Terms

Terms of Service "Earth X Participant Agreement"This Program Agreement (“Agreement”) is made as of the date of signature by the Participant (the “Effective Date”) between EARTH X, a Delaware corporation (“Earth X”), and the undersigned (“you” or “Participant”). Earth X and Participant are sometimes hereinafter referred to individually as a “Party” and together as “Parties.”

1. PARTICIPATION IN THE EARTH X EV PROGRAM.
The purpose of the Earth X EV Software Program (“Program”) is to make an electric vehicle charger (“EV Charger”), charging services, charging cable, and related documentation, materials, and information (collectively, the “Testing Materials”) available to Program participants for the Term (as defined below) for the purpose of providing Earth X with feedback on the quality and usability of the Testing Materials. You understand and agree that participation in the Program is voluntary and does not create a legal partnership, agency, or employment relationship between you and Earth X. You understand that your participation in the Program does not obligate Earth X to provide you with any Testing Materials. Earth X reserves the right to modify the terms, conditions, and policies of this Program from time to time, and to revoke your participation in this Program at any time. If Earth X makes changes to the terms and conditions of this Agreement, then Earth X will present such revised terms and conditions to you via the Earth X App.   By participating in the Program, you certify that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries) and you represent that you are legally permitted to join the Program. This Agreement is void where prohibited by law and the right to become a Program participant is not granted in such jurisdictions. Unless otherwise agreed or permitted by Earth X in writing, you cannot share or transfer any software or other materials you receive from Earth X in connection with being a Program participant.2. DEPOSIT; VEHICLE ELIGIBILITY
A. Deposit. Participation in the Program requires a refundable deposit of ninety-nine dollars ($99 USD) to obtain the Earth X charge cable to use with the EV Charger (“Deposit”). You agree to submit the Deposit through the Earth X App for your participation in the Program.
B. Vehicle Eligibility. The majority of EVs are eligible to use the Test Material. Some electric vehicles (“EVs”) might require a separate purchase of an adapter (“Additional Adaptor”) to use the Test Material. You agree and acknowledge that Earth X will not provide any such Additional Adaptor and you have the sole responsibility to purchase and obtain the Additional Adaptor for a third party. Earth X is not responsible of any connectivity issue with the use of a third-party Additional Adaptor. Please contact the manufacturer of the Additional Adaptor for more assistance.

3. LICENSE GRANT AND RESTRICTIONS
Earth X grants you a personal, non-exclusive, non-transferable license to use each Test Material during the Term solely for the purpose of your internal evaluation and testing of the Test Material for Earth X. The Test Material may not be disclosed (publicly or privately), sublicensed, sold, assigned, leased, loaned, or otherwise transferred by you to any third party, for any reason.
You shall not, and shall prevent all Recipients (as defined in Section 5) from attempting to, reverse engineer, alter, modify, disassemble, decompile, copy, or reproduce the Test Material without Earth X’s prior written consent, except as is reasonably needed to perform your obligations under this Agreement. You shall not remove or deface any portion of any legend provided on any part of the Test Material.

4. FEEDBACK
In consideration of your participation in the Test Program, to the extent you or any of your Recipients (as defined in Section 5) provide any suggestions for modification or improvement or other comments, code, information, know-how, or other feedback (whether in oral or written form) relating to the Test Materials ("Feedback"), you hereby grant to Earth X a perpetual, irrevocable, worldwide, exclusive, transferable, sublicensable, royalty-free license to use and commercially exploit the Feedback in any manner Earth X sees fit without accounting or other obligation. You further agree to cooperate with Earth X by proactively providing Feedback and otherwise participating in the Feedback process in any way that Earth X may reasonably request.
Any feedback, ideas, modifications, suggestions, improvements, and the like made by you with respect to the Test Material (“Supportive Information”) will be the property of Earth X. You agree to assign, and hereby assigns, all right, title, and interest worldwide in the Supportive Information and the related intellectual property rights to Earth X. Earth X may disclose or use Supportive Information for any purposes whatsoever without any obligation to Participant.5. DEFINITION OF CONFIDENTIAL INFORMATION; NONUSE AND NONDISCLOSURE OF CONFIDENTIAL INFORMATION
You acknowledge that as a tester, you, the members of your household, or your employees (as applicable, “Recipients”), may have access to, and Earth X may disclose to you, certain valuable information belonging to and relating to Earth X which Earth X considers confidential, including, but not limited to, information concerning the Test Material, the Test Material’s trademark(s) and trade name(s), computer programs, user manuals, sales and marketing plans, business plans, processes, and other trade secrets (“Confidential Information”). You shall ensure that you and all Recipients, use the Confidential Information solely for testing purposes and shall not disclose, without Earth X’s written consent, such Confidential Information to third parties or use such Confidential Information for their own benefit or for the benefit of third parties.If you are a company or other entity, you shall disclose Confidential Information only to those of its employees who need to know such information for the purpose of testing Earth X’s products and services, and who are subject to written obligations of confidentiality.You acknowledge that the Test Material contains Confidential Information developed or acquired by Earth X and that all rights, title, and interest therein and in other Earth X Confidential Information remain vested in Earth X. You shall not, and shall ensure that all Recipients do not, disclose that it is evaluating or testing or has evaluated or tested the Test Material (or the results of such testing) to any third party without Earth X’s prior written consent, including but not limited to disclosure over social media. In addition, you agree to treat any communications and reports prepared under this Agreement as
Confidential Information and will not divulge the existence or content of such communications or reports to any third party without Earth X’s prior written consent.This Agreement shall impose no obligation of confidentiality upon you with respect to any portion of the Confidential Information which: (i) now or hereafter, through no act or failure to act on your part, becomes generally known or available; (ii) is known to you at the time you receive same from Earth X as evidenced by written records; (iii) is hereafter furnished to you by a third party as a matter of right and without restriction on disclosure.

