Last Modified: June 28, 2023
CHANGES TO THE WEBSITE
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
INFORMATION ABOUT YOU AND YOUR VISITS TO THE WEBSITE
The Blink name, the terms “BlinkCharging.com,” “Blink Network,” “Blink,”, the Blink logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Blink or its affiliates or licensors. You must not use such marks without the prior written permission of Blink. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
DISCLOSURE; FORWARD-LOOKING STATEMENTS
Some of the information on this website may contain projections or other forward-looking statements regarding future events or Blink’s future financial performance. We wish to caution you that these statements are only predictions and that actual events or results may differ materially.
Product and Service Availability
The owner of the Website is based in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Links to Third PARTIES
This website may contain links to third-party sites. Access to any other Internet site linked to one of our websites is at the user’s own risk and Blink is not responsible for the accuracy or reliability of any information, data, opinions, advice or statements made on these sites. Blink provides these links merely as a convenience and the inclusion of such links does not imply an endorsement.
Access to Secure Areas
Access to and use of password protected and/or secure areas of our website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of our websites may be subject to prosecution.
Blink assumes no responsibility for the accuracy of the information on this website. Blink may change the programs or products mentioned at any time without notice. Mention of non-Blink products or services is for information purposes only and constitutes neither an endorsement nor a recommendation. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, BLINK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL BLINK, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
BLINK NETWORK TERMS AND CONDITIONS
This Blink Network, LLC (“Blink,” “we,” or “us”) Account Agreement and its terms and conditions (the “Agreement” or “Terms and Conditions”) apply between all users (“Users,” “User,” “you,” or “your”) of this website (“Website” or “Site”) the Blink mobile application (“Mobile Application”), Blink Charging Stations, the Blink Network, and/or the Blink API, including but not limited to registered members, and, Blink Charging Co. (and its subsidiaries and affiliates), the owner of this Website and the Mobile Application.
By installing and operating a Blink electric vehicle (“EV”) EV charger on the Blink Network; opening a Blink account and/or using a Blink-issued user card and/or using a Blink-provided user code or guest code (“Code”), and/or using the Blink networked EV charging services (“Blink Network”), you agree to the terms specified in this Agreement. These Terms and Conditions apply to the use of and (where applicable) purchase of products and services, including but not limited to use of supportive services and information posted to the Site and/or the Mobile Application. Please read these Terms and Conditions carefully, as they affect your legal rights.
- Fees. You agree to pay all applicable fees (“Fees”) for connecting to the network, accessing Blink Charging Stations, or those fees associated with any use of the Services, including using your RFID card(s) at a Blink Charging Station, or remotely, through a customer service agent at your request, or by using a Code or any application embedded in a smartphone or in similar technology.
- Permitted Use. Use the Services solely in accordance with instructions provided to you by Blink. You hereby agree to comply with all applicable laws and regulations, as well as any policies and rules set by a Host (either the owner of the Blink Charging Station or the owner of the property on which the Blink Charging Station is located) when using Blink Charging Stations and/or Services.
- Statements. You are required to promptly review your Blink statements and/or other payment method statements related to the Services (such as your credit card statement) and notify Blink’s customer service in writing of any issues you might have regarding the Fees. All Fees not contested within 30 days of the corresponding statement date will be: (i) in the case of Fees not yet paid, deemed due and payable; and (ii) in the case of Fees already paid, non-refundable.
- Update Your Information. You are required to promptly update your online account information, including changes to your name, email address, mailing address, telephone number, credit card information (including credit card number, expiration date, and billing address) upon the occurrence of any change to such information. Failure to update your information may result in account cancellation. You will remain liable for all Fees billed to your Blink Account until the date your Blink Account is canceled by you or Blink.
- Billing. You may use an RFID card or a Code to pay Fees on any Blink Charging Station you are allowed to use (with explicit or implicit permission from the Host). When using your RFID card for payment of Fees, the Blink EV Charging Station will read your RFID card or accept your Code, and a record of your transaction will be created. Fees will be charged to your Blink Account in accordance with the price configured by the Host and/or Blink for that specific Blink Charging Station. It is your responsibility to be made aware of the prices charged to your Blink Account and/or to your credit card. Make sure to keep your RFID card or Code secure, if you or any other person uses your RFID card or Code at a Blink Charging Station, you agree to pay the Fees specified thereof. You agree that Blink may share with its Hosts or another duly authorized party, any information specified in this Blink Account Agreement regarding your usage and payments for the purposes of processing and collecting fees and enforcing Blink Network’s policies and related contractual obligations.
- Charging Fees. Our Fees are charged: (i) by kilowatt-hour (“kWh”) of energy dispensed to the vehicle; or (ii) by the time the vehicle is plugged into the Blink Charging Station rounded up to thirty-second intervals or 1-hour intervals, depending on the specific Blink Charging Station; or (iii) by a flat fee for the total session (“session-based rate”), depending on the location of the Blink Charging Station. Blink maintains an updated schedule of pricing rates by region on the Blink Network website (https://blinkcharging.com/drivers/pricing/). Additionally, certain Blink Charging Stations charge a non-refundable occupancy fee for cars plugged into the Blink Charging Station after the charging session has ended.
- Minimum Account Balances, Fees, and Charges. Although you provide your credit card information when you apply for an RFID card or when you request a Code, your credit card will not be charged until you utilize a Blink Charging Station. A $25.00 authorization fee will display on the credit card account provided for authorization purposes only. If you have a Blink Plus Account (Blink Plus Member), then our system will charge your credit card with the Fees on/after the fifteenth and last day of the month, or on the date your account reaches a balance of $100. When your account reaches $100 in accumulated Fees, our system will process the Fees and charge your credit card. If you do not have a Blink Account (Blink Guests), our system will charge the credit card you provide immediately after your charging session.
