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Terms – Charge FL Terms

Terms - Charge FL

Terms and Conditions; Voluntary Participation

Thank you for your interest in the Duke Energy Charge FL Program (“Duke Energy Charge FL” or the “Program”) that is being offered by Duke Energy Florida, LLC (“Duke Energy”) with the assistance of its vendor, CrossChasm Technologies Inc., carrying on business as FleetCarma (“FleetCarma”).

Your participation in Duke Energy Charge FL is expressly conditioned on your acceptance of these Terms and Conditions (the “Terms and Conditions” or this “Agreement”).    Your participation in Duke Energy Charge FL, however, is completely voluntary.  Therefore, if you do not agree with any of these Terms and Conditions, including the Privacy Policies referenced below, please do not participate in the Program.  If you have already submitted an application to participate in Duke Energy Charge FL and you have been informed that your application has been approved for participation in the Program, please note that you will not become a participant in Duke Energy Charge FL unless, after approval of your application, you provide your mailing address within any timeframe indicated in your application approval notice (each such person, a “Participant”).

Duke Energy and FleetCarma reserve 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: www.fleetcarma.com/dukeenergychargefl.  Please check this page periodically.  Your continued participation in Duke Energy Charge FL will constitute your acceptance of any modifications to these Terms and Conditions.

Who May Participate in Duke Energy Charge FL

All Participants in Duke Energy Charge FL must be at least 18 years old.  By accepting these Terms and Conditions, you are representing to Duke Energy and FleetCarma that you are at least 18 years old, you have read these Terms and Conditions, and you are legally competent to accept these Terms and Conditions.

In addition, Participants in Duke Energy Charge FL should own or lease a light-duty battery electric vehicle or plug-in hybrid electric vehicle (“EV”) and be a Duke Energy Florida customer.

Participants also should have access to a computer, smartphone or other mobile devices with internet access.

Duke Energy is purchasing a set number of FleetCarma C2 vehicle logger devices (the “C2 Devices”) for use by Program Participants. Duke Energy plans to purchase a limited number of C2 Devices at the beginning of the Program and, may purchase additional C2 Devices through 2019.  Based on the current design of the Program, it is expected that [two] hundred C2 Devices will be purchased and made available to Duke Energy Charge FL Participants.  Participants will generally be selected on a first come, first serve basis, subject to C2 Device availability, at the time of application review.  If C2 Devices are not available at the time an application is submitted, Duke Energy or FleetCarma will endeavor to place qualified individuals who previously applied to the Program on a waiting list, and, if additional C2 Devices become available again under the Program, Duke Energy or FleetCarma will endeavor to contact these applicants first to confirm their continued desire to participate in the Program and to confirm or update the information provided on his/her Program application.   However, because Duke Energy wants to learn about a variety of different EV types, Participant selection may, in FleetCarma and Duke Energy’s sole discretion, be based in part on the EV make and model indicated on a prospective Participant’s Duke Energy Charge FL application.  Participant selection decisions will be made by FleetCarma and Duke Energy in their sole and absolute discretion and all selection decisions are final and binding.

Information about Duke Energy Charge FL

Duke Energy, with the assistance of FleetCarma, has developed Duke Energy Charge FL in order to learn more about light-duty battery electric vehicles and plug-in hybrid electric vehicles (“EVs”) that are being charged in the Duke Energy Florida service territory and to learn more about the EV driving and charging patterns and preferences of EV drivers.  If you are selected to participate in Duke Energy Charge FL, you will be provided with a C2 Device for installation in the on-board diagnostics port (“OBD II Port”) of your vehicle, or in the case of Teslas, in the proprietary diagnostics connector.  Applicants with more than one EV are eligible to apply for more than one C2 Device. Participants will also earn cash equivalent rewards from FleetCarma known as “SmartCharge Rewards” for joining the Program, correctly installing the C2 Device, and sharing their data.  Thereafter, participants may earn additional incentives upon taking certain actions that facilitate the goals of the Duke Energy Charge FL program, such as charging their EVs at certain times in the Duke Energy service territory and completing surveys. Please see the section entitled “How to Earn SmartCharge Rewards” for more detail.

