Date Last Revised: January 16, 2015
THROUGH THE ESC WEBSITE, WE PROVIDE ENERGYSCORECARDS (“ESC”), A SUBSCRIPTION-BASED ONLINE SOFTWARE AS A SERVICE PROVIDING A UTILITY BILL-BASED ENERGY MANAGEMENT SYSTEM OPERATED AND PROVIDED BY BRIGHT POWER, INC., (“SAAS”). OUR SAAS CONTAINS ELECTRONIC ACCESS TO CERTAIN DOCUMENTS AND INFORMATION REGARDING AND/OR RELATING TO ENERGY MANAGEMENT, AND IS A USEFUL RESOURCE FOR TRACKING UTILITY USAGE AND COSTS.
I. GENERAL TERMS AND CONDITIONS OF USE
PLEASE READ THE TERMS AND CONDITIONS OF USE BELOW CAREFULLY. THESE TERMS AND CONDITIONS OF USE, WHICH MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THE ESC WEBSITE OR TO ONE OF OUR OTHER WEBSITES, AND ARE BINDING ON ALL USERS OF OUR WEBSITES AND/OR OUR SERVICES, SET FORTH AN AGREEMENT BETWEEN US IN RELATION TO YOUR USE OF OUR WEBSITES, INCLUDING THE ESC WEBSITE AND/OR OUR SERVICES, (THE “AGREEMENT”). BY USING OUR WEBSITES OR ANY SERVICES, “YOU” (WHICH TERM, AS USED HEREIN, INCLUDES YOU PERSONALLY AND THE COMPANY, ENTITY OR OTHER ORGANIZATION ON WHOSE BEHALF WE GRANT YOU ACCESS TO OUR WEBSITES AND/OR OUR SERVICES) ACKNOWLEDGE AND AGREE THAT: (1) YOU, AS WELL AS YOUR REPRESENTATIVES (INCLUDING YOUR HEIRS, EXECUTORS, ADMINISTRATORS, ASSIGNS AND ATTORNEYS-IN-FACT) INTEND TO FORM A LEGALLY BINDING CONTRACT BETWEEN YOU (AND YOUR REPRESENTATIVES) AND BRIGHT POWER; (2) YOU HAVE READ, UNDERSTAND AND AGREE TO THIS AGREEMENT; (3) YOU AGREE AND INTEND THIS AGREEMENT AND ANY OTHER APPLICABLE TERMS AND CONDITIONS FOUND ON OUR WEBSITES TO BE THE LEGAL EQUIVALENT OF SIGNED, WRITTEN CONTRACTS, AND EQUALLY BINDING ON YOU, AND AGREE TO ABIDE BY THEM; AND (4) IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF OTHERS, YOU HEREBY CERTIFY THAT YOU ARE AN AUTHORIZED REPRESENTATIVE, DULY AUTHORIZED BY ALL REQUIRED ACTION TO ACT ON BEHALF OF SUCH OTHERS. YOU SHOULD PRINT OR SAVE A LOCAL COPY OF THIS AGREEMENT FOR YOUR RECORDS.
BY ACCESSING OR USING OUR WEBSITES, INCLUDING THE ESC WEBSITE, AND/OR OUR SERVICES, IN ANY WAY, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND IN ANY CHANGES HERETO THAT WE MAY PUBLISH FROM TIME TO TIME. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT ACCESS OR USE OUR WEBSITES AND/OR OUR SERVICES.
ADDITIONALLY, YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATIONS IN ORDER TO ENTER INTO THIS AGREEMENT, TO CREATE OTHER RECORDS AND TO THE ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS BETWEEN YOU AND US WITH RESPECT TO THIS AGREEMENT.
THIS AGREEMENT IS IN ADDITION TO, DOES NOT NULLIFY, AND YOU ARE SUBJECT TO, WHATEVER ADDITIONAL OBLIGATIONS, CONDITIONS AND LIMITATIONS MAY BE CONTAINED IN ANY OTHER AGREEMENT(S) BETWEEN YOU AND BRIGHT POWER PARTIES, GOVERNING THE CONDUCT OF YOUR RELATIONSHIP WITH US OR ANY OTHER APPLICABLE TERMS AND CONDITIONS FOUND ON OUR WEBSITES OR IN ANY AGREEMENT BETWEEN YOU AND BRIGHT POWER PARTIES.
YOU AGREE TO COMPLY WITH ALL RULES OR RESTRICTIONS THAT ARE POSTED ON OUR WEBSITES.
