Terms & Conditions
MOBILE POWER SOLUTIONS
GENERAL TERMS AND CONDITIONS
Effective Date: 19th of Septembre 2019
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICES.
In consideration of Your use of any of the Services (defined below) provided by Mobile Power Solutions SRL or any other parent company, subsidiary and affiliated entity (the « Operating Entities ») doing business as « Mobile Power Solutions » or « Naki » or any other commercial name that may be used from time to time (« MPS », « We », « Us », « Our »), Mobile Power Solutions requires that You (« The Consumer », « User », « You », or « Your ») (acting for all of User's family, heirs, agents, affiliates, representatives, successors, and assigns) agree to all terms and conditions in this agreement (« Agreement »).
The services (the « Services ») provided by Mobile Power Solutions includes:
(1) Mobile Power Solutions mobile application and related website,
(2) Naki portable power batteries (« Battery » or « Batteries ») and,
(3) All other related equipment, maintenance, personnel, services, applications, websites, and information provided or made available by Mobile Power Solutions.
By accessing and/or using our Services, you agree to be legally bound by this Agreement. If you do not agree to this Agreement and the conditions of use stated herein, do not use the Services.
This Agreement, together with all updates, supplements, additional terms, and all of Our rules and policies collectively constitute this Agreement between You and Us.
1. GENERAL RENTAL AND USE OF THE BATTERIES
1.1 The Consumer is sole user De Consument is de enige gebruiker
Mobile Power Solutions and the Consumer are the only parties to this Agreement. The User is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You rent a Power Battery from the location, the Battery must be used only by You. You must not allow others to use a Battery that You have activated from the location.
1.2 The Battery is the exclusive property of Mobile Power Solutions
Without prejudice of Article 2.3, User agrees that the Battery and any Mobile Power Solutions equipment attached thereto, at all times, remain the exclusive property of Mobile Power Solutions. You must not dismantle, write on, or otherwise modify, repair or deface a Battery, any part of a Battery, or other Mobile Power Solutions equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Battery in any way. You must not use a Battery, or other Mobile Power Solutions equipment, for any advertising or other commercial purpose without the express written permission of Mobile Power Solutions.
1.3 Battery operating Hours and Battery availability
User agrees and acknowledges that the Batteries must be rented within the maximum rental time limits set forth below. The number of Batteries is limited and Battery availability is never guaranteed.
1.4 No tampering
You must not tamper with, attempt to gain unauthorized access to, or otherwise use the Services, the Batteries or the application other than as specified in this Agreement.
For the execution of this Agreement and, in particular, article 1.7 of the present general terms and conditions, You acknowledge that the interdiction of tampering includes, without being limited to, any and all drawings, punctures, scratches, bumps, blows or alterations to the Battery rented under this Agreement.
1.5 Reporting of damage or crashes
User must report any accident, damage, personal injury, or stolen or lost Battery to Mobile Power Solutions as soon as possible. If an incident involves personal injury, property damage, or a stolen Battery, User shall report the incident to Mobile Power Solutions within 24 hours.
User agrees that he/she, during the rental period, has the rented Battery under his/her sole custody and is therefore responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties or disbursements of any kind or nature whatsoever related to a Battery as long as it remains under his/her custody.
1.6 Payment of fines, fees and administrative fees
User agrees to pay any fines, fees, penalties, court costs, and/or any other charges incurred by Mobile Power Solutions, that result from User's utilisation of any Battery improperly, or as a result of User violating any law, rule, regulation, and/or ordinance while using the Services.
1.7 User responsibility for Battery use and damage
User agrees to return the Battery to Mobile Power Solutions in the same condition in which it was rented. User will not be responsible for normal wear and tear.
User also agrees that any attempt to recharge the Battery by other means than Mobile Power Solutions' reloading power banks or other equipment officially sanctioned by Mobile Power Solutions will be done under his/her sole responsibility and that Mobile Power Solutions shall not be held liable of any harmful consequences, financial, physical or whatsoever deriving from it.
The Batteries are electric power batteries that require periodic charging in order to operate. User agrees to use the Batteries safely and prudently in light of it being an electric power battery and all of the limitations and requirements associated therewith.
