Terms of Service
Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the ChargeAutomation Platform, you agree to comply with and be bound by these Terms.
Please note: Section 18 of these Terms contains an arbitration clause and class action waiver that applies to all ChargeAutomation Suppliers. If your country of residence is Canada, this provision applies to all disputes with ChargeAutomation. If your country of residence is outside of the Canada, this provision applies to any action you bring against ChargeAutomation in Canada. It affects how disputes with ChargeAutomation are resolved. By accepting these Terms, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Published: May 24, 2018
Effective: March 15, 2020
These Terms constitute a legally binding agreement (“Agreement“) between you and ChargeAutomation, Inc. (“Party” or “Parties”) (as defined below) governing your access to and use of the ChargeAutomation Platform, including any subdomains thereof, and any other websites through which ChargeAutomation makes its services available (collectively, “Site“), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application“) and all associated services (collectively, “ChargeAutomation Services“). The Site, Application and ChargeAutomation Services together are hereinafter collectively referred to as the “ChargeAutomation Platform”.
When these Terms mention “ChargeAutomation,” “we,” “us,” or “our,” it refers to ChargeAutomation, Inc.
Any and all payment processing and/or channel invoice processing services through or in connection with your use of the ChargeAutomation Platform (“Payment Services“) are provided to you by ChargeAutomation (“ChargeAutomation“) as set out in the Payments Terms of Service (“Payments Terms“).
You alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to your Listings and Services (as defined below). In many cities, you may have to register, get a permit or obtain a license before providing certain Services (such as offering a property for short-term rental). You alone are responsible for identifying and obtaining any required licenses, permits, or registrations for any Services you offer. Certain types of Services may be prohibited altogether. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Listing(s) and Service(s), you should always seek legal guidance.
Table of Contents
- Scope of ChargeAutomation Services
- Eligibility, Using the ChargeAutomation Platform, Supplier Verification
- Modification of these Terms
- Account Registration
- Transaction Fees
- Recurring Payments
- Payment Authorization
- Terms specific for Listings
- Booking Modifications, Cancellations and Refunds, Resolution Center
- Damage to Accommodations, Disputes
- Prohibited Activities
- Term and Termination, Suspension and other Measures
- Dispute Resolution
- Applicable Law and Jurisdiction
- General Provisions
1.Scope of ChargeAutomation Services
- As the provider of the ChargeAutomation Platform, we provide online checkin, payment services, and related services for rental properties (“Listings”) as described in this document (our “Connectivity Services”). ChargeAutomation does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Services to the Guest. You alone are responsible for your Listings and Services. When a reservation is completed on any distribution channel, for example Airbnb, Booking.com, Expedia, HomeAway, TripAdvisor, etc., (“Distribution Channel(s)”) you are entering into a contract directly with a Guest. ChargeAutomation is not and does not become a party to, or other participant in, any contractual relationship between you and the Guest. ChargeAutomation is not acting as an agent in any capacity for you or the Guest, except as specified in the Payments Terms.
- While we may help facilitate the resolution of disputes, ChargeAutomation has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or Services, (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Content (as defined below), or (iii) the performance or conduct of any Guest, Distribution Channel(s) or third party.
- To increase the exposure of Listings to potential Guests, Listings may be displayed on Distribution Channel(s) where ChargeAutomation has direct contractual agreements (“ChargeAutomation Affiliates”), in applications, within emails, and in online and offline advertisements. To assist Guests who speak different languages, Listings and other Content may be translated, in whole or in part, into other languages. ChargeAutomation cannot guarantee the accuracy or quality of such translations and you are responsible for reviewing and verifying the accuracy of such translations.
- Due to the nature of the Internet, ChargeAutomation cannot guarantee the continuous and uninterrupted availability and accessibility of the ChargeAutomation Platform. ChargeAutomation may restrict the availability of the ChargeAutomation Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the ChargeAutomation Platform. ChargeAutomation may improve, enhance and modify the ChargeAutomation Platform and introduce new ChargeAutomation Services from time to time.
2.Eligibility, Using the ChargeAutomation Platform, Supplier Verification
- In order to access and use the ChargeAutomation Platform or register a ChargeAutomation Account, you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.
