End User License Agreement

1. When do these terms of use apply?

These terms of use (Terms) apply to your use of the NOX Energy Charging Application (App), including the use of the information and functionality provided via the App, and related hardware or any related website (Site). These Terms include any other terms and conditions incorporated by reference. In these Terms, the expressions we, us and our are a reference to NOX Energy Pty Ltd (NOX).

You may access certain services via the App which allow you to use supported electric vehicle charging stations in Australia and associated payment services if applicable. In these Terms, the expression Service is a reference to these services as well as the supply of the App and any Site to you.

To access and use the Service, you must agree to, and comply with, these Terms and by clicking accept, you agree to these Terms. You may not use the App, and we will not provide any other Service to you, if you do not accept these Terms.

We may amend the Terms from time to time. Amendments will be effective upon our posting of the updated terms on the App or Site (as applicable). By continuing to access or use the Service after an update to the terms, you agree to be bound by these Terms, as amended.

2. How does the app and the service work?

The Service is a technology platform operated by us via App and related Sites that allows you to charge your electric vehicle (EV) or any other electrical device (Device) using a network of intelligent power sockets (IPS) and/or charging points (Charging Point), operated by us at a specific location (Site). Where the IPS or Charging Point are provided by the Site Owner they will be governed by a Charging Point Operator (CPO) agreement. Where an individual lot Owner requests installation of an IPS or Charging Point installation within an individual lot boundary, this EULA will govern the relationship between Nox Energy and the individual lot owner.

A charging session starts from the time you connect your EV or Device to an IPS or Charging Point and is started through the App (or RFID tag, if applicable) and ends when you or the Service disconnects your EV or Device from the IPS or Charging Point. If the charging session is a paid session, pre-authorisation of payment will be required either via a stored payment mechanism, via a casual payment mechanism, or according to any billing arrangements that may apply. It is your responsibility to ensure that charging begins and completes correctly and that any required payment is successfully made by you. To ensure that the charging has begun, please refer to any instructions visible on the NOX Energy website,  IPS, or Charging Point.

In each case it is your responsibility to ensure that your EV or Device has met the correct conditions to charge at the IPS or Charging Point. It is your responsibility to update the App and your details in accordance with section 3 (Your Account) below.

3. Your Account

3.1 Creating and using your account

To use the Service, you will need to create a user account and accept these Terms.

By using the Service you warrant that you are authorised to use the Service at the IPS’ or Charging Points as authorised by us.

When registering for an account, you must provide us with certain personal information, such as your name, mobile phone number, and email address, as well as payment details (as required). You agree to maintain accurate, complete, and up-to-date information in your account. Any failure to maintain accurate, complete, and up-to-date account information may result in your inability to access and use the Service or our termination of these Terms with you. We are not responsible for any decline of authorisation for charging if your payment details are not verified by an issuer bank.

You are responsible for all activity that occurs under your account regardless of whether that activity is undertaken or authorised by you. You agree to maintain the security and secrecy of your account username and password at all times and agree to inform us immediately if you have reason to believe that your password has become known to anyone else or is being, or is likely to be, misused in any way. Payment through credit card or debit card is processed through our payment processor Stripe, as set out in section 7(Fees and Charges).

3.2 RFID tags

You may be issued with a physical Radio Frequency Identification Device (RFID) tag by NOX Energy to identify you on the charging network, subject to you providing your consent. If you are provided with a RFID tag, you are solely responsible for the custody of the RFID tag and will be responsible for any unauthorised use. If this tag is lost or stolen, please inform us immediately at support@noxenergy.com.au. Each RFID tag remains the property of NOX and must be returned if you are no longer using the Service. It must not be misused in any way contrary to these terms or shared with any third party without express permission from us.

4. Using the service

4.1 Charging Point Operators

NOX serves as the exclusive Charging Point Operator of its devices.  NOX will enter into a Charging Point Operation agreement with Site Owners where we operate. You will be required to request an IPS or Charging Point install at an individual lot location from the Site Owner, prior to Nox Energy installing an IPS or Charging Point at an individual lot location.

The Service is provided to enable you to connect your vehicle to a IPS or Charging Point and to record and/or pay for the use of the IPS or Charging Point as required. These Terms are separate to any additional terms and conditions the Site may agree with NOX to use a IPS or Charging Point in a common property space or to replace an existing common property general power outlet.