User understands and agrees with each of the following:
- The level of charging power remaining in the Battery will decrease with use of the Battery, and that as the level of charge power of the Battery decreases, the operational capabilities of the Battery may decrease (or cease in their entirety).
- The level of charging power in the Battery at the time User initiates the rental or operation of the Battery is not guaranteed and may vary with each rental use.
- The rate of loss of charging power during the use of the Battery is not guaranteed and will vary based on the Battery, operational conditions, weather conditions, and other factors.
- It is User's responsibility to check the level of charge power of the Battery and to ensure that it is adequate before initiating operation of the Battery.
- The time that User may operate the Battery before it loses charging power is never guaranteed.
- The Battery may run out of charging power and cease to operate at any time during User's rental of the Battery, including before reaching User's desired level of reloading.
- If the Battery runs out of charging power during a rental, User shall return the Battery in compliance with all terms of this Agreement. If an accident occurs because the Battery ran out of power, Mobile Power Solutions shall not be held liable.
2. PAYMENT AND FEES
User may use the Battery on a pay per Utilisation basis (« Utilisation » means the unlocking of the Battery through the Mobile Power Solutions mobile application and its utilisation until it is returned to a Mobile Power Solutions battery storage pack) or as otherwise in accordance with the pricing described in the Mobile Power Solutions mobile application. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Mobile Power Solutions. Mobile Power Solutions will charge the User (through credit and/or debit card and/or through any other payment method offered during the subscription process) the amount of the fees as described in this Agreement.
2.2 Promo codes
Promo codes (discounts) are one-time offers and can be redeemed only via the Mobile Power Solutions application Mobile Power Solutions reserves the right to modify or cancel discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold.
2.3 Maximum rental time and charges
Maximum rental time is of 6 days (144 hours). User agrees that he/she will end the Battery rental within 6 days as of the date of the unlocking. User will then be entitled to rent Batteries as per the technical limits set forth in the Mobile Power Solutions application.
User agrees that he/she is solely responsible for being aware of any elapsed time related to the timely locking of the Battery.
Batteries not returned (locked and a utilisation concluded) within 48 hours of the end of the 6 days rental period will be considered bought by the User at a price corresponding to the 6 days maximum rental price.
However, this sale shall be cancelled without any compensation whatsoever should the User return the Battery to any Mobile Power Solutions charging bank.
2.4 Valid credit card or debit card
To be registered to use the Services, User must provide Mobile Power Solutions with a valid credit or debit card number and expiration date, an Adyen (www.adyen.com) payment account or any similar payment system condoned by Mobile Power Solutions.
User represents and warrants to Mobile Power Solutions that User is authorized to use any credit or debit card User or Adyen account furnished to Mobile Power Solutions. User authorizes Mobile Power Solutions to charge the card or the said account for all fees incurred by User. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Mobile Power Solutions.
If User disputes any charge on User's credit or debit card or Adyen account, then User must contact Mobile Power Solutions within 10 business days from the end of the month with the disputed charge, and provide to Mobile Power Solutions all information that is necessary to identify the disputed charge, such as the date of the Utilisation and the approximate starting and ending times of the Utilisation associated with the disputed charge. User agrees to immediately inform Mobile Power Solutions of all changes relating to the card or Adyen account
2.5 Payment scheme
Payment scheme for the use of the Services is as follows:
- User pays a fee of 0,50 € to unlock the Battery. This fee includes the first 30 minutes of utilisation of the Battery and the Services;
- Utilisation of the Battery and the Services is charged 0,50 € per 30 minutes until the due amounts reaches a cap of 5,00 € per day;
- Maximum rental fee is capped to 30 euros for the maximum rental period of 6 days (the « Maximum Rental Fee »).
User understands and agrees that the above-mentioned prices may be unilaterally amended by Mobile Power Solutions at any time or from time to time in its sole discretion as per article 14 of this Agreement.
Upon unlocking of the Battery, an amount of 30 euros will be charged to the User at the start of the rental period as a deposit. The actual rental price shall be withdrawn from the said deposit and the difference will then be returned to the User at the end of the rental period.
Should the Battery not be returned at the end of the maximum rental period, no amount shall be repayable.
