize return of a Connected Car Device please email firstname.lastname@example.org to arrange receipt of a pre-paid return mailing label.
Devices: Connected Car Devices are purchased by APS and are provided free of charge for use only by eligible, selected Participants. You agree not to sell, transfer, or assign Connected Car Devices provided to you in connection with the Program or the SmartCharge RewardsTM Portal access rights provided. Any OEM account utilized by Participants, will remain solely owned by the Participants.
License: Geotab Energy grants you a limited, revocable, non-exclusive right to use any software, firmware and intellectual property (collectively, “software”) embodied in Products solely in connection with your participation in the Program, on the condition and so long as you comply with all terms and conditions of this Agreement. Except as otherwise provided in this Agreement, such rights are non-assignable, non-transferable, and non-sublicensable. You may not extract, copy, or use the software in connection with any other product or for use on any other device.
Product Ownership: The Products are protected by copyright and other intellectual property rights. Software and services are not sold, but only licensed or made available on a limited basis. Notwithstanding anything to the contrary herein, and notwithstanding any reference to the sale or provision of any product to you in this Agreement, except for the rights expressly granted to you under this Agreement, all right, title and interest (including all copyrights, trademarks, service marks, patents, inventions, trade secrets, intellectual property rights and other proprietary rights) in and to the Products and any copies thereof (regardless of the form or media upon which such copies are recorded) are and shall remain exclusively owned by Geotab Energy or its licensors. You shall not remove or attempt to remove any marks, labels, and legends from Products.
Protective Measures: Products may contain technological measures (including the ability to disable the Products) designed to prevent the illegal usage of software or other violations of this Agreement or applicable law. You agree not to circumvent or attempt to circumvent such measures. Without limiting the foregoing, you agree not to tamper with, disable or damage the Connected Car Device that is provided to you in connection with the Program. Any failure to comply with these obligations will be at your sole risk for any damage that may result including damage to the Device or your EV or injury to any person.
Restrictions: To the fullest extent permissible under applicable law, you agree not to: (a) disclose, transfer or transmit in any manner any services, software or other copyrightable or licensed elements of Products whether temporarily or permanently; (b) modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any software elements of Products; (c) use Products in a manner that violates laws or rights of others; (d) use the Products as part of a fail-safe design for dangerous or emergency applications or as part of control measures required for hazardous materials, life support systems, munitions or weapons; (e) engage in any activity that interferes or disrupts services or any computer, software, network or other device used to provide the services; or (f) attempt, or cause, permit or encourage any other person to do any of the foregoing.
Consent to Automatic Installation: Geotab Energy continuously improves its Products and may, from time to time, cause software updates to be automatically installed on your Connected Car Device with or without prior notification to you or provide access to updates through its website. You hereby consent to such automatic installations and agree to use only the updated version once it has been installed.
Ownership of the Data Collected and Suggestions
All personal data collected during the Program shall be the property of the Participant. You agree to provide an unrestricted, irrevocable license to Participant Information to the extent required to initiate and manage the Program. All Products or services developed by Geotab Energy, including modifications, enhancements, or changes to its Products are and will remain solely owned by Geotab Energy.
You understand and agree that any feedback, input, suggestions, recommendations, troubleshooting information or other similar information that you provide or which is made available to either Geotab Energy or APS (whether directly or indirectly including in the course of utilizing support, maintenance or other services) may be used by Geotab Energy or to modify, enhance, maintain and improve their respective products and/or services and shall become their exclusive property without any obligation or payment to you.
Ownership of SmartCharge RewardsTM
SMARTCHARGE REWARDSTM DO NOT CONSTITUTE THE PROPERTY OF A PARTICIPANT AND MAY BE FORFEITED AND REVOKED AS SET FORTH IN THESE TERMS. PARTICIPANTS MAY NOT SELL, TRANSFER OR ASSIGN THEIR SMARTCHARGE REWARDSTM AND SMARTCHARGE REWARDSTM ARE NOT TRANSFERABLE UPON DEATH, AS PART OF A DOMESTIC RELATIONS MATTER OR OTHERWISE BY OPERATION OF LAW.
Who May Participate in SmartCharge RewardsTM
Participants in SmartCharge RewardsTM must own or lease a light-duty battery electric vehicle or plug-in hybrid electric vehicle and meet the eligibility requirements of the program.
