Last Revised: February 15, 2024
BEFORE USING THE APP, PLEASE READ THIS AGREEMENT CAREFULLY. BY USING THE APP OR OUR STATIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PROVISIONS OF SECTION 18 WHICH REQUIRE ARBITRATION OF CERTAIN CLAIMS AND RESTRICT CLASS ACTION CLAIMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU ARE NOT AUTHORIZED TO USE THE APP OR THE STATIONS.
You may only create an App account or otherwise use the App if you are a driver of an electric vehicle equipped with the Company’s battery swapping technology that has been provided to you by a fleet operator or other business entity that has entered into a contract with the Company a (“Fleet Company”) for use of the Stations in connection with such electric vehicle (a “Vehicle”). If you are viewing this on the App, you can also view this Agreement via a web browser at https://www.ample.com/legal/terms. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not create an App account or otherwise use the App or the Stations.
Note for Children. Use of the App by anyone under the age of 18 is prohibited.
2. Battery Availability.
The Company operates the Stations, which allow drivers of Vehicles to exchange depleted Ample Batteries for charged batteries (each, an “Ample Battery”). The App allows you to locate Stations near you. You acknowledge that your ability to exchange your Ample Battery at a Station is dependent on a number of factors, including whether the Station has adequate stock of the correct Ample Battery type for your vehicle. You acknowledge and agree that the Company cannot and does not guarantee that any particular Station will have an Ample Battery available for your Vehicle, and that the Company shall not be liable to you for any such unavailability. In addition, you acknowledge that you may be denied an Ample Battery swap if the Fleet Company is not current in all payments owed to the Company in connection with use of Stations, and that the Company shall not be liable to you for any such denial.
3. Station Use.
You agree to follow all instructions and guidelines provided to you through the App or by Stations personnel in connection with your presence at and use of a Station and you acknowledge that failure to follow such instructions and guidelines may result in your inability to get a new Ample Battery for your Vehicle, bodily injury to you or others, or damage to your Vehicle or other property. You hereby assume all risks and liabilities associated with your failure to follow all such instructions and guidelines. You agree not to interfere with any Station personnel or equipment and agree not to attempt to yourself use any Station equipment unless explicitly instructed to do so through the App or by Station personnel.
4. Battery Use.
You agree not to use any Ample Battery for any purpose other than operation of the Vehicle in which it is installed in accordance with all documentation applicable to the Vehicle and the Ample Battery. All Vehicle batteries are and shall remain the property of the Company, and you agree not to take any action or omission inconsistent with such ownership. You agree not to, not to attempt to and not to permit any third party to: (i) sell, offer to sell, loan, lease or otherwise transfer possession of any Ample Battery to any third party; (ii) remove an Ample Battery from your Vehicle other than removal by the Company at a Station; (iii) open, dismantle, disassemble, damage, attempt to reduce the life of or otherwise tamper with any Ample Battery; (iv) expose any Ample Battery to a direct flame or immerse any Ample Battery in water or other fluids; (v) allow any Ample Battery to be at a zero or near-zero state of charge for more than fourteen (14) days; (vi) expose an Ample Battery to ambient temperatures over 122F for more than 24 hours or below 22F for more than seven (7) days; (vii) repair or otherwise service an Ample Battery or have an Ample Battery repaired or serviced by any person or entity other than an Ample certified technician; or (viii) take any act or omission which reasonably could cause damage to or loss of any Ample Battery. You agree to use all reasonable and due care in connection with Vehicle batteries and your operation of Vehicles.
5. Fleet Companies.
If your vehicle is provided by a Fleet Company, you acknowledge that the Fleet Company is not affiliated with or controlled by the Company, and that the Company is not a party to, and shall not have any liability in connection with, any agreements or transactions between you and the Fleet Company (including any agreements or transactions relating to your Vehicle).
6. Your Account.
You represent and agree that all information you provide to us in connection with the App is true, accurate, current, and complete. You agree not to misrepresent your identity. You agree to keep your App account information secure, up to date and accurate. You also represent and warrant that you are at least eighteen (18) years of age. You acknowledge that all acts and omissions taking place through your App account shall be deemed to be your acts and omissions; as such, you should not share your access credentials. You agree that you will comply with all applicable federal, state and local laws, ordinances and codes and all lawful orders, directives, rules and regulations thereunder in connection with your use of the App and that you will not use the App for any unlawful purpose.
7. Mobile Services.
Use of the App requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
8. Third Party Sites.
The App may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
9. Acceptance of Agreement and Changes.
Your use of the App constitutes your acceptance of this Agreement. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (a) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the App user interface, is sent to the e-mail address associated with your account or otherwise; or (b) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.
Subject to all terms and conditions of this Agreement, the Company hereby grants to you a limited, nonexclusive, nontransferable license (without right to sublicense) to install and use the App in object code form on a compatible device that you own in full compliance with this Agreement and any applicable policies and guidelines made available by Company, solely for your personal use in connection with use of a Vehicle. If you are using the Software on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.
