Terms of service
Terms of Service
Please review these Terms of Service ("Terms") carefully, including the assignment of your Environmental Attributes (as defined below) in Section 2.3 below, and a binding arbitration clause and class action waiver in Section 9.6 below. Your acceptance of these Terms is required in order for you to access and use the Company Services (as defined below). By registering with us, purchasing any goods or services from us, or by using the Company Services in whole or in part (whether as a shopper, browser/viewer, vendor, user, customer, merchant, and/ or contributor of content), you are entering into a legally binding agreement with us. If you are agreeing to these Terms on behalf of or for the benefit of an entity or a third party, then you represent and warrant that you have the necessary authority to agree to these Terms on such entity or third party’s behalf. If you do not agree to these Terms, you cannot use the Company Services. We reserve the right at our discretion to make modifications to these Terms periodically. We will notify you of material changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Company Services, or your purchase of any goods or services from us, after such modifications, indicates your acceptance of and agreement to the modified Terms.
Contents
- Defined Terms
- Access to Company Services
- Use of the Company Services
- Access Information & Content
- Third Party Applications & Co-Branded Services
- Restrictions
- Disclaimer of Warranties, Limitation of Liability & Indemnity
- Copyright Policy
- General Provisions
1. DEFINED TERMS
"Access Information": your user name, password, and other log-in information used by you for access to the Company Services or to conduct transactions.
"Company Services": the features and other products and services make available to you, including but not limited to when you visit or shop at our website, located at https://www.optiwatt.com, or access and use our iOS or Android applications made available on the Apple AppStore and Google Play store, respectively, as such features, products, services, or applications may be offered, withdrawn, updated or modified by us in our sole discretion from time to time.
"Connected Device": an electronic vehicle, thermostat, charger, or other device that can be monitored and/or controlled by, and/or otherwise used in connection with the Company Services.
"Content": text, images, graphics, photos, video, audio, and any other content, information or data (including transaction data), created, derived from or accessible via use of the Company Services. The term "your Content" includes Content originating or derived from your use of the Company Services and/or Third Party Applications.
"Environmental Attributes": any and all emissions and renewable energy credits, energy conservation credits, benefits, reductions, offsets and allowances, emission reduction credits or words of similar import or regulatory effect (including emissions reduction credits or allowances under all applicable emission trading, compliance or budget programs, or any other federal, state or regional emission, renewable energy or energy conservation trading or budget program, including but not limited to, for residents of Massachusetts, Clean Peak Energy Certificates generated through participation in the Clean Peak Energy Standard Program) resulting from the avoidance of the emission of any gas, chemical or other substance into the air, soil or water that are related or attributable to your ownership or operation of an electric or hybrid-powered vehicle.
"Energy Services Vendors": our vendors used in connection with certain demand response or other electric or gas utility programs, including but not limited to Voltus, Inc. and any other utility partner or other vendor we may use from time to time.
“Market Administrator”: the electricity market administrator in your location of use of the Company Services.
"Privacy Policy": our privacy policy available at https://www.optiwatt.com/privacy, as may be amended from time to time.
"Qualified End User": means an eligible customer of the Company who has submitted an application that has been accepted for the Company Services by the Market Administrator and/or the applicable Energy Services Vendor and whose participation has not been withdrawn or terminated.
"Qualified End User Data": means your name, service address, account number, activation date, Connected Device account status, run time data, set points, and related details, and operational data including peak load contribution, Connected Device or whole-home interval energy consumption data, and annual energy consumption, and may include some of your Access Information.
"Subject Matter": these Terms, Company Services, Content, Third Party Applications and any good, item, product or service made available via any of the foregoing.
"Third Party Applications": online or offline software, products, services, platforms, APIs, e-commerce sites, functionality, hardware, networks or Content not developed or provided by Company, including any of the foregoing that is owned or licensed by you or a third party, or that is processed, made available, or enabled for use and display, via the Company Services.
