Terms & Conditions
Terms of Service for PowerrUp® Accounts
IMPORTANT NOTICE: These Terms of Service have been updated as of September 3, 2024 and shall supercede a’’ prior Terms of Service.
Welcome, and thank you for your interest in PowerrUp, Inc. (“PowerrUp,” “We,” or “Us”) and
our website at [Insert Website], along with our related websites, mobile or other
downloadable applications, PowerrUp Cards, and other services provided by us
(collectively, the “Service”). These Terms of Service (the “Terms”) and the Arbitration
Agreement form binding agreements between You (“You” or “User”) and PowerrUp
regarding Your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE
ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND
UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE
BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING POWERRUP’S
PRIVACY POLICY ([Insert Privacy Policy URL]) (TOGETHER, THESE “TERMS”). IF YOU ARE
NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR
PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND POWERRUP’S
PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY POWERRUP AND
BY YOU TO BE BOUND BY THESE TERMS (THIS “AGREEMENT”).
THESE TERMS OF SERVICE INCLUDE AN ARBITRATION AND CLASS ACTION WAIVER
AGREEMENT WHICH REQUIRES THAT ANY PAST, PENDING, OR FUTURE DISPUTES
BETWEEN YOU AND US SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ON
AN INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. YOU MAY NOT
PROCEED AS A CLASS REPRESENTATIVE, MEMBER OR PART OF ANY PROPOSED CLASS,
COLLECTIVE ACTION, MASS ARBITRATION, PRIVATE ATTORNEY GENERAL SUIT, QUI
TAM ACTION OR ANY REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO
RECOVER ON BEHALF OF OTHERS OR FOR THE BENEFIT OF OTHERS IN ANY TYPE OF
CLAIM OR ACTION. ARBITRATION MEANS YOU WILL NOT BE ABLE TO SEEK DAMAGES IN
COURT OR PRESENT YOUR CASE TO A JURY.
OPT-OUT. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION ON A RETROACTIVE
BASIS AND AS TO ANY FUTURE CLAIMS, AND YOU HAVE NOT PREVIOUSLY AGREED TO
AN ARBITRATION PROVISION WITH US IN CONNECTION WITH YOUR USE OF OUR
SERVICES, YOU MAY OPT OUT OF THE ARBITRATION AGREEMENT WITHIN THIRTY (30)
DAYS OF ENTERING THIS AGREEMENT BY FOLLOWING THE INSTRUCTIONS PROVIDED
IN THE “BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” – SEE
SECTION 16 OF THESE TERMS, BELOW. OPT-OUT REQUESTS SENT AFTER THE THIRTY
(30) DAY PERIOD SHALL BE NULL AND VOID. EVEN IF YOU OPT OUT OF THE
ARBITRATION AGREEMENT, ALL OTHER REMAINING SECTIONS OF THESE TERMS
APPLY.
IT IS AN EXPRESS CONDITION OF THIS AGREEMENT THAT ANY CLAIMS YOU MAY HAVE
AGAINST POWERRUP ARISING FROM ANY PAST, PRESENT OR FUTURE USE OF
TRACKING SOFTWARE, INCLUDING BUT NOT LIMITED TO USE OF A META PIXEL,
“COOKIES,” “GET REQUESTS” OR JAVASCRIPT IN HTML CODE OF POWERRUP WEBSITE
THAT INTERCEPTS, TRACKS, STORES, AND ANALYZES YOUR INTERACTIONS WITH
POWERRUP’S WEBSITE FOR PURPOSES OF OBTAINING DATA OR TARGETED
ADVERTISEMENT ARE HEREBY FULLY WAIVED, RELEASED AND COMPROMISED.
POWERRUP SHALL HAVE NO LIABILITY TO YOU FOR ANY PAST CLAIMS ARISING OUT OF
OR RELATED TO THE USE OF TRACKING TECHNOLOGY.
Acceptance of Terms. You represent and warrant that You have the right, authority, and
capacity to accept these Terms and to abide by them, that You are of legal age and that You
have fully read and understood the Terms. You must read these Terms carefully in their
entirety before checking the box for acceptance of these Terms. By using, or otherwise
accessing the Service, or clicking to accept or agree where that option is made available,
You confirm that you have read and agree to these Terms. If you do not agree to these Terms,
then you may not access or use the Service. All of your activity on the Website or Platform
and all or your transactions with PowerrUp, including all events which occurred before your
acceptance of these Terms, shall be subject to these Terms.
The Service is not sponsored, endorsed, or administered by, or associated with Apple®,
Facebook® or Google®. You understand that you are providing your information to PowerrUp
only and not to Apple®, Facebook® or Google®.
