PLEASE READ THESE TERMS OF USE ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY Chushki LLC, A TEXAS LLC ("KILOWHAT"). BY VISITING THE WEBSITE OR USING THE SERVICES DESCRIBED HEREIN IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE OR SERVICES. USE OF KILOWHAT’S SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS.
1. REPRESENTATIONS ABOUT YOU. You represent and warrant to KiloWhat that you have the power and authority to enter into this Agreement. You represent and warrant that the information that you provide to KiloWhat will be current, true, accurate, supportable and complete, and that if you provide incorrect or incomplete information it may affect the value of the Website to you. The Website is not designed for use by children under the age of 13, and KiloWhat does not intentionally collect personal information from children through our Website. Thus, as a condition to using our Website, you represent and warrant to KiloWhat that you are at least 13 years of age. If you are 13 or older but under the age of 18, you must review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it and that they agree to it on your behalf.
2. USE OF THE WEBSITE. KiloWhat hereby grants you a non-exclusive, non-transferable, revocable, limited license to access and use the Website (as such term is defined in Section 6 hereof) under the terms set forth below. The Website and the content, including, but not limited to, text, data, reports, opinions, software (including HTML-based computer programs), images, photos, graphics, graphs, charts, animations and video (collectively the "Content") displayed on the Website may be used only for your personal and non-commercial use. Except as otherwise permitted under this Agreement, you agree not to copy, reproduce, modify, create derivative works from, or store any Content, in whole or in part, from the Website or to display, perform, publish, distribute, transmit, broadcast or circulate any Content to anyone, or for any commercial purpose, without the express prior written consent of KiloWhat. The Website and the Content are the exclusive property of KiloWhat or its licensors, and are protected by copyright and other intellectual property laws. All trade names, trademarks, service marks and other product and service names and logos (collectively, the "KiloWhat Marks") on the Website are proprietary to their respective owners and are protected by applicable trademark and copyright laws. Any of the KiloWhat Marks may be registered or unregistered marks of KiloWhat or others. Nothing contained on this Website should be construed as granting by implication, estoppel, or otherwise any license or right to use any of the KiloWhat Marks without the express written permission of KiloWhat or a third party owner of such KiloWhat Marks. Any unauthorized uses of the KiloWhat Marks or Content are strictly prohibited. To request permission to use the KiloWhat Marks or Content, or any other KiloWhat material, please contact KiloWhat at support@kilowhat.energy. You shall honor all reasonable requests by KiloWhat to protect KiloWhat's proprietary interests in the Website and the Content. You expressly agree not to:
You may not use the Website for any unlawful purpose. Any unauthorized use by you of the Website terminates your license to access and use the Website.
3. CONTENT YOU SUBMIT. The Website may provide you with the opportunity to post content within community features or forums (each, a "Forum"). The content you choose to post or disseminate on a Forum, the Website in general or to KiloWhat is referred to in this Agreement as "Visitor Content". Your Visitor Content may be available for all other users to view and download, so use caution in what you post or otherwise make available on the Website. Except as otherwise described in the Website’s privacy policy or other agreement on the Website, you remain the owner of your Visitor Content, but you acknowledge that KiloWhat must have a license from you in order to accept your Visitor Content. Accordingly, you grant to KiloWhat an unrestricted, worldwide, irrevocable, perpetual, transferable and royalty-free license (but not obligation) to host, use, copy, distribute, display, perform, modify, translate, store or otherwise exploit all or any portion of your Visitor Content for any purpose whatsoever (including to provide the Website and KiloWhat Services) in all formats, on or through any media, technology or device now known or hereafter developed. You further perpetually and irrevocably grant KiloWhat the unconditional right to use, disseminate and display your name, persona and likeness included in any Visitor Content and in connection with any Visitor Content, without any obligation or payment to you.
You agree that your Visitor Content will be treated as non-confidential and non-proprietary and will not be returned. You also agree that you either: (i) own the rights to the Visitor Content you submit and the right to grant all of the rights and licenses in this Agreement; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into this Agreement and grant KiloWhat the license above. Upon KiloWhat's request, you will furnish KiloWhat any documentation, substantiation or releases necessary to verify your compliance with this Agreement.
