Please read this End User Agreement (the “Agreement”) carefully as it sets forth the conditions of use of the Emporia Renewable Energy Corp. software application (the “Application”) and is a legally binding agreement between you, personally, and any entity on whose behalf you are using the Application (collectively “You” and/or “Your”) and Emporia Renewable Energy Corp. (“Emporia Energy”). If You do not agree to the terms and conditions of this Agreement, You should immediately cease all usage of the Application. Emporia Energy reserves the right, at any time, to modify, alter, or update the terms and conditions of this Agreement without prior notice to You. Modifications shall become effective immediately upon download of any applicable updates or modifications to the Application/being posted on the Application and Emporia Energy website. Your continued use of the Application after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
1. Acceptance and Use of Application
The Application may be used by, and membership or participation in any online accounts, is limited to individuals who can form legally binding contracts under applicable law. You must (i) provide all equipment necessary for Your own Internet connection, including computer and/or table and/or mobile device and modem, and (ii) provide for Your access to the Internet. Subject to the terms and conditions mentioned herein, You are hereby granted a limited, non-exclusive, non-transferable, restricted license solely for the purpose of using the Application or to receive services provided by or through the Application. No other right, title or interest is granted in, and to the Application. You shall not modify the Application, except as may be authorized by Emporia Energy in writing, nor adapt, translate, reverse engineer, decompile, disassemble, and/or otherwise attempt to discover the source code of the software, nor take any other steps to discover the confidential information and/or trade secrets contained in the Application.
2. Intellectual Property
All content included or available through the Application, including the Application design, text, graphics, interfaces, and the selection and arrangements thereof, and all trademarks, copyrights, database rights and other intellectual property rights related to it belong to Emporia Energy. Any use of materials on or from the Application, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Emporia Energy is strictly prohibited.
You retain ownership and any intellectual property rights in any information, data, text or materials that you post, submit, email or otherwise make available to or through the Application to Emporia Energy (“Your Material”).
3. Your Material
You grant Emporia Energy a non-exclusive, royalty free, fully paid, perpetual, worldwide license to Your Content and any intellectual property rights therein, to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use Your Material.
You acknowledge and agree that Emporia Energy may use certain information within Your Material or other data collected from and about You and Your usage of the services, including electricity usage, for the purpose of providing or offering information, services and products of Emporia Energy, its affiliates, partners, agents and resellers or other third parties. Emporia Energy may use such data for analyzing, maintain and grouping data as well as analyzing and predicting usage and other trends and, so long as the resulting data is aggregate or anonymized, Emporia Energy may share, provide, license, disclose and otherwise freely use such aggregated or anonymized data.
Emporia Energy does not want and you agree to not provide any credit card information, bank account information or numbers, social security numbers, or any other sensitive personal information that if lost, compromised or disclosed could result in substantial harm or inconvenience to you or a third party.
4. Representations and Warranties
You represent and warrant to Emporia Energy that: (i) You have the full power and authority to enter into and perform your obligations under this Agreement; (ii) Your assent to and performance of Your obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which You are bound, or any applicable laws, regulations or rules; (iii) all information provided by You on Your account is accurate and current and will be updated by You to remain current; (iv) this Agreement constitutes legal, valid and binding obligations on You, enforceable in accordance with its terms and conditions; (v) You will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in Your use of the Application; (vi) You will comply with all applicable laws, rules and regulations in Your use of the Application, as well as the agreed upon terms of this Agreement; and (vii) You understand and acknowledge that Emporia Energy may terminate this Agreement at any time in its sole discretion.
5. Disclaimer of Warranties
The Application is provided by Emporia Energy on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Emporia Energy makes no representations or warranties of any kind, express or implied, that the Application or the use thereof (i) will be free from defects, inaccuracies or errors, (ii) will be uninterrupted or secure (iii) will meet Your requirements or (iv) will operate in the configuration or with the other software You use. Emporia Energy disclaims all warranties with regard to the Application or information provided through the Application, including the implied warranties of merchantability and fitness for a particular purpose, and non-infringement.
6. Limitation of Liability
EMPORIA ENERGY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR EMPORIA ENERGY SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE APPLICATION, OR ITS USE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF EMPORIA ENERGY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE APPLICATION OR THE SERVICES EXCEED THE FEES PAID BY YOU FOR THE APPLICATION. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
If you purchase or otherwise obtain equipment, such as devices to measure and monitor energy use, directly or indirectly, from Emporia Energy (“Equipment”) in conjunction with or related to the Application provided under this Agreement, such Equipment is subject to the terms and conditions (including the warranties and disclaimers) provided with such Equipment.
You agree to indemnify and hold Emporia Energy, its officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of Your use of the Application, the violation of this Agreement, or infringement by You of any intellectual property or any other right of any person or entity.
8. Modifications and Interruption to Services
Emporia Energy reserves the right to stop providing the Application with or without notice to You. Emporia Energy shall not be liable to You or any third party should Emporia Energy exercise its right to stop providing the Application. You acknowledge and accept that Emporia Energy does not guarantee continuous, uninterrupted or secure access or use of the Application and operation of the Application and may be interfered with or adversely affected by numerous factors or circumstances outside of Emporia Energy’s control.
9. Third-Party Services and Products
The Application may include links to third party sites or offers from third party service or product providers that are owned and operated by unrelated third parties, business partners of Emporia Energy, or third party resellers (“Third Party”). You acknowledge that Emporia Energy is not responsible for the availability of, or the content located on or through, any Third Party site or offer nor the accuracy of the information provided by any such Third Party. Any non-Emporia Energy services or products offered to, and purchased by, you through the Application shall be governed by the terms and conditions entered into between You and such Third Party and Emporia Energy is not responsible for any such services or products, nor shall Emporia Energy be liable for any damages arising or related to such third party service or product. Emporia Energy assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available to You by any Third Party
10. Governing Jurisdiction and Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any principles of conflicts of law. You agree that this Agreement is made and partially performed in the State of Colorado, and that venue for any action at law or in equity arising out of or relating to this Agreement shall be exclusively limited to the state or federal courts located in the State of Colorado. You hereby consent and submit to the exercise of personal jurisdiction over you by such courts for the purpose of litigating any such action, and waive any defenses of lack of minimum contacts or forum non conveniens.
11. Compliance with Laws
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You shall not use or access the Application in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation.
12. Other Terms
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You agree that this Agreement and any other agreements referenced herein may be assigned by Emporia Energy, in its sole discretion, to a third party in the event of a merger or acquisition or sale of all or substantially all of the assets of Emporia Energy. This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between You and Emporia Energy.