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 FleetCarma or Duke Energy 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 collected by the C2 Device installed in her/his EV and track her/his SmartCharge Rewards through personal log-in access to the FleetCarma SmartCharge Rewards TM portal (the “Portal”).  In order to log into the Portal, Participants must have access to a computer, smart phone or other mobile device with internet access.

The C2 Device:  How it Works

Subject to availability, the C2 Device will be mailed to a selected Participant after eligibility has been determined and a mailing address has been timely received from the Participant. Upon proper submission of a completed application, an applicant should expect to receive a response on his/her application within approximately five (5) business days.  Selected Participants should expect to receive the C2 Device(s) (free of charge) within approximately ten (10) business days of providing his/her mailing address in response to a notice of acceptance to participate in the Program.

The C2 is installed by plugging it into the OBD II Port of any battery electric vehicle or plug-in hybrid electric vehicle (or, in the case of a Tesla, by plugging into its proprietary diagnostics connector).  Participants with a Tesla will also receive (free of charge) a special adapter that is needed to install the C2 Device in a Tesla.  C2 Device installation is relatively easy to do.  Participants are responsible for installation. If you require any assistance with locating the OBD II Port, Tesla’s proprietary diagnostics connector, or need installation directions, please refer to the installation instructions available at http://www.fleetcarma.com/dukeenergychargefl/setup/.

Data Collected by the C2 Device and Privacy

In order to conduct the Program and to provide participants with the products and services outlined in this agreement and appropriate customer service, and to enhance and improve these products and services, FleetCarma will collect certain information through the C2 Device. A C2 Device installed in an EV will record when the Device is plugged into, and unplugged from, the EV and it will also collect the following information:

(a) About your EV – VIN or Vehicle Identification Number, and EV make, model and model year;

(b) About your driving – drive start date and time, duration of trip, trip distance, EV state of charge at start of drive, EV state of charge at end of drive, electricity consumed during drive, liquid fuel consumed during drive (if EV is a hybrid vehicle), % idling, % hard acceleration, % hard braking, electric miles fraction (if EV is a plug-in hybrid electric vehicle, the % of miles the car ran on electric), ambient temperature, average auxiliary load during trip;

(c)  About your charging patterns – for each charging session (for which a session number will be assigned) – start date and time, duration of charging session, charging power level (kW), total charging energy (total electricity consumed in kWh), 15-minute interval charging energy (kwh) charging loss (electricity lost due to charging efficiency in kWh), starting state of charge, ending state of charge, GPS coordinates of where the charging session occurred;

(d) Calculations – watt hours/mile, miles per gallon equivalent (MPGe), total electricity consumed, greenhouse gas (GHG) emissions, battery state of health (i.e., the degree of ability of the high-voltage battery to accept and discharge electricity).

A subset of the collected data outlined above will be used to populate an online dashboard made available for Participants to view in the FleetCarma SmartCharge Rewards Portal so that the Participant can monitor his/her own vehicle’s charging and driving.

FleetCarma will have access to all of the above-listed data.  Duke Energy will have access to some, and possibly all, of this data, depending upon what data Duke Energy deems pertinent to the goal of the Duke Energy Charge FL program.

Information that is collected through the C2 Device will be erased from the device once the information is transferred to FleetCarma.   The data collected by the C2 Device is encrypted when transmitted to FleetCarma servers.  Data will also be encrypted when FleetCarma sends it to Duke Energy.

In addition to the data listed above, Duke Energy and FleetCarma 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 FleetCarma and Duke Energy will be retained by FleetCarma and Duke Energy for an indefinite amount of time.