- You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) you are not named on any the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) List of Specially Designated Nationals and Blocked Persons (the “SDN List”), nor are you owned, controlled, or managed by any such entity; (ii) ChargeAutomation’s addition of the listings provided by you under this Agreement will not cause ChargeAutomation in its capacity as a U.S. person to violate any applicable trade laws and regulations, including but not limited to those administered by OFAC and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS), or the European Union (EU); (iii) none of the properties and/or listings you are providing to ChargeAutomation under this Agreement are neither directly, indirectly, or otherwise beneficially owned or controlled by any entity on the SDN List or any sanctions list maintained and/or issued by the EU and United Nations Security Council.
- ChargeAutomation may make access to and use of the ChargeAutomation Platform, or certain areas or features of the ChargeAutomation Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, or meeting Ratings or Reviews thresholds, or your booking and cancellation history.
- For transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask you to provide a form of government identification or other information or undertake additional checks designed to help verify your identity or background, (ii) screen you against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify you, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
- The access to or use of certain areas and features of the ChargeAutomation Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the ChargeAutomation Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the ChargeAutomation Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
- Some areas of the ChargeAutomation Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
3.Modification of these Terms
ChargeAutomation reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the ChargeAutomation Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect, but you must honor all existing bookings and associated financial obligations. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the ChargeAutomation Platform will constitute acceptance of the revised Terms.
- You must register an account (“ChargeAutomation Account“) to access and use certain features of the ChargeAutomation Platform, such as creating a Listing. If you are registering a ChargeAutomation Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
- You must provide accurate, current and complete information during the registration process and keep your ChargeAutomation Account information up to date at all times.
- You are responsible for maintaining the confidentiality and security of your ChargeAutomation Account credentials and may not disclose your credentials to any third party. You must immediately notify ChargeAutomation via email at [email protected] if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your ChargeAutomation Account. You are liable for any and all activities conducted through your ChargeAutomation Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
- You are also required to select those Distribution Channel(s) to whom you would like us to distribute your Content (as defined below) or in connection with whom you would otherwise like to receive Connectivity Services. The Distribution Channel(s) you select will determine the type of Connectivity Services we provide and, within the subset of selected Distribution Channel(s), the Distribution Channel(s) to whom we will distribute Collective Content (as defined below) in accordance with our agreements with those Distribution Channel(s).
- You are also required to make certain representations about (i) your agreement(s) with Distribution Channel(s) and/or (ii) your agreement to and acceptance of applicable Distribution Channel(s)’ terms and conditions. Please note that to the extent there is a conflict between any Distribution Channel(s) terms and conditions and this Agreement the most stringent and restrictive terms will be considered binding on you. Specific examples include, but are not limited to, the following terms and conditions topics:
- Content (section 5): if the channel agreement stipulates certain content provisions, which are additive to the ChargeAutomation provisions, then you must comply with those additional provisions. This language does not remove any ChargeAutomation content provisions.
- Damage to Accommodations, Disputes between Guests and Suppliers (section 9): if the channel agreement stipulates certain types of insurance requirements and/or minimum coverage requirements, then you must comply with those additional requirements.
- Prohibited Activities (section 11): if the channel agreement stipulates certain compliance with local laws provisions, which are additive to the ChargeAutomation provisions, then you must comply with those additional provisions. This language does not remove any ChargeAutomation provisions. In all cases, it is the sole responsibility of the Supplier to ensure legal compliance at all time, even if the laws change from the effective date of the channel or ChargeAutomation agreement.
- Term (section 12.1): if the channel agreement requires a longer term, then you cannot remove that channel from the Connectivity Services until the channel agreement is either terminated or expired.
- Disclaimers (section 13): if the channel agreement stipulates different disclaimers, which are independent to the ChargeAutomation provisions, then you are bound to these additional provisions as well. This language does not remove any ChargeAutomation provisions.
- If new Distribution Channel(s) are made available by us and you are eligible to have the Collective Content distributed to that Distribution Channel(s) based on the parameters you selected at registration, we will automatically add that Distribution Channel(s) to your Account.
- For clarity, we undertake no liability, and specifically disclaim all liability, for the acts or omissions of Distribution Channel(s), including their use of or failure to use the Collective Content.
