You are permitted to browse and access the Site and the Content (as defined below) without establishing an Account (as defined herein). In order to use the Services, however, you must provide a valid email address and register for a customer account (an “Account”). In connection therewith, to the Company will create a unique user-id based on the email address you provide and you will be required to create a unique password (together, the “Password”). You agree to maintain your Password and your Account in strict confidence and not to disclose or otherwise provide access to your Password or Account to any party not listed in your Account as an authorized user without first obtaining the Company’s prior written consent. In the event your Password is lost or your Password or Account is compromised, you agree immediately to notify the Company of such loss or compromise, as the case may be, and you agree you will be responsible solely for all actions, damages, liabilities and losses incurred as a result of such loss or compromise, except to the extent arising from the Company’s gross negligence or willful misconduct.
In connection with your Account, you hereby represent and warrant to the Company as follows: (i) if you are an individual, you are at least eighteen (18) years old; (ii) if you are an entity, you are a company or organization duly organized and validly existing in good standing under the laws of the state in which you were organized; (iii) you have the full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against you in accordance with the terms hereof; (iv) you are located within the United States of America; and (v) all information provided by you to the Company during the Term (as defined below), is and will be truthful and accurate in all material respects.
The Company collects certain personal and business-related information about you, which generally includes, but is not limited to, contact information, and which may include (at your election), information regarding your use of energy-related services such as login information for utilities services accounts (“Utility Usage Data”). You hereby consent to the Company’s use and disclosure of such information in connection with: (i) the Company’s provision of the Services and the enforcement of its rights hereunder; and (ii) in aggregate, blinded, non-personally identifiable formats that do not identify, reference or imply an association with you, for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies. Further, for the purposes set forth in subsection (ii) hereof, you hereby grant the Company a non-exclusive, perpetual, worldwide, fully-paid up, royalty-free license.
You understand and acknowledge the Company does not own or control any messages, texts, files, images, photos, graphics, videos, marks, audio or other materials or content (the “Content”) posted, presented, displayed or published on, or transmitted, distributed or otherwise linked through the Services (individually and collectively, “Publish” or any derivatives thereof as the context dictates) and Published by you or a third party. You understand and agree the Company does not control, is not responsible for, and expressly disclaims all representations and warranties with respect to, and all liability related to or arising from, the Content. Unless expressly stated otherwise, the Company does not verify or endorse any Content. You are responsible solely for your access to, use of and/or reliance on, the Content, and you understand you use and rely on such Content at your sole risk. Under no circumstances will the Company be liable in any way for any Content or for any loss or damage of any kind incurred as a result of your use of any Content. Notwithstanding anything to the contrary set forth herein, the Company, in its sole discretion, reserves the right to refuse, move, modify or delete any Content for any reason, with or without notice to you.
If you Publish Content, you hereby represent and warrant to the Company: (i) you either own all right, title and interest in and to such Content, or you possess, sufficient rights, approvals, licenses, consents and permissions as are necessary to Publish such Content to the Services; (ii) such Content and the Publication of such Content through the Services, does not and will not, directly or indirectly, infringe on, violate or misappropriate the intellectual property rights, privacy rights, moral rights or any other rights of any third party; (iii) such Content does not and will not violate any applicable law, rule or regulation; and (iv) all such Content is truthful and accurate in all material respects. Further, you hereby represent, warrant and covenant no Content relates to or references: (A) firearms, explosives, or weapons, or instructions on how to assemble or otherwise make any of the same; (B) Content that may be unsuitable for or harmful to children under the age of thirteen (13); (C) pornography, sexually explicit adult entertainment, prostitution or escort services or products; (D) controlled substances or pharmaceuticals; (E) fraudulent, counterfeit or stolen products or services or pirated computer programs; (F) registered or unregistered securities; (G) illegal or unlawful content, products or services; (H) promotion(s) of hate and bigotry, act(s) of violence or terrorism, or commission(s) of crimes or illegal activities; (I) products or services from a United States’ embargoed or blacklisted country, individual or entity; (J) Content which reasonably could be deemed to be libelous, defamatory, scandalous, threatening or harassing; (K) Content which violates or misappropriates any third party intellectual property, moral, privacy or other right; (L) other Content that the Company reasonably believes might damage the Services’ and the Company’s brand or reputation; and/or (M) Content which could cause the Company to violate any law or regulation. You hereby agree to keep all records necessary to establish that Content Published by you does not violate any of the foregoing representations and warranties, and to make such records available to the Company at the Company’s request.