To the extent permitted by law, the Site Owner does not bear or accept any liability arising from any agreement you have with the Charging Point Operator, and you indemnify the Site Owner for any loss or claim arising from your failure to comply with this EULA with the Charging Point Operator.

NOX, as the Charging Point Operator is responsible for dealing with any claims, complaints or any other issue arising out of or in connection with any IPS or Charging Point and is the first point of support. For the avoidance of doubt, 1^st level support will be provided by Nox Energy rather than any facilities manager, strata manager or strata committee member at a Site.

4.2 Safety and parking restrictions

You are responsible for safely parking and charging your EV, and must comply with the specific parking restrictions (including any specific parking by-laws, regulations and terms and conditions) that apply to use of the relevant IPS or Charging Point.

4.3 Communications

We will communicate with you in connection with the Service electronically in a variety of ways, including through text message, in-app push notifications or email. You consent to receive communications from us and other third parties involved in the Service in connection with the Service.

You may opt-out of receiving in-app push notifications by adjusting the App settings on your mobile device. You acknowledge that opting-out of in-app push notifications may impact your use of the Service. You may also opt out of text or email messages by following the instructions in that message. You will not be able to opt out of receiving service messages that are required for operation of the App or the Service.

You may communicate with us by using the functionality within the App or at support@noxenergy.com.au.

Conditions of use

When using the Service, you must not use, or attempt to use the Service or act in any way that is contrary to any law or is not permitted by the Terms.

Without limiting the above, you must not and must not attempt to:

1. use the Service in any way that causes, or is likely to cause, any interruption, damage or otherwise impair the Service in any way;
2. circumvent or remove any technological protection measure, copy protection measure, security system or any use restriction device in the Service;
3. use any key or other security code or device (including RFID tags) provided by any person other than us or our authorised distributors or dealers in relation to the Service;
4. use the Service to manipulate, affect or interact with any data or information in any manner that is not permitted by the owner of relevant rights in that data or information;
5. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with us or any other person or entity;
6. act in a manner that negatively affects or otherwise diminishes the quality of another user’s experience of the Service or us;
7. remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices;
8. sell, market, licence, sublicense, distribute or otherwise allow or grant to a third party any right to use the Service (including by sharing your account details with a third party where not permitted by us);
9. combine or merge any part of the Service with or into any other software or documentation or refer to or otherwise use the Service as part of any effort to develop software having any functional attributes, visual expressions or other features similar to those of the Service; or
10. except with our prior written approval, publish any performance or benchmark tests or analysis relating to the Service.
11. Add to or alter the QR code on any NOX IPS or Charging Point in any way.

5. Availability of the service

5.1 Access requirements

Access and ongoing use of the Service requires a connection to the internet. You are responsible for all fees and charges associated with accessing the internet and for updating your copy of the App and operating system so as to meet the minimum requirements. These may include charges imposed by your mobile network service provider in relation to data use and messaging.

To use the Service you must download the most recent version of the App available on the Apple App Store or Google Play Store and maintain a compatible operating system (as updated from time to time).

5.2 Availability of the Service

Without limiting any non-excludable rights you have under law, including the Australian Consumer Law, we do not guarantee that the Service or any portion of it will function on any particular hardware or device. You acknowledge that the Service may be subject to bugs, glitches and other malfunctions and delays inherent in the use of the internet and electronic communications. To the extent permitted by law, we accept no liability for such issues.

Access to the Service may be suspended temporarily without notice in the case of system failure, maintenance or repair or any reason beyond our control. Without limiting any non-excludable rights you have under law, including the Australian Consumer Law, we do not guarantee that the Service will be available 24×7 and reserve the right, without prior notice to you, to suspend the Service pending maintenance, repair, diagnosis, analysis or upgrade of the Service, or to modify the Service, or discontinue the Service at any time, in any event, without liability to you.

5.3 Suspension or cancellation

We, or our suppliers, reserve the right to, without limitation, suspend or terminate your account and/or your use of the Service (in part or in whole), acting reasonably:

1. at any time by 7 days’ notice to you;
2. immediately by notice to you, as a result of any failure by you to comply with these terms, including an actual or expected failure to pay any fees, misuse of our confidential information or intellectual property rights of us or our suppliers, any use by you or the Service that creates material risk or legal exposure for us;
3. immediately without notice to you, if required by law, if the ongoing use of the Service is prevented or limited by an anticipated change in law, or if required as a result of actions of our suppliers; or
4. immediately without notice to you, if you have not used the Service for a period of 12 months or more (from the date of last use).