Please see the FleetCarma Privacy Statement available at http://www.fleetcarma.com/privacy/ for further information on data collected by FleetCarma and how it may be used by FleetCarma.  Please also see Duke Energy’s Privacy Statement which is available at https://www.duke-energy.com/legal/privacy for further information on how Duke Energy collects and may use and share your information, including any of the above-described data and information that Duke Energy receives about you in connection with your participation in the Duke Energy Charge FL program.

Without limiting the terms of the Privacy Policies referenced above, FleetCarma and Duke Energy may use the information they obtain about you through your participation in the Duke Energy Charge FL program, including data collected through the C2 Device provided to you (collectively, “Participant Information”), in order (a) to operate, administer, market, evaluate, analyze,  change or improve the Program, the C2 Devices and the SmartCharge Rewards 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 the Florida Public Service Commission.  FleetCarma and Duke Energy may also use and publish information regarding your participation in the Program, your use of the C2 Device, and your use of the SmartCharge Rewards Portal as long as the information is presented in an 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 DRIVER OR PASSENGER) THE EV IN WHICH A C2 DEVICE HAS BEEN INSTALLED THAT THE INFORMATION DESCRIBED ABOVE WILL BE COLLECTED AND AVAILABLE TO YOU, DUKE ENERGY AND FLEETCARMA.  BY PARTICIPATING IN THE DUKE ENERGY CHARGE FL PROGRAM, YOU REPRESENT THAT YOU HAVE THE CONSENT OF THE REGISTERED OWNER AND THE USERS OF EACH EV IN WHICH A C2 DEVICE WILL BE INSTALLED TO (A) INSTALL THE C2 DEVICE IN THE EV, AND (B) PERMIT YOU, DUKE ENERGY AND FLEETCARMA TO VIEW  AND USE THE DATA AND INFORMATION COLLECTED BY THE INSTALLED C2 DEVICE, AS MORE PARTICULARLY DESCRIBED IN THE PREVIOUS SECTIONS OF THESE TERMS (I.E., THE C2 DEVICE: HOW IT WORKS; DATA COLLECTED BY THE C2 DEVICE AND PRIVACY) AND THE DUKE ENERGY AND FLEETCARMA PRIVACY POLICIES REFERENCED ABOVE.

YOU AGREE NOT TO PARTICIPATE IN THE PROGRAM OR USE ANY C2 DEVICE OR THE SMARTCHARGE REWARDS PORTAL SERVICE IN ANY WAY THAT IS ILLEGAL, FRAUDULENT OR ABUSIVE, INCLUDING TO HARASS, THREATEN, ABUSE, DEFAME OR SLANDER ANY INDIVIDUAL.

How to Participate in the Duke Energy Charge FL Program

If you wish to participate in Duke Energy Charge FL, you must do the following:

Create a SmartCharge Rewards account and complete an application which can be found at www.FleetCarma.com/dukeenergychargefl.  The Duke Energy Charge FL team will review your application to confirm eligibility. If accepted, FleetCarma will send you a confirmation email and ask you for your mailing address.  Upon receipt of your mailing address, FleetCarma will send you a C2 Device with instructions for installation and activation of the C2 Device.  You should receive the C2 Device(s) within in approximately ten (10) business days from the date of providing your mailing address.

C2 Device(s) must be activated and installed before data can be collected and before a Participant can earn any SmartCharge Rewards.  If you do not activate and/or install the C2 Device(s) within 7 days of receipt, you will receive a notice, via email, reminding you to install and activate the C2 Device.  You may be considered to be withdrawn from the Program if you do not install and activate your C2 Device within 3 weeks of receipt. If you decide not to install and activate the C2 Device, we ask that you return the C2 Device so that it may be provided to another Participant.  Please email dukeenergychargefl@fleetcarma.com to arrange for device returning instructions.  Please do not return any C2 Device that you installed in a vehicle.

Can the C2 Device be Transferred to Another Vehicle?

Pending approval from the Duke Energy Charge FL support team, you may be eligible to transfer the C2 Device to another EV during your participation in the Program as long as the substitute vehicle is an EV that is owned or leased by the same SmartCharge Rewards account holder as the previous vehicle. The C2 Device will read the new vehicle’s VIN and update the SmartCharge Rewards account with the information on the new vehicle. Please contact dukeenergychargefl@fleetcarma.com if you wish to transfer your device to a new EV.