- Collection. In the event that payment on your credit card is declined, Blink may suspend or terminate your account. In addition, Blink may institute collection proceedings against you for all outstanding and unpaid balances, including all fees, costs or other expenses (including, without limitation, reasonable attorney fees) incurred by Blink in connection with its collection efforts.
- RFID Card Replacement. If your RFID card fails to operate for reasons other than abuse or improper use and you return it to the Blink Customer Service Center, a replacement will be sent to you at no additional charge. If your RFID card is lost or stolen, please report the loss or theft immediately by accessing your Blink Account and updating the appropriate status, or, if you do not have access to the internet, inform Blink Customer Service immediately (see contact information at the end of this document). You remain liable for all Fees initiated with your RFID card or Blink Code until you have notified Blink that your RFID card has been lost or stolen. Blink Codes are good for use within three (3) days of purchase and are non-refundable.
- Public Nature of Charging Stations. By connecting your EV Charger to the Blink Network, unless you specifically request otherwise in writing, you are granting access to the EV Charger to all Blink members and guests. Such access is limited to utilizing the EV Charger for charging purposes.
A. INTELLECTUAL PROPERTY
- Trademarks. “BlinkCharging.com,” “Blink Network,” “Blink,” and all logos related to the Services are either trademarks or registered trademarks of Blink or third parties. You may not copy, imitate or use them without Blink’s prior written consent. Included in our intellectual property are all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Blink. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Blink website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the preceding is the exclusive property of Blink and its licensors. BLINK is a U.S. and European Union registered trademark and service mark of Blink Charging Co. All other brand names, product names, or trademarks belong to their respective holders.
- Limited License. If you are using Blink’s software such as an API, developer’s toolkit or other software application (the “Software”) that you have downloaded to your computer, device, or other platform, then Blink is granting you a revocable, non-exclusive, non-transferable license to use the Software in accordance with the Blink licensing agreements. You may not rent, lease or otherwise transfer your rights in the Software to a third-party. You must comply with any use requirements and restrictions Blink may place on the Software and Services at Blink’s sole discretion. If you do not comply with Blink’s use requirements and restrictions you will be liable for all resulting damages suffered by you, Blink and third parties. Blink may change or discontinue any of the Software with or without notice to you.
- If your EV Charger is connected to the Blink Network, for the price agreed to between yourself and Blink, Blink grants you a revocable, non-exclusive, non-transferable license to use the Network and underlying Software in accordance with these Terms and Conditions.
- You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. You acknowledge that all rights, title, and interest to the Software and Network are owned by Blink. Any third-party software application you use on Blink’s website is subject to the license you agreed to with the third-party that provides you with their software. Blink does not own, control nor have any responsibility or liability for any third-party software application you elect to use on the Blink website and/or in connection with the Services.
- Restricted Activities. In connection with your use of the Services or in the course of your interactions with Blink, other users, or third parties, you will not: Breach this Agreement, or any other agreement or policy that you have agreed to with Blink, or:
- Violate any law, statute, ordinance, or regulation;
- Infringe on Blink’s or any third-party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- Act in a manner that is defamatory, trade libelous, threatening or harassing;
- Provide false, inaccurate or misleading information;
- Send what we reasonably believe to be potentially fraudulent funds;
- Refuse to cooperate in an investigation or provide confirmation of your identity or any Information you provide to us;
- Control an Account that is linked to another Account that has engaged in any of these Restricted Activities;
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure; facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information; use an anonymizing proxy; use any robot, spider, other automatic device, or manual process to monitor or copy our website without our prior written permission; or use any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere with our website, mobile App, Blink API, or the Services;
- Take any action that may cause us to lose any of the services from our Internet service providers, payment processors, or other suppliers;
- Circumvent any Blink Policy or determinations about your Account such as temporary or indefinite suspensions or other limitations or restrictions, including, but not limited to, engaging in the following actions: attempting to create new or additional Account(s) when an Account has been restricted, suspended or otherwise limited; creating new or additional Accounts using Information that is not your own (e.g. name, address, email address, etc.); or using someone else’s Account;
- Harass or threaten our employees, agents, or other users.
B. DISCLAIMER OF WARRANTIES. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLINK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BLINK MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (ii) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
C. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT BLINK SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BLINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICES.
D. Indemnity. You agree to indemnify, protect, and hold harmless: (i) Blink and its directors, officers, employees, agents and distributors, and (ii) Hosts, and their respective directors, officers, employees and agents (collectively, the “Indemnified Parties”) from all liability for any loss, damage or injury to persons or property arising from or related to your misuse or misapplication of the Services or otherwise for your negligence or misconduct.
To the maximum extent allowed by law, you agree to, and hereby do, release the Indemnified Parties from all liability for loss, damage, or injury whatsoever, known or unknown, arising out of or in any manner connected with the use or performance of the Services. You agree that none of the Indemnified Parties will incur any obligation or liability for any such loss, damage or injury to the maximum extent allowable by law. Your sole and exclusive remedy against the Indemnified Parties will be the replacement of any defective RFID card(s). Notwithstanding anything to the contrary herein, Blink’s liability arising from Services and/or Blink Charging Stations shall not exceed the total Fees you have paid to Blink for the Services provided hereunder.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, PARTS OF, OR THE ENTIRE DISCLAIMER, LIMITATIONS, AND RELEASE MAY NOT APPLY TO YOU.