11. Ownership; Restrictions.
You agree that the Company and its licensors and its third party service providers, as applicable, retain all ownership and proprietary rights (including all intellectual property rights) in and to (a) the App and all associated software code, content, technology and websites, and (b) all usage and other data generated or collected in connection with the use of the App (collectively, the “Proprietary Materials”). You have no rights or licenses with respect to the Proprietary Materials except as expressly provided in this Agreement. Without limiting the generality of the foregoing, you may not: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Proprietary Materials; (ii) decompile, reverse engineer, or disassemble the Proprietary Materials or otherwise attempt to discover the source code of the Proprietary Materials; (iii) create derivative works based on the Proprietary Materials; or (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that may appear on the Proprietary Materials or during the use and operation thereof. You are not required to provide any ideas, feedback or suggestions regarding the Proprietary Materials (collectively, “Feedback”) to the Company. To the extent you do provide any Feedback to the Company, you agree to assign and hereby do assign all right, title and interest in and to such Feedback to the Company and acknowledge that the Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to you.
If you use an App on an Apple iOS device, you hereby acknowledge and agree that Apple: (a) is not a party to this Agreement; (b) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (c) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (d) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (e) is, along with each of its subsidiaries, a third party beneficiary of this Agreement with the right to enforce its terms against you directly.
13. Breach; Termination.
If you breach any provision of this Agreement, this Agreement (including all of your rights and licenses with respect to the App) shall immediately terminate without further notice or action. In addition, this Agreement and/or your use of the App may be terminated by the Company at any time, for any reason or for no reason, and with or without notice. Note that deletion of the App does not cause your App account to be deleted. If you want your account deleted, you may send us a request for deletion of your account information to email@example.com. Such requests will be honored within a reasonable time period after they have been received provided that you give us all reasonably necessary information and cooperation. Certain data may continue to be stored in the Company’s backup systems until regularly scheduled deletions occur. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the App. You agree that any termination of your use of the App or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third-party for any such termination. The provisions of Sections 1, 5, 8, and 11 through 20 shall survive any termination of this Agreement.
You agree to defend, indemnify and hold harmless the Company and its third party service providers, and each of their affiliates, officers, directors, employees and agents from and against any and all claims, suits, actions, liabilities, damages, losses or expenses, including settlement amounts and reasonable attorneys’ fees and costs, arising out of or in any way connected with your access to or use of the App or a Station, your violation of this Agreement or your violation of any rights of any third party or any law, rule or regulation, in each case other than any extent to which any of the foregoing arises from the gross negligence or willful misconduct of the Company. The Company or other applicable indemnified party may elect to retain control over the defense and/or settlement of any third party claim, at your expense. You agree that the Company’s third party service providers are a third party beneficiary of all applicable provisions herein, with all rights to enforce such provisions as if such third party service providers were parties to this Agreement.
15. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE APP AND STATIONS, AND ALL INFORMATION, PRODUCTS AND SERVICES YOU MAY RECEIVE IN CONNECTION WITH THE APP ARE PROVIDED AT YOUR SOLE RISK AND ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY, ON BEHALF OF ITSELF AND ITS THIRD PARTY SERVICE PROVIDERS AND LICENSORS, HEREBY DISCLAIMS TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW ALL WARRANTIES OF ANY KIND AS TO THE APP AND STATIONS, THE USE THEREOF AND ALL INFORMATION, PRODUCTS, SERVICES AND OTHER CONTENT INCLUDED IN OR ACCESSIBLE FROM THE APP, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY, AND ITS THIRD PARTY SERVICE PROVIDERS, MAKE NO WARRANTY THAT (a) THE APP OR STATIONS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (b) THE USE OF THE APP OR STATIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE APP WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS, SERVICES OR INFORMATION OBTAINED BY YOU IN CONNECTION WITH THE APP OR STATIONS WILL MEET YOUR EXPECTATIONS, OR (e) ANY ERRORS IN THE APP OR TECHNOLOGY UNDERLYING THE APP WILL BE CORRECTED. NO STATEMENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR ANY COMPANY PERSONNEL THROUGH OR FROM THE APP OR AT ANY STATION WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; IN SUCH EVENT, SUCH EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
16. LIMITATION OF LIABILITY.
YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES, RELATING IN ANY MANNER TO THE APP, STATIONS OR THIS AGREEMENT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES TO YOU RELATING IN ANY MANNER TO THE APP, STATIONS OR THIS AGREEMENT IN EXCESS OF FIFTY U.S. DOLLARS. THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF THE NATURE OF THE CLAIM (CONTRACT, TORT, OR OTHERWISE). YOU STIPULATE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES ARE REASONABLE UNDER THE CIRCUMSTANCES AND ACKNOWLEDGE THAT WITHOUT SUCH EXCLUSIONS AND LIMITATIONS THE COMPANY WOULD NOT MAKE AVAILABLE THE APP. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER SOME CIRCUMSTANCES; IN SUCH EVENT, SUCH EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
17. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the state of California, USA, without giving effect to any principles of conflicts of law. You agree that any action arising out of or relating to this Agreement or the App not subject to arbitration as set forth in Section 18 below shall be filed only in the state or federal courts located in the Northern District of California, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the foregoing, (1) either party may file a claim for relief in small claims court to the extent the claim qualifies and (2) claims solely for injunctive relief may be filed in any court of competent jurisdiction.