1. Changes to Terms of Service and Incorporated Policies
1.1 From time to time, We may modify or amend these Terms. If We do so, any
such modifications or changes shall be reflected in the Terms or Incorporated Policies, as
applicable, on the Site. We may also, but shall not be required to, notify You by email
regarding any material changes to the Terms or Incorporated Policies. Whether You receive
or review such notifications, You agree that You will be bound by any such changes and that
it shall be Your responsibility to check the Terms Of Service, including the Incorporated
Policies, as posted on the Site prior to accessing the Site or partaking in any Service. Your
further use of the Service after any changes are posted shall constitute further consent and
agreement to the terms as changed or amended.
1.2 If You have any questions about these Terms or the Incorporated Policies,
please contact customer support at contactus@powerrup.com
1.3 In the event of any conflict between the Terms and the Incorporated Policies,
the Terms shall control.
2. PowerrUp Service Overview: PowerrUp is in the business of, among other things,
collecting, on behalf of owners (“Hosts”) of charging stations for electric vehicles, fees
charged to users by such Hosts for access to their charging stations.
3. PowerrUp Account: This Agreement accompanies and is part of each PowerrUp
account (each, a “PowerrUp Account”). By opening a PowerrUp Account, you acknowledge
and consent to the terms of this Agreement and the applicable Program Terms, which shall
govern your use of PowerrUp’s mobile application. To the extent there is a conflict between
this Agreement and any Program Terms, the Program Terms shall control as it relates to
your participation in the Program.
You Agree to:
1. Session Fees:
- Pay all the fees (“Session Fees”) for access to a charging station initiated by you, in any
manner, including, without limitation, remotely by a customer service agent at your request
or using an application embedded in any smartphone or similar technology.
- Promptly review your statement and notify PowerrUp Customer Service of any questions
regarding Session Fees. Fees not questioned within 30 days of notice will be deemed valid.
- Promptly update online any changes to your name, email address, mailing address,
telephone number, and any applicable credit card information, including, without
limitation, the applicable credit card number, expiration date, and billing address when that
new information is first known. (See contact information below). You remain liable for all
Session Fees billed to your account until you have notified PowerrUp Customer Service of
any changes or until you have canceled your account.
Note: This Section 3.1 does not apply to Organization Users. “Organization User” is a
PowerrUp Account user whose Sessions Fees will be paid via an authorized third party
(e.g., fleet management company, payment provider, etc.) under a separate written
agreement with PowerrUp (“Third Party Payment Provider”).
3. Unless otherwise expressly authorized by PowerrUp in a separate written agreement, use
the Service only for personal, non-commercial purposes.
4. Obey all applicable laws and regulations, as well as any policies and rules of the owner
of the PowerrUp Enabled Charging Station and/or the owner of the property on which the
PowerrUp Enabled Charging Station is located.
Note: This Section 4 does not apply to Organization Users.
Minimum Account Balances, Fees and Charges; Cancellation: Although PowerrUp takes a
credit card number when you apply for a PowerrUp Account, your credit card will not be
charged until the first time you use a PowerrUp Enabled Charging Station that requires
payment. Except as otherwise set forth in applicable Program Terms, at that time, your
account will be charged an initial prepaid balance in the amount of ten dollars ($10.00) and
the session fees associated with your charging session will be deducted from that balance.
In addition, you authorize PowerrUp to, from time to time, replenish your account, through
a charge to your credit card, in an amount equal to the greater of (i) ten dollars ($10.00) or
(ii) your average monthly fees, each time your account balance falls below the
replenishment threshold (currently $5.00), until you have notified PowerrUp Customer
Service of any changes to your PowerrUp Card(s) or until cancellation of your PowerrUp
Account. To avoid additional charges on your PowerrUp Account, you must notify PowerrUp
Customer Service or cancel your PowerrUp Account prior to the next charge. You may
cancel your PowerrUp Account by e-mailing contactus@powerrup.com
You agree that your replenishment amount and replenishment threshold are both subject
to change based on your average monthly usage.
You agree to waive all interest or other benefits, if any, which may accrue on any prepaid
balances in your PowerrUp Account. In the event that the balance in your PowerrUp
Account cannot be replenished because payment on your credit card is declined, or in the
event of any other failure by you to maintain the required balance or properly maintain your
account, PowerrUp may close your account and, in the case of any negative account
balance, institute collection proceedings in order to collect any unpaid balance and, at
PowerrUp’s sole option, all fees, costs, or other expenses (including, without limitation,
reasonable attorneys’ fees) incurred by PowerrUp in connection with its collection ejorts.