E. AGREEMENT TO ARBITRATE. You and Blink each agree that any and all disputes or claims that have arisen or may arise between you and Blink, including without limitation federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. This Agreement to Arbitrate is intended to be broadly interpreted. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND BLINK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BLINK AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER BLINK USERS.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of this Agreement as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of subsection (a) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Blink should be sent to Blink, Attn: Legal Department, Re: Notice of Dispute, 407 Lincoln Rd., Suite 704, Miami Beach, Fl 33139. Blink will send any Notice to you to the physical address we have on file associated with your Account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. If you and Blink are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Blink may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s website at www.adr.org. The arbitration shall be held in Miami-Dade County, Florida. If the value of the relief sought is $10,000 or less, you or Blink may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Blink subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Blink may attend by telephone, unless the arbitrator(s) require otherwise. Any settlement offer made by you or Blink shall not be disclosed to the arbitrator(s). The arbitrator(s) will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different Blink Users but is/are bound by rulings in prior arbitrations involving the same Blink user to the extent required by applicable law. The award of the arbitrator(s) shall be final and binding, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules unless otherwise stated in this Agreement to Arbitrate. With the exception of any of the provisions in subsection (a) of this Section if a court decides that any part of this Section is invalid or unenforceable, the other parts of this Section shall still apply. If a court decides that any of the provisions in subsection (a) of this Section is invalid or unenforceable, then the entirety of this Section shall be null and void. The remainder of the User Agreement will continue to apply.
IF YOU ARE A NEW USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO BLINK, ATTN: LEGAL DEPARTMENT, 605 LINCOLN RD., 5TH FLOOR, MIAMI BEACH, FL 33139.
The Opt-Out Notice should include the subject line “Opt-Out” and the body must include your name, address, phone number, and the email address(es) used to log into Blink account(s) to which the opt-out applies. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement, including all other provisions of this Section will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. If you opt out of arbitration, we reserve the right to terminate our relationship with you. If you opt-out, any disputes arising out of our relationship will be governed in accordance with the laws of the State of Florida without regard to conflict of laws. By opting out of the Arbitration Agreement you expressly agree to submit to the jurisdiction and proper venue of the competent state or federal courts located in Miami-Dade County, Florida.
Notwithstanding any provision in the Agreement to the contrary, you and Blink agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Blink prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Blink. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.BlinkCharging.com at least 30 days before the effective date of the amendments and by providing notice through email. If you do not agree to these amended terms, you may close your account within the thirty-day period, and you will not be bound by the amended terms.
BLINK PRO MEMBERSHIP ACCOUNT AND BILLING TERMS
Once you upgrade to a Pro account, you will be unable to downgrade to a Blink Plus membership. The Blink Pro Membership Account is the default membership for any Blink Members signing up after August 11, 2020. In addition to the Blink Pro Membership Account-specific terms, it is subject to all of the Terms and Conditions of a Blink Plus Membership. With your new Blink Pro Membership Account, you will be able to pre-load funds to your account. The dollar value that you load onto your Blink account is a prepayment for charging your vehicle at any charger on our Network. We recommend upgrading to the Blink Pro Membership account to make it easier for you to charge with us and to make your relationship with us more rewarding. Unless otherwise required by law or permitted by this Agreement, the dollar value you load onto your Blink Pro Membership Account is non-refundable and may not be redeemed for cash. The value on your Blink Pro Membership Account is not insured by the Federal Deposit Insurance Corporation (FDIC), nor does it earn interest.
The Blink Pro Membership Account is not targeted towards, nor intended for use by, anyone under the age of 15. If you are between the ages of 15 and 18, you may only sign up for a Blink Pro Membership Account under the supervision of a parent or legal guardian who agrees to be bound by this Agreement.
- Loading Value on Your Pro Account. In the United States and Canada, you can load value on your Blink Card by going online to BlinkCharging.com or calling (888) 998.2546. There may be a delay from the time you pay the amount to be loaded onto your account and those funds being available for use. You may not have more than $500 in value loaded to your account at any time, and no more than $2,000 may be associated with your account in a single day. This means that the activity on your account cannot exceed $2,000 over the course of a day. There is a minimum amount that you may load on your account at any given time, and that amount is typically $5. We may change any of these amounts at any time without notice to you.
If you use a credit or debit card to reload your account, prior to charging your credit or debit card, an authorization process will occur for the amount of your purchase or reload transaction (“Transaction”). The authorization process will validate the credit or debit card number, status, available credit or funds and billing information to ensure that it matches what the bank or card company has on file. Your bank or Blink may attempt to contact you for additional information prior to authorizing the Transaction amount. For credit cards, once an authorization is received, you may notice a decrease in your available credit line. Your bank may hold this dollar amount from your credit line or available balance for a short period of time determined by the policy of your bank before your Transaction is fulfilled. For debit cards, your bank may pre-authorize a charge to your deposit or checking account and place a temporary hold on the funds before your Transaction is fulfilled. Regardless of whether you use a credit or debit card, your card will be charged only upon fulfillment of your Transaction. If your Transaction is cancelled, Blink will request an authorization reversal on your behalf. Reversal times may vary. We recommend contacting your bank or credit card company to learn about their authorization and authorization reversal policies.
All amounts loaded onto your account are denominated in the currency of the country in which it was sold (the “base currency”). When you make a purchase in a different country, the Transaction total is converted from the currency of that country (the “local currency”) to the base currency and deducted from your account balance. No fees or other charges are made to your account for the currency conversion. However, note that your bank or card provider may charge you a separate fee if you are using a credit or debit card or other accepted payment method to load your account outside of the U.S. Blink does not receive any portion of, and does not have any control over, any such fee. Although the actual balance of your account is kept in the base currency, the balance shown on your receipt will be in the local currency of the store location. Transactions that occur on our website are denominated in U.S. dollars. Currency conversions are based on currency exchange rates applicable on the date of the Transaction.
You can reload online or over the phone, to make reloading your account easier, you can link a payment method to your Blink account (which you can access at BlinkCharging.com) and reload either manually online when you choose or set up auto-reload. With automatic reload, you simply set the reload balance at which you want to trigger the reload to your account. We will charge the credit or debit card associated with your account or you can provide us with new payment information. We will send you an email confirming the automatic reload Transaction terms and bill your credit card or debit card according to the schedule and/or amount you have selected. We will also send you an email after each reload to let you know your Blink Card has been reloaded. You can change your reload preferences at any time, but changes may take up to twenty-four (24) hours to take effect. To discontinue the automatic reload feature, you must log-in to your Blink account at least twenty-four (24) hours before the next scheduled reload. Once the dollar value is loaded, the Transaction cannot be reversed.
