WELCOME TO DRIVETHEARC!
These Terms of Service (the “Terms”) govern the access and use by you, an individual, of the DRIVETHEARC mobile software application (the “DRIVETHEARC App”) and website and related content and services (collectively, the “Services”) made available by Kanematsu USA, Inc. (“Kanematsu,” “us” or “we”). PLEASE REVIEW THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. PLEASE ALSO NOTE THE BINDING ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW AS IT AFFECTS HOW DISPUTES WILL BE HANDLED.
LEGALLY BINDING CONTRACT
You acknowledge that the DRIVETHEARC App is currently released in beta form and that the Services are available only in limited geographical areas (currently, parts of Northern California).
Kanematsu may amend these Terms from time to time. Amendments will be effective upon posting such updated Terms and we encourage you to review them. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms as amended. If you do not agree to the updated Terms, you may not continue to access or use the Services and you should cancel your account as described in the “Cancellation” section below, cease use of the Services and delete the DRIVETHEARC App from your mobile device.
User Accounts. In order to use the Services, you must register and maintain a user account (“User Account”) with Kanematsu. Your User Account may be set up after you download the DRIVETHEARC App to your mobile device. You must be at least 18 years of age to obtain a User Account. Registration of a User Account requires you to submit certain personal information, which may include your name, home and/or office address, mobile phone number, email address, charging station network access card number(s) (or other payment method, if applicable) and the expiration date for charging station network access. In addition, if you wish to use the Services in conjunction with the telematics’ system of your Nissan LEAF automobile, you will also be required to submit your Nissan LEAF’s VIN number, NissanConnect’s unit ID, user ID and password (the Services may be expanded in the future to accept inputs from the telematics’ systems of other EV; in that case, you will need to provide your automobile manufacturer’s service ID number and password if you wish to connect your vehicle’s telematics’ system with the DRIVETHEARC App). Upon successful completion of the registration process, you will be issued a DRIVETHEARC Connected Car Services User ID and password. You agree to provide and maintain complete, accurate and updated information in your User Account. You are responsible for all activity that occurs under your User Account. You agree to keep your User ID and password confidential. You may only have one User Account.
Vehicle Registration Changes. If you have provided your vehicle’s VIN number as part of the registration process, we ask that you immediately notify your vehicle’s manufacturer if you sell or transfer your vehicle, end its lease, or your vehicle is scrapped or destroyed. For Nissan LEAF owners which use NissanConnect, you may contact Nissan online at https://owners.nissanusa.com/nowners/. If you sell or transfer your vehicle without notifying your car’s manufacturer and instructing them to delete the registered VIN number, we will have no way of knowing that the vehicle was sold or transferred and we may continue to collect data concerning you. In addition, you will remain responsible for any liability incurred based on your use or misuse of the DRIVETHEARC App. We are not responsible for any privacy-related or other damages you may suffer if you fail to notify us of the sale or transfer of your vehicle or the end of your lease. Whether or not you notify us of the sale or transfer of your vehicle or the end of your lease, you agree that you shall not, nor attempt to, access or use the DRIVETHEARC App or any of the data relating to your vehicle, after the sale, transfer or end of the lease of your vehicle.
The Services are primarily intended to enable drivers of certain electric vehicles (EVs) to (i) identify and offer navigation instructions to participating charging stations depending on the driver’s inputted destination and the charging stations’ near-real time activity levels, (ii) through use of a unique promotional code to be transmitted to the driver via the DRIVETHEARC App, enable the driver to charge the driver’s EV at the participating charging station (any fees for charging will be posted at the charging station and/or indicated in the DRIVETHEARC App), and (iii) [for Nissan LEAF drivers only] connect to Nissan LEAF’s NissanConnect telematics’ systems (including the state-of-charge of the EV battery) in order to select participating charging stations which are within the car’s range (this aspect of the Services may be expanded to other EVs in the future). THE SPECIFIC SERVICES AND THE DRIVETHEARC APP’S FEATURES AND FUNCTIONS MAY CHANGE FROM TIME TO TIME SO PLEASE REFER TO THE DRIVETHEARC APP TO DETERMINE CURRENTLY AVAILABLE SERVICES, FEATURES AND FUNCTIONS.
