Last Updated: October 14, 2014
TERMS AND CONDITIONS OF USE
THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LEGAL INFORMATION
1. THE AGREEMENTS: WHAT THEY ARE, WHO THEY APPLY TO AND HOW THEY CHANGE
Applicability of the Agreements to Users, including your Representatives. As used in the Agreements, the terms “you” and “your” shall refer, as applicable, to (a) users of the Website who are not Subscribers (“Non-Subscribers”), (b) users of the Website and/or the Service who are subscribers, whether pursuant to a free trial, beta test license, pilot agreement, a paid subscription or other means, who have completed the required registration process described on the Website (“Subscribers”) or (c) to owners, members, managers, directors, employees, agents, contractors or other third parties who use the Website and/or the Service on behalf of, at the direction of or for the benefit of a Subscriber (collectively, “Representatives” and together with Non-Subscribers and Subscribers, the “Users”). If you are a Representative of a Subscriber, you expressly represent, acknowledge and agree that (i) if you are registering the Subscriber as a new User of the Service, you have the authority to enter into the Agreements on behalf of such Subscriber and to bind such Subscriber to the terms and conditions set forth in the Agreements and (ii) that the terms and conditions of these Agreements apply both to your use of the Website and/or the Service as an individual user and to the Subscriber by virtue of your relationship with such Subscriber as its Representative. IF YOU DO NOT HAVE THE AUTHORITY SET FORTH ABOVE YOU MUST IMMEDIATELY CEASE ALL USE OF BOTH THE WEBSITE AND THE SERVICE.
By using the Website and, if YOU ARE A SUBSCRIBER, checking the “BY CLICKING SIGN UP, YOU AGREE TO OUR TERMS AND CONDITIONS” box included as part of the registration PROCESS prior to commencing your use of the Service, and by continuing to access and use the Website and/or the Service after the date thereof, you expressly agree and consent to be bound by, and evidence your understanding of the terms of, the Agreements, including as they may be modified or revised as described above. Because we reserve these rights, you should visit this page periodically to review the Agreements.
If you do not agree to all of the terms of the Agreements you may not use either this Website or the Service, and you MUST IMMEDIATELY cease all use of both the Website and the Service. You are encouraged to PRINT AND TO read theSE Agreements carefully and to contact us with any questions that you may have before commencing your use of the Website or the Service.
2. RULES OF CONDUCT FOR ALL USERS
Restrictions on User Content. All Users shall use the Website and the Service for lawful purposes only. You represent, warrant, covenant and agree that that any information you provide to us in connection with the Website or the Service (collectively, “User Content”) or that we access on your behalf through our provision of the Service (including any Energy Usage Data you provide or make available to us, whether directly or indirectly), will not include any content, material, data or information, regardless of form or medium, that:
a)is abusive, vulgar, obscene, hateful, fraudulent, threatening, harassing, defamatory, libelous or which discloses without permission private or personal matters concerning any person other than you;
b)you do not have the right or license to transmit or distribute to third parties under applicable law (such as third-party copyrights, trade secrets, trademarks, securities, or other proprietary rights), including under the other terms of service of any third party providing or assisting in making available such User Content, or under contractual or fiduciary relationships (such as nondisclosure agreements);
c)is used to impersonate any person, or falsely state or otherwise misrepresent your identity or your affiliation with a person or entity including, if you are a Representative of a Subscriber, such Subscriber;
d)you know or have reason to believe is provided, transmitted or distributed in violation of any applicable law, regulation, ordinance, contract, order or other agreement that is binding on you and/or your use of the Website or the Service;
e)contains viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating or destructive features that may damage someone else’s computer; or
f)otherwise violates the terms or conditions of these Agreements or is designed to interfere or interferes in any way with our continued provision and operation of the Website and the Services, either as presently provided and/or operated or as we may intend, in our sole discretion, to provide and/or to operate the foregoing at any future point.