- ChargeAutomation may, at its sole discretion, enable you to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the ChargeAutomation Platform (“Supplier Content“); and (ii) access and view Supplier Content and any content that ChargeAutomation itself makes available on or through the ChargeAutomation Platform, including proprietary ChargeAutomation content and any content licensed or authorized for use by or through ChargeAutomation from a third party (“ChargeAutomation Content” and together with Supplier Content, “Collective Content“).
- The ChargeAutomation Platform, ChargeAutomation Content, and Supplier Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of Canada and other countries. You acknowledge and agree that the ChargeAutomation Platform and ChargeAutomation Content, including all associated intellectual property rights, are the exclusive property of ChargeAutomation and/or its licensors or authorizing third parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the ChargeAutomation Platform, or ChargeAutomation Content. All trademarks, service marks, logos, trade names, and any other source identifiers of ChargeAutomation used on or in connection with the ChargeAutomation Platform and ChargeAutomation Content are trademarks or registered trademarks of ChargeAutomation in Canada. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties, including Distribution Channels(s), used on or in connection with the ChargeAutomation Platform, ChargeAutomation Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
- By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Supplier Content on or through the ChargeAutomation Platform, you grant to ChargeAutomation a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Supplier Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Supplier Content to provide and/or promote the ChargeAutomation Platform, in any media or platform. Unless you provide specific consent, ChargeAutomation does not claim any ownership rights in any Supplier Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Supplier Content.
- You will not post, upload, publish, submit or transmit any Supplier Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) promotes illegal or harmful activities or substances; or (vi) violates ChargeAutomation’s Content Policy or any other ChargeAutomation policy. ChargeAutomation may, without prior notice, remove or disable access to any Supplier Content that ChargeAutomation finds to be in violation of these Terms or ChargeAutomation’s then- current Policies or Standards, or otherwise may be harmful or objectionable to ChargeAutomation, Guests, its Distribution Channels, third parties, or property.
- ChargeAutomation may charge fees to you (“Supplier Fees“) and/or Guests (“Guest Fees“) (collectively, “Transaction Fees“) in consideration for your use of the ChargeAutomation Platform.
- ChargeAutomation reserves the right to change the Transaction Fees at any time and will provide you adequate (at least 10 business days) notice of any fee changes before they become effective. Such fee changes will not affect any bookings made prior to the effective date of the fee change.
- You are responsible for paying any Supplier Fees that you owe to ChargeAutomation. If you are utilizing the ChargeAutomation Payment Service, then the applicable Transaction Fees, and any other selected vendor payouts that are collected by ChargeAutomation will be deducted from the gross amount paid by the Guest before remitting the payout to you. If you collected the gross amount paid by the Guest, then ChargeAutomation will invoice you and either automatically direct debit the Supplier Fees from your bank account or collect the Supplier Fees through other means (e.g. check, credit card, etc.). If you choose to pay the Supplier Fees with a credit card, an additional processing fee will be added to the invoice.
- For certain services (such as a subscription service to access the ChargeAutomation Platform), ChargeAutomation may require you to make recurring payments toward the subscription fees owed (“Recurring Payments”).
- If Recurring Payments apply to you, then you authorize ChargeAutomation to collect the Recurring Payments at the frequency agreed to.
- You may stop payment of a Recurring Payment by notifying ChargeAutomation in writing at least twenty (20) business days before the scheduled date of the payment, but no payment will result in the suspension of the account. If you wish to cancel the service, the full amount of the annual subscription fee will be immediately due.
You authorize us to collect from you amounts due pursuant to these ChargeAutomation Terms.
Terms Specific for Listings
- When providing information about your rental property you must (i) provide complete and accurate information about the Listing (such as description, location, minimum/maximum occupancy, check-in/out time/date, lead time, length of stay requirement, calendar availability, etc.) (“Listing Information”). Even if ChargeAutomation is connected to your Property Management Software (“PMS”) and we receive Listing Information from the PMS, these connections are not real-time and ChargeAutomation does not control the schedule of updates or reliability of the PMS platform. You are responsible for keeping the Listing Information (including calendar availability) up to date at all times in the ChargeAutomation Platform. If the Listing information is not up to date in the ChargeAutomation Platform, which leads to a financial liability, it is the sole responsibility of you to resolve the financial liability with the Guest and/or Distribution Channel. ChargeAutomation assumes no responsibility for resolving the issue and assumes no financial liability for the incorrect Listing Information.