- Low Balance. Blink reserves the right to reject a charging session if a Blink Pro Membership Account member’s balance reaches $0. Until the member’s account has been reloaded, that member will be unable to utilize any Blink charging stations or charging stations on the Blink Network.
If a Blink Pro Membership Account member’s balance reaches $0 in the middle of a charging session, Blink will utilize the user’s credit or debit card associated with their account to cover the cost of the charging session. The charging session continues unimpeded until stopped by the Member. Immediately following the charging session in which the balance falls below $0 the credit or debit card associated with the Member’s account will be charged. The member will be emailed a receipt of the transaction. If a Blink Pro Membership Account member’s credit card on file is not active and the charge session continues the Member will be notified of the negative balance on their account. The Member’s account will be temporarily suspended until the Member adds funds to their account and clears the negative balance. At any time if member’s credit card is not active, the user will not be able to load money onto their prepaid account until they provide a valid credit or debit card.
- Fees and Expiration of Card Balances. We do not charge any activation, service, dormancy or inactivity fees in connection with your account. Your account has no expiration date nor does the value on your account ever expire.
- Receipts and Transaction History. When you use your account, a receipt will be made available. The receipt will indicate that the purchase was made using your account and will provide the remaining balance of your account. Please check your online Transaction history regularly to ensure that your Transaction history and account balance are correct. You can check the balance of your account or review recent Transactions on your account at BlinkCharging.com We may also send you statements of activity on your Blink Pro Membership Account.
- Billing Errors, Corrections. We will correct the balance of your account if we believe that a clerical, billing, or accounting error occurred. If you have questions regarding your Transaction history or any correction, or if you wish to dispute any Transaction or correction that has been applied to your account, please call Customer Service. Assuming you provide sufficient details, we will review your claim and tell you what we find. We will correct any error promptly after we finish our review. If we do not find any error, we will explain what we found. We have no obligation to review or correct any billing error unless you provide us sufficient notice for us to review your claim within sixty (60) days of the date of the Transaction in question.
- Fraud Associated with Your Blink Account or Account Balance. We will not accept any account charges or will limit use of any account or account balance, if we reasonably believe that the use is unauthorized, fraudulent or otherwise unlawful, and we consider such action appropriate to limit our risk. Blink has no liability to you for any third-party fraud or unlawful activity associated with any Blink account or account balance.
- Registration, Liability for Unauthorized Transactions. To register for the Blink Pro Membership Account visit BlinkCharging.com or download the Blink Mobile app. When registering for the Blink Pro Membership Account, you agree that you will: (i) provide complete and accurate information about yourself; and (ii) update such information if it changes. If you do not provide or update such information, or if we have reasonable grounds to suspect that you have not provided or updated such information, we shall have the right, in our sole and absolute discretion, to disable your account. If you believe your account has been disabled in error, please call customer service. You are responsible for: (a) the accuracy of all information that you provide to us; and (b) maintaining the confidentiality and security of your account information.
You should treat your Blink Account or the Blink Pro Membership Account and RFID card like cash and not disclose your Blink Account or the Blink Pro Membership Account or RFID card information to anyone. If your Blink RFID Card or Blink Account or the Blink Pro Membership Account information is lost or stolen, anyone who obtains possession of either may use your account. You are responsible for all transactions on your account, including unauthorized transactions. However, if your RFID card is lost, stolen or destroyed, your RFID card can be replaced with the balance remaining on it at the time you contact us. Your registered RFID card and balance is protected from the time you notify us. We will freeze the remaining balance on your Blink account or the Blink Pro Membership Account at the time you notify us, a new RFID card will be issued, and the proper security measures will be taken to protect your account.
- Offers from Third-Party Organizations. From time to time, you may receive offers via your Blink Account or the Blink Pro Membership Account from other organizations (“Third Party Organizations”). Acceptance and performance under such offers are strictly between you and those Third-Party Organizations. Blink does not assume responsibility for any performance by these organizations, and you agree: (i) to look solely to the Third-Party Organizations, and (ii) to release Blink from any liability, with respect to any offers you might accept from such Third-Party Organizations or their affiliates. These Third-Party Organizations conduct business for themselves and are not part of the Blink business. As such, you should always make sure to review their terms of service and privacy policies so that you may better understand what is being offered, what is expected of you and what may be done with any personally identifying information you provide to them.
- Termination. Either Party may terminate this Agreement at any time and for any reason. If you wish to terminate your Blink Account and this Agreement, you must notify Blink in writing. Following any termination, you shall remain responsible for any and all unpaid Fees associated with your Blink Account or the Blink Pro Membership Account. If such unpaid charges are not promptly remitted, you may become liable for additional service charges, fees or penalties, and you may be subject to collection actions for any unpaid balance. If you are a charging station operator and you wish to terminate this Agreement your charging station will be removed from the Blink Network.