For purposes of these Terms, "we", "us", "our", the "Company" or "Optiwatt" refers to Optiwatt, Inc. "You" or "your" refers to you as the individual using the Company Services, the company or other legal entity represented by such individual, and all affiliates thereto.
2. ACCESS TO COMPANY SERVICES
2.1 Availability. Subject to your compliance with these Terms, including your payment obligations, if any, we will use commercially reasonable efforts to make available the Company Services. You acknowledge that your decision to use the Company Services is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us.
2.2 Eligibility. You must be at least 16 years old to use the Company Services. By accepting these Terms or using the Company Services, you represent, warrant, and covenant to us that: (a) you are at least 16 years old; (b) if you are under age 18 (or are otherwise a minor in your jurisdiction), you have received permission from your parent or legal guardian to use the Company Services and you agree that you will only use the Company Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms on your behalf; and (c) your acceptance of these Terms and use of the Company Services is in compliance with all applicable local, state/provincial, national and international laws, rules and regulations. Any use or access to the Company Services by individuals under the age of 16 (or, if higher, the minimum age to legally drive an automobile in your jurisdiction) is strictly prohibited and is a violation of these Terms. You may not use the Company Services if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use or access the Company Services.
2.3 Transfer of Ownership of Environmental Attributes. You acknowledge and agree that Environmental Attributes may have monetary value, and that, in at least some cases, you may have the option of applying to the applicable program, including but not limited to, for Massachusetts residents, the Clean Peak Energy Standard Program, directly on your own or working with a third-party resource provider (or, in the case of the Clean Peak Energy Standard Program, a Clean Peak Resource Provider), such as the Company or an Energy Services Vendor, who may apply on your behalf. As partial consideration for your use of the Company Services, you agree to forgo your rights to monetize the value of the Environmental Attributes directly by participating in such program through the Company or an Energy Services Vendor, and hereby transfer and assign to the Company and/or, if applicable, such Energy Services Vendor, all right, title and interest in and to the Environmental Attributes. You further hereby represent and warrant that (i) you have been provided sufficient information that you are releasing your rights to Environmental Attributes through participation in such program to the Company and/or such Energy Services Vendor and that the consideration you are receiving is appropriate, and (ii) the Environmental Attributes are free and clear of any other claims or encumbrances of any kind whatsoever, and you agree to provide the Company and/or such Energy Services Vendor your best efforts with respect to any act reasonably necessary for the Company and/or such Energy Services Vendor to perfect title in and to the Environmental Attributes.
2.4 Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Company Services, including administrative notices and service announcements or changes.
2.5 Reservation of Rights. Company, Energy Services Vendors, and our licensors, as applicable, retain all right, title and interest in and to the Company Services and our Content, and all associated intellectual property rights. Company, Energy Services Vendors, and our licensors grant no licensed rights to you in our copyrights, trademarks, patents, or any other form of our respective intellectual property. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Company Services are the copyrightable content, trade dress, trademarks and servicemarks of Company, Energy Services Vendors, or our licensors, as applicable. You will not use, reproduce, distribute, or deploy the Company Services or our Content, except for your own personal or business use, and solely in accordance with these Terms.
3. USE OF THE COMPANY SERVICES
3.1 Necessary Systems. Your access to and ability to effectively use the Company Services is conditioned on your procurement of all necessary system, hardware, software, operating environment, Third Party Applications, connectivity, and network access. You acknowledge that use of the Company Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Third Party Applications.
3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Company Services for our business purposes, including for product, service or solution sales, support and development, without any obligation or payment to you.
3.3 Data. You hereby consent to collection and use by Company and our Energy Services Vendors of data (including Qualified End User Data, meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the Company Services in order to provide the functionality of and improve the Company Services, apply to and participate in demand response or other electric, gas, or other utility programs, for product development and/or marketing purposes, to protect against spam and malware, and/or for verifying compliance with these Terms.
