Terms & Conditions - ElectriqPower

ELECTRIQ POWER, INC. SOFTWARE AND SERVICE
TERMS OF USE

PLEASE READ THESE TERMS OF USE (THE “TERMS”) CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES, AND, TOGETHER WITH ALL THE OTHER TERMS AND CONDITIONS REFERRED TO BELOW, FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US REGARDING YOUR USE OF OUR SOFTWARE AND SERVICES.

IF FOR ANY REASON YOU ARE UNABLE OR UNWILLING TO AGREE TO THESE TERMS, PLEASE IMMEDIATELY STOP USING OR ATTEMPTING TO USE OUR SOFTWARE AND SERVICES, BECAUSE, IF YOU CONTINUE, YOU WILL BE AGREEING TO EVERYTHING IN THESE TERMS.

1. GENERAL

These Terms govern your use of the Electriq Power, Inc.’s (“Electriq”, “we”, “us”, or “our”) “PowerOS” Software (the “Software”) and other services or software that directly display or link to the software (along with the Software, the “Service”) used to manage and control your Electriq Power Energy Storage System (the “ESS”). These Terms apply to the Service and Software only and not to any participation in Grid Services or rights to or by Electriq to the energy contained in the ESS, which are covered by a separate Grid Services Agreement. Additional terms and conditions of use applicable to specific areas of the Services may also be posted in such areas, and, together with these Terms, govern your use of those areas.

These Terms shall apply between Electriq and the end-user of the ESS and/or Service. If you are installing and configuring the Service on behalf of another person, including but not limited to a company or other legal entity, you represent that you have the authority to bind such person to these Terms, in which case the terms “you” or “your” shall refer to you and such person.

We reserve the right, in our discretion, to change or modify all or any part of these Terms at any time, effective immediately by notifying you. We may give such notice by posting it on our website, or by any other reasonable means. Your use of or access to the Service constitutes your binding acceptance of these Terms, including any changes or modifications as permitted above. Please be sure to review the Terms periodically to ensure familiarity with the most current version. If at any time these Terms are no longer acceptable to you, you must immediately cease all use of the Service. It is your responsibility to refer to the Terms upon accessing the Service.

2. YOUR ACCOUNT

The Services may only be accessed via the login credentials created when your account was created with us (the “Account”). By using the Services, you agree to: (a) provide accurate and complete information about yourself as prompted by the registration form; and (b) maintain and promptly update the registration data to keep it accurate and complete.

As part of the registration process, you may be asked to select a username and password. We may refuse to grant you a username that impersonates someone else, violates or infringes on the trademark or proprietary rights of a third party, or is vulgar, offensive, or otherwise inappropriate, as determined in our sole discretion. You will be responsible for all activities occurring under your username and keeping your Account credentials and passwords secure. You must contact us immediately if you suspect misuse of your Account or any security breach in the Service.

For some parts of the Service, you may be able to set up additional accounts that are dependent on your Account (i.e., “associated accounts”). You are responsible for all activity that takes place with such associated accounts.

If a third party, such as a system integrator, created or otherwise initiated your Account, that party may have access to your Account through their fleet view and may be able to to change your ESS settings including (a) your energy reserves (b) the ESS’s mode of operation and (c) access your energy and ESS usage statistics. . The third party’s account is provided by us. If you no longer wish for the third party to have access to your Account, please notify us and we will work with you to remove their access. If you suspect misuse or abuse of your Account by the third party, please promptly notify us.

You must be at least 13 years old to use the Service (or such greater age as required in your country for you to be authorized to use the Services without parental approval). By registering for any Service, you represent and warrant that you are 13 years of age or older.

3. LICENSE FROM ELECTRIQ

Upon commissioning an ESS for your use and registering an Account, we hereby grant to you a personal, non-exclusive, non-transferable, non-sublicensable, worldwide right to use the Software (as well as any other software that directly displays or links to the Software). You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof (or any other software that directly displays or links to the Software). Except for the limited rights granted herein, we reserve all right, title and interest in and to the Service, including the Software.

The foregoing license allows you to access any information normally available via your Account, and you may further designate authorized persons with specific access and use rights to the Service, provided that you are responsible for compliance by such persons with these Terms. The Software is subject to applicable U.S. export laws and regulations, with which you must comply.

4. YOUR USE OF THE SERVICE

The Services may not work properly without reliable Internet access, with sufficient bandwidth, to your home and connection to it by the ESS. Other system elements may also be required for use of some or all of the Services, such as Electriq’s app. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured.