Restrictions on Users. In addition to the above restrictions pertaining to User Content, you additionally represent, warrant, covenant and agree that, as a User of the Website and/or Service you will not do, or assist any others in doing, any of the following:
g)knowingly violate any applicable law, regulation, ordinance, contract, order or other agreement that is binding on you and/or your use of the Website or the Service;
h)use the Website or the Service to engage in or to promote any behavior or activity that is abusive, vulgar, obscene, hateful, fraudulent, threatening, harassing, defamatory, libelous or which discloses private or personal matters concerning any person;
i)use the Website or the Service to access or use any content, information or material to which you do not have the necessary right or license, or otherwise knowingly violate, breach or infringe the intellectual property, contractual or other rights of any third party;
j)impersonate any person, or falsely state or otherwise misrepresent your identity or your affiliation with a person or entity including, if you are a Representative of a Subscriber, such Subscriber;
k)modify, disassemble, decompile, reverse engineer, revise or enhance all or any party of the Website or the Services or create any derivative works or otherwise merge or utilize all or any part of the Service or the Website with or into other computer programs, website, service or other materials or attempt to do any of the foregoing or to discover all or any part of the Website’s or the Service’s source code;
l)copy, print, display, publish or transmit all or any part of the Website or the Services (including the look and feel and/or software or graphical user interface thereof) or any content or materials offered in connection therewith for any purpose, including for use with any product competitive with the Service, whether used internally or made available to third parties, except as expressly authorized herein or by us in writing;
m)sell, license (or sublicense), lease, assign, transfer, pledge, or share (including as a time share, service bureau or otherwise) any of your rights under, in or to the Agreements, the Website and/or the Service with or to any third party;
n)send or store any materials, data or information containing viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating or destructive features that may damage someone else’s computer, or upload or insert code, scripts, batch files or any other form of scripting or coding into the Website, the Service or any applications thereof or therein;
o)otherwise interfere with or disrupt the integrity or performance of the Website or the Services or any User Content or Our Content contained therein;
p)attempt to gain unauthorized access to the restricted areas of the Website or the Service or its related systems or networks; or
q)use the Website or the Service in any manner not intended by or explicitly prohibited by us.
Not intended for Users under 13 years of age. The Website and the Service are intended for commercial users and is not directed toward any User under 13 years of age. If you are under age 13, please do not attempt to use the Website or the Service, to register with us or to provide us with any User Content. If you believe that we might have any information from a child under age 13, please contact us at email@example.com.
3. ADDITIONAL RULES OF CONDUCT FOR SUBSCRIBERS; CREDENTIALS
The registration process. In order to become a Subscriber, and to provide us access to certain of your Energy Usage Data, you will be required to complete a registration process using the Website. As part of this registration process you will provide us with certain information, including (a) your name, the name of the business or company for which you are a Representative (if applicable), payment information and other information and (b) other information related to your energy provider(s) you or your Representatives intend to use in connection with the Website and/or the Service (collectively, “Account Information”). You represent, warrant, covenant and agree that all information (including your Account Information) you provide to us as a Subscriber, including in connection with your registration or otherwise, is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete at all times.
Credentials and your responsibility to protect them. In connection with your registration, you will be asked to create a username and password, and may also receive other information that allows us to associate you with your unique account to enable you to access the Service in the future (collectively, your “Credentials”). The privacy and security of your Credentials ARE your responsibility, you may not transfer or share YOUR CREDENTIALS WITH ANY THIRD PARTIES OTHER THAN YOUR REPRESENTATIVES AND YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF SUCH CREDENTIALS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ANY AND ALL USE OF YOUR CREDENTIALS, WHETHER BY YOU, YOUR REPRESENTATIVE OR ANY THIRD PARTY, INCLUDING ALL ACTIVITIES OR LIABILITIES RESULTING FROM THE USE OF THE WEBSITE OR SERVICE IN CONNECTION WITH YOUR CREDENTIALS. You further covenant and agree to at all times update us as necessary to ensure that you, and only you or those people you authorize, control your Credentials, including notifying us immediately if the security of your Credentials is compromised and obtaining new Credentials as directed through the Website or otherwise by us.
4. DESCRIPTION OF THE SERVICE; ENERGY USAGE DATA; HARDWARE
You represent, warrant, covenant and agree that you have not, and that you will not, provide us with any information, including any Energy Usage Data or access to any account information with respect to your energy provider(s), other than with respect to such information for which (i) you are the actual owner or (ii) you have been explicitly authorized to provide such access (for example, if you are an authorized Representative of a Subscriber). If you fail to abide by the foregoing provision, we may, in our discretion, immediately terminate your Subscriber account, revoke or restrict your right to access or to use the Website and/or Service and/or delete or move any or all of such information.