You authorize KiloWhat to publish Visitor Content in a searchable format that may be accessed by users of the Website. Except as prohibited by law, you waive any moral rights you may have in any Visitor Content you submit, even if such Visitor Content is altered or changed in a manner not agreeable to you. You also acknowledge that the Internet may be subject to breaches of security and you are aware that submissions of Visitor Content or other information may not be secure, and you should consider this before submitting any information to KiloWhat, a Forum or the Website.
You also understand and acknowledge that: (a) KiloWhat and its parent, subsidiary and affiliate companies have wide access to ideas and other materials and that many ideas may be similar or identical to your Visitor Content and/or each other; (b) you will not be entitled to any compensation as a result of KiloWhat's use of any such similar or identical material; and (c) KiloWhat does not now and will not have in the future any duty or liability, direct or indirect, vicarious, contributory, or otherwise, with respect to the infringement or protection of your copyright in and to your Visitor Content.
You agree that KiloWhat has no obligation to monitor or enforce your intellectual property rights to your Visitor Content but has the right to protect and enforce its rights to use your Visitor Content. You further acknowledge and agree that KiloWhat will not have any obligation to you with regard to Visitor Content and that KiloWhat may or may not monitor, display or accept your Visitor Content and may delete it at any time and you may have no right to access or control any Visitor Content that you provide once you provide it. If you uploaded content you wish to be deleted from the Website, you can email KiloWhat at support@kilowhat.energy and KiloWhat will review your request.
4. LINKING POLICY. KiloWhat grants you the revocable permission to link to publicly available (i.e., non-password protected) portions of the Website; provided, however, that any link to the Website: (a) must not frame or create a browser or border environment around any of the content on the Website or otherwise mirror any part of the Website; (b) must not imply that KiloWhat or the Website is endorsing or sponsoring it or its products, unless KiloWhat has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in KiloWhat's sole opinion, harm KiloWhat or its products or services; (d) must not use any KiloWhat trademarks without the prior written permission from KiloWhat; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in KiloWhat's sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to this Agreement. By linking to the Website, you agree that you do and will continue to comply with the above linking requirements.
Notwithstanding anything to the contrary contained in this Agreement, KiloWhat reserves the right to prohibit linking to the Website for any reason in its sole and absolute discretion.
5. USER INTERACTIONS & DISPUTES. You are solely responsible for your interaction with other users of the Website, whether online or offline. KiloWhat are not responsible or liable for the conduct of any user. KiloWhat reserves the right, but has no obligation, to monitor disputes and take action associated with those disputes. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online and offline activities.
6. DESCRIPTION OF KILOWHAT SERVICES. KiloWhat provides the www.kilowhat.energy website and domain name and any other linked pages, features, content, or application services (collectively, the "Website"). Subject to the terms and conditions of this Agreement, KiloWhat may offer to provide certain services, including, without limitation, use of the Website, any service KiloWhat performs for you, and the Content (together with the Website, the "KiloWhat Services"), solely for your own use, and not for the use or benefit of any third party. Through the KiloWhat Services you may have access to information and interactive resources relating to electricity service, including news, statistics and rates and compare different power companies based on price, energy provider, energy type and other factors.
7. ACCESS TO KILOWHAT POWER SERVICES. KiloWhat may change, suspend or discontinue the KiloWhat Services at any time, including the availability of any feature, database, or Content. KiloWhat may also impose limits on certain features and services or restrict your access to parts or all of the KiloWhat Services without notice or liability. KiloWhat reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the KiloWhat Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
KiloWhat does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the KiloWhat Services. If you are under 13, please do not attempt to register for the KiloWhat Services or send any information about yourself to KiloWhat, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to KiloWhat or on the KiloWhat Services. In the event that KiloWhat learns that it has collected personal information from a child under age 13 without verification of parental consent, it will delete that information as quickly as possible. If you believe that KiloWhat might have any information from or about a child under 13, please contact KiloWhat at support@kilowhat.energy.
You represent and warrant to KiloWhat that: (i) you are able to form a binding contract and, if applicable, able to form a binding contract on behalf of the company or organization that you are representing, and you are at least 18 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the KiloWhat Services and take full responsibility for the selection and use of and access to the KiloWhat Services. This Agreement is void where prohibited by law, and the right to access the KiloWhat Services is revoked in such jurisdictions.