You are responsible for any and all Content that you Publish, including the consequences of Publishing such Content. You agree to comply with all applicable laws, rules and regulations, including without limitation, state and federal laws prohibiting the sales of certain products and services within the state in which you reside or use the Services, and the state in which you intend to sell a product or service.
The Services and certain Content may contain links to other websites that are completely independent of the Site. The Company makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained on such other websites. Collection of information by third party websites is governed by, and subject to, the privacy practices of such third-party websites.
If and to the extent you are a third party vendor that will access Utility Usage Date in connection with the Services, you agree you will not utilize any Utility Usage Data obtained through the Services for any purpose unrelated to the Services. You further agree not to distribute, sell or otherwise transfer any rights in or to Utility Usage Data obtained through the Services.
RESTRICTIONS ON ACCESS AND USE
Any and all activities which are harmful to, inconsistent with, or disruptive of the Services and the beneficial use and enjoyment thereof are expressly prohibited. Accordingly, you hereby agree not to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, any end user any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other like form of solicitation; (iii) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, the Services or any end user any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Services; (iv) perform or facilitate any act which interferes with or disrupts the Services or servers or networks connected to the Services; (v) contact any user or any individual who has asked not to be contacted; (vi) harass, stalk or otherwise disturb any individual making use of the Services; (vii) delete or revise any Content posted by any other user; (viii) repeatedly post the same or similar Content; (ix) impersonate any person or entity or falsely state or misrepresent your affiliation with another person or entity, including without limitation, the Company; (x) except as permitted by the Company and/or the Services, use any form of automated device or computer program that enables the submission of listings to the Services without each listing being manually entered by the author thereof, including, without limitation, the use of any such automated posting device to submit listings in bulk, or for automatic submission of listings at regular intervals; and/or (xi) use any robot, spider, scraper or other automated means to access the Services and collect content for any purpose without the Company’s express written permission.
The Company has the right, but not the obligation, to regulate any and all Content and conduct on the Services for any reason, in any manner and by any means that the Company, in its sole discretion, deems necessary or appropriate, including, but not limited to: automated and manual screening, blocking, filtering, exclusion from index pages, exclusion from search results, requiring the use of an application programming interface, requiring the use of a bulk posting interface, authorization, verification, and the deletion and/or termination of Content, and/or all or any use or access.
You understand and agree the Company may delete or deactivate any Content, block your email or IP address, or otherwise terminate your access to or use of the Services (or any part thereof), immediately and without notice, and remove and discard any Content from the Services, for any reason, including, without limitation, if the Company believes you breached any term or condition set forth herein. You agree the Company is not liable to you or any third party for any termination of your access to the Services.
You agree you will not circumvent any technological measure or Policy implemented by the Company to restrict the manner in which Content may be Published or to regulate the manner in which Content (including but not limited to email) may be transmitted to other users. These measures and Policies include, but are not limited to, a ban on the use of multiple email addresses (created via an email address generator or otherwise); the use of multiple IP addresses (via proxy servers, modem toggling, or otherwise); CAPTCHA circumvention, automation or outsourcing; multiple and/or fraudulent Accounts, including phone-verified accounts; URL shortening, obfuscation or redirection; use of multiple phone lines or phone forwarding for verification; and content obfuscation via HTML techniques, printing text on images, inserting random text or content “spinning.”
You agree you will not advertise to or solicit any user to buy or sell any products or services, except as permitted by the Services. You are prohibited from advertising to or soliciting any user to buy or sell products or services without first obtaining the express written consent of such user by means of a Submitted Request (as defined below).