Note: This Section 5 does not apply to Organization Users.
Recurring Fees; Cancellation: If you create a PowerrUp Account, then you authorize
PowerrUp or its third-party payment processors to periodically charge, on a going-forward
basis and until you have notified PowerrUp Customer Service of any changes to your
PowerrUp Account or until cancellation of your PowerrUp Account, all accrued sums set
forth in Section 5 or elsewhere in these Terms. To avoid additional charges on your
PowerrUp Account, you must notify PowerrUp Customer Service or cancel your PowerrUp
Account prior to the next charge. You may cancel your PowerrUp Account by e-mailing
contactus@powerrup.com
Note: This Section 6 does not apply to Organization Users.
**Account Suspension:** In the event that the balance in your PowerrUp Account cannot
be replenished because payment on your credit card is declined, or in the event of any
other failure by you to maintain the required balance or properly maintain your account,
PowerrUp may close your account and, in the case of any negative account balance,
institute collection proceedings in order to collect any unpaid balance and, at PowerrUp’s
sole option, all fees, costs, or other expenses (including, without limitation, reasonable
attorneys’ fees) incurred by PowerrUp in connection with its collection ejorts.
Communications:
1. Push Notifications: When you install our app on your mobile device, you agree to receive
push notifications, which are messages an app sends you on your mobile device when you
are not in the app. You can turn oj notifications by visiting your mobile device’s “settings”
page.
2. Email: We may send you emails concerning our products and services, as well as those
of third parties. You may opt out of promotional emails by following the unsubscribe
instructions in the promotional email itself.
Using the PowerrUp Website or Mobile Applications: You may access and use PowerrUp’s
website and mobile applications to obtain information regarding PowerrUp Enabled
Charging Station locations, trip mapping, and other content and features that PowerrUp
may make available subject to your full compliance with these Terms and PowerrUp’s
website terms and conditions. You are responsible for all use of the PowerrUp website and
mobile apps under your username. You acknowledge and agree that PowerrUp may modify
the PowerrUp website terms and conditions and/or these Terms in any way and at any time,
with or without notice. You further acknowledge and agree that, while PowerrUp has
attempted to provide accurate information on the PowerrUp website and mobile apps,
such information may change frequently, and in no event will PowerrUp be responsible for
the accuracy, usefulness, or completeness of any information, materials, or other content
on the PowerrUp website or mobile apps, or that any such information, materials, or other
content is the most up-to-date.
Licenses
1. Limited License: Subject to your complete and ongoing compliance with these Terms,
PowerrUp grants you a limited, non-exclusive, non-transferable, non-sublicensable,
revocable license to access and use the Service and, unless otherwise expressly
authorized by PowerrUp in a separate written agreement, solely for your personal and non-
commercial purpose.
2. License Restrictions: Except and solely to the extent such a restriction is impermissible
under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly
perform, or create derivative works of the Service; (b) make modifications to the Service; (c)
decompile, disassemble, reverse engineer, or otherwise derive the source code of the
Service (except to the extent such actions cannot be prohibited under applicable law and
then, only to the extent required); or (d) interfere with or circumvent any feature of the
Service, including any security or access control mechanism. If you are prohibited under
applicable law from using the Service, then you may not use it.
3. Ownership; Proprietary Rights: The Service is owned and operated by PowerrUp. The
visual interfaces, graphics, design, compilation, information, data, computer code
(including source code or object code), products, software, services, and all other
elements of the Service provided by PowerrUp (“Materials”) are protected by intellectual
property and other laws. All Materials included in the Service are the property of PowerrUp
or its third-party licensors. Except as expressly authorized by PowerrUp, you may not make
use of the Materials. There are no implied licenses in these Terms, and PowerrUp reserves
all rights to the Materials not granted expressly in these Terms.
4. Feedback: If you choose to provide input and suggestions regarding existing
functionalities, problems with, or proposed modifications or improvements to the Service
(“Feedback”), then you hereby grant PowerrUp an unrestricted, perpetual, irrevocable,
non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any
manner and for any purpose, including to improve the Service and create other products
and services. We will have no obligation to provide you with attribution for any Feedback
you provide to us.
Ojers from PowerrUp Partners: From time to time, you may receive ojers through
PowerrUp from other organizations. Acceptance and performance under those ojers are
strictly between you and those organizations. PowerrUp does not assume responsibility for
any performance by these organizations, and you agree to look solely to them, and to
release PowerrUp from any liability, with respect to any ojers you accept. These
organizations conduct business for themselves and are not part of the PowerrUp 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 ojered, what is expected of you, and what
may be done with any personally identifying information you provide to them.