II. ADDITIONAL DEFINED TERMS; OUR WEBSITE(S) INCLUDING THE ESC WEBSITE, OUR SERVICES AND CONTENT
“Bright Power Parties” means collectively, Bright Power, our officers, directors, affiliates, control persons, employees, vendors, licensors, representatives, agents, successors and assigns. “Source” means individually, and “Source(s)”means collectively, the direct and indirect third party licensors, vendors, service providers, subcontractors and sources, including third party websites, of any Content, as such term is defined below. Certain sections or pages on our Websites may contain separate terms and conditions or disclaimers, which are in addition to these terms and conditions. Additionally, certain Services Agreements, Subscription Agreements and/or other types of Bright Power Agreements (collectively “Additional Agreements”) may contain separate terms and conditions or disclaimers, which are in addition to these terms and conditions. In the event of a conflict, the additional terms and conditions or disclaimers in any Additional Agreement will govern.
As first defined above, our “Websites” means the websites provided at brightpower.com together with our website provided at energyscorecards.com (individually the “ESC Website”), the online services provided therein, which services shall include all correspondence, email, processes, or data sent by Bright Power Parties, including, to the extent applicable, certain communications from Bright Power, such as service announcements, administrative messages and various emails, which may include attachments, (the “Services”) and all Internet web pages, information, documents, data, analyses, charts, graphics, screens, reports, documentation, spreadsheets, photographs, maps features, functionalities and other materials and information of any kind (including “Third Party Content,” as such term is defined below), as well as all updates, enhancements and modifications thereto, whether the same is provided directly to you by Bright Power or through us or any Source (collectively, the “Content”) that are contained on and available or accessible to you by logging onto the ESC Website (and our other Websites which include Content owned or provided by Bright Power, as defined above) or through your interactions with Bright Power Parties generally.
Any Content setting forth pricing is purely indicative in nature and is subject to change without further notice. Opinions, estimates and other information contained in the ESC Website and/or our other Websites may also be changed or withdrawn without prior notice. Bright Power is not obliged to ensure that any Content available on the ESC Website and/or its other Websites or provided directly to you by a Bright Power Party is kept up-to-date. You should consider all the risks (direct or indirect) or other considerations which might be material to you prior to making any decision based on Content set forth therein. Unless explicitly stated otherwise, any new features that augment or enhance the current Content or Services shall be subject to this Agreement.
III. LOGIN INFORMATION, ACCESS AND SECURITY FOR THE ESC WEBSITE
You will receive a password and Login ID (“Login Information”) upon completing the ESC Website’s registration process and paying the associated fees for registration and/or subscription. You agree and acknowledge that you are responsible for maintaining the confidentiality of your Login Information.
IV. COMPLIANCE WITH THIS AGREEMENT AND ALL APPLICABLE LAWS
You are fully responsible for all activities that occur under your ESC account including those activities carried out by, and the acts or omissions of, all persons who access and/or use the ESC Website by or through, or as a result of, your acts or omissions. You shall, and shall ensure that all such persons who access the ESC Website, comply with: (i) this Agreement; (ii) all other agreements with, and requirements, and restrictions of, the Bright Power Parties and the Sources; (iii) all applicable federal, state and local laws, rules and regulations; and (iv) all laws, orders, and restrictions, domestic and international, and all applicable international treaties, regarding the transmission and/or exportation of data and software products from or to the United States. If you become aware of any breaches or violation of any of the foregoing, you shall immediately notify Bright Power thereof in writing, including by sending an email with the requisite detailed information to email@example.com.
V. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that the Services, Content and the ESC Website and/or our other Websites (including their “look and feel”) are the commercially valuable proprietary products and trade secrets of Bright Power and/or its licensors, the relevant Sources or their affiliates. The Services, Content and our Websites including the ESC Website and any derivative works thereof, whether made by you or us, are protected by copyright, trademark and other intellectual property laws and all copyright, trademarks, database rights, patents and all rights (including ownership rights and intellectual property rights), title, and interest throughout the world in and to certain materials, information and content made available or displayed on our Websites or sent to you through the Services or our Websites, including the ESC Website, Content and Services (including, without limitation, all changes, modifications, enhancement, or corrections or additions thereto) are solely and exclusively retained, reserved, owned by and remain with Bright Power and/or its licensors, the relevant Sources or their affiliates, as the case may be.
If you provide any feedback or suggestions related to our Websites including the ESC Website, Content and/or Services, including any specifications for customizations thereof, you hereby grant to Bright Power a non-exclusive, global, perpetual, irrevocable, royalty-free, fully-paid up, transferable, sublicenseable license to use and allow third parties to have the use of, copy and modify such suggestions, feedback and specifications and to make, have made, use, import, offer to sell and sell products and services incorporating such feedback, suggestions and/or specifications, provided, however, that in the event Bright Power develops any new products or services, or modifies any existing products or services, that use, incorporate or have embedded therein any such feedback, suggestions and/or specifications, all rights (including ownership rights and intellectual property rights), title, and interest throughout the world in and to such products and services (including, without limitation, all changes, modifications, enhancements, or corrections or additions thereto) shall be solely and exclusively retained, reserved, owned by and remain with Bright Power.