8. COMPARISON SHOPPING SERVICE. You may utilize the KiloWhat Services to obtain offers from retail electric providers ("REPs") for energy services. You may be required to accept or agree to additional terms and conditions when you submit an inquiry as to the energy service offers available to you through KiloWhat. By clicking on any button indicating an acceptance or agreement to terms ("Submission"), you understand that you are agreeing to the stated terms and conditions of that Submission and that you are inquiring as to energy service offers through KiloWhat to the participating REPs.
In order to deliver REPs' offers for energy services to you, KiloWhat may in the future provide functionality where KiloWhat obtains your credit report from a consumer reporting agency pursuant to your written instructions. KiloWhat will compare the information contained in your credit report against the credit criteria for each REP. You may choose whether to authorize KiloWhat to obtain your credit report so that you can compare REPs' offers for energy services through the Website.
KiloWhat does not guarantee any specific offers for energy services or energy service terms and conditions with any REP. Likewise, KiloWhat does not guarantee that the energy service offers or terms and conditions made available by REPs are the best or lowest available in the market.
9. VISITOR SUBMISSIONS. In the course of using the KiloWhat Services, you and other users may provide information which may be used by KiloWhat in connection with the KiloWhat Services and which may be visible to certain other users. You understand that by posting information or content on the KiloWhat Services or otherwise providing content, materials or information to KiloWhat or in connection with the KiloWhat Services (collectively, "Visitor Submissions"), KiloWhat hereby is and shall be granted a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sublicenseable and transferable right to fully exploit such Visitor Submissions (including all related intellectual property rights) in connection with the KiloWhat Services and KiloWhat's (and its successors' and assigns') business, including without limitation for promoting and redistributing part or all of the KiloWhat Services (and derivative works thereof) in any media formats and through any media channels; however, KiloWhat will only share your personally identifiable information in accordance with the Website's privacy policy in effect from time to time and located at www.kilowhat.energy/privacypolicy.html. You also hereby do and shall grant each user of the KiloWhat Services a non-exclusive license to access your Visitor Submissions through the KiloWhat Services, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such Visitor Submissions as permitted through the functionality of the KiloWhat Services and under this Agreement. Furthermore, you understand that KiloWhat retains the right to reformat, modify, create derivative works of, excerpt, and translate any Visitor Submissions submitted by you. For clarity, the foregoing license grant to KiloWhat does not affect your ownership of or right to grant additional non-exclusive licenses to the material in your Visitor Submissions, unless otherwise agreed in writing.
You understand that all information publicly posted or privately transmitted through the KiloWhat Services is the sole responsibility of the person from which such content originated and that KiloWhat will not be liable for any errors or omissions in any content. You understand that KiloWhat cannot guarantee the identity of any other users with whom you may interact in the course of using the KiloWhat Services. Additionally, KiloWhat cannot guarantee the authenticity of any data which users or energy providers may provide about themselves. You acknowledge that all Content accessed by you using the KiloWhat Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
Under no circumstances will KiloWhat be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the KiloWhat Services.
10. RESTRICTIONS. You warrant, represent and agree that you will not contribute any Content or otherwise use the KiloWhat Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without KiloWhat's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of KiloWhat; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. KiloWhat reserves the right to remove any Content from the KiloWhat Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if KiloWhat is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not KiloWhat, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the KiloWhat Services, and you warrant that you possess all rights necessary to provide such content to KiloWhat and to grant KiloWhat the rights to use such information in connection with the KiloWhat Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the KiloWhat Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the KiloWhat Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the KiloWhat Services. Use of the KiloWhat Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or "spam" on the KiloWhat Services, or any processes that run or are activated while you are not logged on to the KiloWhat Services, or that otherwise interfere with the proper working of or place an unreasonable load on the KiloWhat Services' infrastructure. Further, the use of manual or automated software, devices, or other processes to "crawl," "scrape," or "spider" any portion of the KiloWhat Services is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the KiloWhat Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the KiloWhat Services. You understand and agree that KiloWhat shall have the sole right to decide whether you are in violation of any of the restrictions set forth in this Section, and shall have sole discretion regarding the course of action to take in connection therewith.
