Last Updated: May 24, 2019
ACCEPTANCE OF AGREEMENT
You acknowledge that this Agreement is supported by reasonable and valuable consideration duly received and acknowledged, including, without limitation, your ability to visit, use and/or submit information to our Site and/or Services, and you represent that you have the capacity to be bound by this Agreement (or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity). If you are not an Authorized User, or do not agree to be bound by the Agreement, or will not make the acknowledgments or representations in the preceding sentence, you must not continue to access or use the Site or our Services.
We may modify, suspend, or discontinue the Site or Services, temporarily or permanently, in whole or in part, in our sole discretion without notice, and we will not be liable to you or any third party for any such any modification, suspension or discontinuance.
The Site and Services are provided “AS-IS,” and we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You have no obligation to access or use the Site or Services, but if you choose to do so, you are responsible for making all necessary arrangements, obtaining and maintaining any necessary equipment, and any associated fees. Although our Site and Services are currently free to users, we reserve the right to require payment of fees for certain or all parts of the Site or Services, and in such case, you will be responsible to pay such fees for any aspect of the Site or Services you choose to access and/or use, as applicable. Further, in such case, we reserve the right to change its price list and to institute new charges at any time, and your access and/or use of the Site and/or Services thereafter will constitute your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
ACCOUNT CREATION AND SECURITY
If you choose to create an account with us or otherwise register with our Site, you agree that you will provide true, accurate, current and complete information about himself. We have the right to suspend or terminate or suspend your account and refuse any and all current or future use of the Site or Services (or any portion thereof) if you provide any untrue, inaccurate, not current or incomplete information, or if we reasonably suspect you have provided untrue, inaccurate, not current or incomplete information.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason. We may access, preserve and disclose your account information and Content/Contributed Content (each as defined below) if we reasonably believe we are or may be required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of ourselves, our employees and/or users, or the public.
Responsibility and Rights; Monitoring and Enforcement
All information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials on or through our Site or Services by persons or parties other than us (”Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person or party from whom such Content originated. We do not control the Content posted via the Services and, as such, do not guarantee the accuracy, integrity or quality of such Content. We are not and will not be in any way responsible to you or to any third party for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Site or the Services. You must evaluate, and bear all risks associated with, the provision or use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. We have the right (but not the obligation, and do not affirmatively undertake) to pre-screen, refuse, or relocate any Content that is available via the Site or the Services, and/or to remove any Content that violates this Agreement, is objectionable in our sole discretion, or for any other or no reason in our sole discretion.
We have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site or Services. YOU WAIVE AND HOLD HARMLESS OURSELVES AND OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
The technical processing and transmission of the Site and/or Services, including Content and Contributed Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand and agree that the Site or Services may include advertisements and that these advertisements may be necessary for us to provide all or part of the Site or Services. You also understand and agree that the Services may include or necessitate certain transactional communications from us, and that you will not be able to opt out of receiving them.
Your correspondence or business dealings with, or participation in promotions of, energy suppliers or advertisers found on or through the Site or Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such supplier or advertiser. You agree that we are not and will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such suppliers or advertisers on or through the Site or Services.
If the Site or Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to or through the Site or Services, you do so entirely at your own risk and subject to the terms and conditions of use for and privacy policies of such websites.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To send, knowingly receive, upload, download, use, or re-use any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate, or suggest untrue association or affiliation with, us, one of our employees, another user, or any other person or entity (including, without limitation, by using email address or account information associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of Site or Services, or which, as determined by us, may harm us or our users, or expose them to liability.
Additionally, you agree not to:
- Use the Site or Services in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site, including their ability to engage in real time activities through the Site.
- Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
- Use any device, software, or routine that interferes with the proper working of the Site.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
- Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Site.
The Site and Services and software embodied therein may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by us and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
NO RESALE OF SERVICES
You shall not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Site or Services, use of the Site or Services, or access to the
DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
- YOUR ACCESS AND/OR USE OF THE SITE AND/OR THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND SITE ARE PROVIDED ON AN ”AS IS” AND ”AS AVAILABLE” BASIS. WE (TOGETHER WITH OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SITE AND THE SERVICE, AND MAKE NO REPRESENTATION, WARRANTY OR COVENANT THAT (i) THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS; (ii) THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR SERVICES WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR COVENANT NOT EXPRESSLY STATED IN THIS AGREEMENT.
Trademarks and Trade Names.
You agree not to display or use, in marketing, telemarketing, advertising or otherwise, any of our or our affiliates’ trade names, logos, trademarks, trade devices, service marks, symbols, codes, specifications, abbreviations or registered marks, or contractions or simulations thereof (hereinafter referred to collectively as ”Marks”) or to permit the same to be used or displayed by third parties within your control, except with our prior written consent or except as required by any applicable law, order, regulation or ruling. You shall not claim ownership or any other rights in any Marks. All other names, logos, product and service names, designs, and slogans on or made available through the Site or Services are the trademarks of their respective owners.