VI. RESTRICTIONS ON USE; PROHIBITED ACTIVITIES
Your right to access and use materials, information and Content made available or displayed on our Websites including the ESC Website and/or sent to you through the Services is personal to you and is not transferable by you to any other person or entity. You may use the materials, information and/or Content and download or reproduce it in hard copy for your personal non-commercial use and reference only, provided you do not modify or delete any copyright, trademark or other proprietary notice that appears on the material you access, copy, download or print.
You are prohibited from, and shall not, develop, market or sell any product or service that competes with our Websites including the ESC Website, Content or Services, or is based on or derived in any way from the “benefits of know-how” resulting from access to our Services, Content and/or Websites including the ESC Website. The term “benefits of know-how” means information in non-tangible form which may be retained by persons who have had access to our Websites (including the ESC Website), and Content and Services, including ideas, concepts, know how or techniques contained therein.
Except to the extent expressly set forth herein, materials, information and Content made available or displayed on our Websites including the ESC Website and/or sent to you through the Services may not, in whole or in part, for any purpose, otherwise be copied, reproduced, disclosed, distributed, stored in a data retrieval system or transmitted, published, broadcast or circulated in any form or by any means or manner – electronic, mechanical, photocopying, recording or otherwise , or modified, sold, used to create any derivative work, or commercially used or exploited, and all of the foregoing is expressly prohibited without the express prior written permission of Bright Power or the applicable Source of such Content.
Without limiting the foregoing, you warrant and represent that you shall not:
1. Engage in any activities related to our Websites including the ESC Website, or use any Services or Content for any purposes, that are contrary to applicable law, rules or regulation, any rules established by Bright Power or any Source, or the terms of any Agreements you have with Bright Power Parties;
2. Apply a methodology or other form of manipulation to the Services or Content;
3. Remove or modify any disclaimer or copyright or trademark notice contained in our Websites including the ESC Website or in anything copied or downloaded from the ESC Website or any of our other Websites;
4. Attempt to override or circumvent any rules of use for, or embedded in, the ESC Website;
5. Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the ESC Website or any other Website owned or managed by Bright Power, without Bright Powers’ express written consent, which may be withheld in Bright Powers’ sole discretion;
6. Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the ESC Website or our other Websites, other than the search engines and search agents available through our Websites and other than generally available third-party web browsers (such as Microsoft Explorer or Mozilla Firefox);
7. Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the ESC Website or any other Website owned or managed by Bright Power, the Content or Services;
8. Attempt to decipher, decompile, disassemble, reverse-engineer, or use any other means to attempt to discover, source code contained therein;
9. Submit any information or data (including “Third Party Account Information” as such term is defined herein) that: (i) you are not entitled, and/or do not have the legal right, to make available; (ii) would result in violating any applicable law, rule or regulation and/or any contractual or fiduciary obligation; (iii) infringe or violate the rights, including the intellectual property rights, of any third party; or (iv) is otherwise unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
10. Falsely state or otherwise misrepresent your affiliation with a person or entity;
11. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the ESC Website or any of our Websites; or
12. Interfere with or disrupt the ESC Website or any other Website owned or managed by Bright Power, Content and Services, servers or networks connected to our Websites, or fail to comply with any requirements, procedures, policies or regulations of networks or third party sites connected or linked to the ESC Website or any other Website owned or managed by Bright Power.
VII. PRIVACY AND YOUR PERSONAL INFORMATION
The security of your personal information is important to us. While there is no such thing as “perfect security” on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that our Websites including the ESC Website and the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Bright Power reserves the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of your personal information. We may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.
VIII. DATA PROVIDED TO BRIGHT POWER IN CONNECTION WITH ESC
IT IS SOLELY YOUR RESPONSIBILITY TO PROVIDE TRUE, ACCURATE, CURRENT AND COMPLETE DATA TO US, INCLUDING INFORMATION ABOUT YOUR BUILDINGS, PROPERTIES, AND SITES AS WELL AS ACCOUNTS MAINTAINED AT OTHER WEBSITES, as requested on the ESC Website or by Bright Power Parties. In furtherance of our providing the Services to you, you must keep your account registration information up-to-date and accurate. Failure to do so will affect the accuracy and effectiveness of the provided Content and Services.
IX. THIRD-PARTY CONTENT, ACCOUNT INFORMATION AND UTILITY AUTHORIZATION FOR ESC
Users may direct Bright Power to retrieve content maintained by third-parties with whom they have customer relationships, maintain accounts or engage in financial transactions (“Third-Party Content”). Such third parties may include but are not limited to utility companies and EPA’s Energy Star Portfolio Manager tool. The ESC Website and/or our other Websites may be linked to third party websites.