Participants should also have access to a computer, smartphone, or other mobile device, with Internet access. Participant selection decisions will be made by Geotab Energy and APS in their sole and absolute discretion and all selection decisions are final and binding.
How to Participate in the SmartCharge RewardsTM Program
If you wish to participate in SmartCharge RewardsTM, you must do the following:
- Complete an application which can be found at smartchargerewards.com/aps. The SmartCharge RewardsTM team will review your application to confirm eligibility. If accepted, Geotab Energy will send you a confirmation email which will ask you to create a SmartCharge RewardsTM account.
- Connected Car Device(s) must be activated and installed, or OEM Account linked to the Portal, before data can be collected and before a Participant can earn any SmartCharge RewardsTM. If you do not activate and/or install the Device(s) within 7 days of receipt, you will receive a notice, via email, reminding you to install and activate the Device.
You will be withdrawn from the Program if you do not link your OEM Account or install and activate your Connected Car Device within 3 weeks of receipt. If you decide not to install and activate the Device, you must return the Device so that it may be provided to another Participant. Please email email@example.com to arrange for device returning instructions or use the returning shipping label provided with your device. Please do not return any Device to Geotab Energy that you installed in a vehicle.
IT IS YOUR RESPONSIBILITY TO MAKE SURE THE EMAIL YOU HAVE PROVIDED US IS ACCURATE, UP-TO-DATE, AND CAN RECEIVE EMAIL MESSAGES FROM THE PROGRAM.
The Device: How it Works
The Connected Car Device is installed by plugging it into the OBD II Port of a battery electric vehicle or plug-in hybrid electric vehicle (or its proprietary diagnostics connector). Participants with an OEM proprietary diagnostic connection will also receive (free of charge) a special adapter that is needed to install the Connected Car Device. Device installation is easy to do. PARTICIPANTS ARE RESPONSIBLE FOR INSTALLATION. If you require any assistance with locating the OBD II Port, OEM proprietary diagnostics connector, or need installation directions, please refer to the installation instructions available at smartchargerewards.com/support.
Geotab Energy and APS will not be held responsible for data losses or rewards losses resulting from software updates to vehicles or 3rd party devices from the manufacturer. Geotab Energy will make every reasonable attempt to make the SmartCharge Rewards system compatible with changes made by manufacturers of vehicles and 3rd party devices on our supported list but cannot guarantee whether compatibility will be possible or timely following a change by the manufacturer.
Withdrawal from the Program; Termination of the Program
Your participation in SmartCharge RewardsTM is completely voluntary so you are free to withdraw from the Program at any time. To withdraw from the Program, remove the Device from your EV and notify Geotab Energy of your withdrawal at firstname.lastname@example.org.
For each month that you do not charge an EV with a properly installed Device in the APS service territory, you will receive an email inquiring about your continued interest in participating in the Program. If you do not charge an EV with a properly installed Device in the APS service territory for three (3) consecutive months, you will be deemed to have withdrawn from the Program.
Once the Program terminates or a Participant withdraws from, or is deemed withdrawn from, the Program, continued collection of data from the EV(s) in which a Device(s) is installed will stop within 20 business days after termination or withdrawal in order to protect the privacy of Participants.
A Participant (i) who withdraws from the Program voluntarily or is deemed to have withdrawn due to limited charging activity (as described above), or (ii) if the Program is terminated, will continue to have post-termination access to the Portal for ninety (90) days. Once a Participant no longer has access to the Portal, the Participant will no longer be able to view previously recorded data from their EV or SmartCharge RewardsTM redemption codes and links.
In addition to the above, APS or Geotab Energy, by sending an email notice to the Participant, reserve the right to immediately terminate Program participation of anyone who engages in any fraudulent activity or actions in violation of these Terms and Conditions. This type of termination will result in Participant’s immediate loss of access to the Portal and any accumulated SmartCharge RewardsTM.