- Bay Area Air Quality Management District EVSE Deployment Program Participants. Participants in the Bay Area Air Quality Management District (“DISTRICT”) Electric Vehicle Supply Equipment (“EVSE”) Deployment Program (“Program”) with Blink, hereby expressly agree and acknowledge the following:
- You purchased or leased a Vehicle that is registered in your name and at an address located within the DISTRICT’s jurisdiction;
- You purchased EVSE that is installed at the same address as the Vehicle is registered;
- You obtained permits and any other required approvals from the local governing agency for the installation of your EVSE;
- You agreed to operate your Vehicle and EVSE for a minimum of three years;
- You provide your charging usage data to Blink and DISTRICT for Program evaluation purposes;
- You allow Blink or DISTRICT to notify the local utility of the address where the EVSE is installed;
- You allow Blink or DISTRICT to inspect the location where EVSE was installed;
- Individuals may only participate in the Program once and you are not already receiving funding from the DISTRICT for participation in the Program though another Program contract provider;
- Participation in the Residential EVSE Reporting Component of the Program is voluntary;
- “Vehicle,” under this subheading, shall mean a plug-in electric vehicle that was purchased or leased on or after December 1, 2010, with a gross vehicle rating below 14,000 pounds; and
- “Participant,” under this subheading, shall mean a person that, lives in the Bay Area during the term of the Program, and has to the knowledge of Blink, complied with the foregoing Program Residential EVSE Reporting Component requirements.
HOST-SPECIFIC TERMS AND CONDITIONS
- PROVIDER’S RESPONSIBILITIES AND AGREEMENTS
1.1 Network Operation. The Provider shall be responsible for: (i) provisioning, operating, maintaining, administering, and supporting the Blink Network infrastructure (but excluding Hosts’ EVSEs and infrastructure for transmitting data from Networked EVSE to any Blink Network operations center); (ii) provisioning, operating, maintaining, administering, and supporting the Network Web Portals; (iii) acquisition and registration of new Blink Account Holders, administration and support of Blink Accounts and provisioning the support services for Users embodied in the Blink Services, and (iv) using commercially reasonable efforts to comply with all applicable laws and regulations governing, restricting or otherwise pertaining to the use, distribution, export or import of data, products, services and/or technical data whether such information or data relates to either the Host or Users in connection with the Blink Network.
1.2 Purchased Blink Services. The Provider shall make the Purchased Blink Services available to Host for each Networked EVSE listed on the invoice to which these Terms apply during the Subscription Term. The Provider represents and warrants that: (i) it has the power and authority to enter into and be bound by these Terms, (ii) the Blink Services shall perform materially in accordance with the Documentation, (iii) it will provide all support for Purchased Blink Services and technical support and maintenance for all Software Applications as set forth in the Documentation, including, without limitation, Upgrades and will use commercially reasonable efforts to make the support services and the Purchased Blink Services available 24 hours a day, 7 days a week, 365 days per year, except for planned downtime, (iv) except as otherwise set forth herein, the functionality of the Blink Services shall not materially decrease during the Subscription Term, and (v) it will use commercially reasonable efforts to ensure that it does not transmit to Host any Malicious Code (excepting Malicious Code transmitted to Provider by Host). Host’s exclusive remedy for a breach of any of the foregoing shall be as provided in Section 7.4 and Section 7.5 as set forth below.
1.3 Limitations On Responsibility. Neither Provider, its distributors nor any of its other authorized representatives shall be responsible for, or makes any representation or warranty to Host with respect to the following: (i) specific location(s) or number of Networked EVSE now, or in the future, owned, operated and/or installed by hosts other than Host, or the total number of Networked EVSE that comprise the Blink Network; (ii) continuous availability of electrical service to any Networked EVSE; (iii) continuous availability of any wireless or cellular communications network or internet service provider network not operated by Provider; (iv) availability of or interruption of the Blink Network attributable to unauthorized intrusions; (v) EVSE that are not registered and activated with the Blink Network, and (vi) the continued availability of any Google services incorporated for use with the Blink Services; provided that, if Google ceases to make the Google Application Programming Interface (“API”) or any similar program available on reasonable terms for the Blink Services, the Provider shall make commercially reasonable efforts to replace the Google API or such similar program with products providing similar functionalities if such products are available upon terms which the Provider, in its reasonable discretion, believes are commercially reasonable; and provided further that, if Google ceases to make the Google API or similar program available, or available on reasonable terms for the Blink Services, the Provider may cease providing such features without entitling Host to any refund, credit or other compensation.
1.4 Disclaimer Of Warranty. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PROVIDER NOR ANY OF ITS DISTRIBUTORS OR OTHER AUTHORIZED REPRESENTATIVES, AS APPLICABLE, MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY FOR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- HOST RESPONSIBILITIES AND AGREEMENTS
2.1 General. Host shall be solely responsible for: (i) the purchase and installation of Host’s EVSE and other electrical vehicle charging products; (ii) registration with and activation of Host’s EVSE on the Blink Network through a Network Web Portal, including, without limitation, keeping current Host’s contact information, email address for the receipt of notices hereunder, billing address for invoices and payment of Host’s Net Session Fees due under these Terms; (iii) determining the pricing (including all applicable Taxes and Regulatory Charges) for any services accessed by Users through Host’s Networked EVSE that are designated Commercial EVSEs and any conditions limiting access thereof, (iv) if a Networked EVSE is moved from its registered Host Location, Host shall notify Provider and so that Provider may update the registered Host Location of the Networked EVSE on the appropriate Network Web Portal within five (5) business days of making any such change(s); (v) provisioning and installation of appropriate signage that clearly and prominently identifies and, where appropriate, provides directions to the Host Property Locations so that they may be easily located by Users; (vi) designation of each Networked EVSE as either a Commercial EVSE or a Free EVSE; (vii) keeping Networked EVSE and Host Property Locations(s) clean and free of graffiti, unauthorized advertising, debris and other materials that would obscure, block access or otherwise detract from or cast a negative light on the reputation of the Provider; (viii) the maintenance, service, repair and/or replacement of Host’s Networked EVSE as needed, whether purchased from Provider or otherwise; (ix) assuring the accessibility, lighting and other factors pertaining to the safety of Users while utilizing the EVSEs not directly related to the design or manufacture of the EVSEs themselves.