This is an agreement for services and you are not granted any license hereunder. You are granted a limited, personal, revocable, non-assignable and non-transferable right to access and use the Software (as defined herein) and the Services during the Term in accordance with its intended purposes and the terms and conditions set forth herein. As between you and the Company, all software embedded in the Services and owned and controlled by the Company (the “Software”) and the Services are and shall remain the sole and exclusive property of the Company. You agree not to take any actions inconsistent with the Company’s ownership of each of the Company’s rights in and to the Software and the Services. Except as otherwise expressly granted in this Agreement, you will not have or acquire any rights or interest in or to the Software or the Services. You acknowledge the Software contains proprietary information and trade secrets of the Company. You agree you will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; (v) possess or use the Software in any format other than machine-readable format; or (vi) take any act to remove, obscure, interfere with or modify the presentation or functionality of any aspect of the Software or the Services.
You agree to report immediately to the Company, and to use best efforts to stop immediately, a violation of any term or condition set forth in this Section 5. In the event of any suspected violation of any term, condition or restriction set forth in this Section 5, or in the event the Company otherwise reasonably objects to any inappropriate or improper Content uploaded or provisioned by you in connection with you use of the Services, the Company may immediately disable your access to the Services. Further, you acknowledge and agree the Company owns all right, title and interest in and to the Site, including, without limitation, in and to the Company’s owned or controlled graphics, logos, service marks and trademarks, applications, multimedia content, or other information, and the look, feel, layout and organization of the Site (collectively, the “Materials”). Nothing set forth in this Agreement shall be construed as granting, by implication, estoppel or otherwise, a license or right to use the Materials and all such Materials are copyright © Greenhound Energy, LLC; all rights reserved. The Materials may not be used to disparage the Company, the Services, any third party, or the products or services of the Company or such third party, nor may they be used in any manner that may damage any goodwill in the Materials.
The Company does not own or claim ownership of any Content that you Publish; provided, however, you hereby grant and upon Publication automatically grant to the Company a perpetual, irrevocable, unlimited, fully paid-up, royalty-free, transferable, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, publish, display, post, modify, distribute, incorporate into other works, prepare derivative works of, and otherwise use all Content you Publish in connection with the Company’s provision of the Services. You hereby agree you do not have the right to review, approve, or otherwise receive notice of any the Company’s use of the Content. You further acknowledge and agree you have no expectation of compensation or confidentiality of any nature with respect to any Content you Publish.
You hereby grant to the Company the right to pursue all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works of, any Content that you Publish, including, but not limited to, any unauthorized downloading, extraction, harvesting, collection or aggregation of Content that you Publish.
INTERACTIONS WITH OTHER PARTIES THROUGH THE SERVICES
Any business relationship, exchange of data or other interaction between you and a third party, and/or any purchase, download or use by you of any product or service offered by a third party (each, a “Third-Party Interactions”), is solely between you and such third party, and you hereby agree to release and hold the Company harmless from and will look to such third-party with regard to any claims relating to or arising out of a Third-Party Interaction. The Company is not a party to, has no involvement or interest in, makes no representation, warranty or guaranty with respect to, and has no obligation in connection with, any communication, transaction, interaction, dispute or any relation whatsoever between you and any third-party through the Services; including, but not limited to, interactions related to payment and delivery of items and services, and any other terms, conditions, warranties or representations associated with such Third-Party Interactions.
You hereby acknowledge and agree you solely are responsible for ensuring that your Third-Party Interactions: (i) comply with all applicable foreign, federal and state laws and regulations; and (ii) do not violate any term, condition, rule, procedure, policy or other guideline published by a third-party with which you interact. Also, you agree you will be responsible solely for any fees owed to a third-party as a result of a Third-Party Interaction. While the Company may recommend such a third-party and/or rely on data or information provided or generated by such third-party in the course of providing the Services, you hereby acknowledge the Company specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agree the Company will not be liable for any acts or omissions based on your reliance thereon or any loss or liability arising therefrom.
If there are any defects with any items or services purchased as a result of the Services, any returns and/or demands for refund or credit must be made directly to the party from which you purchased such item or service. Under no circumstances should such items be returned to the Company and the Company will not be responsible for any items returned to the Company.