The Test Material provided by Earth X and all copies thereof, are proprietary to and the property of Earth X. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Test Material are and will remain vested in Earth X and you shall have no such intellectual property rights in the TestMaterial.

6. CONSENT TO COLLECTION AND USE OF DATA; INDEMNIFICATION

A. Usage Data for Test Material. Earth X may collect and retain, during and after the Term for purposes of Earth X's business, usage data that is derived from the operation of the Test Material, including patterns identified through the use of the Test Material and algorithms, log data and data regarding the performance and availability of the Test Material ("Usage Data"). If Earth X provides Usage Data to any third party, such Usage Data shall be aggregated and anonymized so as not to disclose your or any Recipients’ identity.

B. Rights in Participant Data Submitted to Test Materials. As between Earth X and you, you own any Participant Data. To the extent applicable with respect to Test Materials used by you, you hereby grant and agree to grant to Earth X and its affiliates a worldwide, non-exclusive, transferable, sublicensable, royalty-free license to copy, transmit, display, and process the Participant Data as reasonably necessary to (a) provide the Test Materials to you and (b) monitor, modify, and improve (including develop) the Test Materials; provided, however, that with respect to any such Participant Data that constitutes Participant Data, the use described in (b) shall not include building or modifying household or consumer profiles, or cleaning or augmenting data acquired from another source.

C. Consent to Monitor and Record. You acknowledge that the Test Material may monitor and record persons in range, which may include persons of all ages. You are solely responsible for ensuring that Earth X provides the appropriate notice to and obtain consent from, in accordance with applicable law, all persons (or in the case of a person under the age of majority in the particular jurisdiction, appropriate parent or legal guardian) whose voice or image may be captured through the Test Materials.

“Participant Data” means all data and other information, if any, that is submitted or taken by or on your behalf related to the Test Material in the course of using the Test Material.

D. Indemnification for Participant Data. You will defend Earth X and its affiliates from any and all claims, demands, suits, or proceedings brought against Earth X by a third party alleging a violation of your or third party's rights arising from or related to any Participant Data, including your provision of such Participant Data to Earth X or its affiliates or their respective use of such Participant Data in connection with providing the Test Material in accordance with this Agreement. You will indemnify Earth X for all damages and costs (including reasonable attorneys' fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by Participant, in connection with an such claims, demands, suits, or proceedings.

7. SUPPORT AND MAINTENANCE; FUTURE PRODUCTS
During your participation in the Program, Earth X is not obligated to provide you with any maintenance, technical or other support for the Test Materials. If, at Earth X’s option, such support is provided, it will be provided in addition to your normal support coverage for your Test Materials. You agree to abide by any support rules and policies that Earth X provides to you in order to receive such support. You acknowledge that Earth X has no express or implied obligation to announce or make available a commercial version of the Test Materials to anyone in the future. Should a commercial version be made available, it may have features or functionality that are different from those found in the Test Materials licensed hereunder.

8. ADDITIONAL TERMS AND GUIDELINES
You agree to be bound by any additional terms and guidelines in Earth X’s Website Terms of Service (available at www.earthx.energy) and Earth X’s Website Privacy Policy (available at www.earthx.energy), including any community guidelines and/or prohibited use, in connection with any user forums available or accessible during the Program.

9. NO WARRANTY
By its nature, the Test Material may contain errors, bugs and other problems that could cause system failure and the testing and quality assurance of the Test Material may not yet be completed. You acknowledge and agree that the Test Materials may contain, in Earth X’s sole discretion, more or fewer features or different licensing terms than subsequent commercial release versions. Because the Test Material is subject to change, Earth X reserves the right to alter the Test Material at any time, and any reliance on the Test Material is at your own risk. Without limiting any disclaimer of warranty or other limitation stated herein, you agree that any Test Materials are not considered by Earth X to be suitable for commercial use and that they may contain errors affecting their proper operation. YOU ACCEPT THE TEST MATERIAL “AS IS.” EARTH X MAKES NO WARRANTY OF ANY KIND REGARDING THE TEST MATERIAL. EARTH X HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS. NEITHER EARTH X NOR ITS LICENSORS WARRANT THAT THE TEST MATERIALS OR THE THIRD-PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE TEST MATERIALS OR THE THIRD-PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE TEST MATERIALS WILL BE CORRECTED.