Withdrawal from the Program and Expected Duration of Program

Your participation in Duke Energy Charge FL is completely voluntary so you are free to withdraw from the Program at any time.  To withdraw from the Program, remove the C2 Device from your EV and notify FleetCarma of your withdrawal at dukeenergychargefl@fleetcarma.com.    If you withdraw from the program you are obligated to return any C2 Device that has been installed in your EV within 30 days.

For each month that you do not charge an EV with a properly installed C2 Device in the Duke Energy 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 C2 Device in the Duke Energy service territory for three (3) consecutive months, you will be deemed to have withdrawn from the Program.

Duke Energy expects the Duke Energy Charge FL program to continue until March1, 31, 2021.  However, Duke Energy reserves the right to terminate the Duke Energy Charge FL program at any time for any reason or for no reason and even though such termination may affect your ability to earn SmartCharge Rewards.  Participants will have access to the Portal for ninety (90) days after the Program terminates.

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 C2 Device(s) is installed will stop within 15 days after termination or withdrawal in order to protect the privacy of participants.

A Participant who withdraws from the Program voluntarily or is deemed to have withdrawn due to limited charging activity (as described above) 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 have the ability to view previously recorded data from their EV or Charge FL Rewards redemption codes and links.

In addition to the above, Duke Energy and FleetCarma, 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 may result in Participant’s immediate loss of access to the Portal.

How to Earn Charge FL Rewards

During the Program, SmartCharge Rewards 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 Rewards will begin to be calculated and accrued once the C2 Device is installed and activated in FleetCarma’s SmartCharge Rewards portal. FleetCarma and Duke Energy reserve the right to add, change or remove activities for which SmartCharge Rewards may be earned and/or the number of SmartCharge Rewards earned thereby at any time. For detail about how you can earn SmartCharge Rewards as the Program is currently structured, please see http://www.fleetcarma.com/dukeenergychargefl. Please check this page periodically for changes to how SmartCharge Rewards may be earned.

How to Redeem Charge FL Rewards

On the 15th day of each month, the SmartCharge Rewards earned for the previous month will be calculated based on 1,000 SmartCharge Rewards points equaling $1.00, and are redeemed for electronic gift cards and other rewards as available. The available retail or other redemption options may change at any time at the discretion of FleetCarma and Duke Energy.  Please visit the Duke Energy Charge FL website periodically for details about any changes (http://www.fleetcarma.com/dukeenergychargefl).

On the 15th day of each month, Participants will receive an automated email notification to tell them whether they have earned SmartChargeRewards during the previous month. If they earned SmartChargeRewards they will be prompted in the email to log in to the SmartChargeRewards portal to redeem their rewards. If rewards points were not earned during the previous month, the email notification will remind the participant to charge their vehicle in the Duke Energy service territory and to maintain the C2 device installed in the 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. Participants will have access to the SmartChargeRewards Portal to view driving and charging information, SmartChargeRewards balances and electronic gift card links for at least 90 days from the date that the Program ends or the Participant withdraws from the Program.

Duke Energy and FleetCarma are not responsible for late, lost, stolen, incomplete, undelivered, illegible, damaged, mutilated, misdirected electronic gift card materials (including the delivery of electronic gift cards) or for returned or undeliverable emails notifying you about your SmartCharge Rewards 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, the processing of request.

Expiration of SmartCharge Rewards™

SmartCharge Rewards which have been redeemed do not expire except as per terms established by the electronic gift card provider or other applicable retailers; please review these other terms. Upon termination of the program, Participants will have access to the Portal and any rewards they have earned for ninety (90) days after the Program terminates.