11. WARRANTY DISCLAIMER. KiloWhat has no special relationship with or fiduciary duty to you. You acknowledge that KiloWhat has no control over, and no duty to take any action regarding: which users gain access to the KiloWhat Services; what Content you access via the KiloWhat Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release KiloWhat from all liability for you having acquired or not acquired Content through the KiloWhat Services. The KiloWhat Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. KiloWhat makes no representations concerning any content contained in or accessed through the KiloWhat Services, and KiloWhat will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the KiloWhat Services. KiloWhat makes no representations or warranties regarding the accuracy of descriptions anywhere on the KiloWhat Services, or regarding suggestions or recommendations of services or products offered or purchased through the KiloWhat Services. Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind from KiloWhat or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product or service. THE KILOWHAT SERVICES, CONTENT, WEBSITE, AND OTHER PRODUCTS AND SERVICES OBTAINED THROUGH THE WEBSITE, AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. PRIVACY & PASSWORDS. KiloWhat values and protects the privacy of your information. Please review the Website's privacy policy, as it contains important information relating to your use of the Website. Some portions of the Website are protected and require a user identification code ("User ID") and password for access. Unauthorized access or use of such portions of the Website is prohibited. You agree that you will notify KiloWhat immediately if you believe that a third party has obtained your User ID or password, or if you believe that any unauthorized access or use may occur or has occurred. For your protection, if KiloWhat believes that any unauthorized access may occur or has occurred, KiloWhat may terminate such access without prior notice to you. You also agree that KiloWhat is permitted to act upon any instructions received using your user identification information and password and to consider such instructions as authorized by you.
13. REGISTRATION & SECURITY. As a condition to using some aspects of the KiloWhat Services, you may be required to register with KiloWhat and select a password and user name ("KiloWhat User ID"). You shall provide KiloWhat with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a KiloWhat User ID a name of another person with the intent to impersonate that person; or (ii) use as a KiloWhat User ID a name subject to any rights of a person other than you without appropriate authorization. KiloWhat reserves the right to refuse registration of or cancel a KiloWhat User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
14. NO ENDORSEMENT OR AFFILIATION. KiloWhat provides no guarantee as to the quality of any of the energy providers found on the KiloWhat Services, nor does KiloWhat endorse any energy providers. KiloWhat does not provide any advice regarding which energy providers you should use. KiloWhat is not a representative of or agent for either you or any energy provider and does not act on either's behalf.
15. REPRESENTATIONS & WARRANTIES; LIMITATIONS OF LIABILITIES. You are entirely liable for activities conducted by you in connection with your access and use of the Website. If you are dissatisfied with the Content or the Website or with this Agreement, your sole and exclusive remedy is to stop using the KiloWhat Services, Content and the Website.
THE KILOWHAT SERVICES, CONTENT AND THE WEBSITE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND. KILOWHAT MAKES NO GUARANTEES OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR VERACITY OF OR RESULTS TO BE OBTAINED FROM, ACCESSING AND USING THE WEBSITE, THE CONTENT, ANY OTHER CONTENT, NOR ANY MATERIAL THAT CAN BE ACCESSED (VIA A DIRECT OR INDIRECT HYPERLINK OR OTHERWISE) THROUGH THE WEBSITE. KILOWHAT HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. KILOWHAT SHALL NOT BE LIABLE TO YOU OR ANYONE OTHER PERSON OR ENTITY FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. ENERGY PLAN INFORMATION AND RATINGS ARE INTENDED ONLY AS GENERAL GUIDELINES, AND KILOWHAT DOES NOT GUARANTEE THE ACCURACY OF ANY SUCH INFORMATION OR RATINGS. THE INCLUSION OR OFFERING OF ANY PRODUCTS OR SERVICES ON THE WEBSITE DOES NOT CONSTITUTE ANY ENDORSEMENT OR RECOMMENDATION OF SUCH PRODUCTS OR SERVICES BY KILOWHAT. IN CASES WHERE THE SOURCE OF ANY CONTENT ON THE WEBSITE IS IDENTIFIED AS A REP, THE IDENTIFIED REP IS SOLELY RESPONSIBLE FOR SUCH CONTENT, WHICH IS NOT EDITED BY KILOWHAT. THE REPS AND OTHER SUPPLIERS OFFERING AND PROVIDING ENERGY OR OTHER SERVICES ON THE WEBSITE ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF KILOWHAT. KILOWHAT IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY SUCH REPS OR SUPPLIERS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.
