EVgo shall use commercially reasonable efforts to provide continuous access to the Services and/or (ii) make available the EVgo Charging Stations, in each case pursuant to these Terms. EVgo does not guarantee that the Services will be accessible at all times. The Services may be unavailable during maintenance periods or during an emergency. In addition to normal maintenance, there may be events that will make the Service inaccessible for a limited amount of time due to unforeseen circumstances. EVgo reserves the right to change your password if EVgo believes it is not secure. EVgo has the right to refuse access to the Services. EVgo has right to cease offering the Services at any time and in EVgo’s sole discretion.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ALL OTHER SIMILAR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED WITH RESPECT TO (I) EVGO CHARGING STATIONS AND RELATED EQUIPMENT, (II) INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE SITE, DRIVER PORTAL, OR MOBILE APP, AND (III) THE SERVICES, EXCEPT AS SET FORTH IN THESE TERMS. IN ADDITION, EVGO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE OR OPERATIONAL AT ANY PARTICULAR LOCATION OR AT ANY PARTICULAR TIME, OR THAT THEY WILL BE ERROR-FREE OR VIRUS-FREE. FURTHER, EVGO AND ITS AFFILIATES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED BELOW.
EVGO DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF MERCHANTS OR THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR PRODUCT REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
You are solely responsible for ensuring that your EV’s battery is sufficiently charged to meet your needs and that all charging is done in accordance with the manufacturer’s recommendations regarding the type, frequency and duration of charging.
Your sole and exclusive remedy for any claim arising out of or relating to EVgo’s breach of these Terms or the terms of a Plan shall be for EVgo, upon receipt of written notice, to use commercially reasonable efforts to cure the breach at its expense or, at EVgo’s election, return the fees you paid to EVgo for the Services in the month during which the breach occurred, and, at EVgo’s option terminate the Plan.
Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISIONS OF THE TERMS OF A PLAN TO THE CONTRARY, REGARDLESS OF THE LEGAL OR EQUITABLE BASIS OF ANY CLAIM, IN NO EVENT SHALL EVGO OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THESE TERMS, THE TERMS OF A PLAN, ANY ERRORS IN OR OMISSIONS FROM THE SITE, DRIVER PORTAL, MOBILE APP, OR ANY SERVICES OR PRODUCTS OBTAINABLE THEREFROM, THE UNAVAILABILITY OR INTERRUPTION OF THE SITE, DRIVER PORTAL, MOBILE APP, OR ANY FEATURES THEREOF, YOUR USE OF THE SITE, DRIVER PORTAL, OR MOBILE APP, THE CONTENT CONTAINED ON THE SITE, DRIVER PORTAL, OR MOBILE APP OR ANY DELAY OR FAILURE IN PERFORMANCE BEYOND THE CONTROL OF ANY AFFILIATE, INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM THE PERFORMANCE OR NONPERFORMANCE OF EVGO’S OBLIGATIONS UNDER THESE TERMS OR THE TERMS OF A PLAN, YOUR USE OF ANY EVGO EQUIPMENT, INSTALLATION OF EVGO EQUIPMENT, EVGO’S ACTS OR OMISSIONS RELATED TO A PLAN WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW, BREACH OF CONTRACT, BREACH OF INDEMNITY PROVISIONS, BREACH OF WARRANTY OR ANY OTHER THEORY OR SOURCE WHETHER OR NOT FORESEEABLE AND EVEN IF EVGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU HEREBY RELEASE EVGO FROM ANY SUCH EXCLUDED DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIMIT OF EVGO’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO YOU FOR ANY MATTER RELATED TO THESE TERMS, THE TERMS OF A PLAN, YOUR USE OF EVGO EQUIPMENT, THE INSTALLATION OF EVGO EQUIPMENT, THE MOBILE APP, THE DRIVER PORTAL, AND THE SITE SHALL NOT IN THE AGGREGATE EXCEED THE TOTAL AMOUNT OF THE FEES PAID BY YOU WITH RESPECT TO THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EVGO AND YOU. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, DRIVER PORTAL, MOBILE APP, OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EVGO, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND AGAINST ALL THIRD-PARTY ACTIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, LOSSES, COSTS, DAMAGES, DEFICIENCIES, JUDGMENTS, LIABILITIES, PENALTIES, FINES, ASSESSMENTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS OF LITIGATION) WHICH THEY OR ANY OF THEM SUFFER OR INCUR RESULTING FROM, BY REASON OF, ARISING OUT OF OR IN CONNECTION WITH: (I) PERSONAL INJURY, BODILY INJURY, INCLUDING FATAL INJURY TO, OR LOSS OF OR DAMAGE TO THE PROPERTY OF, ANY PERSON OR ENTITY WHATSOEVER (INCLUDING THE PARTIES HERETO) ARISING OUT OF OR IN CONNECTION WITH YOUR, OR ANYONE USING YOUR ACCESS CREDENTIAL, (II) YOUR NEGLIGENT USE OF THE SERVICES, (III) ANY BREACH BY YOU OF ANY REPRESENTATION, WARRANTY, AGREEMENT, OBLIGATION, OR COVENANT MADE BY YOU TO EVGO INCLUDING IN ANY PLAN, AGREEMENT, CERTIFICATE, DOCUMENT, SCHEDULE, ANNEX, OR OTHER INFORMATION RELATING TO OR DELIVERED PURSUANT HERETO, (IV) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION, OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON AGREEMENT, TORT, OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY YOU, OR (V) YOUR USE OF THE SITE, DRIVER PORTAL, OR MOBILE APP.