Hardware Use and Installation. In connection with or as a condition precedent to your use of the Service, you may be requested or required to install and to configure certain Hardware either as selected by you or as recommended by PlotWatt at one or more of the physical sites (e.g., a residence, a commercial property or other location) where you desire for us to provide the Service (each, a “Subscriber Location”). Your failure to appropriately install and/or to configure such Hardware at each Subscriber Location may, as discussed below, prevent or impair our ability to provide the Service to you, in full or in part. In connection with the purchase and installation of any such Hardware, you acknowledge, covenant and agree that (a) such Hardware is not designed or manufactured by PlotWatt, (b) all support and service for such Hardware, if any, shall be provided by the applicable manufacturer and/or seller of such Hardware, (c) PlotWatt makes no representation, warranty or guaranty with respect to the performance, quality, use or operation of such Hardware, whether separately or in connection with the Service, (d) the installation of any Hardware, whether performed by or on behalf of you, us or any third party, shall be performed at no cost or expense to PlotWatt (unless otherwise agreed in advance in writing) and by qualified electricians or other qualified personnel in a professional and workmanlike manner, with the degree of skill and care that is required by good and sound professional procedures, and (e) PLOTWATT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, CONFIGURATION OR USE, WHETHER BY OR ON BEHALF OF YOU, PLOTWATT OR ANY THIRD PARTY, OF ANY SUCH HARDWARE.
Use by your Representatives. As part of using the Service, you may choose to grant one or more of your Representatives with access to your Account Information, to your Credentials and/or to additional information or credentials providing varying degrees of access to your Subscriber account as created by us at your direction via the Website, including for purposes of accessing and/or modifying Energy Usage Data or other information supplied by you or by us in connection with the Service. In the event that you undertake any of the foregoing, you acknowledge and agree that you are responsible for, and may be held liable in full, for the actions and omissions of such Representatives.
Limitations on our ability to provide the Service. In order for us to provide the Service, we rely on you and/or your Representatives to supply us with certain Energy Usage Data and other information with respect to each Subscriber Location. Accordingly, you and/or your Representatives may be required, in order for us to provide or to continue to provide the Service, to take one or more of the following actions (at your sole cost, expense and liability, unless we and you have expressly agreed otherwise in writing) at any or every Subscriber Location: (a) purchasing, installing, configuring and/or maintaining Hardware to enable the collection, generation and/or transmission of Energy Usage Data; (b) configuring and/or maintaining your network and/or internet connection to provide us access to any Hardware present at such Subscriber Location and to permit us to access data or information, including Energy Usage Data, generated or transmitted by such Hardware; and/or (c) keeping your Account Information and other information and accounts related to your energy provider(s) accurate and up to date to the extent necessary for you or us to access, generate or provide certain Energy Usage Data. If you are unable or unwilling to perform in full any of the above actions (or any other action reasonably requested by us in connection with our provision of the Service), or if you or any third party (including your energy provider(s)) take or refrain from taking certain other actions, it is possible that we may as a result be unable to provide you with the Service as intended, or at all, in connection with one or more of your Provider Locations. In addition, it is also possible that our ability to provide the Service could be disrupted due to unanticipated or unplanned events, such as viruses, hacking or other security vulnerabilities, the failure, inaccuracy or inadequate performance of equipment, information or services provided by you, by us or by third parties (including your energy provider(s)) or other events, including force majeure events.
AS A RESULT, WHILE WE WILL UNDERTAKE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE TO OUR SUBSCRIBERS AS DESCRIBED IN MORE DETAIL ON OUR WEBSITE, WE CANNOT AND DO NOT REPRESENT, WARRANT OR GUARANTEE THAT WE WILL BE ABLE TO PROVIDE THE SERVICE OR THAT THE SERVICE WILL BE FUNCTIONING OR AVAILBLE, PARTIALLY OR IN FULL, AT ALL TIMES OR AT ANY PARTICULAR TIME, OR WITH RESPECT TO ANY PARTICULAR PROVIDER LOCATION; NOR DO WE REPRESENT, WARRANT OR GUARANTEE IN ANY RESPECT THE COMPLETENESS, ACCURACY OR EFFICACY OF ANY ENERGY USAGE DATA, RECOMMENDATIONS OR RELATED INFORMATION, WHETHER PREPARED OR PROVIDED BY YOU OR BY US AND/OR WITH RESPECT TO ANY PARTICULAR SUBSCRIBER LOCATION, AT ALL TIMES OR AT ANY PARTICULAR TIME; NOR DO WE REPRESENT, WARRANT OR GUARANTEE THAT ANY SERVICE OR FEATURE CURRENTLY INCLUDED IN THE SERVICE WILL REMAIN AS PART OF THE SERVICE GOING FORWARD.