You agree not to access any of the Services by any means other than through the Account using one of the web-based or mobile-app interfaces provided by Electriq. You specifically agree not to access any of the Services through any other means.

You agree to use the Services only for purposes that are permitted by: (a) these Terms; and (b) any applicable law, regulation, or generally accepted practices or guidelines in any relevant jurisdiction.

You agree that you will not engage in any activity that interferes with or disrupts the Services.

Unless you have been specifically permitted to do so in a separate agreement with Electriq, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.

You may be able to access third-party websites or software via the Service. You acknowledge that we are not responsible for such websites or software or content that may be available there.

5. DATA

The normal operations of the ESS, and the Software that manages it, contains, collects, and generates a stream of data (the “Data”) that is conveyed to us via the internet. To the extent allowed by applicable law, all such Data, including Data related to your energy usage, as well as Data provided or generated before the date on which you agreed to these Terms, will be, as soon as such Data is transmitted to the PowerOS, owned by Electriq. You agree to Electriq’s use of the Data in accordance with Electriq’s privacy policy posted at https://electriqpower.com/privacy-policy/, as such policy may be updated from time-to-time. Electriq’s privacy policy is incorporated by reference as if fully-set forth herein, and comprises a part of the Terms.

Your subsequent use of such Data will be subject to Sections 3 and 4, above. If applicable law requires that you remain owner of all or part of the Data, then with respect to such Data owned by you, you hereby grant to us an unrestricted and exclusive license to use such Data as provided herein (including the privacy policy).

You are responsible for backing up any data that you access or store via the Service. If your Account is suspended or canceled, we may continue to operate the ESS; any Data generated and collected during this time will continue to flow to Electriq’s data centers. We have no obligation to return or grant you access to this Data after an Account is suspended or canceled.

The Data provided by us through the Service is for informational use only and should not be used for commercial purposes. Use of the information for other purposes (including but not limited to disclosure to us or third parties for revenue reporting or to support warranty claims) requires our express agreement, as reporting often requires additional equipment and incremental services to comply with reporting requirements.

6. CHANGES TO THE SERVICE

We may change the Service or add or delete features at any time for any reason. A particular software release may be a prerelease version, e.g., a beta version, and may not work correctly or in the way a final version might work. We may significantly change the final version or decide not to release a final version.

We may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services. These may be automatically installed without providing any additional notice or receiving any additional permissions from you. You agree to receive these automatic updates. If you do not want such updates, you should stop using the Services.

7. SUSPENSION AND CANCELLATION

The Services may be suspended temporarily and without notice for security reasons, systems failure, maintenance and repair, or other circumstances. To the fullest extent permitted by applicable law, you will not be entitled to any refund or compensation for these temporary suspensions.

We may cancel your Service at any time without notice and for any reason. Our reasons for cancellation may include that you breach these Terms, or don’t pay fees that you owe to us or to our agents, or otherwise modify or mismanage the ESS. Failure to maintain the ESS in any way that risks damage to property or bodily harm will result in immediate cancellation of Services. If your Service is canceled, your right to use the Service stops immediately. If we cancel your credentials, your right to access Data stops immediately. Cancellation of the Service or credentials won’t alter your obligation to pay all charges made to your billing account through the date of cancellation.

You may cancel the Service at any time and for any reason. If you have subscribed for a paid version of our Service, some cancellation charges may apply.

Sections that by their terms apply after termination of these Terms will survive any termination of the of these Terms.

8. EXCLUSION OF WARRANTIES

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ELECTRIQ’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”

IN PARTICULAR, ELECTRIQ, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:

(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,

(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,

(D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. ELECTRIQ DOES NOT WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOADING WILL BE FREE OF VIRUSES OR DISABLING FEATURES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ELECTRIQ OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

ELECTRIC MAKES NO WARRANTY OR REPRESENTATION THAT USE OF THE SERVICES WILL IMPROVE SAFETY.

ELECTRIQ DOES NOT GUARANTEE OR PROMISE ANY ENERGY SAVINGS OR OTHER BENEFIT FROM THE SERVICES. ACTUAL ENERGY SAVINGS AND OTHER BENEFITS MAY VARY DEPENDING ON FACTORS BEYOND ELECTRIQ’S CONTROL OR KNOWLEDGE.