- You are solely responsible for setting a price (including any taxes if applicable, or fees such as cleaning fees) for your Listing (“Listing Price”). Once a Guest completes a booking of your Listing, you may not request that the Guest pays a higher price than in the booking request. Even if ChargeAutomation is connected to your Property Management Software (“PMS”) and we receive a Listing Price from the PMS, these connections are not real-time and ChargeAutomation does not control the schedule of updates or reliability of the PMS platform. You are responsible for keeping your Listing Price up to date at all times in the ChargeAutomation Platform. If the Listing Price is not up to date in the ChargeAutomation Platform, which leads to a financial liability, it is the sole responsibility of you to resolve the financial liability with the Guest and/or Distribution Channel. ChargeAutomation assumes no responsibility for resolving the issue and assumes no financial liability for the incorrect Listing Price.
- If the Distribution Channel(s), or any other party, recovers any financial liability related to section 7.1 or section 7.2, or for any other reason, directly from ChargeAutomation, then ChargeAutomation will be entitled to recover the amount of any such financial liability from you, including by subtracting such refund amount out from any future payouts due to you.
- You represent and warrant that any property you publish and the booking of, or a Guest’s stay at, will (i) not breach any agreements you have entered into with any third parties, such as homeowners association, condominium, or other agreements, and (ii) comply with all applicable laws (such as zoning laws), Tax requirements, and other rules and regulations (including having all required permits, licenses and registrations). You are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who reside at or are otherwise present at the rental property at your request or invitation, excluding the Guest and any individuals the Guest invites to the rental property.
Booking Modifications, Cancellations and Refunds, Resolution Center
- You agree to pay any additional Supplier Fees associated with Modifications.
- Guests can cancel a confirmed booking at any time pursuant to the property cancellation policy, and, if ChargeAutomation is providing a Payment Service i). ChargeAutomation will refund the amount of the Listing Price due to the Guest in accordance with such cancellation policy, and ii). unless extenuating circumstances exist, any portion of the Listing Price due to you under the applicable cancellation policy will be remitted to you by ChargeAutomation, pursuant to the Payments Terms.
- In certain circumstances, if ChargeAutomation is providing a Payment Service, ChargeAutomation may decide, in its sole discretion, that it is necessary to cancel a confirmed booking and make appropriate refund and payout decisions. This may be for reasons where ChargeAutomation believes in good faith, while taking the legitimate interests of both Guest and you into account, (i) this is necessary to avoid significant harm or financial loss to ChargeAutomation, you, third parties or property, or (ii) for any of the reasons set out in these Terms.
- If, as a Supplier, your Guest cancels a confirmed booking or ChargeAutomation decides that it is necessary to cancel a confirmed booking, and ChargeAutomation is providing a Payment Service, ChargeAutomation issues a refund to the Guest in accordance with the applicable cancellation policy, you agree that in the event you have already been paid, ChargeAutomation will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Payouts due to you.
Damage to Rental Property, Disputes between Guests and Suppliers
- The Guest, not ChargeAutomation, is responsible for leaving the rental property (including any personal or other property located at the rental property) in the condition it was in when they arrived. The Guest, not ChargeAutomation, is responsible for their own acts and omissions and are also responsible for the acts and omissions of any individuals whom they invite to, or otherwise provide access to, the rental property, excluding you (and the individuals you invite to the rental property, if applicable).
- If a Guest damages the rental property and you do not have property damage insurance or a security deposit, then the only recourse for you is with the Distribution Channel(s) and/or the Guest, not ChargeAutomation.
- If a Guest disputes a charge for any reason and the Distribution Channel(s) decides to refund a Guest, then the only recourse for you is with the Distribution Channel(s), not ChargeAutomation. If ChargeAutomation is providing a Payment Service and the Distribution Channel(s) recovers the amount of any such refund from ChargeAutomation, then ChargeAutomation will be entitled to recover the amount of any such refund from you, including by subtracting such refund amount out from any future Payouts due to you.