ACCORDINGLY, YOUR USE OF THE WEBSITE AND THE SERVICE IS EXPRESSLY CONDITIONED ON YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THE LIMITATIONS SET FORTH IN THIS SECTION 4 AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 10 OF THESE TERMS.
5. OWNERSHIP OF USER CONTENT; FEEDBACK
We do not claim ownership of any User Content except as expressly described in this section with respect to Feedback; provided, however, that your use of the Service is subject to your granting of the license set forth in Section 4, as well as any other reasonably necessary license to any other User Content, in order for us to perform our obligations hereunder and to provide you with the Service, as it may be modified from time to time. Notwithstanding the foregoing, any comments, feedback, ideas and/or reports about the Website or the Service that you provide to us, whether in written, electronic or any other form (collectively, “Feedback”), shall be considered our proprietary and confidential information, and you hereby irrevocably automatically transfer and assign to us, immediately upon creation, all of your right, title and interest in and to such Feedback, including all intellectual property rights embodied in or arising in connection with such Feedback and any other rights or claims that you may have with respect to any such Feedback.
PlotWatt is under no obligation to make any changes or modifications to the Service or the Website, whether suggested by a User or its Representative in the form of Feedback or otherwise, and we reserve the right, with or without prior notice to you, to discontinue work on the Service or to revise or modify the Service so it provides different features, features in different combinations and/or different environment configurations.
6. OWNERSHIP OF THE WEBSITE AND SERVICE; RECOMMENDATIONS; OUR TECHNOLOGY AND OUR CONTENT
Our Technology. Other than with respect to the User Content, as described in Section 5 above, you acknowledge and agree that we are the sole owners of all right, title and interest in and to all other portions of the Website and the Service, including all software, software code, trade secrets, trademarks, confidential or proprietary information (including any Energy Usage Data created or provided by us, or derived from Energy Usage Data provided by you or on your behalf in accordance with these Terms) or other intellectual property or intellectual property rights or claims embodied therein or arising in connection therewith (collectively, “Our Technology”). You acknowledge and agree that Our Technology is subject to copyright and other intellectual property rights and laws, and that Our Technology may not be used, copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Agreements grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted to like Users of the Website or the Service according to these Agreements. Furthermore, nothing in these Agreements or your use of the Website or Service will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology.
Use of Marks. Certain of the names, logos, and other materials displayed on the Website or in the Service constitute trademarks, trade names, service marks or logos (“Marks”) of PlotWatt or our applicable licensors and you acknowledge and agree that you shall have no right, license or authority to use such Marks without our prior written consent (or, if applicable, the prior consent of our licensors) and that the ownership of all such Marks and the goodwill associated therewith remains with and will inure to us (or, if applicable, our licensors). To the extent indicated, any use of third party software or other technology provided in connection with the Website or Service will be governed by the applicable third party licenses and/or terms and conditions, and not by these Terms.
Recommendations. In connection with our provision of the Service, we may provide, either directly or in collaboration with you, recommendations, suggestions or advice related to your energy usage settings, configurations or activities at one or more Provider Locations (including, for example, adjusting your thermostat or other Hardware settings)(collectively, “Recommendations”). You acknowledge and agree that you shall not be required to adopt any such Recommendations and, furthermore, that you shall only adopt or implement any such Recommendations to the extent you have the requisite authority to do so (i.e., that no consent of any third party, including your energy provider, is required). PLOTWATT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES WITH RESPECT TO ANY SUCH RECOMMENDATIONS, INCLUDING WITH RESPECT TO THE ACCURACY OR EFFICACY OF SUCH RECOMMENDATIONS, AND PLOTWATT SHALL HAVE NO LIABILITY WITH RESPECT TO SUCH RECOMMENDATIONS.