By submitting third-party data, passwords, usernames, PINs, other login information, materials and other account information (“Third-Party Account Information”) to the ESC Website or to Bright Power Parties, you: (i) expressly authorize and permit Bright Power to use and store such Third-Party Account Information to access the Third-Party Content for the purpose of providing Content and Services; and (ii) warrant and represent that such Third Party Account Information may be used for the purposes set forth herein without subjecting Bright Power to any obligations or limitations, including any obligation to pay any fees. Third Party Content and Third Party Account Information may be referred to collectively herein as “Third Party Data.”
For purposes of this Agreement and in order to provide the Content and Services described, you grant Bright Power a limited power of attorney, and appoint Bright Power as your attorney-in-fact and agent, to communicate with third-parties to retrieve and use your Third-Party Content with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN BRIGHT POWER IS ACCESSING AND RETRIEVING THIRD-PARTY CONTENT FROM THIRD-PARTY WEBSITES, BRIGHT POWER IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD-PARTY. You understand and agree that the Content and Services are not sponsored or endorsed by any third parties whose Third-Party Content is accessible through the Website. Bright Power does not make any representation as to, and cannot take responsibility for, the accuracy or completeness of, or promise to make any effort to review, and may not review or update, the Third Party Content for any purpose including but not limited to accuracy, legality, or non-infringement. Bright Power is not responsible, and does not accept liability, for any delays, interruptions, omissions, errors or inaccuracies in data supplied by you or by third-parties or for any products, services, or content offered by third-parties, including all Third Party Content, whether on their websites or otherwise. You bear all risk from the use thereof in general and the use and results of any Third Party Content in particular. Without limiting the foregoing, Bright Power cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions and Bright Power cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. Third-Party Content is only as timely as is set forth in the date shown on the Website. Such content may be more up-to-date when obtained directly from the relevant sites, or from the third-parties via other means.
Additionally, as applicable, you hereby acknowledge that Bright Power cannot be responsible for the timely submission in compliance with Benchmarking Laws of any applicable jurisdiction if complete data is not supplied by you to Bright Power by 30 days before any submission deadline. Bright Power shall not be liable for omissions or inaccuracies in data supplied by you, technical problems associated with EPA’s Energy Star Portfolio Manager (“Portfolio Manager”) tool or the mechanisms for transferring information from Portfolio Manager to the municipal agencies responsible for implementing the Benchmarking Laws.
Bright Power may use and continue to store the Third-Party Content for the duration of your use of the ESC Website and thereafter. Third-Party Content may be automatically updated periodically until such time as the Third-Party Account Information is removed from the Website.
X. BRIGHT POWER’S OBLIGATIONS REGARDING OPERATION OF OUR WEBSITES INCLUDING THE ESC WEBSITE AND OUR SERVICES AND CONTENT, AND YOUR RIGHT TO TERMINATE THIS AGREEMENT
Bright Power shall endeavor to use commercially reasonable efforts to operate our Websites including the ESC Website, and to provide Services and Content in material conformance with the applicable documentation and/or any Additional Agreements in place between you and Bright Power Parties, and this Agreement. As your sole and exclusive remedy, and our sole and exclusive liability, for our failure to do so, Bright Power shall endeavor to use commercially reasonable efforts to promptly correct any such failure reported to us in writing. Should Bright Power be unable to remedy any material breach of this obligation in a prompt manner, you may terminate this Agreement upon written notice to us. If you do so terminate this Agreement, we shall be entitled to receive payment for all Services performed and actual costs and/or expenses incurred by us in connection with our Websites including the ESC Website and/or our Services up to the date of termination.