You may, at any time, cancel your account, or cease using the Service. To cancel, you may either notify us in writing or contact us by phone using the details at the end of these terms. You will still need to satisfy any payment obligations for your use of the Service up to the date of cancellation.

Certain provisions of these Terms, including clauses 8, 9, 11, 13 and any other terms that by their nature survive termination, will remain in effect even after your account is terminated or otherwise cancelled.

6. Intellectual Property

6.1 Licence to use the Service

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sub licensable, revocable, non-transferrable licence to:

1. access and use the App, IPS, Charging Point at any Site on your personal or work device solely in connection with your use of the Service; and
2. access and use any content, information and related materials that may be made available through the Service,

in each case, subject to any other terms of use required by the Charging Point Operator, or any related terms and conditions applicable to the use of a IPS or Charging Point.

Any rights not expressly granted in these Terms are reserved by us. This includes all right, title and interest in the object code and source code of the App, any firmware in the hardware and the Site.

6.2 Other than to the extent necessary to use the Service, you must not, without our prior written consent:

1. copy the Service, or any part of it, or create derivative works based on the Service;
2. decompile or reverse engineer the Service, or to take any other action to discover the source code or underlying ideas or algorithm of any components of the Service, including in relation to the App; or
3. utilise any data gathering and extraction tools, such as robots, to extract for re-utilisation any part of the Service.

6.3 Copyright and Trademarks

You acknowledge that the Service and any related documents (as applicable), including all portions and copies of them are subject of copyright. You acquire no right, title or interest in the Service or any related documents other than those that the Terms expressly provides for. You will not during or any time after the expiry or termination of the Terms permit any act which infringes that copyright and you specifically acknowledge that you agree to fully indemnify us against all liabilities, costs and expenses we incur as a result of your breach of this clause. We reserve the right to change, suspend, remove, disable or limit access to the Service at any time without notice in relation to a suspected, threatened or actual breach of intellectual property rights or laws. You agree that we incur no liability for any action we take under this paragraph.

7. Fees and Charges

The App is provided by us to you at no additional cost and you may create an account for free. You may also be required to pay a periodic membership fee for access to the Service. For an individual lot owner requesting installation from the Site Owner for an IPS or Charging Point in your individual lot carspace the Site Owner may facilitate your payment for the IPS or Charging Point (Hardware Fees) which will then be governed by this End User License Agreement.

You may be required to pay for your use of the IPS or Charging Point (Usage Fees) in accordance with these Terms. These Usage Fees are subject to change – the most current price will be displayed before you commence charging. All fees are inclusive of GST.

Usage Fees may start accruing from the time you connect your EV or Device to the IPS or Charging Point, and continue until you correctly disconnect your EV or Device and terminate the active charging session. The final Usage Fee (which may be a fixed amount, based on the charge time, calculated on a per unit electricity consumed basis, or mix of the above) will be calculated once the charging is completed and will be debited immediately to your chosen payment method. You must ensure that your active payment method has sufficient funds to complete the transaction.

Credit or debit card payments will be processed by our third party payment processor Stripe, and will be subject to the payment terms for your selected payment method set out at https://stripe.com/payment-terms/legal (as updated or varied from time to time, including successor URLs). Some personal information may also be transmitted to Stripe, and will be subject to their Global Privacy Policy (currently accessible at https://stripe.com/en-au/privacy). It is your responsibility to ensure that the registered debit card or credit card is valid, that it has a sufficient balance and is not blocked. In the event that debiting is not possible, we have right to require payment directly from you. A card payment processing fee of 5% will be calculated on top of your Usage Fees.

8. Privacy and Data

8.1 Collection

When setting up your account and when otherwise using the Service, we collect information from you including (but not limited to):

your name, email address, delivery address, telephone number, EV or Device details (including licence and registration) and any supporting correspondence for the purposes of providing the Service, following up issues and for assessing the quality of the Service we provide;

1. records of your use of the Service; and
2. your hardware identifier and IP address to assist with the diagnosis and analysis of problems or support issues with our services, such information gathered in aggregate only and cannot be traced to an individual user.
3. We use cookies and applets which contain information by which we are able to identify your computer (or other device used to access our App or Site) to our servers. This information is collated on a non-personal, anonymous and aggregated basis for the purposes of assisting us in analysing and monitoring the usage of the App and the Site.