Please also note the following important points concerning the Services. These points are highlighted here for your convenience only and do not supersede or override any of the other terms and conditions set forth in these Terms.
- Always drive attentively and in accordance with traffic laws and driving conditions. When using the Services, observe all traffic laws and use your own personal judgment in determining whether a particular route or suggested charging station location is safe, legal and suitable. Do not manually input destinations or otherwise use the Services (except through verbal command, when safe and legal to do so) unless the car is stationary and parked or in a safe, legal location.
- The Services rely on data and services provided by third party service providers and applications for mapping, navigation, logistics, charging station location and activity status, wireless data transmission and data storage, and, in the case of Nissan LEAF drivers, telematics data from Nissan’s in-car NissanConnect system (or, if the Services are expanded to cover other EVs, telematics’ data from such other EVs), and the ability to access GPS signals. YOU ACKNOWLEDGE AND AGREE THAT KANEMATSU MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO ANY SUCH SERVICES OR THE ACCURACY OF SUCH DATA OR THE ACCESSIBILITY OF GPS SIGNALS.
- The Services are intended to direct you only to participating EV charging stations. Participating charging stations are limited in number and geographical scope. A list of all participating charging stations is available through the DRIVETHEARC App.
- Information, directions or other data provided through the Services are not intended to replace information provided on the road (such as road signs), by traffic authorities, by police or other law enforcement authorities, by participating charging stations, or through the car’s systems.
- Use of the Services requires an Internet connection. Any associated charges (such as mobile data expenses) are exclusively your responsibility.
- The Services are provided on smartphone or other devices provided by you. We do not guarantee that the Services, or any portion thereof, will function on any particular device, or that there will not be any malfunctions or delays in the Services due to such devices or the use of the internet or electronic communication systems.
- Unless otherwise agreed in writing, the Services are made available to you solely for your personal, non-commercial use.
- Kanematsu may modify or discontinue the Services or any of its features or functionality at any time with or without cause, permanently or temporarily.
- Kanematsu will not be responsible for any failure to provide Services due to any force majeure event including, but not limited to, any act or omission of the wireless carrier or other third party service or product provider or technology, any GPS or other communication failures, any equipment failures or shortages, any acts of nature, labor strikes, war, or any other act or event that is outside of the reasonable control of Kanematsu.
LICENSE; INTELLECTUAL PROPERTY
Subject to your compliance with these Terms, Kanematsu grants you a limited, non-exclusive, non-sublicensable, non-transferrable, revocable license to (i) access and use the DRIVETHEARC App on your personal mobile device solely as permitted in these Terms; and (ii) access and use any content and information made available through the Services solely for your personal, non-commercial use. The DRIVETHEARC App is licensed, not sold. The Services (including the DRIVETHEARC App) and all rights therein are and shall remain the exclusive property of Kanematsu or its licensors. Neither these Terms nor your access or use of the Services grant or convey to you any rights in or related to the Services or the DRIVETHEARC App except for the limited license above nor are you granted any rights to Kanematsu’s trademarks, service marks, company name, product or service names.
RESTRICTIONS ON USE
Without limiting any other restrictions and limitations in these Terms on your use of the Services, you may not: (i) copy, modify, adapt, translate, reverse engineer, decompile, or disassemble the Services or any content appearing therein except as may be permitted by applicable law; (ii) remove any copyright, trademark or other proprietary notices from any portion of the Services; (iii) sell or resell, license, distribute, leases, transfer, publicly display or perform, stream, transmit, broadcast or otherwise exploit the Services except as expressly permitted by Kanematsu in these Terms; (iv) link, frame or mirror any portion of the Services; (v) interfere with or violate any third party or other user’s right to privacy or other rights, including copyrights and any other intellectual property rights of others, (vi) harvest or collect personal information about other users of the Services or engage in any scraping, indexing, surveying or other data mining of the Services; (vii) interfere with or disrupt the operation and/or functionality of the Services or attempt to gain unauthorized access to or impair any aspect of the Services or its associated systems or networks; (viii) use the Services for any illegal, immoral or unauthorized purpose; or (ix) use the Service for non-personal or commercial purposes without Kanematsu’s express prior written agreement. For added clarity, all of (i)-(ix) above apply equally to the DRIVETHEARC App component of the Services.