How to Earn SmartCharge RewardsTM
During the Program, SmartCharge RewardsTM may be earned on a per-vehicle basis by charging at particular times or engaging in other activities like completing a survey or referring a friend. SmartCharge RewardsTM will begin to be calculated and accrued once the Device is activated in Geotab Energy’s SmartCharge RewardsTM portal. Geotab Energy and APS reserve the right to add, change or remove activities for which SmartCharge RewardsTM may be earned and/or the number of SmartCharge RewardsTM earned thereby at any time. For details about how you can earn SmartCharge RewardsTM in your program, please see smartchargerewards.com/aps. Please check this page periodically for changes to how SmartCharge RewardsTM may be earned.
How to Redeem SmartCharge RewardsTM
On the 15th day of each month (or the next business day), the SmartCharge RewardsTM earned for the previous month will be calculated based on 1,000 SmartCharge RewardsTM points equaling $1.00 and are automatically paid via PayPal. The available redemption options may change at any time at the discretion of Geotab Energy and APS.
On the 15th day of each month (or the next business day), Participants will receive an automated email notification to tell them whether they have earned SmartCharge RewardsTM during the previous month. If rewards points were not earned during the previous month, the email notification will remind the participant to charge their vehicle in the APS service territory and to maintain the Device installed in the vehicle.
APS and Geotab Energy are not responsible for late, lost, stolen, incomplete, undelivered, illegible, damaged, mutilated, misdirected financials rewards (including the delivery of electronic gift cards) or for returned or undeliverable emails notifying you about your SmartCharge RewardsTM balance or for other errors or problems of any kind (including email delivery issues and deletions cause by spam filters that limit email delivery) whether human, mechanical, electronic, network, computer, typographical, printing or otherwise relating to or in connection with the offer, including, without limitation, errors or problems which may occur in connection with the administration of the offer or the processing of request.
Expiration of SmartCharge RewardsTM
SmartCharge RewardsTM which have been redeemed (paid through PayPal or converted to an electronic gift card or code) do not expire except as per terms established by the program financial rewards redemption partners; please review these other terms. Withdrawn participants will have 90 days from the termination date to redeem rewards or they will be lost if contact details are not accurate.
No Transfer of SmartCharge RewardsTM; Verification of SmartCharge RewardsTM
You cannot combine or transfer SmartCharge RewardsTM with other Participants and you cannot transfer or sell SmartCharge RewardsTM. Any attempt to combine, transfer or sell SmartCharge RewardsTM will result in your disqualification from the Program and forfeiture of all SmartCharge RewardsTM earned. If APS or Geotab Energy has reason to believe that you have violated these Terms and Conditions, they may terminate your participation in the Program and take any other or additional action they deem appropriate in their discretion.
All SmartCharge RewardsTM earned in this Program will be subject to verification by APS and/or Geotab Energy, whose decisions are final and binding. If you believe that you earned SmartCharge RewardsTM that were not properly accrued to your account, please contact the Program’s customer service at email@example.com. All Program decisions by APS and/or Geotab Energy regarding the awarding of SmartCharge RewardsTM are final and binding. Earned SmartCharge RewardsTM and/or electronic gift cards or codes that are subsequently determined to have been invalid for any reason are subject to forfeiture or return/repayment, as applicable, and, depending on the circumstances, Program disqualification.
You are responsible for paying all taxes, if any, associated with your receipt of SmartCharge RewardsTM or any other thing of value in connection with the Program.
Participant Information and Security Measures
You are solely responsible for your failure to keep all user identifications and passwords (your “Login Credentials”) secure. You must notify APS and Geotab Energy immediately about any breach of security or unauthorized use of your SmartCharge RewardsTM Portal account. If we suspect, in our reasonable opinion, fraudulent or unauthorized activity on your account, we reserve the right to terminate or suspend your access to our website or any applicable services or both and will contact you to advise of this decision.
Neither APS nor Geotab Energy shall be liable for any losses resulting from unauthorized access to or use of the Device, the SmartCharge RewardsTM Portal or any other aspect of the Program, and you may be liable to either or both Geotab Energy and APS and/or other parties due to any such unauthorized access or use. You agree to charge your vehicle in accordance with your manufacturer’s instructions and recommendations.
The Connected Car device contains a SIM card to wirelessly connect and transfer data to our servers to provide the service to the APS and participants. You acknowledge that you understand and agree to wireless terms contained here.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APS AND GEOTAB ENERGY PROVIDE THE CONNECTED CAR DEVICE, THE SMARTCHARGE REWARDSTM PORTAL AND ALL SOFTWARE INCORPORATED INTO THE FOREGOING AND ALL SERVICES RELATED TO THE PROGRAM TO YOU ON AN “AS-IS” BASIS, WITH ALL FAULTS, ERRORS AND DEFECTS AND WITHOUT WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND BY EITHER APS OR GEOTAB ENERGY OR ANY OF THEIR SUPPLIERS.