All personal information you provide to us will be treated in accordance with our Privacy Policy which can be accessed at https://noxenergy.com.au/privacy-policy. Some personal information will also be handled by third party providers, including Stripe Payments Europe, Ltd. or its related entity to facilitate the processing of payments, in accordance with their Global Privacy Policy (available at https://stripe.com/en-au/privacy).

8.2 Use of information by us

You agree that we may use and disclose your personal information and all information collected or generated from your use of the Service for:

1. providing the Service and for sending or facilitating communications (including the communication of promotions or other deals, where you have given your consent) between you, us the Charging Point Operator and our suppliers;
2. if you are using the Service in connection with a business fleet related vehicle or novated lease arrangement, we may share details relating to your use of the Service including, but not limited to, location and length of the charging event to facilitate cost accounting and reimbursement of employee home charging operational purposes including auditing and modelling, performing system and network maintenance, diagnostics testing and responding and analysing support issues;
3. research and analytics, including recommending, developing or monitoring improvements, upgrades or enhancements, measurement or evaluation of software, services or App usage and performance and information security;
4. undertaking analysis of information and providing aggregated and de-identified data to Charging Point Operators and our suppliers and their affiliates, together with relevant analytics data and research;
5. protecting against and/or preventing actual or potential fraud and/or compliance with relevant laws; and
6. any other purpose described in our Privacy Policy including those purposes permitted or authorised by law.

8.3 You agree to allow us to share your personal information with the following parties:

1. the Site Owner which has engaged us as the Charging Point Operator;
2. third party service providers (including NOX and its related entities and Stripe Payments Europe, Ltd. or its related entities) where we reasonably consider it necessary or desirable in connection with the provision of the Service;
3. your employer or fleet management organisation if the use of the service is in connection with a business fleet related vehicle or novated lease arrangement
4. requests for information received from government and regulatory bodies;
5. in an aggregated, anonymous manner, with any third party;
6. with any other third party in any other manner with your consent; and
7. any other third party described in our Privacy Policy, including third parties to whom disclosure is permitted or authorised by law.

You also acknowledge that we and our suppliers may collect, analyse, and use aggregated, de-identified charger data, technical data and related information, such as product or feature usage, metrics and metadata for the business purposes of us or our suppliers, to facilitate market analysis, to develop, improve and market the Service, and to provide support and maintenance services.

8.4 Apple and Google privacy policies

The Apple privacy policy and Google privacy policy also provide information about how Apple and Google collect, use and disclose your personal information. See section 12 (‘App Store and Google Play Store’) for more details.

9. Confidentiality

The Service and any and all associated documentation is our confidential information. You must keep the information secure and not disclose it unless you are required to by an applicable law.

10. Disclaimer

In using the Service, you irrevocably and unconditionally acknowledge that, to the extent permitted by law, we provide the Service on a purely ‘as is’ basis without warranty of any kind whatsoever to you and we make no warranties or representations as to the accuracy, content or quality or the information of any kind displayed on the Service and are not responsible for verifying the accuracy of any information available via the Service.

If you are a consumer under the Australian Consumer Law (set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)), you are entitled to certain guarantees, rights and remedies that cannot be excluded, restricted or modified by agreement. These include consumer guarantee rights that the products and Service we provide will be of acceptable quality, fit for the purpose disclosed, and carried out with due care and skill.

Nothing in these Terms is intended to exclude, restrict or modify the application of any implied condition or warranty, any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would: (i) contravene that statute; or (ii) cause any term of this Agreement to be void. Our liability to you for failure to comply with these non-excludable obligations is set out in section 11.2 (Liability Cap).

11. Limitation of Liability 

11.1 Excluded Losses

In this section 11.1 and section 11.2, Loss includes any loss, damage, liability, cost or expense (including any legal cost and expense) on a full indemnity basis however it arises and whether it is present or future, fixed or unascertained, actual or contingent, direct or indirect.

To the maximum extent permitted under any applicable laws, in no circumstances are we (or our agents and contractors) liable, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, and whatever the cause, to you for any indirect or consequential loss (that is, any loss which does not arise naturally in the ordinary course of things), even if you have advised us of their possibility, including loss of business profits, revenue, opportunity, goodwill or anticipatory profits or business interruption, incurred by you in connection with or as a result of entering into the Terms or their performance.