3.4 Energy Services Venders. You hereby consent to and give us and our Energy Services Vendors, as applicable, permission to do the following:
a. collect or permit our Energy Services Vendors to collect your Qualified End User Data for the purpose of determining your eligibility for the Company Services and operating the Company Services
b. share with and permit our Energy Services Vendors to access your Qualified End User Data for purpose of registration and settlement with the Market Administrator;
c. share and permit our Energy Services Vendors to share the required portions of your Qualified End User Data with the Market Administrator as part of the Market Administrator’s registration process;
d. share with and permit our Energy Services Vendors to access energy demand data recorded through the use of the Company Services, and share this data with the Market Administrator for purposes of registration and settlement with the Market Administrator;
e. automatically adjust your Connected Device, as required by the Company Services or for general system testing purposes;
f. review and analyze all of your Qualified End User Data for the purposes of fulfilling our obligations in connection with the Company Services and under applicable law, improving the Company Services, and as otherwise permitted by applicable law in accordance with our privacy policy and the privacy policies of our Energy Services Vendors; and
g. summarize in publicly available studies or press releases Qualified End User Data that has been anonymized such that you are not individually identifiable.
3.5 Usage Restrictions. You will not use the Company Services or participate in any activities via the Company Services in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the Company Services must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Third Party Applications. You will not use, or enable or permit the use of the Company Services to store or transmit illegal, infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Company Services: (a) if you are a competitor of us or operating on behalf of such a competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.6 Notifications to You. For purposes of service messages and notices about the Company Services to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
3.7 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to casey@getoptiwatt.com.
3.8 Payment Terms. Your interactions with the Company Services may earn you rewards or payments from certain Energy Services Vendors, Market Administrators, or other applicable program operators. You expressly authorize Company’s service provider, Tremendous, LLC and its affiliates (the “Processor”), to originate credit and other rewards transfers to you and/or your financial institution account. You must have at least USD $5.00 (or the equivalent in “points”) to redeem certain rewards and/or payments. Any rewards or earned payment amounts that you do not redeem within 5 years of earning such rewards or payments may be forfeited and become no longer redeemable. Your triggering of redemption of rewards or payments cannot be reversed, and once we transfer such rewards or payment to the Processor for purposes of transferring the same to you, we will not be liable for any loss, damage, or impairment thereto arising from the actions or inactions of the Processor.
4. ACCESS INFORMATION & CONTENT
4.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to casey@getoptiwatt.com. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
4.2 Responsibility for Content. Your Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as "inactive" and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up your Content and end user data. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate Company Services access in response to a violation or suspected violation of these Terms. You agree to only provide information through the Company Services that you are allowed to provide without violating any obligations you might have towards a third party, including any confidentiality obligations. You agree not to provide any information that you are not allowed to share with others, including by contract or law. Any information you provide will be accessible by other users of the Company Services.
4.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Company Services, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee, and are not responsible for, the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any Company Services user.
4.4 Account Data While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content, including but not limited to your account data. You acknowledge and agree that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as Company may otherwise agree in writing.
4.5 License to Your Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, distribute, create derivative works of, display and perform your Content solely for the purposes of developing, implementing, maintaining, improving and providing the Company Services.
5. THIRD PARTY APPLICATIONS & CO-BRANDED SERVICES
5.1 Third Party Applications and Co-Branded Services. The Company Services interoperate with Third Party Applications and may depend on continuing availability of and access to such Third Party Applications for full functionality of the Company Services. If you install, enable, or otherwise use a Third Party Application for use with or via the Company Services, you grant us and/or the provider of such Third Party Application, which may or may not be an Energy Services Vendor (such provider of such Third Party Application, a “Third Party Provider”) permission to access and collect your Content as required for the interoperation of the Company Services with such Third Party Application. The Company Services may also include Third Party Provider-branded or co-branded sites or services (collectively, “Third Party or Co-Branded Services”). These Third Party or Co-Branded Services provide services to you by us and/or such Third Party Providers. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY PROVIDER THROUGH THE COMPANY SERVICES, AND SUCH THIRD PARTY PROVIDERS DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY US, INCLUDING BUT NOT LIMITED TO THE COMPANY SERVICES.