- ChargeAutomation is not responsible for taxes. You acknowledge and agree that neither ChargeAutomation, nor Distribution Channel(s), unless expressly stated otherwise in the Distribution Channel(s) agreement, are responsible for paying or remitting any Taxes to tax authorities that are: (i) imposed directly on, or are the liability of, you pursuant to any Requirements of Law; or (ii) that are the responsibility of you to collect and remit to a tax authority pursuant to any requirements of law. You shall be considered the “Marketplace Facilitator,” or the equivalent thereof, and agree to follow best practices for purposes of filing informational tax returns with any appropriate tax authority with respect to any payments made to the owner of an eligible property.
- Value Added Tax & Similar Taxes. The amounts payable to ChargeAutomation, under this Agreement will not be reduced by any Taxes. Therefore, in addition to making any payment (if applicable) to ChargeAutomation, under this Agreement, Supplier will: (i) pay ChargeAutomation, the amount of these Taxes due with respect to the payment; or (ii) if required or permitted by Legal Requirements, pay these Taxes directly to the relevant tax authority. If a reverse charge mechanism is available to you, you will promptly account for and pay these taxes in accordance with Legal Requirements.
- Income Taxes. Each Party will pay income taxes imposed (including by withholding or other means) by any competent governmental authority on any income it receives under this Agreement.
- Cooperation. The Parties will cooperate to more accurately determine and minimize, to the extent commercially reasonable, their respective liability for taxes. Each Party will provide tax information or documents regarding taxes reasonably requested by the other Party. Each Party will promptly notify the other of any claim for taxes asserted with respect to this Agreement or a rental property booked through the Distribution Channel(s) by a tax authority with jurisdiction over either Party. With respect to any claim arising out of a tax form or return signed by a Party to this Agreement, the signing Party will notify the other Party before taking action concerning the dispute with the tax authority, and, if requested by the other Party, cooperate with the other Party in preparing its response. The obligations of this Section will apply regardless of which Party is responsible for payment of such taxes.
You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the ChargeAutomation Platform. In connection with your use of the ChargeAutomation Platform, you will not and will not assist or enable others to:
- breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, Policies or Standards;
- use the ChargeAutomation Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies ChargeAutomation endorsement, partnership or otherwise misleads others as to your affiliation with ChargeAutomation;
- use the ChargeAutomation Platform in connection with the distribution of unsolicited commercial messages (“spam”);
- offer, as a Supplier, any rental property that you do not yourself own or have legal authorization to make available as a residential or other property through the ChargeAutomation Platform;
- use the ChargeAutomation Platform to request, make or accept a booking independent of the ChargeAutomation Platform, to circumvent any Service Fees or for any other reason;
- request or accept any payment for Transaction Fees outside of the ChargeAutomation Platform or ChargeAutomation Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold ChargeAutomation harmless from any liability for such payment;
- discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior;
- use, display, mirror or frame the ChargeAutomation Platform, or any individual element within the ChargeAutomation Platform, ChargeAutomation’s name, any ChargeAutomation trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the ChargeAutomation Platform, without ChargeAutomation’s express written consent;
- dilute, tarnish or otherwise harm the ChargeAutomation brand in any way, including through unauthorized use of Collective Content, registering and/or using ChargeAutomation or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to ChargeAutomation domains, trademarks, taglines, promotional campaigns or Collective Content;
- use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the ChargeAutomation Platform for any purpose;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by ChargeAutomation or any of ChargeAutomation’s providers or any other third party to protect the ChargeAutomation Platform;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the ChargeAutomation Platform;
- take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the ChargeAutomation Platform;
- export, re-export, import, or transfer the Application except as authorized by Canada law, the export control laws of your jurisdiction, and any other applicable laws; or
- violate or infringe anyone else’s rights or otherwise cause harm to anyone.
Term and Termination, Suspension and other Measures
- This Agreement shall be effective for a 1-year term, at the end of which it will automatically and continuously renew for subsequent 1-year terms until such time when you or ChargeAutomation terminate the Agreement in accordance with this provision.
- You may terminate this Agreement at any time by sending us an email to [email protected]. If you cancel your ChargeAutomation Account, any confirmed booking(s) must be honored and you are responsible for any Transaction Fees for the confirmed booking(s).
- Without limiting our rights specified below, ChargeAutomation may terminate this Agreement for convenience at any time by giving you thirty (30) days’ notice via email to your registered email address.