2.2 Representations And Warranties Of Host. Host represents and warrants to the Provider, its distributors and other authorized representatives that: (i) Host has the power and authority to enter into and be bound by these Terms and to install the EVSEs and any other electrical vehicle charging products to be registered and activated on the Blink Network at the Host Location(s); (ii) Host assumes all responsibility that the electrical usage consumed by any of Host’s Networked EVSE does not violate or otherwise conflict with the terms and conditions of any applicable electrical purchase or other agreement including, without limitation, any lease, to which Host is a party; and (iii) Host will comply with all applicable laws and regulations in performance of its obligations and duties hereunder.
- SESSION FEES AND PAYMENT FOR PURCHASED BLINK SERVICES
3.1 Session Fees. Host shall have sole authority to determine a User’s Session Fees (which shall include all applicable Taxes and Regulatory Charges) applicable to Host’s Networked EVSE.
3.2 Session Transaction Fees. In exchange for the Provider collecting Session Fees on behalf of the Host, the Host hereby authorizes the Provider to deduct from all Session Fees collected a Session Processing Fee in the amount equal to 8% of the Session Fee, or as such fees may be updated from time to time in accordance herewith.
3.3 Payment To Host Of Net Session Fees. The Provider shall remit all Net Session Fees to Host not more than fifteen (15) days after the end of each calendar month to the address provided by Host to Provider. Host expressly agrees that the Provider has the right to offset any balances owed by Host to Provider whether for Subscription Fees (as defined below) and/or Equipment purchase price pursuant to any purchase order executed by Host or a party authorized to execute on behalf of Host with the Net Session Fees collected by Provider. Provider shall have no obligation to notify Host of such offset but may do so upon the request of Host.
3.4 Subscription Fees. Host shall pay the annual Subscription Fee of $216 per Gen 1, IQ200 Kiosk and Advanced, $144 per IQ200 Smart and $360 IQ200 Dual Networked EVSE, or as such fees may be updated from time to time in accordance herewith, in accordance with the applicable purchase order and within 15 days of the start of any renewal term. Except as otherwise specified herein, (i) Subscription Fees are quoted in and payable in U.S. Dollars, (ii) Subscription Fees are based on Blink Services to which Host has subscribed and not on Host’s actual usage of such services, (iii) payment obligations are non-cancelable and are non-refundable, and (iv) Subscriptions are non-transferable. Subscription Fees are based on annual periods that begin on the date of the Subscription start date and end each annual anniversary thereafter.
3.5 Overdue Subscription Fees. If any invoiced Subscription Fees are not received by the Provider by the due date, then such charges: (i) may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per quarter, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until paid, and (ii) the Provider may condition future Subscription renewals and new Subscriptions on payment terms other than those set forth herein.
3.6 Acceleration And Suspension Of Blink Services. If any amount owing by Host under these Terms for Subscription Fees for Purchased Blink Services or under any other agreement between the Provider (or an Affiliate of Provider) and Host is more than thirty (30) days overdue (or, in the event that Host has authorized the Provider to charge the amount owing to Host’s credit card and payment under such credit card has been declined, more than 5 days has passed since Host has received notice from the Provider of such event), the Provider may, without otherwise limiting the Provider’s rights or remedies, accelerate Host’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the use by Host of the Purchased Blink Services until such amounts are paid in full.
3.7 Taxes And Regulatory Charges. Unless required by law or otherwise stated herein, Session Processing Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value added, sales, local, city, state or federal taxes (“Taxes”) or any fees or other assessments levied or imposed by any governmental regulatory agency (“Regulatory Charges”). Host is responsible for the payment of all Taxes and Regulatory Charges hereunder in connection with Purchased Blink Services, Session Fees and Session Processing Fees; provided, that the Provider is solely responsible for all Taxes and Regulatory Charges assessable based on the Provider’s income, property and employees. Where the Provider is required by law to collect and/or remit the Taxes or Regulatory Charges for which Host is responsible, the appropriate amount shall be invoiced to Host and deducted by the Provider from Session Fees, unless Host has otherwise provided the Provider with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority.
- PROPRIETARY RIGHTS
4.1 Reservation Of Rights. Subject to the limited rights granted expressly hereunder, Provider reserves all right, title and interest in and to the Blink Services, including all related Intellectual Property Rights. No rights are granted to Host hereunder except as expressly set forth herein. Provider shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the Blink Services any suggestions, enhancement requests, recommendations or other feedback provided by Hosts or Users relating to the Blink Services.
4.2 Restrictions On Use. Host shall not: (i) create derivative works based on the Blink Services, (ii) copy, frame or mirror any part or content of the Blink Services, (iii) reverse engineer any EVSE or Software Application, or (iv) access the Blink Network, any Network Web Portal or the Blink Services in order to (A) build a competitive product or service, or (B) copy any features, functions, interface, graphics or “look and feel” of any Network Web Portal or the Blink Services.
4.3 GRANT OF LIMITED LICENSE FOR BLINK MARKS
4.3.1 License Grant. Host is granted under these Terms the nonexclusive privilege of displaying Blink Marks during the Subscription Term in connection with the Networked EVSE installed by Host. Host warrants that it shall not use any of the Blink Marks for any products other than the Networked EVSE at the Host Property Locations(s). Provider may provide trademark usage guidelines with respect to Host’s use of the Blink Marks which will be made available on a Network Web Portal, in which case Host thereafter must comply with such guidelines. If no such guidelines are provided, then for each initial use of the Blink Mark, Host must obtain Provider’s prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, Host may use the Blink Mark in the approved manner. The Blink Marks may not be used under these Terms as a part of the name under which Host’s business is conducted or in connection with the name of a business of Host, provided that Host shall be under no obligation to exercise the license granted hereunder. Host agrees it will not list Provider or use the Blink Marks in conjunction with the name or mark of a competitor of Provider. Notwithstanding anything to the contrary contained in this Section, Host shall not obscure or partially obscure any Blink Marks placed on Host’s EVSE.