IN NO EVENT WILL KILOWHAT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).
IN NO EVENT SHALL KILOWHAT NOR ANY OF ITS THIRD PARTY LICENSORS, RESPECTIVE CONTRACTORS, OR CURRENT, FUTURE OR FORMER OFFICERS, DIRECTORS, EQUITY OR UNIT HOLDERS, EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY PUNITIVE, SPECIAL, DIRECT, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, TIME, MONEY, PROFITS OR GOOD WILL, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT AND TORT ACTIONS (INCLUDING LIBEL), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF THE WEBSITE OR ANY HYPERLINKED WEBSITE, EVEN IF KILOWHAT IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER KILOWHAT NOR ANY OF ITS AFFILIATES, AGENTS OR LICENSORS WILL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR INJURY RESULTING FROM USE OF THE WEBSITE, IN WHOLE OR PART, WHETHER CAUSED BY NEGLIGENCE, CONTINGENCIES BEYOND ITS CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING THE WEBSITE AND ANY CONTENT ON THE WEBSITE OR OTHERWISE. IN NO EVENT WILL KILOWHAT, ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT OR THE WEBSITE.
The Content may include delays, omissions or inaccuracies due to the number of sources from which the Content is obtained. KiloWhat assumes no liability for any errors or omissions in the Content and expressly disclaims any responsibility to update the Website or the Content displayed on the Website. KiloWhat assumes no responsibility for the use of third party software on the Website and shall have no liability whatsoever to any person or entity for the accuracy or completeness of any outcome generated by such software.
IN NO EVENT WILL KILOWHAT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE, SPECIAL, DIRECT, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER FOR ANY USE OF THIS WEBSITE OR ANY HYPERLINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF KILOWHAT IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. INDEMNIFICATION. BY USING THE WEBSITE, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS KILOWHAT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, AND SERVICE OR CONTENT PROVIDERS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY FEES AND COURT COSTS, ARISING OR RESULTING FROM YOUR USE OF THE WEBSITE AND ANY VIOLATION OF THESE TERMS OF USE. IF YOU CAUSE A TECHNICAL DISRUPTION OF THE WEBSITE OR THE SYSTEMS TRANSMITTING THE WEBSITE TO YOU OR OTHERS, YOU AGREE TO BE RESPONSIBLE FOR ANY AND ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY FEES AND COURT COSTS, ARISING OR RESULTING FROM THAT DISRUPTION.
17. FEES & PAYMENT. Although our KiloWhat Services are currently free to users, KiloWhat reserves the right to require payment of fees for certain or all KiloWhat Services. You shall pay all applicable fees, as described on the Website in connection with such KiloWhat Services selected by you. KiloWhat reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the KiloWhat Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
18. INTERACTION WITH THIRD PARTIES. The KiloWhat Services may contain links to third party websites or services ("Third Party Services") that are not owned or controlled by KiloWhat. When you access Third Party Services, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Services relating to your use of the KiloWhat Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. KiloWhat has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Services. In addition, KiloWhat will not and cannot monitor, verify, censor or edit the content of any Third Party Service. By using the KiloWhat Services, you expressly relieve and hold harmless KiloWhat from any and all liability arising from your use of any Third Party Service. Your interactions with organizations and/or individuals found on or through the KiloWhat Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that KiloWhat shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that KiloWhat is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release KiloWhat, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
19. LOCATION OF WEBSITE & TERRITORIAL RESTRICTIONS. Unless otherwise specified, the Website is presented solely for residents of United States of America.
The information provided on the Website is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject KiloWhat to any registration requirement within such jurisdiction or country. KiloWhat makes no representations or warranties that the information, products or services contained on the Website are appropriate for use or access outside of the United States. Anyone using or accessing the Website from other locations does so on their own initiative and is responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. KiloWhat reserves the right to limit the availability of the Website or any portion of the Website, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that KiloWhat provides.