XI. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT OUR WEBSITES, INCLUDING THE ESC WEBSITE, CONTENT AND SERVICES ARE PROVIDED TO YOU ON AN “AS-IS,” “AS AVAILABLE” BASIS AND THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE BRIGHT POWER PARTIES AS WELL AS ANY SOURCES, AND THEIR AFFILIATES, ARE NOT PROVIDING AND EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, GUARANTIES, CONDITIONS, COVENANTS AND REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR WRITTEN, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH REGARD TO THE ESC WEBSITE, OUR OTHER WEBSITES, THE SERVICES AND THE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY RELATING TO IMPLIED WARRANTIES OR MERCHANTABILITY, QUALITY, ACCURACY, ADEQUACY, COMPLETENESS, RELIABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL OR DISABLING CODE, TIMELINESS, CURRENCY, ERROR-FREE UNINTERRUPTED SERVICES OR FITNESS FOR A PARTICULAR PURPOSE OR USE, ANY WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS OR REPRESENTATIONS THAT THIS WEBSITE, THE OPERATION OR ACCESS TO ANY PORTION OF IT OR THE SERVICES OR CONTENT: (i) WILL MEET YOUR REQUIREMENTS; (ii) WILL BE FREE FROM INFECTION, VIRUSES, MALICIOUS OR DISABLING CODE (AND IT IS YOUR RESPONSIBILITY TO INSTALL AND MAINTAIN EFFECTIVE ANTI-VIRUS PROGRAMS ON YOUR SYSTEM); (iii) WILL BE UNINTERRUPTED OR ERROR-FREE; (iv)THAT THE RESULTS THAT YOU MAY OBTAIN FROM THE USE OF THE WEBSITE AND THE SERVICES AND CONTENT WILL BE ACCURATE OR RELIABLE; OR (v) THAT DEFECTS WILL BE CORRECTABLE OR CORRECTED, AND WE EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE SERVICES AND CONTENT. ALL SUCH WARRANTIES, GUARANTEES, CONDITIONS, COVENANTS AND REPRESENTATIONS ARE EXCLUDED TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW. BRIGHT POWER ASSUMES NO RESPONSIBILITY FOR DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS, PERSONALIZATION SETTINGS, OR THIRD PARTY DATA.
YOU ARE INDEPENDENTLY RESPONSIBLE FOR OBTAINING ACCESS TO OUR WEBSITES INCLUDING THE ESC WEBSITE (SUCH AS INTERNET SERVICE PROVIDER OR AIRTIME CHARGES). YOU ARE FULLY RESPONSIBLE FOR ALL FEES RESULTING FROM OBTAINING ACCESS TO THE ESC WEBSITE. IN ADDITION, YOU ARE SOLELY RESPONSIBLE FOR PROVIDING ALL EQUIPMENT AND SOFTWARE NECESSARY TO ACCESS THE ESC WEBSITE.
DATA COMPUTATIONS ARE NOT GUARANTEED BY ANY SOURCE, THIRD PARTY OR THEIR AFFILIATES OR BRIGHT POWER AND MAY NOT BE COMPLETE. BRIGHT POWER IS NOT RESPONSIBLE FOR THE ACCURACY OF DATA SUBMITTED TO, OR OTHERWISE USED ON OR BY THE WEBSITE OR ANY CONTENT WHICH IS CREATED FROM SUCH DATA. YOU AGREE THAT YOU MUST EVALUATE, AND BEAR ALL RISKS ASSOCIATED WITH, THE USE OR RESULTS OF ANY SERVICES OR CONTENT, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF SUCH CONTENT. YOU ARE RESPONSIBLE FOR VALIDATING THE INTEGRITY OF ANY INFORMATION RECEIVED OVER THE INTERNET IN THIS REGARD. YOU ACKNOWLEDGE THAT YOU MAY NOT RELY ON ANY CONTENT CREATED BY BRIGHT POWER OR SUBMITTED TO BRIGHT POWER, INCLUDING WITHOUT LIMITATION INFORMATION IN BRIGHT POWER AND/OR ESC-RELATED FORUMS AND IN ALL OTHER PARTS OF THE WEBSITE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. YOU ASSUME THE ENTIRE RISK OF AND SPECIFICALLY AGREE TO RELEASE AND DISCHARGE THE BRIGHT POWER PARTIES, ANY SOURCES AND THIRD PARTIES, AND THEIR AFFILIATES FROM, AND UNDER NO CIRCUMSTANCES WILL SUCH PARTIES BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY IN ANY WAY FOR, ANY AND ALL INJURIES, LOSSES, COSTS, CLAIMS OR DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF BUSINESS, REVENUES, DATA OR DATA USE; LOST PROFITS; OR CONSEQUENTIAL; INCIDENTAL; DIRECT; INDIRECT; SPECIAL; LIQUIDATED; PUNITIVE; OR EXEMPLARY DAMAGES; OR SIMILAR DAMAGES) WHATSOEVER, ARISING OUT OF OR OTHERWISE RELATING TO, IN WHOLE OR IN PART: (i) ANY ACCESS, USE OF OR INABILITY TO USE THIS WEBSITE OR THE SERVICES OR CONTENT (OR ANY OTHER LINKED SITE OR LOCATION) OR ANY PORTION THEREOF, (ii) ANY INACCURACY, INCOMPLETENESS, MALFUNCTION, DELAY, INTERRUPTION, ERROR, OMISSION, DEFECT, COMPUTER VIRUS OR OTHER HARMFUL COMPONENT, OR FAILURE IN OR OF, THIS WEBSITE OR THE SERVICES OR CONTENT (OR ANY OTHER LINKED SITE OR LOCATION) OR ANY PORTION OR THE DELIVERY THEREOF, OR (iii) ANY DECISION MADE OR ACTION TAKEN BY YOU OR ANY THIRD PARTY IN RELIANCE UPON THE CONTENT, REGARDLESS OF WHETHER BRIGHT POWER HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND BEING INCURRED BY YOU OR ANY THIRD PARTY AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
YOU UNDERSTAND AND AGREE THAT THE FOREGOING DISCLAIMERS AND LIMITATIONS AND THE INDEMNITY HEREIN ALLOCATE THE RISKS BETWEEN US AND YOU AS AUTHORIZED BY APPLICABLE LAWS.