All information, data, documents and materials provided by us to you, or acquired or learned by you from our files, documents, employees, agents, representatives, consultants or contractors in connection with the Site or Services, is and shall remain, as between you and us, our sole and exclusive property, and you shall not obtain any rights whatsoever in any such information, data, documents or materials (whether under applicable patent, copyright, trade secret laws or otherwise).
The software used in connection with the Site and Services (”Software”) contains our proprietary and confidential information that is protected by applicable intellectual property and other laws, and you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Site, the Services or the Software, in whole or in part. You may use, on a limited, non-exclusive and non-transferable basis, the object code of the Software on a single computer; provided that you do not (and do not allow any third party within your control to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Site and/or Services. You agree not to access the Site or Services by any means other than through the interface that is provided by us for use in accessing the Site and/or Services.
RELATIONSHIP OF THE PARTIES
Nothing in this Agreement is intended or will be construed to constitute or imply a joint venture, partnership, association or fiduciary duty, obligation or liability between you and us. We do not have any fiduciary or similar relationship with you. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever. You and we agree there are no third party beneficiaries intended under this Agreement.
Limitation of Liability; Time to File Claims.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE OR SERVICES, OR ANY WEBSITES LINKED THERETO, OR ANY CONTENT ON THE SITE OR SERVICES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. FURTHER, WE AND THEY shall not be liable TO YOU for ANY SUCH damages resulting from the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; unauthorized access to or alteration of your transmissions or data; statements or conduct of any third party on the service; or any other matter relating to the SITE OR Services.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The provisions of this Section will survive the termination of this Agreement. This Agreement shall not provide any person not a Party to this Agreement with any remedy, claim, liability reimbursement, cause of action or other right in excess of those existing without reference to this Agreement.
Compliance with Law.
You shall, at all times during the term of this Agreement and at its own expense, comply with all applicable federal, state, and local laws, rules, and regulations.
Choice of Law/Venue.
THIS AGREEMENT IS GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN STATE OF TEXAS. THE PARTIES MUTUALLY CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS IN MIDLAND COUNTY, TEXAS AND AGREE THAT ANY ACTION, SUIT, OR PROCEEDING CONCERNING, RELATED TO, OR ARISING OUT OF THIS AGREEMENT AND THE NEGOTIATION OF THIS AGREEMENT WILL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT IN MIDLAND COUNTY, TEXAS AND THE PARTIES AGREE THAT THEY WILL NOT RAISE ANY DEFENSE OR OBJECTION OR FILE ANY MOTION BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INCONVENIENCE OF THE FORUM, OR THE LIKE IN ANY CASE FILED IN A FEDERAL OR STATE COURT IN MIDLAND COUNTY, TEXAS.
With respect to any and all disputes or claims that have arisen or may arise between you and us (including any affiliates, officers, directors, employees, and agents), whether or not such dispute or claim involves a third party, relating in any way to any aspect of our relationship or any contact between us, direct or indirect, or arising out of this or previous versions of this Agreement, your use of or access to our Site or Services, or any products or services sold, offered, or purchased through our Site or Services (“Dispute”), you and we agree: (i) not to participate in a class action, a class-wide arbitration, a claim brought in a private attorney general or representative capacity, or a consolidated claim involving another person’s use of the site or our services; (ii) not to combine a claim that is subject to arbitration under this Agreement with a claim that is not eligible for arbitration under this Agreement, and (iii) to waive the right to a trial by jury for all disputes. At our sole discretion, we may require you to submit any Disputes to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Texas law.
You may opt out of this agreement to arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing, within 30 days of the date that you first became subject to this Agreement, by certified U.S. mail delivered to: Attn: Energy Choice – General Counsel, 1423 Red Ventures Drive, Fort Mill, SC 29707. You must include: (1) your name and residence address; (2) the email address and/or mobile telephone number associated with your account; and (3) a clear statement that you want to opt out of this arbitration provision of the Agreement.
This Section and your agreements and waivers made herein will survive the termination of your relationship with us.
No Additional Waiver.
No waiver or consent, express or implied, of any default in the performance of any provision herein will operate or be construed as a waiver or consent of any other default whether of a like or different nature. Failure to complain of any act or to declare a default with respect to this Agreement, regardless of how long that failure continues, will not constitute a waiver with respect to that default until the applicable statute of limitations period has run.
If any provision of this Agreement is, for any reason, adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment will not affect, impair or invalidate the remainder of this Agreement which shall be enforced as fully as possible, but will be confined in its operation to the provision directly involved in the controversy in which judgment will have been rendered. The provision rendered invalid or unenforceable shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein.
Entire Agreement; Survival.