Our Content. In addition to Our Technology, the Website and the Services may contain other text, images, files, audiovisual productions, opinions, statements, Recommendations, facts, articles, or other information (including Energy Usage Data) created, generated or derived by us or by third parties (“Our Content”). Our Content is for your reference only and, except as expressly indicated otherwise, may not be relied upon by you for any purpose. We are not responsible for Our Content’s accuracy or reliability, including with respect to the accuracy or reliability of any Recommendations as set forth above. In addition to any protections Our Content may have to the extent it also constitutes Our Technology, you hereby acknowledge and agree that Our Content may not be copied, duplicated, distributed, downloaded, sold or otherwise exploited by you in any way, except as agreed to in writing by us.
7. FEES PAID BY SUBSCRIBERS
Fees in general. As a Subscriber, unless otherwise agreed by us, you agree to pay our applicable subscription fees (as listed on the Website or as otherwise agreed by you and us) for the Service, based on the level and/or type of Service for which you sign up. Your use of the Service is limited to the restrictions established in your applicable Service plan (e.g., limitations on the number of Provider Locations, the nature of Recommendations provided, inclusion or exclusion of Hardware installation, etc.).
All fees with respect to the Service will be billed in advance and any delay or non-payment of such fees may result, in our discretion, in the termination, deletion and/or suspension of your Subscriber account and/or any User Content consistent with these Terms.
In the event we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Any amounts not paid when due shall bear interest at the lesser of 1.5% per month, compounded monthly, or the maximum rate allowable pursuant to applicable law.
Renewal. Unless specifically agreed upon in writing between you and us at commencement of your subscription to the Service, or unless you cancel the subscription using the appropriate mechanism provided within the Service or notify us by email at firstname.lastname@example.org and receive confirmation from us that you do not want your subscription to the Service to be automatically renewed, you agree that we may automatically renew your subscription and automatically charge you the applicable renewal or Service fees for such renewed subscription (as listed on the Website) for the Service using the credit card or other payment information associated with your Subscriber account at the expiration of each period of Service for which you have already paid.
Refunds and Changes to Service. In the event that you cancel your subscription to the Service (but not in the event that your subscription is terminated by us, including as a result of your violation of the Agreements), you shall continue to have access to the portion of the Service during the remaining period of time, if any, for which you have already paid to access and to use the Service. You will not be entitled to any refund with respect to all or any portion of your subscription to the Service or related Service fees which you may have paid in advance, regardless of the reason you cease to use such Service or choose to cancel your subscription to such Service, although we may elect to provide such a full or partial refund in our discretion. In the event that you change subscription plans during the term of your current subscription to the Service you may be eligible for a pro rata credit against the cost of any new Service fee or subscription amount based on the remaining unused and prepaid portion of your prior subscription.
Promotions. We may run promotional offers from time to time on the Website with respect to the Service. The terms of any such promotion will be posted on the Website or otherwise conveyed to you. Unless otherwise indicated, we may establish and modify, in our sole discretion and at any point in time, the terms and conditions of any such promotional offers.
8. PRIVACY STATEMENT AND SECURITY
9. USER INDEMNITY
You agree to defend, indemnify and hold harmless us, our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers and volunteers from any claims, actions, losses, damages, liabilities, judgments, settlements (each, a “Claim”), including all costs and expenses (including attorneys’ fees and disbursements) therein, arising out of or relating to: (a) your breach or failure of your obligations under the Agreements, including any representation, warranty, covenant or guarantee made by you or by your Representative on your behalf pursuant to these Terms or as a condition of your use of the Website and/or the Service, (b) the gross negligence or willful misconduct of you or your Representative, (c) the placement by you of a link or other means of access to the Website and/or the Service on or in any website, service, software program or in any e-mail or other communication, or (d) your access to and use of the Website or the Service or participation in any activities arising from this Website or the Service. Such indemnity shall include any costs and expenses incurred by us in any actions taken to enforce this indemnity. We reserve the right, at your expense, to assume the exclusive defense and control of any Claim for which you are required to indemnify us and you agree to cooperate with our defense of such Claims, and you agree not to settle any such Claim without our prior written consent. We will use commercially reasonable efforts to notify you of any Claim to which we are entitled to indemnification upon becoming aware of it.
10. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
THIS DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY ACT OR OMISSION OF OURS OR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA (INCLUDING ANY ENERGY USAGE DATA, ANY RECOMMENDATION AND/OR ANY USER CONTENT), WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER WE NOR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS ARE LIABLE FOR THE CONDUCT OF OTHER USERS OR THIRD PARTIES, INCLUDING ANY THIRD PARTIES YOU OR WE MAY UTILIZE IN CONNECTION WITH INSTALLING ANY HARDWARE OR OTHERWISE IN CONNECTION WITH THE WEBSITE OR THE SERVICE, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU AGREE THAT USE OF OUR WEBSITE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK. WE MAKE NO WARRANTY THAT THE WEBSITE AND/OR SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE WEBSITE AND/OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR SERVICE (INCLUDING ANY RECOMMENDATIONS), OR THAT DEFECTS IN THE WEBSITE OR SERVICE WILL BE CORRECTED. OUR WEBSITE, ALL CONTENT (INCLUDING BOTH USER CONTENT AND OUR CONTENT, INCLUDING RECOMMENDATIONS) AND SERVICE ARE PROVIDED “AS IS,” AND “AS AVAILABLE” FOR YOUR USE ONLY, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY FOR INFORMATION, SERVICES, UNINTERRUPTED ACCESS OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH US OR THE WEBSITE. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY AND EFFICACY OF THE SERVICE OR ANY OF OUR CONTENT (INCLUDING ANY ENERGY USAGE DATA OR RECOMMENDATIONS) OR OTHER INFORMATION, PRODUCTS OR SERVICES PROVIDED BY US, AS WELL AS ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT (WITH RESPECT TO OUR TECHNOLOGY OR OTHERWISE) OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PLOTWATT NOR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR THE SERVICE OR YOUR INABILITY TO GAIN ACCESS TO OR USE THE WEBSITE OR THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT PROVIDED, ACCESSED, CONTROLLED OR USED BY US IN CONNECTION WITH THE WEBSITE OR THE SERVICE, INCLUDING ANY ENERGY USAGE DATA. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, OUR POTENTIAL LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL OUR AGGREGATE LIABILITY, IF ANY, FOR ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THE AGREEMENTS, THE WEBSITE AND/OR THE SERVICE EXCEED THE FEES PAID BY YOU FOR USE OF THE SERVICE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, OR, IF NO SUCH FEES HAVE BEEN PAID BY YOU, ONE U.S. DOLLAR ($1.00 US).
IN THE EVENT THAT THIS SECTION 10 IS DETERMINED BY ANY COURT TO BE UNENFORCEABLE, YOU AGREE THAT ANY CLAIM THAT YOU BRING AGAINST PLOTWATT OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS THEREOF SHALL BE BROUGHT ONLY IN YOUR INDIVIDUAL CAPACITY, AND SUCH CLAIM SHALL NOT BE CONSOLIDATED WITH THE ARBITRATION, HEARING OR OTHER PROCEEDING (INCLUDING WITHOUT LIMITATION ANY OTHER SUIT OR CLASS ACTION) BROUGHT BY OR AGAINST ANOTHER USER OR US WITHOUT OUR EXPRESS WRITTEN CONSENT.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. FORCE MAJEURE
Without limiting the provisions of Section 10 or any other provision of the Agreements, under no circumstances will we or any of our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers or volunteers be held liable for any delay or failure in performance (including with respect to the provision or operation of the Service) resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or the non-performance of third parties.
12. ELECTRONIC COMMUNICATIONS
We can only give you the benefits of this Website and our Service by conducting business through the Internet, and therefore we require you to consent to our giving you Communications electronically. This Section 12 informs you of your rights when receiving Communications from us electronically. For contractual purposes, and as a necessary condition to our agreeing to allow you to use the Website and/or the Service, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing and shall have the same meaning, force and effect as if executed by hand, and all of the laws to which a hand executed agreement are subject will govern the Agreements. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent to receive Communications electronically you must, at that time and in order to give effect to such withdrawal, immediately cease using the Website and the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. You hereby agree to keep us reasonably informed of any changes in your Account Information, including email, mailing address or other applicable contact information, so that you continue to receive all Communications without interruption. A printed version of the Agreements shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
13. CHOICE OF LAW
THE AGREEMENTS WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, APPLICABLE TO AGREEMENTS MADE AND WHOLLY PERFORMED IN THAT STATE, WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF.