You may request the Company or a third-party provide you with information related to products and services, or with proposals or quotes related to products and services (each, a “Submitted Request”). Any Submitted Request you deliver to the Company or a third-party will function as express written consent for either or both of them, as appropriate, to deliver information and/or proposals to you via the Services, telephone, email, mail, facsimile transmission, or any other means. If you provide your telephone number as part of your Submitted Request, your Submitted Request constitutes express written consent for the Company or a third-party so requested to contact you via telephone, even if your telephone number is listed on a state or federal “Do Not Call” registry maintained pursuant to state or federal law.
With prior notice to you, the Company may charge a fee to register with the Services, or to submit a quote for the provision of products or services. You hereby authorize the Company’s designated payment processor to charge your specified credit card, debit card or other payment method for such fees as are set forth in your Account. Unless otherwise specified, all fees are in United States dollars. Except as required by law, all paid fees are nonrefundable.
Payments for fees related to user registration, Submitted Requests and/or submission of quotes will be billed when due. You will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to your use of the Services (except for taxes on the Company’s net income). You hereby acknowledge the Company reserves the right, at any time, to modify the structure or amount of fees due in connection with your continued use and access of the Services. Late payments by you will be subject to a late fee calculated at the rate of one and one-half percent (1.5%) per month of the amount then due or the maximum rate allowed by law, until paid in full. In the event you fail to make a payment in accordance with the applicable payment period, the Company may discontinue, terminate or suspend your access to and use of the Services, without notice and without incurring any liability to you. Despite any such discontinuation or suspension, you acknowledge and agree you will be required to pay the fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding for longer than forty-five (45) days after the date of invoice, you will be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys’ fees and expenses. From time to time, and at any time, the Company may require reasonable credit guarantees before continuing your access to and use of the Services.
Within thirty (30) days of execution of any agreement for goods or services between you (as the seller or provider of such goods or services) and any other Services user, which agreement arises from your use of the Services, you agree to pay to the Company an amount equal to four and one-half percent (4.5%) of the aggregate value of such agreement (the “Four and One-Half Percent Fee”). You hereby agree to notify the Company within seven (7) days of execution of any such agreement (the “Required Notice”). The Company will submit to you an invoice for the Four and One-Half Percent Fee within seven (7) days of the Required Notice.
For solar projects, the Four and One-Half Percent Fee applies to the aggregate value of agreements up to 250 kW AC per calendar year per solutions provider. A four percent fee (4.0%) shall apply to the aggregate value of agreements from 251 kW AC to 1,000 kW AC per calendar year per solutions provider (the “Four Percent Fee”). A three and one-half percent fee (3.5%) shall apply to the aggregate value of agreements above 1,000 kW AC per calendar year per solutions provider (the “Three and One-Half Percent Fee”). The Fee for any projects that crosses the above tiers shall be calculated pro rata based on the kW AC of the project, the Fee tiers crossed, and the aggregate value of the project. For all solar projects sold as leases, you agree to pay to the Company an amount equal to the Three and One-Half Percent (3.5%) of the aggregate value of such agreement. For avoidance of doubt, solar leases are not subject to any Fee tiers.
You acknowledge the Company spent considerable effort and incurred substantial expense to procure and develop relationships with users of the Services (“Greenhound Contacts”) and that interference with such relationships would cause immediate and irreparable harm and would damage the Company’s legitimate business interests. In view thereof, commencing upon your acceptance of this Agreement and continuing until the twelve (12)-month anniversary of the termination or expiration thereof, without the Company’s prior written consent, you agree you will not, directly or indirectly, interfere with, circumvent, or attempt to circumvent, avoid, by-pass or obviate your payment obligation under Section 7(c) above. In the event of a breach of any of your covenants set forth in this Section 7(d), the Company is entitled to an accounting and repayment by you of all profits, compensation, royalties, commissions, remunerations or other benefits which the Company did not realize as a result of such breach. In addition to the foregoing, the Company is entitled to interest on any such profits, compensation, royalties, commissions, remunerations or other benefits at the maximum rate allowed by law, calculated from the date such payment or payments became due and owing to the Company. Such remedy is in addition to any other available legal and equitable remedies for such breach of your obligations under this Section 7(d).