5.2 Responsibility and Use of Your Content. You are solely responsible for the Third Party Applications. Under no circumstances will we be liable in any way for Third Party Applications, including, but not limited to, liability for any errors or omissions in any Third Party Applications, or for any errors, loss or damage of any kind incurred as a result of the use or unavailability of the Third Party Applications. You acknowledge and agree that any exchange of your Content between you and any Third Party Application or Third Party Provider, shall solely be between you and such Third Party Application or Third Party Provider. We do not warrant or make any representation, endorse, guarantee, monitor, assume responsibility for, or support, and shall have no liability whatsoever in connection with, any Third Party Applications or Third Party Providers, and you hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration, loss, or disclosure of your Content resulting from access or collection by Third Party Applications. If Third Party Providers of cease to make the Third Party Applications available for interoperation with the corresponding features of the Company Services and on reasonable terms or otherwise, we may cease providing Company Services or such features, without entitling you to any refund, credit or other compensation.
5.3 Third Party Application Use of Your Content. We will not be responsible for any disclosure, modification or deletion of your Content resulting from (a) any access or use of such Content by Third Party Applications or (b) enabling Thid Party Applications to interoperate with the Company Services.
5.4 Third Party Applications Terms. You may be subject to additional terms and conditions and privacy policies that may apply when you use Third Party Applications or Third Party or Co-Branded Services, or affiliate or third party content or services, and you are responsible for complying with such additional terms and conditions.
6. RESTRICTIONS
6.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Company Services, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Company Services, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the Company Services by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Company Services, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the Company Services by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the Company Services.
6.2 Illicit Access. You will not obtain or attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Company Services, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Company Services, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Company Services. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Company Services.
7. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY & INDEMNITY
7.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, WE PROVIDE THE COMPANY SERVICES ON AN AS-IS, AS-AVAILABLE BASIS WITH ALL FAULTS, AND WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE COMPANY SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.Specifically, we make no warranty that (a) the Company Services will meet your requirements, goals or needs, (b) Company Services access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Company Services will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Company Services. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion of implied warranties may not apply to you.
7.2 Limitation of Liability. IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING OR ARISING FROM OR RELATED TO THE SUBJECT MATTER OR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, COMPANY SERVICES OR THIRD PARTY APPLICATIONS, (B) DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING PERSONAL INJURY, PROPERTY DAMAGE OR LOSS, OR RELIANCE DAMAGES), RESULTING FROM YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS AND USE COMPANY SERVICES, THIRD PARTY APPLICATIONS, OR CONTENT, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY TERMINATION, INTERRUPTION OR CESSATION OF COMPANY SERVICES, CONTENT OR THIRD PARTY APPLICATIONS, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH COMPANY SERVICES OR THIRD PARTY APPLICATIONS BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT, COMPANY SERVICES OR THIRD PARTY APPLICATIONS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF CONTENT, COMPANY SERVICES OR THIRD PARTY APPLICATIONS, OR ANY CONTENT, PRODUCT, ITEM OR SERVICE POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE COMPANY SERVICES. YOU AGREE NOT TO RELY ON THE COMPANY SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD US, OUR ENERGY SERVICES VENDORS, AND OTHER THIRD PARTY PROVIDERS HARMLESS FROM ALL LIABILITY, DAMAGES, OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY, OR LOSS OF LIFE ARISING FROM YOUR USE OF THE COMPANY SERVICES OR THIRD PARTY APPLICATIONS. LIABILITY IS SO LIMITED AND EXCLUDED, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR DAMAGES WILL BE SO LIMITED AND EXCLUDED, REGARDLESS OF THE VALIDITY OR EFFICACY OF ANY REMEDY PROVIDED HEREIN AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND EACH PARTY HAS RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS RELATIONSHIP. THE PARTIES HAVE VOLUNTARILY AGREED TO DEFINE THE PARTIES’ RIGHTS, LIABILITIES AND OBLIGATIONS RESPECTING THE SUBJECT MATTER EXCLUSIVELY IN CONTRACT PURSUANT TO THESE TERMS, AND YOU EXPRESSLY DISCLAIM THAT YOU ARE OWED ANY DUTIES OR ARE ENTITLED TO ANY REMEDIES NOT EXPRESSLY SET FORTH IN THESE TERMS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
7.3 Indemnification. To the extent permitted under applicable laws, you hereby agree to defend, indemnify and hold us and our affiliates, officers, directors, employees and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with extent permitted under applicable laws, you agree to defend, indemnify and hold us and our affiliates, officers, directors, employees and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with your use of the Company Services or any Company service or product, your failure to comply with these Terms, and/or your violation of any rights of another. You will cooperate as reasonably required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without our prior written consent.