Termination: Either Party (or in the case of Organization Users, Third Party Payment
Provider) may terminate this Agreement at any time and for any reason. You may terminate
your account and these Terms at any time by contacting customer service at
contactus@powerrup.com. If PowerrUp requests, or if you wish to terminate this
Agreement, you must notify PowerrUp Customer Service. Except as otherwise set forth in
applicable Program Terms, upon termination, your prepaid account balance will be
refunded to the credit card on file with your account within thirty (30) days of PowerrUp’s
receipt of your termination. Following any termination, you remain responsible for
payments owed under this Agreement. If your account balance is insujicient to cover
outstanding charges, you will remain liable for all such amounts. If such unpaid charges are
not promptly remitted, you may become liable for additional service charges, fines, or
penalties, and you may be subject to collection actions for any unpaid balance.
Modification of the Service: PowerrUp reserves the right to modify or discontinue all or any
portion of the Service at any time (including by limiting or discontinuing certain features of
the Service), temporarily or permanently, without notice to you. PowerrUp will have no
liability for any change to the Service, including any paid-for functionalities of the Service,
or any suspension or termination of your access to or use of the Service. If PowerrUp
makes any modifications to your PowerrUp Account, which we reserve the right to do at any
time, PowerrUp will use commercially reasonable ejorts to provide written notification
(e.g., online notification). You will be deemed to have received such notice ten (10) days
after that notice is provided or published. Such changes will not be ejective with respect to
you unless you use the Service after the deemed notice date. You agree that all changes
become applicable to you when you use the Service after that date.
Third-Party Websites: The Service may contain links to third-party websites. Linked
websites are not under PowerrUp’s control, and PowerrUp is not responsible for their
content. Please be sure to review the terms of use and privacy policy of any third-party
services before you share any content or information with such third-party services. Once
sharing occurs, PowerrUp will have no control over the information that has been shared.
Indemnity: To the fullest extent permitted by law, you are responsible for your use of the
Service, and you will defend and indemnify PowerrUp, its ajiliates, Hosts and Program
Partners, and their respective shareholders, directors, managers, members, ojicers,
employees, consultants, and agents (together, the “PowerrUp Entities”) from and against
every claim brought by a third party, and any related liability, damage, loss, and expense,
including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized
use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any
representation, warranty, or agreement referenced in these Terms, or any applicable law or
regulation; (3) your violation of any third-party right, including any intellectual property right
or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue
between you and any third party. We reserve the right, at our own expense, to assume the
exclusive defense and control of any matter otherwise subject to indemnification by you
(without limiting your indemnification obligations with respect to that matter), and in that
case, you agree to cooperate with our defense of those claims.
Disclaimer of Warranties:
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE
ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. POWERRUP DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE
AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a)
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING
OUT OF COURSE OF DEALING, USAGE, OR TRADE. POWERRUP DOES NOT WARRANT
THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT
OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF
ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND POWERRUP DOES NOT
WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
THE SERVICE OR POWERRUP ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE
THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE
POWERRUP ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE
AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE
THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK,
AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY
(INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH
THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE
FULLEST EXTENT PERMITTED BY LAW. POWERRUP DOES NOT DISCLAIM ANY WARRANTY
OR OTHER RIGHT THAT POWERRUP IS PROHIBITED FROM DISCLAIMING UNDER
APPLICABLE LAW.
Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE POWERRUP
ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR
ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR
USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR
CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT
(INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR
NOT ANY POWERRUP ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTIONS 3 AND 18.4 AND TO THE FULLEST EXTENT PERMITTED
BY LAW, THE AGGREGATE LIABILITY OF THE POWERRUP ENTITIES TO YOU FOR ALL
CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY
PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU
HAVE PAID TO POWERRUP FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS
PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES
ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS
AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH
OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS
OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED
REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS,
LIMITATIONS, AND RELEASES MAY NOT APPLY TO YOU.
BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION & CLASS ACTION WAIVER AGREEMENT (THE
“AGREEMENT”) CAREFULLY BECAUSE IT MAY REQUIRE YOU AND POWERRUP TO
ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS ONLY AND
LIMITS THE MANNER IN WHICH YOU AND POWERRUP CAN SEEK RELIEF FROM EACH
OTHER. THIS AGREEMENT APPLIES TO ANY CLAIMS YOU MAY CURRENTLY POSSESS
AND ANY CLAIMS YOU MAY RAISE IN THE FUTURE. WHILE YOU MUST AGREE TO THESE
TERMS OF USE IN ORDER TO USE THE SERVICES, IF YOU HAVE NOT PREVIOUSLY
AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR
SERVICE, THERE IS AN OPTION, DESCRIBED BELOW, TO OPT OUT OF THE
ARBITRATION AND CLASS WAIVER PROVISIONS. THE OPTION TO OPT-OUT IS TIME-
LIMITED TO THIRTY (30) DAYS OF ENTERING THIS AGREEMENT AND REQUIRES YOUR
IMMEDIATE ATTENTION.