Users will resolve any claim, cause of action or dispute with PlotWatt arising out of or relating to the Agreements or the Website exclusively in state or federal court located in Durham County, North Carolina. Users agree to submit to the personal jurisdiction of the courts located in Durham County, North Carolina for the purpose of litigating all such claims.
If you wish to contact us for any reason, please contact us at: Email: email@example.com, or use the “Contact Us” link on this Website.
15. TERMINATION; SURVIVAL OF TERMS
Termination. You agree that we, in our sole discretion, may immediately terminate your access to the Website and Services at any time, for any reason, in our sole discretion. We may provide you refunds in our sole discretion and subject to the terms and conditions of Section 7 of these Terms. Upon termination or expiration of your access to the Service, you will no longer have the right to access or retrieve your User Content or any Energy Usage Data through the Website or the Service.
If you are a Subscriber, we will use commercially reasonable efforts to cease our collection of any new Energy Usage Data in connection with your subscribed account and any applicable Subscriber Locations promptly following the termination of the termination or expiration of your subscription.
If you contact us within thirty (30) days of the date of the termination or expiration of a paid subscription to the Service, other than following a termination due to your breach of any term or condition of the Agreements, and request a copy of your Energy Usage Data, we will use commercially reasonable efforts to provide you a copy of your Energy Usage Data in a format determined by us. Thereafter, and immediately in the event of any other termination or expiration of your right to use the Service, you acknowledge and agree that we may delete any or all of your Energy Usage Data and that it is solely your responsibility to seek another source for your backup needs. We shall also use our commercially reasonable efforts to delete all of your Energy Usage Data and User Content promptly upon your written and acknowledged request to us that we do so and that you wish to delete (as opposed to deactivate) your subscriber account. Notwithstanding the foregoing, in certain circumstances we may be required to maintain or otherwise preserve a copy of some or all of your ENERGY USAGE DATA, USER CONTENT AND/OR OTHER INFORMATION for a specified period of time or for an indefinite period of time in order to comply with applicable laws, rules and regulations or, if you are a Representative of a Subscriber, in order to comply with such Subscriber’s policies or procedures as they pertain to the Service, and you agree and consent to our so maintaining or preserving such DATA AND/OR INFORMATION.
YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE WEBSITE OR SERVICES OR DELETION OF YOUR ENERGY USAGE DATA, USER CONTENT OR OTHER INFORMATION. TERMINATION OR EXPIRATION OF YOUR SUBSCRIPTION TO THE SERVICE OR OF YOUR RIGHT TO ACCESS OR TO USE THE WEBSITE OR THE SERVICE WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF SUCH TERMINATION OR EXPIRATION.
Survival of terms. Except as set forth in the Agreement, in the event of termination or expiration of your subscription to the Service or your right to otherwise access or to use the Website or the Service or of these Terms, all of your rights pursuant to these Terms, the Service and the Website shall terminate immediately; provided, however, that, as described above, any payment or other obligation that has accrued as of such termination date shall survive such termination; provided, further, that rights and the obligations of the parties set forth in Sections 1, 5 and 6 and Sections 9 through 16, along with any other provision of these Terms required to enforce your or our rights and obligations hereunder, shall survive the termination or expiration of these Terms and shall continue in effect as described therein.
Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of the Agreements, including without limitation this Section 16. Paragraph headings and sub-headings are solely for the convenience of reference and shall not be given any weight or effect in the interpretation or construction of the Agreements. Waiver of any breach or default under any provision of the Agreements shall not be effective unless it is in writing and executed by us, and shall not be deemed to be, and shall not be, a waiver of any subsequent or continuing breach of, or default under, such provision or of any other provision. The Agreements constitute the entire agreement between you and us and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect to the Website or the Service. The Agreements, including these Terms, are personal to you, and you may not transfer, assign or delegate your right and/or duties under the Agreements to any third party. Any attempted transfer, assignment or delegation in violation hereof is void. If any provision of the Agreements is deemed invalid or unenforceable for any reason, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreements shall continue in full force and effect. Any rights not expressly granted herein are reserved.