During the Term and for a period of twenty-seven (27) months after any termination thereof, you hereby agree the Company has the right to inspect your materials, files, financial and customer records and accounts, and other related information in the event the Company reasonably suspects you breached your payment obligations set forth under Section 7(c) above.
LIMITATIONS AND GUIDELINES
You understand and acknowledge the Company may establish and modify limits and guidelines concerning the use of the Services, including, without limitation, the maximum number of days that Content will be retained on the Services, the maximum number and size of user requests for or submission of quotes, email messages or other Content that may be transmitted or stored by the Services, and the frequency with which you may access the Services. Accordingly, you agree the Company has no responsibility or liability for the deletion or storage of Content Published or maintained on the Services. You acknowledge the Company reserves the right to modify the Services, and the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
YOU HEREBY AGREE YOUR USE OF THE SERVICES AND THE CONTENT IS AT YOUR SOLE RISK AND YOU WILL BE RESPONSIBLE SOLELY FOR ANY DAMAGE OR LOSS TO YOU OR YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE DOWNLOAD OF FILES, SOFTWARE AND/OR ANY GRAPHICS OR OTHER CONTENT. THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY, AND ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, MANAGERS, MEMBERS, AGENTS AND LICENSORS (COLLECTIVELY, THE “REPRESENTATIVES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE, AND NON-INFRINGEMENT. NEITHER THE COMPANY NOR ITS REPRESENTATIVES MAKE ANY REPRESENTATION OR WARRANTY THAT THE SERVICES OR THE CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE COMPANY OR ITS REPRESENTATIVES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, TRUTHFULNESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN SERVICES WILL BE CORRECTED. THE COMPANY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES FOR GOODS OR SERVICES RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR ACCESSED THROUGH ANY LINKS ON THE SERVICES. YOU HEREBY ACKNOWLEDGE AND AGREE THE SERVICES ARE NOT INTENDED TO REPLACE YOUR PROFESSIONAL SKILLS OR JUDGEMENT. YOU ASSUME ALL LIABILITY FOR OUTCOMES BASED THEREON. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THE SERVICES RELY UPON THIRD-PARTY SOFTWARE FOR CERTAIN FUNCTIONS AND THE COMPANY MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO YOU THAT SUCH SOFTWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND THE COMPANY WILL NOT BE LIABLE TO YOU FOR ANY FAILURE THEREOF.
YOU ACKNOWLEDGE THE COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL THE COMPANY, OR ANY OF ITS REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, REMOTE, COVER, LOST PROFITS, OR CONSEQUENTIAL DAMAGES, RESULTING FROM THIS AGREEMENT INCLUDING THE USE OF, OR THE INABILITY TO USE, THE SERVICES OR TO USE OR ACCESS THE CONTENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR BUSINESS OPPORTUNITY OR LOSS OF DATA, EVEN IF THE COMPANY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER THE COMPANY NOR ITS REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY ACTION OF ANY THIRD-PARTY OR ANY THIRD-PARTY-PUBLISHED CONTENT. THE COMPANY’S MAXIMUM LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES AND CLAIMS ARISING OUT OF THIS AGREEMENT AND/OR FROM THE USE OF THE SERVICES OR THE CONTENT, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, IS LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS ($100) AND THE AMOUNT YOU ACTUALLY PAID THE COMPANY HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH DAMAGES, LOSSES AND CLAIMS. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. No claim may be asserted by you against the Company more than twelve (12) months after your last use of the Services.
At your sole cost and expense, you hereby agree to defend and hold harmless the Company and its affiliates, subsidiaries, officers, directors, shareholders, employees, consultants, representatives, agents, successors and assigns (the “Indemnitees”) in any action or claim, and to indemnify the Company and its Indemnitees from and against any and all losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) (collectively, “Claims”) arising from such action or claim and related to: (a) your breach of any term, condition, representation or warranty set forth in this Agreement; (b) a Third-Party Interaction; (c) your infringement or misappropriation of any intellectual property, privacy or other rights of any third party; (d) any Content Published by you or through your Account; and/or (d) your violation of applicable law.