If you reside in or access the Service at any time while located in the United States, this
Section (Binding Arbitration Agreement and Class Action Waiver Agreement) shall be
construed under and be subject to the Federal Arbitration Act, notwithstanding any
other choice of law set out in these Terms of Service.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION WHICH SETS FORTH HOW
PAST, PENDING OR FUTURE DISPUTES BETWEEN YOU AND POWERRUP SHALL BE
RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS ONLY AND
FOR YOUR OWN LOSSES ONLY.
UNDER THIS AGREEMENT, YOU MAY NOT PROCEED AS A CLASS REPRESENTATIVE, AS
A MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION OR MASS
ARBITRATION, AS A PRIVATE ATTORNEY GENERAL, QUI TAM ACTION OR UNDER ANY
REPRESENTATIVE PROCEEDING, AND YOU MAY NOT OTHERWISE SEEK TO RECOVER
ON BEHALF OF OTHERS OR FOR THE USE OR BENEFIT OF OTHERS IN ANY TYPE OF
CLAIM OR ACTION. YOU AND POWERRUP FURTHER AGREE THAT ANY ARBITRATION
PURSUANT TO THIS AGREEMENT SHALL NOT PROCEED AS A CLASS, GROUP OR
REPRESENTATIVE ACTION.
ARBITRATION MEANS YOU WILL NOT BE ABLE TO SEEK DAMAGES IN COURT OR
PRESENT YOUR CASE TO A JURY.
Acceptance of Terms. By using, or otherwise accessing the Service, or clicking to accept or
agree to the Terms where that option is made available, you confirm that you have read and
accept and agree to this Agreement. Except to the extent that you may opt-out as provided
below, all of your activity on the Website or Platform and all or your transactions with
PowerrUp, including all events which occurred before your acceptance of this Agreement,
shall be subject to this Agreement.
Scope of Agreement to Arbitrate. You and PowerrUp agree that any past, pending, or future
dispute, claim or controversy arising out of or relating to any purchase or transaction by you,
your access to or use of any Platform or the Service, or to this Agreement, the Terms of Use,
or Privacy Policy (including without limitation any dispute concerning the breach,
enforcement, construction, validity, interpretation, enforceability, or arbitrability of this
Agreement or the Terms of Use) (a “Dispute”), shall be determined by arbitration, including
claims that arose before acceptance of any version of this Agreement. In addition, in the
event of any Dispute concerning or relating to this Agreement — including the scope,
validity, enforceability, or severability of this Agreement or its provisions, as well as the
arbitrability of any claims—you and PowerrUp agree and delegate to the Arbitrator the
exclusive jurisdiction to rule on their own jurisdiction over the Dispute, including any
objections with respect to the scope, validity, enforceability, or severability of this
Agreement or its provisions, as well as the arbitrability of any claims or counterclaims
presented as part of the Dispute.
Notwithstanding the above provision and Agreement to Arbitrate, all parties retain the right
to seek relief in a small claims court for disputes or claims solely within the scope of a small
claim’s court jurisdiction.
Lack of Estoppel or Preclusive Effect. The parties agree that any issues determined in
arbitration or any other proceeding between the parties shall be conducted and decided for
the benefit of the parties or express third-party beneficiaries only and shall have no
preclusive or estoppel effect against a party in any subsequent or other arbitration or
litigation matter, such that all issues shall be decided anew in any subsequent or other
proceedings involving either party. The parties reach this agreement in order to narrowly and
efficiently tailor their legal positions without concern that any third party may attempt to
offensively use any finding or determination of fact or law against You or PowerrUp.
Third-Party Beneficiaries. You further agree and intend that this Agreement and the Terms
are entered into for the express benefit of your spouse, heirs, children and next-of-kin and
shall bind same to the extent of any claims arising from your use of the Service which is
brought by them or by any person for the use or benefit of your spouse, heirs, children and
next-of-kin. PowerrUp agrees also that this Agreement is intended to benefit and shall bind
any successor-in-interest or assignee of PowerrUp.