The Services may permit you to submit, upload or publish content such as feedback, questions or commentary on the Services directed to Kanematsu, its business partners, or other users. Any content you provide will remain your property. You represent and warrant that you are the sole and exclusive owner of such content or have obtained the necessary rights from others and that such content will not: (i) violate, infringe or misappropriate any third party’s intellectual property rights, publicity rights, or privacy; (ii) violate any applicable law or regulation; or (iii) be libelous, hateful, violent, obscene or otherwise offensive as determined by Kanematsu in its sole discretion.
In addition, you grant to Kanematsu and its business partners and affiliates a worldwide, irrevocable, perpetual, transferable, sublicensable, royalty-free license to use, copy, reproduce, modify, create derivative works of, distribute, publicly display or perform, and otherwise use and exploit such user content in all forms and means of distribution without further notice to or consent by you and without any obligation to make payment to you or any other person or entity.
THIRD PARTY DISTRIBUTION PLATFORMS
The Services may be made available, via download to your mobile device or otherwise, through third party distribution services or platforms that Kanematsu does not control. You acknowledge and agree that that different terms of services or use, license agreements, or privacy policies may apply to such third party services or platforms and that Kanematsu is not responsible for such third party services or platforms. If you download or access the Services by means of a DRIVETHEARC App developed for Apple’s IOS operating systems or Google’s Android operating system, Apple, Inc. or Google, Inc., respectively, will be a third party beneficiary to these Terms and accordingly have the right to enforce these Terms against you.
KANEMATSU PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, KANEMATSU MAKES NO REPRESENTATION, WARRANTY OR GUARANTY REGARDING THE SUITABILITY, SAFETY, ACCURACY, RELIABILITY, TIMELINESS, OR SECURITY OF THE SERVICES OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. KANEMATSU DOES NOT WARRANT, ENDORSE OR GUARANTEE ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY MAPS, DRIVING INSTRUCTIONS OR ROUTES OR THE AVAILABILITY OR ACTIVITY LEVEL OF CHARGING STATIONS.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, IN NO CASE SHALL KANEMATSU (INCLUDING ITS AFFILIATES AND ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS AND AGENTS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS OR LOST DATA, WHETHER IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION, ARISING OUT OF OR RELATED TO THE SERVICES (INCLUDING, BUT NOT LIMITED TO, YOUR ACCESS OR INABILITY TO ACCESS THE SERVICES OR THE INTERRUPTION, SUSPENSION, TERMINATION OR FAILURE OF THE SERVICES, IN WHOLE OR PART) AND EVEN IF KANEMATSU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL KANEMATSU’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES, EXPENSES AND CAUSES OF ACTION EXCEED $250 OR THE MAXIMUM AMOUNT PERMITTED BY LAW IF HIGHER.
You agree to indemnify, defend and hold harmless Kanematsu and its affiliates and their officers, directors, shareholders, employees, contractors and agents from any claims, demands, losses, costs, liabilities and expenses (including attorneys’ fees) relating to or arising out of (i) your use, or inability to use, the Services; (ii) your breach or violation of any of these Terms; (iii) your violation of any third party rights or any damages you inflict on any third party in connection with your use of the Services; (iv) Kanematsu’s use of any content you provide; or (v) your violation of any laws or regulations.
You may cancel your User Account and the Services at any time. To cancel your account, please contact us at firstname.lastname@example.org or email@example.com.
Kanematsu may suspend or terminate your User Account or access to the Services at any time, with or without notice, in the event you breach any provision of these Terms or if Kanematsu determines, in its sole discretion, to alter or discontinue the Services.
These Terms are governed by and shall be construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws principles. Notwithstanding the foregoing, the BINDING ARBITRATION; CLASS ACTION WAIVER section below will be governed by the Federal Arbitration Act, without regard to state law.