WITHOUT LIMITING THE FOREGOING, APS AND GEOTAB ENERGY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY TERMS, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON
INFRINGEMENT, TITLE, QUIET ENJOYMENT OR QUIET POSSESSION AND THOSE ARISING BY STATUTE OR IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
YOU ACKNOWLEDGE THAT APS IS NOT THE PRODUCER OF THE DEVICE, THE PORTALS AND ANY SOFTWARE INCORPORATED INTO THE FOREGOING AND ANY SERVICES RELATED TO THE PROGRAM.
NEITHER APS NOR GEOTAB ENERGY GUARANTEES ANY SPECIFIC RESULTS FROM THE USE OF THE DEVICES OR PARTICIPATION IN THE PROGRAM. NEITHER APS NOR GEOTAB ENERGY MAKES ANY WARRANTY THAT THE SOFTWARE INCORPORATED IN THE DEVICES OR THE SERVICES PROVIDED THROUGH THE SMARTCHARGE REWARDSTM PORTAL WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU AGREE AND ACKNOWLEDGE THAT GEOTAB ENERGY AND APS DO NOT GUARANTEE ENERGY COST SAVINGS OR OTHER BENEFITS ARISING FROM THIS PROGRAM.
UNLESS PROHIBITED BY APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD HARMLESS APS, GEOTAB ENERGY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS, AND ALL OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”) FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY RELATED TO YOUR OR ANY ADDITIONAL USER’S ACTUAL OR ALLEGED MISUSE OR FRAUDULENT USE OF THE PRODUCTS, INCLUDING THE CONNECTED CAR DEVICE, OEM ACCOUNT, 3rd PARTY DEVICE, OR THE SMARTCHARGE REWARDSTM PORTAL, INCLUDING, WITHOUT LIMITATION, THE INFRINGEMENT OF THE CLAIMING THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, DATA ACCESS RIGHTS OR OTHER RIGHTS, SUCH AS PERSONAL OR PRIVACY RIGHTS.
LIMITATION OF LIABILITY
YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER GEOTAB ENERGY OR APS, NOR ANY OF THEIR PARENTS, SUBSIDIARIES, AFFILIATED ENTITIES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR REPRESENTATIVES, SUCCESSORS OR ASSIGNS OR ANY OF THEM (COLLECTIVELY, THE “PROGRAM OPERATORS”) WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS, DAMAGE OR INJURY TO PERSONS OR VEHICLES OR OTHER PROPERTY, IN CONNECTION WITH, ARISING FROM OF OR RELATED TO THE PRODUCTS, THE PROGRAM, THE SMARTCHARGE REWARDSTM PORTAL, OR THE INSTALLATION OR USE OF A CONNECTED CAR OR OEM DEVICE IN YOUR VEHICLE, OR THE INTERRUPTION OF POWER TO ANY EQUIPMENT INCLUDING ANY 3rd PARTY DEVICE, TO WHICH YOUR VEHICLE IS CONNECTED, EVEN IF A PROGRAM OPERATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF ALL INDEMNIFIED PARTIES TO YOU HEREUNDER OR OTHERWISE IN RESPECT OF THE PRODUCTS EXCEED THE AMOUNT YOU HAVE PAID FOR THE PRODUCTS OR SERVICES OR THE RIGHTS TO USE THE SOFTWARE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THE CAUSE OF ACTION AROSE, SUBJECT TO ANY LESSER LIMITATION OF LIABILITY IN ANY TERMS INCORPORATED HEREIN BY REFERENCE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY TERMS) IF APPLICABLE.
WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT APS SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY A DEVICE AND YOU FURTHER AGREE THAT GEOTAB ENERGY’S LIABILITY FOR ANY DAMAGE CAUSED BY A DEVICE SHALL BE LIMITED TO THE PROPERTY DAMAGE DIRECTLY CAUSED TO THE VEHICLE BY THE DEVICE INSTALLED IN THAT VEHICLE AND IS LIMITED TO A MAXIMUM OF $1,000.