10. DISCLAIMER OF LIABILITY
IN NO EVENT SHALL EARTH X BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE TEST MATERIAL OR THE TRANSACTIONS CONTEMPLATED HEREIN, EVEN IF EARTH X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND EARTH X AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION
The term of this Agreement shall begin on the date set below (or, if no date is given, then the later of the dates each party accepted this Agreement by written signature) and shall continue until terminated as set forth below (“Term”). Upon termination of this Agreement for any reason, the obligation to protect Confidential Information shall survive such termination.

This Agreement shall terminate upon written notice by either party.

Upon termination of this Agreement, Participant shall (a) return the Earth X charge cable in good condition (taking into account reasonable wear and tear) to Earth X within seven (7) days from the termination date and get a full refund of Deposit or (b) keep Earth X charge cable and forfeit your Deposit.

12. NO EXPORT
Test Materials provided to you may be subject to United States Export Restrictions. You agree not to export or re-export any Test Material or accompanying documentation in violation of any applicable laws and regulations of the United States or the country in which you obtained them.

13. THIRD-PARTY SOFTWARE & INFORMATION
The Test Materials may contain or use certain software that is owned by third parties ("Third Party Software"). Third-Party Software is subject to terms and conditions other than those in this Agreement. You may view the relevant licenses and/or notices for such Third-Party Software on their respective websites. A list of third-party software can be provided upon request. As applicable, the terms of your use of the Third-Party Software is subject to and governed by the applicable third-party licenses and/or terms of service, except that the Sections “License”, “Disclaimer of Warranty” and “Limitation of Liability” of this Agreement also govern your use of the Third Party Software. You agree to comply with the terms and conditions of the relevant Third-Party Software licenses and/or terms of service.

14. NO WAIVER OR ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the Parties named herein and the irrespective successors and permitted assigns. You may not assign, delegate or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of Earth X. Earth X may (a) assign any or all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder (in any or all of which cases Earth X nonetheless shall remain responsible for the performance of all of its obligations hereunder), or (b) assign its rights under this Agreement to any person that acquires Earth X, or any of its assets; provided, that the acquirer shall agree in writing to be bound by the terms of this Agreement as if named a “Party” hereto.

No waiver any Party of any provision of this Agreement or any default or breach of covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party against whom the waiver is to be effective nor shall such waiver be deemed to extend to any prior or subsequent default or breach of covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. It is further understood and agreed that no failure or delay by Earth X in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.

15. DISPUTE RESOLUTION.
A. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.B. Consent to Jurisdiction. Subject in all ways to Section 21 hereof, each of the Parties irrevocably submits to the jurisdiction of any State or Federal court sitting in Wilmington, Delaware (collectively, the “Designated Courts”) for the enforcement of the final determination of any arbitration brought pursuant to Section 21 hereof and, as necessary, for the enforcement of any injunctive relief or enforcement with respect to Sections 5 through 8 hereof. Each of the Parties further agrees that service of any process, summons, notice or other document by U.S. registered mail to such Party’s respective address set forth herein shall be effective service of process for any action, suit or proceeding in the Designated Courts or in connection with any arbitration action with respect to any matters to which the Parties have submitted to jurisdiction as set forth herein. Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any dispute, action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in any arbitration proceeding or court located in Wilmington, Delaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such arbitration proceeding or Designated Court that any such dispute, action, suit or proceeding brought in any such Court or arbitration proceeding has been brought in an inconvenient forum or venue.C. Waiver of Jury Trial. EACH PARTY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY OR ANY AFFILIATE OF SUCH OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL.D. Arbitration. Any dispute, claim, or cause of action arising from or in connection with this Agreement shall be brought exclusively before a binding, third-party, neutral arbitrator in Wilmington, Delaware in accordance with the then-applicable rules of the American Arbitration Association.

16. SEVERABILITY; ENTIRE AGREEMENT
Any term or provision of this Agreement that is held invalid or unenforceable by a court of competent jurisdiction in any situation shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such a determination, the Parties shall negotiate in good faith to replace invalid or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid or unenforceable provisions.This Agreement, together with the Terms of Service and Privacy Policy located on the Company’s website (including the documents referred to herein) constitute the entire agreement among the Parties and supersedes any prior understandings, agreements, or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.17. CONTACT US
If you have any questions about this Agreement, you may contact us at the following email address: info@earthx.energy. You can also contact us by visiting our support page at www.earthx.energy.
I HEREBY ACKNOWLEDGE THAT I HAVE FULLY READ AND UNDERSTAND EACH OF THE ABOVE PROVISIONS. I ACKNOWLEDGE THAT PRIOR TO SIGNING THIS AGREEMENT I HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY TO REVIEW THIS AGREEMENT. I AM AT LEAST EIGHTEEN (18) YEARS OF AGE AND FULLY COMPETENT, AND I EXECUTE THIS AGREEMENT VOLUNTARILY AND FOR ADEQUATE CONSIDERATION INTENDING TO BE FULLY BOUND.