3.1 Safety Check
3.1.1. If at any time, whether prior to, during, or after renting any Battery, User discovers any defect or notice any other potentially unsafe condition on any Battery, no matter how slight, he/she must not use the Battery, or, if he/she already using the Battery and/or the Services, he/she must immediately cease its utilisation when it is safe to do so.
3.1.2. User agrees to immediately report the defect or condition to Mobile Power Solutions.
3.1.3. If User does not strictly comply with the aforementioned requirements, he/she shall be totally and completely liable for any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, attorneys' fees, judgments, suits settlements, and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, and User shall indemnify and hold harmless Mobile Power Solutions for the same.
3.2 Lost or Stolen Battery
Without prejudice of the purchasing option left to the User as per article 2.3, a Battery may be deemed lost or stolen if facts and circumstances suggest to Mobile Power Solutions in its reasonable, good faith determination that a Battery has been lost or stolen.
Mobile Power Solutions and You agree that the last User of a Battery shall be responsible for a lost or stolen Battery unless facts and circumstances suggest otherwise to Mobile Power Solutions in its reasonable, good faith determination. If Mobile Power Solutions deems a Battery lost or stolen, Mobile Power Solutions shall have the authority to take any and all actions it deems appropriate (with respect to the last User of a Battery or otherwise), including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. User agrees the data generated by Mobile Power Solutions' computer is conclusive evidence of the period of use of a Battery by a User. User agrees to report Battery disappearance or theft to Mobile Power Solutions immediately or as soon as possible.
3.3 Limitations on availability of Mobile Power Solutions Services
Mobile Power Solutions makes every effort to provide the Services 365 days per year, but does not guarantee that the Services will be available at all times, as unforeseen events or other circumstances might prevent Mobile Power Solutions from providing the Services. Access to the Services is also conditioned on the availability of Batteries. Mobile Power Solutions does not represent or warrant the availability of any of the Services or the availability of any Battery at any time, even if the Battery is marked as available on the Mobile Application.
3.4 Access license
Subject to User's strict compliance with this Agreement, Mobile Power Solutions grants User a limited, revocable, non-exclusive, non-transferable license to access and make use of the Services or its content. This license does not include any resale or commercial use of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, cookies, or similar data gathering and extraction tools. Except as expressly permitted herein, the Services and/or any portion of the Services may not be reproduced, sold, resold, visited or otherwise exploited for any purpose without Mobile Power Solutions' express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by us to you.
3.5 Copyright and Ownership
All of the content featured or displayed on the Services, including, without limitation, text, graphics, photographs, images, moving images, sound, and illustrations (« Content »), is owned by Mobile Power Solutions, its licensors, vendors, agents and/or its Content providers. All elements of the Services, including, without limitation, the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services may only be used for the intended purpose for which such Services is being made available. Except as permitted by copyright law, You may not modify any of the materials and You may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work contained on the Services. Except as authorized under the copyright laws, You are responsible for obtaining permission before reusing any copyrighted material that is available on the Services. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Services. The Services, its Content and all related rights shall remain the exclusive property of Mobile Power Solutions or its licensors, vendors, agents, and/or its Content providers unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Services.
3.6 Trademarks/No Endorsement
All trademarks, service marks and trade names of Mobile Power Solutions and Mobile Power Solutions used herein (including but not limited to: Mobile Power Solutions name, Mobile Power Solutions corporate logo, Mobile Power Solutions name, Mobile Power Solutions corporate logo, the Services name, the Services design, and/or any logos) (collectively « Marks ») are trademarks or registered trademarks of Mobile Power Solutions or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Mobile Power Solutions trademarks in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without Mobile Power Solutions' prior written consent. You shall not use Mobile Power Solutions' name or any language, pictures or symbols which could, in Mobile Power Solutions' judgment, imply Mobile Power Solutions' endorsement in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without prior written consent.
3.7 Account Registration and Security
You understand that you will need to create an account to have access to the Services. You will: (a) provide true, accurate, current and complete information about yourself as prompted by the Services' registration, sign-in, or subscription page (such information being the « Registration Data ») and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Mobile Power Solutions has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Mobile Power Solutions has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You are responsible for the security and confidentiality of your password and account. Furthermore, you are responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the Services using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business).