GOVERNING LAW AND VENUE
This Agreement is governed by, construed and enforced in accordance with the laws of the State of North Carolina, as it is applied to agreements entered into and to be performed entirely within North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Chapel Hill, North Carolina. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties hereto or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, the Company has the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of North Carolina, to which jurisdiction, for such purpose, you hereby irrevocably consent.
TERM AND TERMINATION
The term of this Agreement commences on the date you first use the Services or register for an Account, whichever occurs earlier, and continues until your then-current Services session expires or this Agreement and your Account terminates, whichever occurs later (the “Term”). If you have an Account, at any time, a party may terminate this Agreement (and the associated Account) by providing the non-terminating party with fifteen (15) days’ prior written notice of its intention to terminate this Agreement. If you have an Account, at any time, a party may terminate this Agreement immediately in the event that: (i) the other party fails to cure a material breach of any term, condition, representation or warranty set forth herein within five (5) days’ after such other party’s receipt of written notice thereof; or (ii) in the event the other party files a petition in bankruptcy or for reorganization or a third-party files a petition in bankruptcy or for reorganization against such other party, which is not dismissed within sixty (60) days, or in the event of an assignment by such other party for the benefit of its creditors, or the appointment of a receiver, trustee, liquidator or custodian for all or a substantial part of such other party’s assets. Notwithstanding any termination or expiration of this Agreement, you will remain obligated to pay the Company amounts which were incurred prior to (and on) the effective date of such termination, if and to the extent applicable.
The Company may provide you with general notice by electronic mail to the email address provided by you in connection with your Account. You must give notice to the Company (such notice shall be deemed given when acknowledged by the Company) by emailing the Company at email@example.com. Notice will be considered delivered if the sender thereof does not receive any evidence of transmittal failure.
CONSENT TO ELECTRONIC SIGNATURES AND RECORDS
You acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on Site or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site: (a) you agree to conduct electronically the particular transaction into which you is entering; (b) you read, understand and agree to be bound by the electronic copy of electronic contracts, notices and records to which you are agreeing, including, without limitation, this Agreement; (c) you are capable of printing or storing a copy of electronic records of agreements to which you are agreeing including, without limitation, this Agreement; and (d) you agree to receive electronically information about the agreements to which you are agreeing including, without limitation, this Agreement.
DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE; LEGAL ORDERS
The Company respects the intellectual property rights of others. Upon proper notice, the Company will remove Content Published by users in violation of copyright law and will terminate the accounts of infringing users. If you believe that any Content hosted by the Company infringes your copyright, simply provide us with validating information requested by the Company and the Company will remove your copyrighted works from the Site or the Services. The Company requires reimbursement for costs incurred in responding to subpoenas and other formal legal processes at the rate of $60.00 an hour. Time spent processing a request will vary considerably based on, among other things, the specificity of the request, the time-period covered by the request, the type of information sought, and the number of databases that must be searched. Also, the Company may charge additional fees for costs incurred in responding to unusual or burdensome requests, and we may waive reimbursement under certain circumstances.
This Agreement is made for the benefit of the parties only and there are no intended third-party beneficiaries. The Company’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default. You may not assign or transfer this Agreement or any rights or obligations hereunder, and any attempt to do so shall be considered null and void. The Company will not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company’s reasonable control, including causes resulting from third party acts. This Agreement and the Policies constitute the entire agreement and understanding between you and the Company and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between you and the Company. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the termination of this Agreement. If any part(s) of this Agreement are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. At all times, you agree the Company may use or incorporate any suggestions or recommendations submitted by you without compensation or attribution to you, and you hereby assign to the Company all rights, title and interest in and to such suggestions or recommendations. You hereby consent to the Company’s use of your name and logo in the Company’s marketing and promotional materials and on the Site. If “you” are an entity, “you” shall mean the entity using the Services and the individual accepting this Agreement by or on behalf of the entity shall be presumed by the Company to have the authority to do so.