Intellectual Property. Notwithstanding the requirement to arbitrate in this Section 16, you
and PowerrUp are NOT required to arbitrate any claims for the alleged unlawful use of
copyrights, trademarks, trade names, trade dress, logos, trade secrets, or patents, and the
parties agree that in the event of infringement of copyrights, trademarks, trade names, trade
dress, logos, trade secrets, or patents of a party, they shall also be entitled to seek injunctive
relief from a court of competent jurisdiction, and the parties shall not be able to hold out a
user’s access to the Service as a basis to enforce this arbitration agreement as to such
claims.
Separate Agreement. The parties acknowledge that this Agreement is a separate
agreement between the parties governed by the Federal Arbitration Act, and that any
alleged or determined invalidity or illegality of all or any part of the Terms of Use, the
Service, the Platform, or the Privacy Policy shall have no eject upon the validity and
enforceability of this Agreement.
Applicable Law. While the Federal Arbitration Act shall control, to the extent the law of any
state is applied or considered with respect to issues bearing upon the enforceability or scope
of this Agreement, the parties agree that the law of the State of Delaware shall exclusively
apply, notwithstanding any consideration or application of choice of law or conflicts of law
principles.
INITIATING ARBITRATION UNDER JAMS RULES
Following the conclusion of the initial dispute resolution process required by Section 15,
you or PowerrUp may seek arbitration of a Dispute in accordance with the provisions of this
Agreement. You and PowerrUp agree that JAMS (“JAMS”) will administer the arbitration
under its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) in eject at the
time arbitration is sought (“JAMS Rules”). The parties further agree that, to the extent
applicable, the JAMS Mass Arbitration Procedures and Guidelines shall apply. The JAMS
Rules referenced above are available at https://www.jamsadr.com/adr-rules-procedures/.
You and PowerrUp further agree:
Arbitration will proceed on an individual claim basis only.
The arbitration will be handled by a sole arbitrator. The parties agree that the JAMS arbitrator
must have the following minimum qualification: practicing attorneys or retired federal court
judges who have at least ten years of substantive expertise in litigating and resolving of
complex business disputes, including motions to compel arbitration and litigation or
adjudication regarding whether disputes are arbitrable;
For purpose of Sections 16.1 and 16.2 of the JAMS Rules, the JAMS Streamlined Arbitration
Rules and Procedures and JAMS Expedited Procedures shall not apply to unless otherwise
explicitly agreed to by all parties to the Dispute;
In lieu of JAMS Rule 15, the parties shall be presented with a list of eight (8) potential
arbitrators, be allowed three (3) strikes and the parties shall rank those potential arbitrators
in order of preference. JAMS shall select the arbitrator with the highest combined preference
(e.g., if both parties select a potential arbitrator as their top preference, that arbitrator will be
selected);
In lieu of JAMS Rule 18, the parties shall have the right to submit a dispositive motion at the
outset of the arbitration to the Arbitrator. The submission and scheduling of such motions
shall be addressed at a conference held before the JAMS arbitrator, and the Parties agree
that any dispositive motions shall be resolved, and the remainder of the arbitral proceeding
stayed pending resolution, absent good cause and immediate necessity to proceed.
Unless and only to the extent prohibited under JAMS Rules, the arbitration will be held in
Wilmington, Delaware or, at either your or our election, will be conducted telephonically or
via other remote electronic means;
The JAMS Rules will govern payment of all arbitration fees, currently available at
https://www.jamsadr.com/arbitration-fees, You will only be required to pay arbitration fees
of $250 in connection with any arbitration initiated under this Section 16, but You will still be
responsible for paying your own attorneys’ fees;
Except as otherwise waived or limited under the Terms or this Agreement, the JAMS arbitrator
shall be authorized to award any remedies, including equitable or injunctive relief, that
would be available in an individual lawsuit except:
In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not
empowered to award punitive or exemplary damages, and the parties waive any right
to recover any such damages; and
In any arbitration arising out of or related to this Agreement, the arbitrator(s) may not
award any incidental, indirect or consequential damages, including damages for lost
profits;
The arbitration decision and award shall consist of a written statement signed by the
Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim.
Unless the parties agree otherwise, the award shall be a reasoned award and contain a
concise written statement of the reasons for the award;
Except as and to the extent otherwise may be required by law, the arbitration proceeding,
pleadings, and any award shall be treated as confidential and shall not be used by the parties
except as may be necessary in connection with a court application for a preliminary remedy,
a judicial challenge to an award or its confirmation and enforcement.
In the event JAMS is unavailable or unwilling to hear the dispute in accordance with this
Agreement, the parties shall agree to, or a court shall select, another arbitration provider
subject to the procedural agreements of this Section 16; and
You and PowerrUp agree that any award issued by the Arbitrator in excess of $50,000 in
favor of either party, or any award which grants any form of declaratory or equitable relief
that would significantly impact other PowerrUp users or the operation of the Platform, may
be appealed in accordance with the JAMS Optional Arbitration Appeal Procedures at either
party’s election. The JAMS Optional Arbitration Appeal Procedures are available at
https://www.jamsadr.com/adr-rules-procedures/.