3.8 Solicited Submission Policy
Where Mobile Power Solutions has specifically invited or requested submissions or comments, Mobile Power Solutions encourages You to submit content (e.g., comments to blog posts, participation in communities, tips, etc.) to Mobile Power Solutions that they have created for consideration in connection with the Site (« User Submissions »). User Submissions remains the intellectual property of the individual user. By posting content on our Site, You expressly grant Mobile Power Solutions a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and Your name, voice, and/or likeness as contained in Your User Submission, in whole or in part, and in any form throughout the world in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, and including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and Mobile Power Solutions shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.
3.9 Inappropriate User Submissions
Mobile Power Solutions does not encourage, and does not seek, User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to You, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort. You agree that You have not and will not engage in any of the foregoing activities in connection with producing Your User Submission. Without limiting the foregoing, You agree that in conjunction with Your submission, You will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, will not impersonate any other person or misrepresent Your affiliation, title, or authority, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. Mobile Power Solutions will reject any User Submissions in which Mobile Power Solutions believes, in its sole and absolute discretion, that any such activities have occurred. If notified by You of a submission that allegedly violates any provision of this Agreement, Mobile Power Solutions reserves the right to determine, in its sole and absolute discretion, if such a violation has occurred, and to remove any such submission from the Services at any time and without notice.
3.10 Inappropriate Material
User is prohibited from using the Services to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that infringes or misappropriates third party intellectual property or could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or « spam » on or through the Services is expressly prohibited by this Agreement. In addition to any remedies that We may have at law or in equity, if We determine, in Our sole and absolute discretion, that You have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Agreement, We may take any action We deem necessary to cure or prevent the violation, including, without limitation, banning You from using the Services and/or the immediate removal of the related materials from the Services at any time without notice. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
3.11 Access and Interference
You agree not to use any robot, spider, scraper or other automated means to access the Services for any purpose without our express written permission. Additionally, You agree that You will not: (i) take any action that imposes, or may impose, in Our sole and absolute discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Services; or (iii) bypass any measures We may use to prevent or restrict access to the Services.
3.12 Right to Takedown Content
3.13 Third Party Links
From time to time, the Services may contain links to websites that are not owned, operated or controlled by Mobile Power Solutions or its affiliates. All such links are provided solely as a convenience to You. If You use these links, You will leave the Services. Neither We nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither We nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that You may obtain from using any other websites. If You decide to access any other websites linked to or from the Services, You do so entirely at Your own risk.
3.14 Representations and Warranties
You represent that You are over the age of 18, have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein, and Your use of the Services is and will be in compliance with all applicable laws. You represent that You have read, understood, agree with, and will abide by the terms of this Agreement. In addition, You represent and warrant that Your User Submissions and all elements thereof are (a) owned or controlled solely and exclusively by You, You have prior written permission from the rightful owner of the content included in Your User Submissions, or You are otherwise legally entitled to grant Mobile Power Solutions all of the rights granted herein; and (b) Mobile Power Solutions' use of Your User Submissions as described or contemplated herein do not and will not infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity, violate any law, regulation or right of any kind whatsoever, or otherwise give rise to any actionable claim or liability, including, without limitation, rights of publicity and privacy, and defamation. Furthermore, You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them.
3.15 Force Majeure
Neither Mobile Power Solutions nor You shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, war, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including, without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of common carriers.
3.16 Wireless Features
The Services may offer certain features and services that are available to You via Your wireless Device. These features and services may include the ability to access the Services' features and upload content to the Services, receive messages (including text and SMS messages) from the Services, and download applications to Your wireless Device (collectively, « Wireless Features »). Standard messaging, data, and other fees may be charged by Your carrier to participate in Wireless Features. Fees and charges may appear on Your wireless bill or be deducted from Your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with Your carrier or wireless Device. You should check with Your carrier to find out what plans are available and how much they cost. Contact Your carrier with questions regarding these issues. You confirm that You are the current subscriber and/or customary user of the mobile number registered with the Services and authorized to incur any message or data charges that may be charged by Your carrier. You are strictly prohibited from registering a mobile number that is not Your own. If We discover that any information provided is false or inaccurate, We may hold, suspend or terminate Your access to the Services at any time. Your participation in the Services are completely voluntary.