8. COPYRIGHT POLICY
We respect the intellectual property of others and ask that users of the Company Services do the same. In connection with the Company Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of the Company Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of the Company Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. 512(c)) must be provided to our designated Copyright Agent:
a. Your physical or electronic signature;
b. Identification of the copyrighted work(s) that you claim to have been infringed;
c. Identification of the material on the Company Services that you claim is infringing and that you request us to remove;
d. Sufficient information to permit us to locate such material;
e. Your address, telephone number, and e-mail address;
f. A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. 512(f), any misrepresentation or omission of a material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our designated Copyright Agent is: Copyright Agent, c/o Optiwatt, Inc., 180 Sansome Street, San Francisco CA 94104 USA; zach@getoptiwatt.com.
9. GENERAL PROVISIONS
9.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the Company Services. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
9.2 Account Termination. We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms; (b) abuse of our resources or any attempt to gain unauthorized entry to the Company Services; (c) use of the Company Services in a manner inconsistent with its purpose; (d) any authorized user's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Company Services for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Third Party Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.
9.3 Trademarks; Media. You are granted no right, title or license to any third-party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers. All trademarks not owned by us that appear in the Company Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use our trademarks or servicemarks and/or variations and misspellings thereof.
9.4 California-Based. The Company Services is controlled by us from our offices in California, USA. We make no representation that the Company Services is appropriate for use in other jurisdictions. Your use of or access to the Company Services will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than California, USA.
9.5 Governing Law; Choice of Forum. The Subject Matter and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of the State of California, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. The United Nations Convention on Contracts for the International Sale of Goods will not apply and is hereby expressly excluded. Subject to section 9.6, the state and federal courts located in San Francisco County, California, will have exclusive jurisdiction and venue over any disputes between the parties arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction and venue of such courts for such disputes and waive any objections to the exercise of such jurisdiction or venue.
9.6 Arbitration. Please read this Arbitration Agreement carefully. It is part of your contract with the Company and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms, the Company Services or the use of any products or services provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: casey@getoptiwatt.com. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through JAMS (www.jamsadr.com), an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or 130% of the settlement offer. Each party shall bear its own costs (including reasonable attorney’s fees) and disbursements arising out of the arbitration and shall each pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section “(c)” immediately above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Time Limits. If you or the Company pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
g. Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and the Company waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions.All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other User.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with the Company.
m. Small Claims Court.. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
n. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
p. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction and venue of the courts located within the City and County San Francisco, California, USA for such purpose.
9.7 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
9.8 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
9.9 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Company Services, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
9.10 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Company Services, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.
Related Policies & Information
This Terms of Service should be read together with our other policies and information pages, which explain how Optiwatt Shopping operates, how orders are fulfilled, and how customer information is handled.
Payment Policy
Privacy Policy
Refund Policy
Shipping Policy
Contact Us
About Us
Contact Information
Business Name: Optiwatt
Business Address:
1212 Broadway Plaza
Walnut Creek, CA 94596
United States
Phone: +1 (925) 492-7585
Email: support@optiwatt.com
Business Hours:
Monday–Friday, 9:00 AM – 5:00 PM (Pacific Time)