IF A PROGRAM OPERATOR IMPROPERLY DENIES YOU SMARTCHARGE REWARDSTM POINTS, THEN YOUR SOLE REMEDY WILL BE THE ALLOCATION OF THE EQUIVALENT AMOUNT OF SMARTCHARGE REWARDSTM POINTS.
YOU ALSO AGREE THAT IN NO EVENT SHALL THE PROGRAM OPERATORS BE RESPONSIBLE FOR PROBLEMS, DAMAGES OR LOSSES CAUSED BY YOU, THIRD PARTIES, OR BY AN ACT OF GOD.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
YOU AGREE THAT YOU SHALL NOT INITIATE ANY LAWSUIT OR CLAIM AGAINST A PROGRAM OPERATOR IN CONNECTION WITH, ARISING OUT OF OR RELATED TO THE PROGRAM, INCLUDING, WITHOUT LIMITATION, THE CONNECTED CAR DEVICE, OEM ACCOUNT, 3rd PARTY DEVICE, THE SMARTCHARGE REWARDSTM PORTAL, AND SMARTCHARGE REWARDSTM AFTER THE DATE WHICH IS TWO YEARS AFTER YOUR WITHDRAWAL FROM THE PROGRAM OR THE PROGRAM’S TERMINATION, WHICHEVER IS EARLIER.
Without limiting any other provision of these Terms and Conditions, Geotab Energy and APS shall not be in default, and shall not be deemed to be in default, under these Terms and Conditions by reason of delay or the failure or inability to perform its obligations hereunder where the said delay, failure or inability is due solely to any cause which is unavoidable or beyond the reasonable control of Geotab Energy, including without limitation any act of God or other cause which frustrates the performance of this agreement.
If you are a resident of:
(a) the United States of America, then these Terms and Conditions and any disputes related to them or the Program will be governed by and construed under the laws of the State of New York without giving effect to its conflict of laws principles and without reference to the United Nation Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each of You and Geotab Energy hereby irrevocably attorns and agrees to the exclusive jurisdiction of the courts of the State of New York and the U.S. federal courts located in the City of New York for any claim related to these Terms and Conditions, the Device and/or the Program and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts; or
(b) anywhere else in the world, then these Terms and Conditions and any disputes related to them or the Program will be governed by and construed under the laws of the Province of Ontario (and the federal laws of Canada applicable therein) without giving effect to its conflict of laws principles and without reference to the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each of You and Geotab Energy hereby irrevocably attorns and agrees to the exclusive jurisdiction of the provincial and federal courts of the Province of Ontario for any claim related to this these Terms and Conditions, the Device and/or the Program and agrees not to bring any action, claim, suit or proceeding against the other party, its affiliates or agents (or any officer, director, or employee thereof) other than in such courts.
APS and Geotab Energy are permitted to assign this Agreement, in whole or in part, to any person, at any time, and without notice to you. You may not assign this Agreement.
These Terms and Conditions, including the Privacy Policies and any other documents or policies incorporated by reference into these Terms and Conditions, constitute the entire agreement between you, on the one hand, and APS and Geotab Energy, on the other hand, with respect to the Program and supersede all prior or other arrangements, understandings, negotiations and discussions, whether oral or written, with respect to such subject matter.
No waiver of any provision of these Terms and Conditions shall be deemed or constitute a waiver of any other provision of or any subsequent breach of these Terms and Conditions. No waiver shall be valid unless made in a writing signed by the party granting the waiver. If any provision in these Terms and Conditions is declared invalid or unenforceable, then such provision shall be severed from the remainder of these terms and conditions, which will otherwise remain in full force and effect.
No Third-Party Beneficiaries
Terms and Conditions are for the benefit of Geotab Energy and APS and their respective successors and assigns with respect to your obligations under these Terms and Conditions and for your benefit with respect to your rights under these Terms and Conditions. There are no other third-party beneficiaries under these Terms and Conditions and these Terms and Conditions will not be deemed to confer upon or give to any other person any claim or other right or remedy.
Use in Mexico
The Participant acknowledges that the Products are not for use in Mexico.
SmartCharge RewardsTM is a registered trademark of Geotab Inc.