You agree that as to the Wireless Features for which You are registered, We may send communications to Your wireless Device regarding us or other parties. Further, We may collect information related to Your use of the Wireless Features. If You have registered via the Services for Wireless Features, then You agree to notify us of any changes to Your wireless contact information (including phone number) and update Your accounts on the Services to reflect the changes.
You must notify Mobile Power Solutions immediately of any breach of security or unauthorized use of Your mobile phone. Although Mobile Power Solutions will not be liable for Your losses caused by any unauthorized use of Your mobile Device, You may be liable for the losses of Mobile Power Solutions or others due to such unauthorized use.
You have the right to cancel the Agreement at any time upon notice to Mobile Power Solutions. To terminate this Agreement, please send an e-mail at the following address firstname.lastname@example.org. If You terminate the Agreement: (i) all rights granted to You will cease immediately; (ii) You shall discontinue any use of the respective Services and/or Batteries; and/or (iii) You must pay Mobile Power Solutions all amounts that are due and unpaid. Upon cancellation, You will lose access to all Services.
Mobile Power Solutions will have the right, upon written notice (the term « written » here includes e-mail) to You, to terminate this Agreement, and/or suspend Your access to their Services, if: (a) You fail to pay Mobile Power Solutions any amount due under this Agreement and/or (b) You materially breach any terms or conditions of this Agreement. Upon termination of this Agreement for any reason, Your access to, and use of, the Services will terminate.
5.1 Confidentiality of Information; Privacy Policies
In addition, Mobile Power Solutions may disclose individual data to a third party upon Your express permission and consent (e.g. enrolment in a study).
6 COMMUNICATIONS AND AGREEMENT TO BE CONTACTED
6.1. User verifies that any contact information provided to Mobile Power Solutions, including but not limited to, his/her name, email address, and mobile telephone number is true and accurate. You verify that You are the current subscriber or owner of any telephone number that You provide to us. Should any of Your contact information change, including Your telephone number, You agree to notify us by email at email@example.com. You agree to indemnify, defend, and hold Mobile Power Solutions harmless from and against any and all claims, losses, liability, costs, and expenses (including reasonable attorneys' fees) arising from failure to update Your contact information (including Your telephone number), Your voluntary provision of a telephone number that is not Your own, and/or from Your violation of any federal, state, or local law, regulation, or ordinance.
6.2. By voluntarily providing Your telephone number(s) to Mobile Power Solutions, User expressly agrees to receive text messages related to your registration. Consent to receive automated marketing calls/texts is not a condition of any rental or purchase. You acknowledge that You may incur a charge for calls or text messages by Your telephone carrier and that Mobile Power Solutions is not responsible for these charges.
6.3. User agrees that Mobile Power Solutions may obtain, and User expressly agrees to be contacted at, email addresses provided by You directly or obtained through other means. You agree to receive emails even if You cancel Your account or terminate Your relationship with us, except if You opt-out. You may opt out by emailing firstname.lastname@example.org with the subject « Opt out ». Please allow up to thirty (30) days to process any opt-out request. It is Your sole obligation to notify Mobile Power Solutions that You do not want to receive emails by following the instructions in this Section. You waive any rights to bring claims for unauthorized, unsolicited, or undesired emails or text messages by failing to opt-out immediately and in accordance with these opt-out instructions. Please note that if You opt out of automated emails/texts, we reserve the right to make non-automated emails/texts to You. Your obligations under this section shall survive termination of these terms.
Mobile Power Solutions has the possibility to offer monthly subscriptions for the use of the Batteries, subject to specific terms and conditions which must be separately accepted by User.
Mobile Power Solutions may be contacted by emailing email@example.com or by mail at Mobile Power Solutions SRL, Avenue Adèle, 20, 1310 La Hulpe, Belgium.
9 CHOICE OF LAW
This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the territory where the Battery is unlocked. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the territory where the Battery is used and agrees that those courts have personal jurisdiction over each party.