Software related to or made available by the Website may be subject to United States export controls. Thus, no software from the Website may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
20. TERMINATION. This Agreement shall remain in full force and effect while you use the KiloWhat Services. You may terminate your use of the KiloWhat Services at any time. KiloWhat may terminate or suspend your access to the KiloWhat Services at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your user account. KiloWhat may also terminate or suspend any and all KiloWhat Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the KiloWhat Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
21. FORCE MAJEURE. KiloWhat shall be excused from performance under this Agreement to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of KiloWhat.
22. ENTIRE AGREEMENT. You acknowledge and agree that this Agreement constitute the complete and exclusive agreement between you and KiloWhat concerning your access to and use of the Website, and supersede and govern all prior proposals, agreements, or other communications, whether oral or in writing, with respect to the Website. You represent, warrant, and covenant that your access to and use of the site will comply with this Agreement.
23. UPDATES TO TERMS OF USE. KiloWhat reserves the right to modify or add to this Agreement at any time without prior notice ("Updated Agreement"). You agree that KiloWhat may notify you of the Updated Agreement by posting them on the Website so that they are accessible via a link on the home page, and that your use of the Website after KiloWhat has posted the Updated Agreement (or engaging in such other conduct as it may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement before using the Website. The Updated Agreement will be effective as of the time of posting, or such later date as may be specified in the Updated Agreement, and will apply to your use of the Website from that point forward.
24. SEVERABILITY. KiloWhat will amend or replace such provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of KiloWhat as reflected in the original provision.
25. ASSIGNMENT. You may not assign this Agreement (or any rights, benefits or obligations hereunder) by operation of law or otherwise without the prior written consent of KiloWhat, which may be withheld at KiloWhat's sole discretion. Any attempted assignment that does not comply with this Agreement shall be null and void. KiloWhat may assign this Agreement, in whole or in part, to any third party in its sole discretion, without notice to you.
26. EFFECT OF TERMINATION; SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding the expiration or earlier termination of your account on the Website, rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof. Upon the expiration or earlier termination of your account on the Website, all rights and obligations of the parties under this Agreement shall expire, except those rights and obligations under those sections specifically designated in this Section 26.
27. U.S. GOVERNMENT RESTRICTED RIGHTS. The content of the Website is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in applicable laws and regulations.
28. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. KiloWhat shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond KiloWhat's reasonable control. 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 KiloWhat in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. You and KiloWhat agree there are no third party beneficiaries intended under this Agreement.
29. ARBITRATION; GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Collin County, Texas, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of American Arbitration Association ("AAA") arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of AAA. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in Collin County, Texas.
30. COPYRIGHT DISPUTE POLICY. KiloWhat has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (the "DMCA") (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of KiloWhat's Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is listed at below. It is KiloWhat's policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
Designated Agent:
Douglas J. Shumway
Shumway Van
310 S St Mary’s, Suite 2100
San Antonio, Texas 78205
info@shumwayvan.com
NOTE: This contact information is for inquiries regarding potential copyright and other intellectual property infringements only.
31. REPORTING COPYRIGHT & OTHER INTELLECTUAL PROPERTY VIOLATIONS. You may not use the Website for any purpose or in any manner that infringes the rights of any third party. KiloWhat encourages you to report any content on the Website that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Website infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Designated Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit KiloWhat to locate the material; (d) information reasonably sufficient to permit KiloWhat to contact the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that any content on the Website violates your rights other than copyrights, please provide KiloWhat with at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit KiloWhat to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for KiloWhat to evaluate your complaint; and (d) accurate contact information for you.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. KiloWhat may request additional information before KiloWhat removes any infringing material. If a dispute develops as to the correct owner of the rights in question, KiloWhat reserves the right to remove your content along with that of the alleged infringer pending resolution of the matter.
KiloWhat will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement
32. CONTACT. If you have any questions, complaints, or claims with respect to the KiloWhat Services, you may contact KiloWhat at support@kilowhat.energy.
Effective Date: August 28, 2015