4.3.2 No Registration Of Blink Marks By Host. Host will not take any action, directly or indirectly, to register or apply for or cause to be registered or applied in Host’s favor or in the favor of any third party any Blink Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that is substantially similar to a patent, trademark, service mark, copyright, trade name or registered design of Blink or the Provider, or that is licensed to, connected with or derived from confidential, material or proprietary information imparted to or licensed to Host by Blink or the Provider.
4.3.3 Use Of Blink Marks By Host On The Internet. Host shall be entitled to use the Blink Marks to promote the Blink Network on Host-owned websites and through the internet advertising of Host, provided, that Host is limited to using the Blink Marks in connection with the Internet as follows: (i) the use must be in compliance with local rules regarding advertising of the Networked EVSE and the Blink Network on the Internet; (ii) no license is granted to use or register any domain name containing “Blink” or the Blink Marks; and (iii) Host will at all times indicate that each of the Blink Marks is a mark of Provider and used under license, as appropriate. Host agrees to allow the limited use of its name and/or logo in Provider’s standard investor/shareholder presentation materials.
4.3.4 Termination And Cessation Of Use Of Blink Marks. Upon termination of the Subscription Term, Host and its Affiliates will immediately discontinue all use and display of the name “Blink” and the Blink Marks.
5.1 Indemnification Of Host By Provider. Provider shall defend at its expense any third party notices, allegations, claims, suits, or proceedings (“Claim”) against Host to the extent alleging that the use of any of the Blink Services as permitted hereunder or the Blink Marks as furnished hereunder infringes or misappropriates the Intellectual Property Rights of any third party, and to pay costs and damages finally awarded in any such suit or agreed to by Provider in settlement with such third party (including reasonable attorney’s fees and expenses), provided that Provider is notified promptly in writing of the suit and at Provider’s request and at its expense is given control of said suit and all requested reasonable assistance for defense of same. Provider agrees that it shall not settle any Claim unless Host, as applicable, is unconditionally released from any liability as part of any settlement. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any Intellectual Property Rights by the combination of a product (including the Blink Services) furnished by Provider with other elements not furnished by Provider if such infringement would have been avoided by the use of the Blink product (including in conjunction with the Provider-furnished Blink Services) alone.
5.2 Indemnification Of The Provider By Host. Host shall defend the Provider, its distributors, authorized agents, directors, shareholders, officers, agents, employees, permitted successors, and assigns against any Claim (i) as a result of Host’s negligence or willful misconduct or (ii) alleging that Host’s use of the Blink Network or Blink Services in violation of these Terms infringes or misappropriates the Intellectual Property Rights of any third party or violates applicable law, and to pay costs and damages finally awarded in any such suit or agreed to by Host in settlement with such third party (including reasonable attorney’s fees and expenses), provided that Host is notified promptly in writing of the suit and at Host’s request and at its expense is given control of said suit and all requested reasonable assistance for defense of same. Host agrees that it shall not settle any Claim unless Provider, its distributors, and/or other authorized representatives, as applicable, are unconditionally released from any liability as part of any settlement.
5.3 Limitation Of Liability. Except for liability for indemnification against third party claims for infringement or misappropriation of intellectual property rights, Provider’s aggregate liability under these Terms shall not exceed the aggregate Subscription Fees paid by Host to the Provider in the calendar year prior to the event giving rise to the Claim. THE FOREGOING DOES NOT LIMIT HOST’S PAYMENT OBLIGATIONS FOR THE PURCHASED BLINK SERVICES.
5.4 Exclusion Of Consequential And Related Damages. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS IN ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL THE PROVIDER, ITS AFFILIATES OR THEIR RESPECTIVE DISTRIBUTORS OR OTHER AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BLINK NETWORK, ANY BLINK SERVICES, THESE TERMS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY HOST NOT SPECIFICALLY SET FORTH IN THESE TERMS AND EVEN IF THE PROVIDER, ITS AFFILIATES OR THEIR RESPECTIVE DISTRIBUTORS, OTHER AUTHORIZED REPRESENTATIVES, SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL HOSTS.
5.5 Exclusive Remedy. The foregoing states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party with respect to any Claim described in this Section.
5.6 Electrical, Cellular And Internet Service Interruptions. None of the Provider, its Affiliates, any of their respective distributors, other authorized representatives, or Host shall have any liability whatsoever to the other with respect to damages, including but not limited to data loss caused by: (i) electrical, wireless, cellular and/or internet outages, interruptions, power surges, brown-outs, utility load management or any other similar electrical service interruptions whatever the cause; (ii) interruptions in wireless or cellular service linking Networked EVSE to the Blink Network; (iii) interruptions attributable to unauthorized Blink Network intrusions; or (iv) interruptions in services provided by any internet service provider.
- TERM AND TERMINATION
6.1 Term. These Terms shall become effective on the date of Provider’s acceptance of the purchase order and issuance of an invoice and continues until all automatic renewals have been terminated or otherwise have expired.
6.2 Term Of Purchased Subscriptions. Subscriptions purchased by Host commence on the start date specified in the purchase order and shall continue for the applicable Subscription Term specified therein for each Subscription or until the Purchased Blink Services provided pursuant to any Subscription are otherwise terminated, changed or canceled by the Provider or Host pursuant to the terms and conditions set forth herein.
6.3 Automatic Renewal Of Subscriptions. All purchased Subscriptions shall be automatically renewed for a period equal to that of the expiring Subscription, unless either party gives the other notice of non-renewal at least sixty (60) days prior to the scheduled expiration date for the relevant Subscription Term. The per-unit pricing for any renewal term shall be equal to the per-unit pricing of the prior term unless the Provider shall have given Host notice to the email address for the Host Account that Host has provided hereunder of any increase in pricing for Subscriptions at least seventy-five (75) days prior to the end of such expiring Subscription, in which case the price increase shall be effective upon renewal and thereafter.