10. DISPUTE RESOLUTION AND CLASS ACTION WAIVER
10.1 Initial Dispute Resolution
If any controversy, allegation, or claim arises out of or relates to the Services, the Content, Your User-Submissions, this Agreement, whether heretofore or hereafter arising (collectively, « Dispute »), or to any of Mobile Power Solutions' actual or alleged intellectual property rights (an « Excluded Dispute »), then You and Mobile Power Solutions agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to You will be sent to You based on the most recent contact information that You provide us. But if no such information exists or if such information is not current, then We have no obligation under this Section.
Your notice (the « Notice ») to us must be sent to: Mobile Power Solutions SRL, Avenue Adèle, 20, 1310 La Hulpe, Belgium. For a period of sixty (60) days from the date of receipt of notice from the other party, Mobile Power Solutions and You will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute. The parties shall use their best efforts through this process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating mediation, arbitration, or a lawsuit.
10.2 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.
11 WAIVER AND SEVERABILITY
No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
12 CUMULATIVE REMEDIES
All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
13. FINAL AGREEMENT; MODIFICATION BY MOBILE POWER SOLUTIONS
This Agreement contains the complete, final, and exclusive integrated agreement between the Parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter.
At any time and from time to time, and without User's consent, Mobile Power Solutions may unilaterally amend, modify, or change this Agreement, in its sole discretion. By continuing to use any of the Mobile Power Solutions Services after notification of any amendment, modification, or change, User has agreed to be bound by all such amendments, modifications, and changes. User must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, Mobile Power Solutions will post a notification on the Website. The pricing set forth on the Website supersedes all pricing set forth in this Agreement.
14 CONTRACT INTERPRETATION
The headings in this Agreement do not affect the interpretation of this Agreement. « Or » is not to be exclusive in its meaning. « Including » means « including, but not limited to. » Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.
15 VOLUNTARY EXECUTION OF THIS AGREEMENT
This Agreement is entered into voluntarily, with consideration, and without any duress or undue influence on the part or behalf of Mobile Power Solutions. User acknowledges that he/she (a) has read this Agreement; (b) understands the terms and consequences of this Agreement, including the releases it contains; and (c) is fully aware of the legal and binding effect of this Agreement.
16 RELEASES; DISCLAIMERS; ASSUMPTION OF RISK
In exchange for User being allowed to use Mobile Power Solutions Services, Batteries and other equipment or related information provided by Mobile Power Solutions, User agrees to fully release, indemnify, and hold harmless Mobile Power Solutions and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) with which the operators have contracted with to provide Mobile Power Solutions Services, and every sponsor of any of the Mobile Power Solutions Services and all of the sponsor's owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the « Released Persons ») from liability for all Claims arising out of or in any way related to User's use of the Mobile Power Solutions Services, Batteries, or related equipment, including, but not limited to, those Claims based on Released Persons' alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons' gross negligence or wilful misconduct. Such released are intended to be general and complete releases of all Claims.
« Claims » means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorney's fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, wrongful death, property damage, and injury to User or to third parties, consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Mobile Power Solutions Services, including any of the Batteries, placement, equipment, maintenance, related information, this agreement or (b) User's use of any of the foregoing.
To the fullest extent permitted by law, and as to User's use of any of the Mobile Power Solutions Services, Batteries, or related equipment, Mobile Power Solutions and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. All of the Mobile Power Solutions Services, Batteries, and related equipment are provided « as is » and « as available, » and User relies on them at User's own risk.
User is aware that User's use of any of the Mobile Power Solutions Services, Batteries, and related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury or death to User or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided.
User is solely and fully responsible for the safe operation of Batteries at all times. User agrees that Batteries are machines that may malfunction, even if the Battery is properly maintained and that such malfunction may cause injury. User assumes full and complete responsibility for all related risks, dangers, and hazards.
To the fullest extent permitted by law, this release and hold harmless agreement includes any and all Claims related to or arising from the sole or partial negligence of Mobile Power Solutions, the Released Parties, any public authority or any other party. User hereby expressly waives any claims against the Released Parties, any public authority or any other party which User does not know or suspect to exist in his or her favour at the time of use of Mobile Power Solutions Services, and expressly waives User's rights under any statutes that purport to preserve User's unknown claims.
USER ACCEPTANCE OF AGREEMENT
I certify that I have read and expressly agree to the terms and conditions, including specifically Section 16 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the Battery/Services.