Transfer and Verification of SmartCharge Rewards™

You may not combine or transfer SmartCharge Rewards with other Program participants, and you may not transfer or sell SmartCharge Rewards, or perform any other action in violation of these Terms and Conditions.  Any attempt to combine, transfer or sell SmartCharge Rewards will result in your disqualification from the Program and forfeiture of all SmartCharge RewardsTM earned. If Duke Energy or FleetCarma 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 SmartChargeRewards earned in this Program will be subject to verification by Duke Energy and/or FleetCarma, whose decisions are final and binding. If you believe that you earned SmartChargeRewards that were not properly accrued to your account, please contact the Program’s customer service at dukeenergychargefl@fleetcarma.com. All Program decisions by Duke Energy and/or FleetCarma regarding the awarding of SmartChargeRewards are final and binding. Earned SmartCharge RewardsTM and/or electronic gift cards 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.

Taxes

You are responsible for paying all taxes, if any, associated with your receipt of SmartCharge Rewards or any other thing of value in connection with the Program.

Ownership of SmartCharge Rewards™ and the Devices

SMARTCHARGE Rewards DO NOT CONSTITUTE THE PROPERTY OF A PARTICPANT AND MAY BE FORFEITED AND REVOKED AS SET FORTH IN THESE TERMS.  PARTICIPANTS MAY NOT SELL, TRANSFER OR ASSIGN THEIR SMARTCHARGE Rewards AND SMARTCHARGE Rewards ARE NOT TRANSFERABLE UPON DEATH, AS PART OF A DOMESTIC RELATIONS MATTER OR OTHERWISE BY OPERATION OF LAW.

All C2 Devices used in the Program will be purchased by Duke Energy and given to eligible Participants selected for the Duke Energy Charge FL Program.  Duke Energy will provide, free of charge, a C2 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, Duke Energy, on behalf of such Participant, shall purchase SmartCharge Rewards Portal license rights so that the Participant has the right to access the Portal.  A Participant who installs a C2 Device in her/his EV is may keep the device after termination of the Program. However, if a person receives a C2 Device and decides not to install the device and participate in the Program, Duke Energy requests that the person return the C2 Device so that Duke Energy may provide the device to another eligible Participant.  To organize return of a C2 Device please email  dukeenergychargefl@fleetcarma.com to arrange receipt of a pre-paid return mailing label.

Duke Energy is providing Devices for use only by eligible, selected Participants.  Therefore, Participants have no right to sell, transfer or assign C2 Devices provided to them in connection with the Program or the SmartCharge Rewards Portal access rights provided to Participants.

You agree not to tamper with, disable or damage the C2 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 C2 Device or your EV or injury to any person. You further agree to not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the C2 Device, the software embedded therein, or any software used to provide or access the SmartCharge Rewards Portal.

Intellectual Property Ownership

All C2 Devices shall be the property of Program Operator Duke Energy Florida, LLC.  All data collected during the Program shall be the property of both FleetCarma and Program Operator Duke Energy Florida, LLC. and all intellectual property developed by FleetCarma, including modifications, enhancements, or changes to its products (including the C2 Devices, the Portal, and all related software) is and will remain solely owned by FleetCarma. This includes technology developed that may be as a result of feedback provided by you as part of your involvement in this Program.

Participant Information and Security Measures

You represent and warrant that you have provided accurate information in your Program Participation application and you will promptly notify Duke Energy and FleetCarma of any changes to that information.  You are responsible for ensuring that we have your current email address and telephone number on file.  You should inform us of any changes to your email address or phone number by contacting dukeenergychargefl@fleetcarma.com.  You must notify Duke Energy and FleetCarma immediately about any breach of security or unauthorized use of your SmartCharge Rewards Portal account.  You agree to charge your vehicle in accordance to your manufacturer’s instructions and recommendations.  Neither Duke Energy nor FleetCarma shall be liable for any losses resulting from unauthorized access to or use of the Device, the SmartCharge Rewards Portal or any other aspect of the Program, and you may be liable to us or other parties due to any such unauthorized access or use.