18. Arbitration Agreement and Class Action Waiver.
- Agreement to Arbitrate. This Section 18 is referred to herein as the “Arbitration Agreement.” The parties agree that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from App or this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action, provided that (1) either party may seek relief in a small claims court to the extent the claim qualifies and (2) claims solely for injunctive relief may be filed in any court of competent jurisdiction. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. THE COMPANY AND YOU IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER COMPANY OR YOU.
- Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY 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 PARTIES AGREE OTHERWISE, THE ARBITRATOR 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 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).
- U.S. and Canada Arbitration Procedures. If you are resident in the United States or Canada, arbitration will be conducted by a single neutral arbitrator in accordance with the American Arbitration Association’s (“AAA“) Consumer Arbitration Rules (the “AAA Rules“), as modified by this Arbitration Agreement. You can review the AAA Rules at https://adr.org/sites/default/files/Consumer-Rules-Web.pdf If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 16. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise. The language of the arbitration shall be English.
- Other Than U.S. Procedures. If you are resident in any country other than the U.S. or Canada, the arbitration shall be administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules (the “ICDR Rules”) before a single arbitrator chosen in accordance with the International Rules. If there is any inconsistency between the ICDR Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 16. Venue shall be in the nearest major city served by the ICDR to your address. The language of the arbitration shall be English. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
- Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different App users; but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
- Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s or ICDR’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
- Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 18.b is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 18.b is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
- Opt Out. You may opt out of this agreement to arbitrate in this Section 18. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days after the date that you first became subject to this Arbitration Agreement. The opt out notice must state that you do not agree to the agreement to arbitrate and must include your name, address, phone number, your user account to which the opt out applies and a clear statement that you want to opt out of this Arbitration Agreement. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of this Arbitration Agreement. You must use this email address to send your opt-out notice to the Company: firstname.lastname@example.org.
19. Electronic Communications.
You hereby consent to receive communications from the Company electronically in connection with this Agreement and your use of the App, including without limitation legal and regulatory disclosures and communications, notices of disclosures about a change in this Agreement and privacy policies and notices. The Company will communicate with you by email or by posting notices in the App. You agree that all agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications be in writing. In order to receive, access and view electronic communications from us, you must have a valid e-mail account and software that can be used to access it, the App, software that can view PDF files and all computer hardware (including a compatible mobile device) and Internet connectivity necessary to access and use the foregoing. It is your responsibility to keep your App account e-mail address up-to-date so that you are able to receive electronic communications from us. You represent that your computer hardware and software meets the above requirements and that you have provided us with a valid and current e-mail address at which the Company may send you electronic communications. You may update your contact information from within the App if your e-mail address changes. Notwithstanding your agreement and consent to exchange information with us electronically, the Company reserves the right to provide you, and the right to require you to provide us, with a written or paper version of any communication in addition to or instead of the electronic copy thereof in our discretion or as the law may require. The Company also reserves the right to discontinue provision of communications electronically at any time, or to terminate or change the terms and conditions on which the Company provides electronic communications (provided that will give you with prior notice of such termination or change as required by law). You may request a paper record of any electronic communication the Company provides to you within a reasonable time period of such provision by e-mailing us at email@example.com, provided that you must provide us with all mailing address information the Company requests and the provision of such paper record may be subject to payment of a fee where allowed under applicable law. If you at any time wish to withdraw this consent, you may e-mail us at firstname.lastname@example.org, provided that you acknowledge that such action shall constitute a termination of this Agreement and result in the termination of your App account and ability to use the App. You acknowledge and agree that your consent under this Section 19 is being provided by you in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act (the “ESIGN Act”), and that you and Company both intend that the ESIGN Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means.
You may not assign or transfer this Agreement or any rights or license granted hereunder, and any attempted assignment or transfer by you shall be null and void. The Company may freely assign this Agreement. In the event that the application of any provision hereof to any particular facts or circumstances shall be held to be invalid, void or unenforceable, then: (a) such provision shall be reformed without further action by the parties to the extent strictly necessary to render such provision valid and enforceable when applied to such particular facts or circumstances; and (b) the validity and enforceability of such provision as applied to any other particular facts or circumstances, and the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between you and the Company us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this made by the Company as set forth in Section 9 above.
21. Contact Information.
The App is operated by Ample, Inc. Any questions or complaints regarding the App should be addressed to email@example.com.