BINDING ARBITRATION; CLASS ACTION WAIVER
Binding Arbitration. YOU AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION BETWEEN YOU AND KANEMATSU, NOT IN COURT, IN ACCORDANCE WITH THESE TERMS, except that: (i) either party may assert qualifying claims in small claims court, and (ii) Kanematsu may seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement or misappropriation of its intellectual property rights. If for any reason a claim proceeds in court rather than in arbitration, BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Class Action Waiver. BOTH YOU AND KANEMATSU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Both parties further agree that the arbitrator may not: (i) combine more than one individual’s claim(s) into a single case in any manner whatsoever; or (ii) arbitrate any form of a class, collective, or representative proceeding.
Arbitration Procedures and Rules. The arbitration will be conducted in accordance with the American Arbitration Association’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, as modified by these Terms, and the proceedings will be administered by the American Arbitration Association (the “AAA”). A party wishing to commence arbitration proceedings shall provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (For reference, as of the effective date of these Terms, the AAA’s general form Demand for Arbitration (Consumer Arbitration Rules) is available at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820 and the form for use in California is available at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822). Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Kanematsu will reimburse those fees for claims totaling less than $7,500, unless the arbitrator determines the claims are frivolous or brought for an improper purpose. Kanematsu will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous or brought for an improper purpose. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
Arbitration Awards. Judgment on the arbitration award may be entered in any court having competent jurisdiction. Any damages award issued by the arbitrator must be consistent with the “Limitation of Liability” section of these Terms. Awards of declaratory or injunctive relief may only be in favor of the claimant and only to the extent necessary to provide relief necessary for the claimant’s individual claim.
Rejection of Changes to this Section. You may reject any changes that Kanematsu makes to this section after your acceptance of these Terms by sending written notice of such rejection to Kanematsu by United States mail to: Kanematsu USA, Inc., 2043 Zanker Road, San Jose, CA 95131, Attn.: General Manager, Electronics Department within 30 days after such changes become effective. If you send such rejection notice, the most recent version of this section before the changes will apply.
Severability. If the class action waiver above is found to be unenforceable or illegal to all or some portions of a dispute between the parties, then this section will not apply to such portions. In that case, those portions will be severed and resolved in a court of law and the remaining portions shall be resolved by arbitration. If any other provision of this section is found to be unenforceable or illegal, then that provision will be severed and the remainder of this section will continue in full force and effect.
Kanematsu may give notice by means of a general notice on the Services via the DRIVETHEARC App, electronic mail to your email address in your User Account, or by written communication sent by first class mail to your address in your User Account. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing (if sent by first class mail) or twelve (12) hours after sending (if sent by email). You may give notice to Kanematsu, with such notice deemed given when received by Kanematsu, at any time by first class mail to Kanematsu USA, Inc., 2043 Zanker Road, San Jose, CA 95131, Attn.: General Manager, Electronics Department.
These Terms constitute the entire agreement between you and Kanematsu related to these Terms and the Services and they supersede all prior or contemporaneous communications, agreements, and proposals, whether electronic, oral or written, between you and Kanematsu related to the Services in their current or any prior form. You may not assign these Terms without Kanematsu’s prior written approval. These Terms and the rights, benefits and obligations contained herein are fully assignable by Kanematsu and will be binding upon and inure to the benefit of Kanematsu’s successors and assigns. No agency, partnership, joint venture, or employment relationship between you and Kanematsu is intended or created by these Terms. Any failure of Kanematsu to exercise or enforce any right or provision of these Terms shall not constitute a waiver or relinquishment to any extent of such right or provision. Any waiver of any right or provision of these Terms must be in writing. Subject to the Severability provision of the “Binding Arbitration; Class Action Waiver” section above, if any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed severed and superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Kanematsu’s provision of the Services and these Terms are subject to laws and legal process and nothing contained in these Terms limits Kanematsu’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Services. The headings in these Terms are for convenience only and have no legal or contractual effect.
Effective as of November 1, 2016