Batch Arbitration. To increase ejiciency of resolution, in the event 20 or more similar
arbitration demands against PowerrUp, presented by or with the assistance of the same law
firm or organization or group of law firms or organizations working in coordination, are
submitted to JAMS in accordance with the rules described above within a 60-day period,
JAMS shall consolidate those arbitrations as contemplated in the JAMS Rules by (a) grouping
the arbitration demands into batches of no more than 25 demands per batch (plus, to the
extent there are fewer than 25 arbitration demands left over after the batching described
above, a final batch consisting of the remaining demands); and (b) providing for resolution of
each batch as a single arbitration with one set of filing and administrative fees and one
arbitrator assigned per batch. For avoidance of doubt, consolidation does not require that
all arbitrations in a single batch be decided the same, nor does it impair your right to present
any evidence or argument that you think particular to your case, so long as consistent with
JAMS Rules. You agree to cooperate in good faith with PowerrUp and JAMS to implement
such a batch approach to resolution and fees.
By signing a demand for arbitration, a party certifies, to the best of their knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances, that:
(i) the demand for arbitration is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii)
the claims and other legal contentions are warranted by existing law or by a non-frivolous
argument for extending, modifying, or reversing existing law or for establishing new law; and
(iii) the factual contentions have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or
discovery. The Arbitrator shall be authorized to ajord any relief or impose any sanctions
available under Federal Rule of Civil Procedure 11 or any applicable state law for either
party’s violation of this requirement.
OPTION AND PROCEDURE TO OPT OUT OF ARBITRATION
IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN
CONNECTION WITH YOUR USE OF OUR SERVICE, YOU MAY OPT OUT OF THE
AGREEMENT TO ARBITRATE BY FOLLOWING THE INSTRUCTIONS BELOW. IF YOU DO NOT
OPT-OUT, THE ARBITRATION PROVISIONS WILL APPLY RETROACTIVELY TO ALL CLAIMS
YOU MAY POSSESS, WHETHER ASSERTED TO DATE OR NOT.
OPT-OUT. IF YOU DO NOT WISH TO AGREE TO THE PROVISIONS OF THIS SECTION 16
AGREEMENT REQUIRING ARBITRATION AND CLASS ACTION WAIVER AND YOU HAVE
NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH
YOUR USE OF OUR SERVICE, YOU MUST, WITHIN THIRTY (30) DAYS OF ENTERING THIS
AGREEMENT, SEND AN EMAIL TO CONTACTUS@POWERRUP.COM WITH THE SUBJECT
“OPT-OUT”. **REQUESTS TO OPT OUT AFTER THE 30 DAY PERIOD SHALL NOT BE
EFFECTIVE.
Whether to agree to arbitration is an important decision. It is your decision to make and you
are not required to rely solely on the information provided in these terms of use. You should
take reasonable steps to conduct further research and to consult with counsel (at your
expense) regarding the consequences of your decision.
WAIVER OF CLASS RELIEF AND COLLECTIVE ACTION
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR
POWERRUP SHALL BE ENTITLED TO BRING, CONSOLIDATE, JOIN OR COORDINATE
DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY
COLLECTIVE ARBITRATION OR ARBITRATE OR LITIGATE ANY DISPUTE IN A
REPRESENTATIVE CAPACITY. YOU MAY ONLY ARBITRATE OR LITIGATE ON AN
INDIVIDUAL BASIS ONLY AND FOR YOUR OWN LOSSES ONLY. UNDER THIS AGREEMENT,
YOU MAY NOT PROCEED IN ARBITRATION OR COURT AS A CLASS REPRESENTATIVE,
MEMBER OR PART OF ANY PROPOSED CLASS, COLLECTIVE ACTION OR MASS
ARBITRATION, PRIVATE ATTORNEY GENERAL SUIT, QUI TAM ACTION OR ANY
REPRESENTATIVE PROCEEDING, OR OTHERWISE SEEK TO RECOVER ON BEHALF OF
OTHERS OR FOR THE BENEFIT OR USE OF OTHERS IN ANY TYPE OF CLAIM OR ACTION.
YOU AND POWERRUP ARE EACH WAIVING RESPECTIVE RIGHTS TO PARTICIPATE IN A
CLASS ACTION. BY ACCEPTING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO
PARTICIPATE IN ANY PAST, PENDING OR FUTURE CLASS ACTION OR ANY OTHER
CONSOLIDATED OR REPRESENTATIVE PROCEEDING, INCLUDING ANY PROCEEDING
EXISTING AS OF THE DATE YOU AGREED TO THIS AGREEMENT.