TO THE EXTENT THAT THE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, ALL CONTENT ACCESSIBLE ON THIS WEBSITE, OR ANY OTHER LOCATION TO WHICH WE LINK, AND ALL OPERATIONS ON THIS WEBSITE ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.
XII. ADDITIONAL INFORMATION REGARDING CONTENT
You acknowledge that Bright Power may or may not pre-screen Content (and that Services and Content provided under our Websites including the ESC Website may be outside Bright Power control and/or provided by a third party), but that Bright Power and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Website. Without limiting the foregoing, Bright Power and its designees shall have the right to change or remove any Content without prior notice.
XIII. NO ADVICE
The Content and Services are not intended to provide legal, tax or financial advice.
XIV. E-MAIL ADDRESS, CONTACT INFORMATION AND NOTICES
By providing Bright Power with your e-mail address, you agree to receive all required notices electronically, to be sent to such e-mail address. It is your responsibility, and you agree, to keep current and promptly update all your contact information, including, but not limited to, your name, physical address, e-mail address and phone number, as applicable. Bright Power is not responsible for any communication forwarded to any street or e-mail address that is no longer current, or your inability to access the Website, resulting from your failure to provide such updated contact information.
Notices will be provided via e-mail or through a link to the appropriate page on the Website, accessible through a standard, commercially available internet browser. Other means of communication may become available in the future (such as SMS text messaging); however e-mail will remain the primary means of communication.
Notwithstanding the above, notices required to be sent by you under any other Agreement related to the ESC Website or any Services between you and Bright Power must be sent via email along with a valid confirmation of email receipt, or in a hard copy written document to the address listed in the applicable Agreement.
XV. ONLINE AND MOBILE ALERTS RELATED TO YOUR ESC ACCOUNT
Bright Power may from time to time provide automatic alerts and voluntary ESC account-related alerts.
Automatic alerts may be sent to you following certain changes made online to your Bright Power ESC account, such as a change in your Registration Information.
Voluntary account alerts may be turned on by default as part of the Services provided in connection with your ESC account. They may then be customized, deactivated or reactivated by you. These alerts allow you to choose alert messages for your ESC accounts. Bright Power may add new alerts from time to time, or cease to provide certain alerts at any time in its sole discretion. Each alert has different options available, and you may be asked to select from among these options upon activation of your alerts service.
Electronic alerts will be sent to the email address you have provided as your primary email address for your ESC account. You may also be able to choose to have alerts sent to a mobile device that accepts text messages. Changes to your email address or mobile number will apply to all of your alerts.
Alerts may include your ESC Website Login ID, the address of your building, and certain information about your ESC accounts including Third-Party Content provider name and account number. Depending upon which alerts you select, information such as an account balance or the due date for your payment may be included. Anyone with access to your email will be able to view the content of these alerts. At any time you may disable future alerts.
Bright Power does not guarantee the delivery or the accuracy of the content of any alert and shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
XVI. ESC SUBSCRIPTION FEES
Any applicable fees will be charged regardless of whether the ESC Website is accessed or used during the applicable billing cycle. You agree to pay all fees due and owing by you in accordance with the provisions set forth in any Agreements between you and Bright Power.
XVII. CONSENT TO ELECTRONIC COMMUNICATIONS IN CONNECTION WITH YOUR ESC SUBSCRIPTION
The ESC Website provides an electronic, Internet based-SaaS. Therefore, you understand and agree that this Agreement will be entered into electronically, and that the following categories of information (“Communications”) may be provided by electronic means either through the ESC Website or by e-mail as described below:
1. This Agreement and any amendments, modifications or supplements to it.
2. Your records of any payment and other transactions through us, including, without limitation, payment histories and confirmations of individual transactions.
3. Any disclosures or notices provided in connection with the ESC Website, including, without limitation, those required by federal, state or local law, rule or regulation (including, without limitation, initial disclosures, periodic statements, periodic and annual error resolution notices, initial and annual privacy notices, opt-out notices, and change-in-terms notices).