- ChargeAutomation may immediately, without notice, terminate this Agreement and/or stop providing access to the ChargeAutomation Platform if (i) you have materially breached your obligations under these Terms, the Payments Terms, our Policies or Standards, (ii) you have violated applicable laws, regulations or third party rights, or (iii) ChargeAutomation believes in good faith that such action is reasonably necessary to protect the personal safety or property of ChargeAutomation, its Suppliers, or third parties (for example in the case of fraudulent behavior of a Supplier).
- In addition, ChargeAutomation may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, the Payments Terms, our Policies or Standards, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the ChargeAutomation Account registration, Listing process or thereafter, (iv) ChargeAutomation otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly cancelled confirmed bookings or failed to respond to booking requests without a valid reason, or (vii) ChargeAutomation believes in good faith that such action is reasonably necessary to protect the personal safety or property of ChargeAutomation, its Suppliers, or third parties, or to prevent fraud or other illegal activity:
- refuse to publish, delete or delay any Listings, or other Supplier Content;
- cancel any pending or confirmed bookings;
- limit your access to or use of the ChargeAutomation Platform;
- temporarily or in case of severe or repeated offenses permanently suspend your ChargeAutomation Account and stop providing access to the ChargeAutomation Platform.
- If ChargeAutomation is providing a Payment Service and we take any of the measures described above (i) we may refund your Guests in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
- When this Agreement has been terminated, you are not entitled to a restoration of your ChargeAutomation Account or any of your Supplier Content. If your access to or use of the ChargeAutomation Platform has been limited or your ChargeAutomation Account has been suspended or this Agreement has been terminated by us, you may not register a new ChargeAutomation Account or access and use the ChargeAutomation Platform through a ChargeAutomation Account of another Supplier.
- Sections 5 and 13 to 19 of these Terms shall survive any termination or expiration of this Agreement.
If you choose to use the ChargeAutomation Platform or Collective Content, you do so voluntarily and at your sole risk. The ChargeAutomation Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate the ChargeAutomation Services, laws, rules, or regulations that may be applicable to your Listings and that you are not relying upon any statement of law or fact made by ChargeAutomation relating to a Listing.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the ChargeAutomation Platform, your publishing of any Listing via the ChargeAutomation Platform, remains with you. Neither ChargeAutomation nor any other party involved in creating, producing, or delivering the ChargeAutomation Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the ChargeAutomation Platform, (iii) from any communications, interactions or meetings with other persons with whom you communicate, interact or meet with as a result of your use of the ChargeAutomation Platform, or (iv) from your publishing of a Listing, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not ChargeAutomation has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to you pursuant to these Terms, in no event will ChargeAutomation’s aggregate liability arising out of or in connection with these Terms and your use of the ChargeAutomation Platform including, but not limited to, from your publishing of any Listings via the ChargeAutomation Platform, or from the use of or inability to use the ChargeAutomation Platform, exceed the Transaction Fees you have paid for a booking via the ChargeAutomation Platform as a Supplier that has given rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between ChargeAutomation and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect ChargeAutomation’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
To the maximum extent permitted by applicable law, you agree to release, defend (at ChargeAutomation’s option), indemnify, and hold ChargeAutomation and its affiliates and subsidiaries, including but not limited to their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the ChargeAutomation Platform, (iii) your breach of any laws, regulations or third party rights.
Indemnification Procedure. A party seeking indemnification from the other will (i) promptly notify the other in writing of the Claim; (ii) reasonably cooperate with the indemnifying party in resolution of the Claim, at the indemnifying party’s expense. In addition, the indemnifying party will have sole control over the defense and settlement of any Claim, except that it may not enter into any final settlement agreement or consent to the entry of any final judgment without the indemnified party’s prior written consent (which will not unreasonably be withheld, delayed or conditioned). In addition, the indemnified party’s failure to comply with its obligations under (i) and (ii) of this section will only excuse the indemnifying party from its indemnification obligations to the extent it is prejudiced by the delay.
Dispute Resolution and Arbitration Agreement
- This Dispute Resolution and Arbitration Agreement shall apply if your (i) country of residence or establishment is in Canada; or (ii) your country of residence or establishment is not in Canada but bring any claim against ChargeAutomation in Canada (to the extent not in conflict with Section 18).