Warranty Disclaimer

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DUKE ENERGY AND FLEETCARMA PROVIDE THE DEVICE, THE SMARTCHARGE REWARDS 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 DUKE ENERGY OR FLEETCARMA OR ANY OF THEIR SUPPLIERS.  YOU ACKNOWLEDGE AND AGREE THAT DUKE ENERGY FLORIDA, LLC IS NOT PROVIDING THE C2 DEVICE, THE PORTALS AND ANY SOFTWARE INCORPORATED INTO THE FOREGOING AND ANY SERVICES RELATED TO THE PROGRAM.   IN CONNECTION WITH THE FOREGOING, DUKE ENERGY AND FLEETCARMA DISCLAIMAND DUKE ENERGY FLORIDA, LLC ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER DUKE ENERGY NOR FLEETCARMA OR DUKE ENERGY FLORIDA, LLC GUARANTEES ANY SPECIFIC RESULTS FROM THE USE OF THE C2 DEVICES. NEITHER DUKE ENERGY NOR FLEETCARMA OR DUKE ENERGY FLORIDA, LLC MAKES ANY WARRANTY THAT THE SOFTWARE INCORPORATED IN THE C2 DEVICES OR THE SERVICES PROVIDED THROUGH THE SMARTCHARGE REWARDS PORTAL WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

YOU AGREE AND ACKNOWLEDGE THAT FLEETCARMA AND DUKE ENERGY DO NOT GUARANTEE ENERGY COST SAVINGS OR OTHER BENEFITS ARISING FROM THIS PROGRAM.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER FLEETCARMA, DUKE ENERGY NOR DUKE ENERGY FLORIDA, LLC, 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, 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 PROGRAM, THE SMARTCHARGE REWARDS PORTAL, OR THE INSTALLATION OR USE OF A C2 DEVICE IN YOUR VEHICLE, OR THE INTERRUPTION OF POWER TO ANY EQUIPMENT 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.  IF A PROGRAM OPERATOR IMPROPERLY DENIES YOU SMARTCHARGE REWARDS POINTS, THEN YOUR SOLE REMEDY WILL BE THE ALLOCATION OF THE EQUIVALENT AMOUNT OF SMARTCHARGE REWARDS POINTS.    WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT DUKE ENERGY SHALL HAVE NOAND DUKE ENERGY FLORIDA, LLC’S LIABILITY FOR ANY DAMAGE CAUSED BY A C2 DEVICE AND YOU FURTHER AGREE THAT FLEETCARMA’S LIABILITY FOR ANY DAMAGE CAUSED BY A C2 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.  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 STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION 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 C2 DEVICE, THE SMARTCHARGE REWARDS PORTAL, AND SMARTCHARGE REWARDS

AFTER THE DATE WHICH IS ONE YEAR AFTER YOUR WITHDRAWAL FROM THE PROGRAM OR THE PROGRAM’S TERMINATION, WHICHEVER IS EARLIER.

Indemnification

You will indemnify, defend and hold Duke Energy, FleetCarma and their respective Program Operators, licensors and suppliers (the “Indemnified Parties”) harmless from any claims arising out of or related to your or any additional user’s actual or alleged misuse or fraudulent use of a C2 Device or the SmartCharge Rewards Portal, including, without limitation, the infringement of a third party’s intellectual property rights or other rights, such as personal or privacy rights.  You shall be responsible for any costs incurred by the Indemnified Parties, including, but not limited to, reasonable attorneys’ fee and court costs in connection with any such claims.

Force Majeure

Without limiting any other provision of these Terms and Conditions, FleetCarma and Duke Energy 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 FleetCarma, including without limitation any act of God or other cause which frustrates the performance of this agreement.

Governing Law 

These Terms and Conditions and any disputes related to them or the Program shall be governed by applicable federal law and the laws of the State of North Carolina, excluding its conflicts of law provisions.

Assignment

Duke Energy and FleetCarma 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.

Entire 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 Duke Energy and FleetCarma, 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.

Waiver/Severability

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 FleetCarma and Duke Energy 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.