4. Any customer service communications, including, without limitation, communications with respect to claims of error or unauthorized use of the Services.
5. Any other communication related to the ESC Website, and/or related Content and Services.
All electronic Communications will be deemed to have been received by you no later than five (5) business days after Bright Power sends the same to you by e-mail, whether or not you have received the e-mail, or through the ESC Website. An electronic Communication by e-mail is considered to be sent at the time that it is directed by Bright Power’s e-mail server to the appropriate e-mail address. You agree that these are reasonable procedures for sending and receiving electronic Communications.
Although Bright Power reserves the right to provide Communications in paper format at any time, we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy or save a local electronic copy of this Agreement and any electronic Communication that is important to you and retain the copy thereof for your records. If you do not wish to receive Communications electronically, you must cease using the ESC Website.
You agree to defend, indemnify and hold harmless the Bright Power Parties and the applicable Sources, and their affiliates, from and against any and all losses, liabilities, obligations, damages, claims, suits, actions and proceedings, and all related penalties costs, expenses, to which any such Bright Power Parties or the applicable Sources, or their affiliates, may become subject, including, but not limited to, reasonable legal and other professional fees incurred in investigating, defending, settling or appealing pending or threatened claims, actions, suits, proceedings, arbitrations, amounts paid in settlement thereof and amounts awarded thereunder, directly or indirectly arising out of or related to (i) your breach of this Agreement or failure by you to carry out any obligation or responsibility hereunder, (ii) your access to and/or use of our Websites including the ESC Website and/or their respective Services or Content, or (iii) any violation by you, any affiliate or yours, or any of your or their employees or representatives or any other persons who access and/or use ours Websites by or through you, or as a result of your acts or omissions, whether or not such access and/or use is authorized, of any agreement, requirement, restriction or right (including intellectual property rights) of the Bright Power Parties or any Source, or their affiliates, or any third party, or of any applicable law, rule or regulation.
XIX. FORCE MAJEURE
The Bright Power Parties are not liable for losses caused directly or indirectly by any of our non-performance as a result of events beyond our control including natural disasters, acts of God, war, terrorism actions or decrees of governmental bodies, failure of communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of our obligations with respect to the effected elements under this Agreement will be suspended for the duration of such Force Majeure Event.
XX. SUSPENSION; MODIFICATION; AUTOMATIC RENEWAL; TERM AND TERMINATION OF YOUR ESC SUBSCRIPTION AGREEMENT
Unless explicitly stated otherwise in any Additional Agreements between You and Bright Power Parties, Your ESC Subscription Agreement will begin upon completing ESC Website’s registration process and paying the associated fees for registration and/or subscription (“ESC Subscription Effective Date”) for a period of one (1) year (“ESC Subscription Initial Term”) and shall renew automatically for successive periods of one (1) year (ESC Subscription Renewal Period”) unless otherwise terminated in accordance with this Agreement. Either Party may terminate this Agreement without cause upon thirty (30) days’ prior written notice. If you terminate this Agreement without cause, we shall be entitled to receive payment for all Services performed and actual costs and/or expenses incurred by us in connection with the Services up to the date of termination.
Your ESC Subscription Agreement will automatically renew and you will be charged in accordance with the provisions set forth in any Agreements between you and Bright Power when you make your initial purchase unless you terminate your ESC subscription in accordance with these terms and conditions 30 days before the start of ESC Subscription Renewal Period.
Simply closing your ESC Website account will serve as the equivalent of ‘written notice’ for the purpose of terminating your ESC Subscription Agreement.
Bright Power and/or the Sources may, at any time and for any reason, with or without prior notice to you: (a) modify, limit, suspend, discontinue, or terminate, in whole or in part, any portion of the ESC Website or the delivery or display of the related Services and/or Content; and (b) monitor, modify any aspect of, limit, suspend, discontinue or terminate your use of or access to any or all the ESC Website, and any related Services and/or Content accessible through the ESC Website.
Your access to and use of the ESC Website is subject to compliance with all of the terms and conditions set forth in this Agreement. Bright Power reserves the right, at its sole discretion, to deny further or continuing access to the ESC Website to any user, including, without limitation, any user that Bright Power determines, in its sole judgment, has violated, or is likely to violate, any aspect of this Agreement or any applicable law, rule or regulation. Without limiting the foregoing and in addition thereto, Bright Power may, at any time, terminate this Agreement if:
You have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement);
Bright Power in its sole discretion believes it is required to do so by law (for example, where the provision of Services to you is, or becomes, unlawful) or if requested by law enforcement or other government agencies;
You have requested that your ESC account be closed;
The ESC Website (or any part thereof) is discontinued or materially modified;
There are unexpected technical or security issues or problems that Bright Power or any Source determines, in its or their sole discretion, cannot be satisfactorily resolved; or
You have not paid fees owed by you in connection with our Services and/or accessing or using the ESC Website.