ELECTRIQ FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

YOU CAN RECOVER FROM US AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS ONLY DIRECT DAMAGES RELATED TO YOUR USE OF THE SOFTWARE AND SERVICE, UP TO AN AMOUNT EQUAL TO YOUR SERVICE FEE FOR ONE MONTH. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, LOSS OF PROFIT, INCREASED COSTS, LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, OR OTHER INTANGIBLE LOSS. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION APPROPRIATELY ALLOCATE THE RISKS UNDER THESE TERMS OF USE BETWEEN YOU AND US, AND THAT THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. THE REMEDY PROVIDED TO YOU IN THIS SECTION IS EXCLUSIVE AND EXHAUSTIVE.

THE LIMITATIONS AND EXCLUSIONS APPLY TO ANY LOSS OR DAMAGE INCURRED BY YOU IN CONNECTION WITH THE SERVICE, INCLUDING:

YOUR USE OF THE SERVICE, INCLUDING THE SOFTWARE;
YOUR LOSS OF DATA;
YOUR LOSS OF CONTROL OVER THE ESS;
INTERNET DELAYS OR DELIVERY FAILURES;
CONTENT (INCLUDING CODE) ON THIRD-PARTY WEBSITES, THIRD-PARTY PROGRAMS, OR THIRD-PARTY CONDUCT ACCESSED VIA THE SERVICE, OR VIA YOUR ACCOUNT;
VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SERVICE;
INCOMPATIBILITY BETWEEN THE SERVICE AND OTHER SERVICES, SOFTWARE, AND HARDWARE;
DELAYS OR FAILURES YOU MAY HAVE IN STARTING OR COMPLETING TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SERVICE IN AN ACCURATE OR TIMELY MANNER; AND/OR
YOUR CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR MISREPRESENTATION.

THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THE REMEDY SET FORTH IN THIS SECTION DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.

10. GENERAL LEGAL TERMS

All parts of these Terms apply to the maximum extent permitted by law. If a court holds that we cannot enforce a part of these Terms as written, such unenforceable part will be replaced with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will not change.

This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service. If you have confidentiality obligations related to the Service—for example, you may have been a beta tester—those obligations remain, and are incorporated by reference as if fully set forth herein. Other terms of service, such as regarding your participation in Grid Services, financing, or other programs may apply when you use the Services covered by these Terms.

You agree that if Electriq does not exercise or enforce any legal right or remedy which is contained in these Terms (or which Electriq has the benefit of under any applicable law), this will not be taken to be a formal waiver of Electriq’s rights and that those rights or remedies will still be available to Electriq.

We may assign, transfer, or otherwise dispose our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign these Terms or transfer any rights to use the Service.

These Terms are solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to Electriq’s website that we identify. Notices emailed to you will be deemed given and received when the email is sent. We will make commercially reasonable efforts to contact you regarding notifications pertaining to your Service, Account or changes thereto. If you don’t consent to receive notices electronically, you must stop using the Service.

These terms of use shall be binding upon and inure solely to the benefit of you and us. There shall be no third-party beneficiaries under these Terms, and no person or entity, except you and us, shall have any rights or remedies under these Terms, including the right to bring any action on account of their breach or in any relation to it whether in contract, in tort, or otherwise.

You agree to release, defend, indemnify, and hold Electriq and its affiliates, or third parties associated with your use of the Service, harmless from any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with: (a) your access to or use of the Services or your violation of these Terms; and (b) to the extent allowed by applicable law, the use of your Data.

All claims arising out of or relating to these Terms and the Services will be subject to the laws of the State of California, excluding its conflict of laws rules. The parties irrevocably submit to the exclusive jurisdiction of the courts located within the county of Alameda, California. Notwithstanding this, you agree that Electriq shall be allowed to seek injunctive remedies in any court of competent jurisdiction, whether in California or otherwise. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ELECTRIQ ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION.

Claims must be filed within one year of incurring the damage relating to the claim. In other words, you must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim. If your claim isn’t filed in time, the claim is permanently barred. BY AGREEING TO THIS PROVISION, YOU AND WE SPECIFICALLY INTEND TO SHORTEN ANY APPLICABLE STATUTES OF LIMITATION ON MAKING CLAIMS AND FILING LAWSUITS.

Notifications of claimed copyright infringement should be sent to our designated agent.

All contents of the Service are copyright © Electriq Power, Inc. and/or its suppliers. All rights reserved. We or our suppliers own the title, copyright, and other intellectual property rights in the Service (including the Software and any associated content). Any rights not expressly granted in these Terms are reserved.

11. DISCLOSURE FOR CALIFORNIA RESIDENTS

If you are a resident of California, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them, in writing, at 400 R Street, Sacramento, California 95814, USA, or by telephone at (800) 952-5210.