- Overview of Dispute Resolution Process. ChargeAutomation is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a wo-part process for individuals to whom Section 16.1 applies: (1) an informal negotiation directly with ChargeAutomation’s customer service team, and (2) a binding arbitration administered by the Canadiann Arbitration Association (“CAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 16 and except as provided in Section 19.6). Specifically, the Consumer Arbitration Rules provide:
- Claims can be filed with CAA online (https://canadianarbitrationassociation.ca/)
- Arbitrators must be neutral, and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
- Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and ChargeAutomation each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact ChargeAutomation’s customer service team by emailing us at [email protected]. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the CAA and the written Demand for Arbitration (available at https://canadianarbitrationassociation.ca/) provided to the other party, as specified in the CAA Rules.
- Agreement to Arbitrate. You and ChargeAutomation mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the ChargeAutomation Platform (“Disputes”) will be settled by binding individual arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and ChargeAutomation agree that the arbitrator will decide that issue.
- Exceptions to Arbitration Agreement. You and ChargeAutomation each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
- Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by CAA in accordance with the Consumer Arbitration Rules and/or other CAA arbitration rules determined to be applicable by the CAA (the “CAA Rules“) then in effect, except as modified here. The CAA Rules are available at https://canadianarbitrationassociation.ca or by calling the CAA at 1–800–778–7879.
- Modification to CAA Rules – Arbitration Hearing/Location. In order to make the arbitration most convenient to you, ChargeAutomation agrees that any required arbitration hearing may be conducted, at your option, (a) in Orange County, CA; (b) in any other location to which you and ChargeAutomation both agree; (d) via phone or video conference; or (c) for any claim or counterclaim under $5,000, by solely the submission of documents to the arbitrator.
- Modification of CAA Rules – Attorney’s Fees and Costs. You and ChargeAutomation agree that ChargeAutomation will be responsible for payment of the balance of any initial filing fee under the CAA Rules in excess of $1,000 for claims of $1,000 or less. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the CAA rules.
- Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- Jury Trial Waiver. You and ChargeAutomation acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
- No Class Actions or Representative Proceedings. You and ChargeAutomation acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and ChargeAutomation both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 16.11 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court. If the “private attorney general action” waiver or the “representative proceeding” waiver in this Section 16.11 is held unenforceable with respect to any Dispute, those waivers may be severed from this Arbitration Agreement and you and ChargeAutomation agree that any private attorney general claims and representative claims in the Dispute will be severed and stayed, pending the resolution of any arbitrable claims in the Dispute in individual arbitration.
- Severability. Except as provided in Section 16.11, if any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and he remainder of the Arbitration Agreement shall be given full force and effect.
- Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if ChargeAutomation changes this Section 16 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of ChargeAutomation’s email to you notifying you of such change. Rejecting a new change, however, does not revoke or alter your prior consent to any earlier agreements to arbitrate any Dispute between you and ChargeAutomation (or your prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between you and ChargeAutomation.
- Survival. Except as provided in Section 16.13 and subject to Section 12.8, this Section 16 will survive any termination of these Terms and will continue to apply even if you stop using the ChargeAutomation Platform or terminate your ChargeAutomation Account.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the ChargeAutomation Platform (“Feedback“). You may submit Feedback by emailing us, through our Support email [email protected], or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
Applicable Law and Jurisdiction
If your country of residence or establishment is Canada, these Terms will be interpreted in accordance with the laws of the State of California and Canada, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 16 must be brought in state or federal court in Orange County, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in Orange County, California.
- Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between ChargeAutomation and you pertaining to the subject matter hereof and supersede any and all prior oral or written understandings or agreements between ChargeAutomation and you in relation to the access to and use of the ChargeAutomation Platform.
- No joint venture, partnership, employment, or agency relationship exists between you and ChargeAutomation as a result of this Agreement or your use of the ChargeAutomation Platform.
- These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
- If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
- ChargeAutomation’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
- You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without ChargeAutomation’s prior written consent. ChargeAutomation may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
- Unless specified otherwise, any notices or other communications to you permitted or required under this Agreement, will be provided electronically and given by ChargeAutomation via email, ChargeAutomation Platform notification, or messaging service (including SMS and Chat).
- If you have any questions about these Terms, please email us.