Termination of your ESC account includes:
Removal of access to all offerings within the ESC Website and any further use of the Services and Content related to your ESC account after two years (or such other time period as determined by Bright Power in its sole discretion), deletion of your password and all account identification information. The termination of this Agreement shall not affect any fees or charges that are due and owing to Bright Power from you as of the date of such termination.
Suspension. In addition to, and without limiting, other remedies available to it (including as set forth in this Section), Bright Power may in its discretion suspend your access to the ESC Website in the event that you do not pay any amount owed under this Agreement, or any existing Agreement with Bright Power Parties whether verbal or written, when due or if you have violated any aspect of this Agreement or any existing Additional Agreement between you and Bright Power Parties. Such suspension may be lifted promptly upon payment or cure, at our sole discretion.
All fees set forth in this Agreement or in any existing Additional Agreement between you and any Bright Power Parties, as well as all costs and/or expenses incurred by you in connection with the ESC Website and/or our Services of any kind, shall be payable and apply to any suspended period as if such suspension had not occurred.
XXI. CHANGES TO OUR WEBSITES AND THIS AGREEMENT
Bright Power reserves the right to change any part of this Agreement, from time to time, at any time, in its sole discretion. In such event, Bright Power shall post any such changes on our Websites, and the Agreement will indicate the date it was last revised. If you do not agree to any such changes, you may stop using our Websites, including the ESC Website, and/or our Services, and terminate this Agreement as described herein. Your use of our Websites, Content and/or Services after notification of change(s) is provided to you and posted on our Websites will constitute your agreement to, and you will be bound by, such change(s).
XXII. GENERAL INFORMATION
Governing Law. You agree that your use of our Websites including the ESC Website and any dispute arising in relation to our Websites or Services, as well as this Agreement and the relationship between you and Bright Power, shall be governed by the laws of the State of New York without regard to its conflict of law provisions and you agree to submit to the personal and exclusive jurisdiction of the courts located within the county of New York, New York in connection therewith.
Remedies. The rights and remedies of the Bright Power Parties and your representations, warranties and obligations under this Agreement are cumulative and such rights and remedies are in addition to any rights and remedies available at law or in equity. Bright Power reserves the right, at its sole discretion, to seek and obtain any other remedies available to it pursuant to any applicable laws and regulations or at equity as a result of your breach of this Agreement or any other act or omission by you that Bright Power believes, in its sole judgment, may give rise to a claim or action by, or may otherwise cause, injury, losses, damages, fines, penalties, liabilities, costs and/or expenses of any kind or nature.
Severability. In the event that any one or more of the provisions of this Agreement shall be determined to be invalid, unenforceable or illegal, such determination shall not affect any other provisions of this Agreement and the invalid, unenforceable or illegal provision(s) shall be automatically amended to the extent necessary to make it valid, enforceable and legal, provided that any such amendments shall most closely reflect the intent and purpose of the original provision.
No Waiver. The waiver by Bright Power of a breach of any provision in this Agreement (or which Bright Power has the benefit of under any applicable law), shall not operate or be construed as a waiver of any subsequent breach by you. No failure or delay by any Bright Power Parties or any Source in exercising any right, power or privilege hereunder, and no course of dealing between the Parties, shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege of Bright Power hereunder preclude the simultaneous or later exercise of any other of its rights, powers or privileges. No notice to or demand on you in any case shall entitle you to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Bright Power Parties or any Source to take any other or further action in any circumstances without notice or demand.
Survival. Notwithstanding anything else in this Agreement, the provisions of this Agreement that by their terms are perpetual or are otherwise intended to survive this Agreement (including but not limited to all covenants, agreements, representations and warranties you have made in this Agreement and the provisions set forth in Sections I, II, IV, V, VI, IX, XIII, XVI, XVIII, XIX, XX, XXII AND XXIII) shall survive the termination or expiration of this Agreement.
Time to Bring Claims or Actions. You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to our Services, Content and/or use of our Websites including the ESC Website or the Agreement must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
Section Headings. The section headings in the Agreement are for convenience only and have no legal or contractual effect.
Assignment. This Agreement shall be binding upon and inure to the benefit of your and our permitted successors and assigns. You shall not assign or transfer this Agreement, in whole or in part, or any of its rights or duties hereunder, without our prior written consent. Any assignment made by you without the required prior written consent shall be wholly void and invalid, the assignee shall acquire no rights whatsoever, and we shall not recognize, nor shall it be required to recognize, the assignment.
Please report any violations of this Agreement to our Customer Service group at firstname.lastname@example.org.