Severability. This Agreement applies solely to the extent permitted by law. If for any reason
any provision of this Agreement or portion thereof, is found to be unlawful, void, or
unenforceable, that part of this Agreement will be deemed severable and shall not aject the
validity and enforceability of the remainder of this Agreement which shall continue in full
force and eject. To the fullest extent allowable by law and equity, the parties agree that any
such provision may be blue-penciled or otherwise construed by the forum presiding over any
dispute to give eject to the intent of the parties and consistent with the overall purpose and
intent of the agreement and may be deemed replaced by an enforceable provision that
comes closest to the intention underlying the unenforceable provision.
END OF SECTION 16 ARBITRATION AGREEMENT
Waiver of Jury Trial
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE PLATFORM OR SERVICES OR ANY
TRANSACTIONS BETWEEN THE PARTIES, WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY
Miscellaneous
Entire Agreement. These Terms constitute the entire agreement between You and us with
respect to Your use of the Service and supersede all prior or contemporaneous
communications and proposals, whether electronic, oral or written, between You and us
with respect to Your participation.
Governing Law: Subject to the Arbitration Agreement contained in this Section which is
governed by the Federal Arbitraiton Act, the parties agree that these Terms and the related
Service are governed by and shall be construed in accordance with the laws of the State of
State of Delaware, excluding the provisions of the United Nations Convention on Contracts
for the International Sale of Goods and any conflict of law provisions that would require
application of another choice of law. Any dispute arising from or relating to this Agreement
shall be arbitrated in Delaware.
Communications:
- Email: contactus@powerrup.com
- Website: www.powerrup.com
Intellectual Property
These Terms confer only the right to use the Service and they do not convey any rights of ownership
in or to the Service.
All rights, title and interest, including without limitation any copyright, patent, trade secret or other
intellectual property right in the Service will remain our sole property or where licensed from a third
party their sole property.
Notwithstanding anything to the contrary in these terms, You acknowledge and agree that You shall
have no ownership or other property interest in the User Account, and You further acknowledge and
agree that all rights in and to the User Account are and shall forever be owned by and inure to the
benefit of us.
Limitation of Liability and Indemnification
Limitation of Liability.
BY ACCESSING, USING OR DOWNLOADING
THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT SUCH USE IS
AT YOUR OWN RISK AND THAT NEITHER THE COMPANY NOR ANY OF
THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING
THE SERVICES OR THE COMPANY OR ANY OF THEIR AFFILIATES,
SUBSIDIARIES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS,
CONSULTANTS, SUPPLIERS, ADVERTISERS, PAYMENT SERVICES
PROMOTERS, PARTNERS, OR CONTRACTORS (COLLECTIVELY
“RELEASED PARTIES”) ARE LIABLE FOR ANY DIRECT, INCIDENTAL,
CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, OR
ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA,
LEGAL FEES, EXPERT FEES, COST OF PROCURING SUBSTITUTE
SERVICES, LOST OPPORTUNITY, OR OTHER DISBURSEMENTS)
WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, THROUGH THE
ACCESS TO, USE OF, RELIANCE ON ANY MATERIAL OR CONTENT ON
THE SERVICES, OR BROWSING OF THE SERVICES OR THROUGH
YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES,
VIDEO OR AUDIO FROM THE SERVICES, SPECIFICALLY INCLUDING
ANY PAST, PRESENT OR FUTURE USE OF “COOKIES”, “GET
REQUESTS,” PIXELS AND OTHER TRACKING TECHNOLOGY, EVEN IF
WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE
TOTAL LIABILITY OF THE RELEASED PARTIES TO YOU IN CONTRACT, TORT,
NEGLIGENCE OR OTHERWISE, FOR ANY LOSS OR DAMAGE WHATSOEVER
ARISING FROM ANY CAUSE, WHETHER DIRECT OR INDIRECT, OR FOR ANY
AMOUNTS EXCEED THE TOTAL AMOUNT YOU HAVE PAID THE COMPANY IN
THE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST
ASSERT ANY SUCH CLAIM.
RELEASED PARTIES CANNOT AND DO NOT WARRANT OR GUARANTEE
CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICES.
WITHOUT LIMITING THE FOREGOING, RELEASED PARTIES ASSUME NO
RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY DAMAGES RELATING
TO OR CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OF ANY
COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM
MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN
COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS ON ACCOUNT OF
YOUR ACCESS TO OR USE OF THE SERVICES.