11.2 Liability Cap

To the extent permitted by law, you agree that our aggregate liability for any claims under or in connection with the Terms, however they arise and whether in contract, tort (including negligence and breach of statutory duty), shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, Losses and causes of action.

Where we cannot exclude liability under the Terms but can limit that liability, our liability is, to the extent permitted by law, limited to the following (at our option):

the supplying of the relevant goods or services again; or

the payment of the cost of having the goods or services supplied again.

12. App Store and Google Play

With respect to the App and any other application sourced via the App Store or Google Play, additional terms and conditions may apply. You acknowledge and agree that:

1. these Terms are between you and us only and not between you and Apple or you and Google;
2. in respect of any application downloaded from the App Store, the licence granted under the Terms is limited to use of that application on any Apple-branded product that you own or control and that application may only be accessed by other accounts associated with you through volume purchasing;
3. neither Apple nor Google have any responsibility for providing any support services in respect of the App or any similar application;
4. neither Apple nor Google provide any warranties, whether express or implied and neither Apple nor Google will have any liability for claims, losses, liabilities, damages, costs or expenses attributable to any failure by the App to conform to any warranty;
5. in the event of any third party claim that the App or your possession and use of the App in accordance with these Terms infringes that third party’s Intellectual Property Rights, we, not Apple nor Google, will be solely responsible for any investigation, defence, settlement and discharge of any such claim;
6. neither Apple nor Google are responsible for addressing any claim by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to:
   • product liability claims;
   • any claim that the App fails to conform to any applicable law; and
   • claims arising under consumer protection or similar legislation;

1. Apple and Google and their subsidiaries are third party beneficiaries of these Terms and to the extent permitted by law have the right (and will be deemed to have accepted the right) to enforce the Terms against you as third party beneficiaries;
2. you represent and warrant that you:
   • are not located in a country that is subject to a US Government embargo or has been designated by the US Government as a “terrorist supporting country”; and
   • you are not listed on any US Government list of prohibited or restricted parties; and
3. you must comply with all relevant App Store and Google Play user terms and conditions (as appropriate and as may be amended from time-to-time) and such terms will override these Terms to the extent of any inconsistency.

13. General

13.1 Complaints and Service Support

In the event of a service enquiry or complaint, you may communicate with us, the Charging Point Operator by using the functionality within the App or at support@noxenergy.com.au. We will endeavour to resolve your complaint in a timely manner.  

13.2 Status of the Terms

In using the Service, you acknowledge and agree that:

1. the Terms create a binding, legal agreement between us and you in accordance with section 4 (Governing Law and jurisdiction) below;
2. we provide the Service solely in accordance with the Terms, subject to any other relevant laws; and
3. the Terms will apply to any software upgrades or updates provided by us that replace and supplement the then-current version of the Service, unless such upgrade or update is accompanied by a separate customer terms of use, in which case those separate terms will apply.

13.3 Governing law and jurisdiction

These Terms are governed by the laws of the State of New South Wales, Australia. The parties agree that any claim or dispute between the parties will be decided by a court of competent jurisdiction located in the State of New South Wales, Australia.

13.4 Severance

If any provision of these Terms is found to be invalid, unenforceable or illegal for any reason, such provisions will be deemed deleted and the remaining provisions will remain in full force and effect.

13.5 Waiver

If we fail to enforce any of these Terms, it will not be considered a waiver. Any amendment to or waiver of these Terms must be made in writing and signed by us.

13.6 Assignment and subcontracting

You must not transfer, assign or delegate any of your rights or obligations under these Terms to anyone else without our consent. We (and to the extent relevant, our suppliers) may assign, novate or otherwise delegate all or any of our rights or obligations under these Terms to any person or entity, and this clause records your agreement to the replacement of us as a party to this agreement with any other person or entity without further notice to you. We may subcontract the provision of any part of the Service to our third party suppliers, however we will remain responsible for their performance under this agreement.

13.7 Relationship between the parties

Nothing in these Terms shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any liability, debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.

13.8 Inconsistency

Except as otherwise provided in these Terms, in the event there is any inconsistency between these terms and any other terms incorporated in the Terms or any information appearing on the Service, or any other material accessible, available or observable on the Service published by us or matters contained in any other document or representation received from any party including us, these Terms shall prevail to the extent of the inconsistency.