6.4.1 BY THE PROVIDER. The Subscription Term and the Purchased Blink Services furnished hereunder may be suspended or terminated: (i) after thirty (30) days written notice to Host that it is in material breach of any of Host’s obligations under these Terms, and Host shall have failed to cure such breach prior to the expiration of said thirty (30) day period, provided however that if Host cures its default within thirty (30) days of such suspension or termination, the suspension or termination of Purchased Blink Services shall be restored and these Terms shall continue in effect, (ii) Host becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors, (iii) upon the determination by any regulatory body that the subject matter of these Terms is subject to any governmental regulatory authorization or review if such authorization or review results in an order of suspension or an order that materially increases the costs to Provider of providing the services; or (iv) upon 60 days written notice to Host.
6.4.2 BY HOST. The Subscription Term may be terminated by Host for cause: (i) upon thirty (30) days written notice given to the Provider alleging a material breach of these Terms and the alleged breach remains uncured at the expiration of such thirty-day period, or (ii) the Provider becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors. These Terms may be terminated by Host upon the voluntary deactivation and removal from registration via the applicable Network Web Portal of all Networked EVSE owned by Host from the Blink Network, at which time these Terms shall terminate effective immediately; provided, that Host shall not be entitled to any refund of Subscription Fees as a result of such termination and shall be required to pay any remaining annual fees for any remaining months in the then- current term or renewal term.
6.5 Refund Or Payment Upon Termination. Upon any termination of the Subscription Term for cause by Host pursuant to Section 7.4.2(i) or (ii) or the election of the Provider to terminate the Subscription Term pursuant to Section 7.4.1(iii) or (iv), the Provider shall refund to Host the pro-rata portion of any pre-paid Subscription Fees for the remainder of the applicable Subscription Term for all Subscriptions after the effective date of termination. Upon any termination for cause by the Provider pursuant to Section 7.4(i)(i) or (ii) or upon the voluntary removal from registration and activation of all of Host’s Network EVSEs from the Blink Network, Host shall pay any unpaid Subscription Fees covering the remainder of the Subscription Term. In no event shall any termination relieve Host of any liability for the payment of Subscription Fees or Session Processing Fees for any period prior to the termination date.
- WAIVER. The failure of either Party at any time to require performance by the other Party of any obligation hereunder will in no way affect the full right to require such performance at any time thereafter. The waiver by either Party of a breach of any provision hereof will not constitute a waiver of the provision itself. The failure of either Party to exercise any of its rights provided in these Terms will not constitute a waiver of such rights. No waiver will be effective unless in writing and signed by an authorized representative of the Party against whom such waiver is sought to be enforced. Any such waiver will be effective only with respect to the specific instance and for the specific purpose given.
- FORCE MAJEURE. Except with respect to payment obligations, neither the Provider nor Host will be liable for failure to perform any of its obligations hereunder due to causes beyond such party’s reasonable control and occurring without its fault or negligence (a “Force Majeure Event”). A Force Majeure Event will include, but not be limited to, fire, flood, earthquake or other natural disaster (irrespective of such party’s condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a party from performing its obligations under these Terms; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts.
- APPLICABLE LAW. These Terms will be construed, and performance will be determined, according to the laws of the State of Florida without reference to such state’s principles of conflicts of law (the “Applicable Law”) and the state and federal courts of Florida shall have exclusive jurisdiction over any claim arising under these Terms.
- WAIVER OF JURY TRIAL. Each Party hereby waives any right to jury trial in connection with any action or litigation arising out of these Terms.
- SURVIVAL. Those provisions dealing with the Intellectual Property Rights of Provider, Proprietary Rights, limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by their nature or terms are intended to survive the termination of these Terms will remain in full force and effect as between the Parties hereto as contemplated hereby.
- SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of these Terms or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of these Terms, or the application of such term or provision to these Terms, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. If, however such invalidity or unenforceability will, in the reasonable opinion of either Party cause these Terms to fail of its intended purpose and the Parties cannot by mutual agreement amend these Terms to cure such failure, either Party may terminate these Terms for cause as provided herein above.
- ACCESS. Host may not access the Blink Services if Host is a direct competitor of Provider without Provider’s prior written consent. In addition, Host may not access the Blink Services for purposes of monitoring the availability, performance or functionality of Blink Services, or any other benchmarking or competitive purpose.
- NO AGENCY OR PARTNERSHIP CREATED BY THESE TERMS. Provider, in the performance of these Terms, is an independent contractor. In performing its obligations under these Terms, Provider shall maintain complete control over its employees, its subcontractors and its operations. No partnership, joint venture or agency relationship is intended by Provider and any Host to be created by these Terms. Host expressly agrees and acknowledges that Provider shall have the right to provide the Blink Services to any third party, including without limitation, competitors of Host. All of these Terms are binding on the signatory to the Quote and/or the business entity it represents. The signatory represents that it has authority to bind the entity on behalf of whom it signs.
- MISCELLANEOUS. Nothing in these Terms is intended to obligate or commit Provider to provide any services other than as set forth herein. The invoice and purchase order relating to these Terms may be executed in two or more counterparts (including scanned and/or electronic copies and/or electronic signatures), all of which together shall be considered a single instrument. These Terms (including any exhibits) constitutes the entire agreement, and supersedes all prior agreements and understandings (both written and oral) of the parties hereto with respect to the subject matter hereof, and cannot be amended or otherwise modified except in writing executed by the parties hereto. These Terms shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing contained in the Agreement, whether expressed or implied, is intended to give or shall be construed as giving anyone other than the parties and the named Host and their successors or assigns any rights under these Terms. These Terms may be assigned by Provider to a parent, a wholly-owned subsidiary, an affiliate, any entity with which it might merge, or to any successor-in-interest without notice to Host.
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|Blink Network, LLC
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Miami Beach, FL 33139
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