Terms of Service

Last Revised: May 19, 2023

UPLIGHT TERMS OF SERVICE

INTRODUCTION

These Uplight Terms of Service (these “Terms”) are a legal agreement between Uplight, Inc. (“Uplight”) governing your access to and use of: (a) any and each website operated or provided by or on behalf of Uplight or any of its affiliates (collectively, the “Sites”); (b) any and each feed, mobile or web application, or widget operated or provided by or on behalf of Uplight or any of its affiliates (collectively, the “Apps”); (c) any online and offline services which Uplight agrees to provide to you in connection with the Sites or Apps, which services may include the Energy Dashboard, Marketplace, or Orchestrated Energy (each as defined below) or other tools, resources, or information that may help you understand your energy usage and become more energy efficient; and (d) any and all information, data, reports, and other materials and content provided by Uplight or through each and any of the foregoing, excluding only User Content (as defined below) (collectively, “Energy Content”) (subparts ‘(a’)-‘(d)’ collectively, the “Services”). The Services may be provided to you on behalf of your utility or energy service provider (your “ESP”).

The Services are intended for use by individuals at least the age majority in their jurisdiction. By accessing or using the Services, you represent and warrant that you are of legal age to form a binding contract in your jurisdiction and are not a person barred from receiving or accessing the Services under the laws of the United States or other applicable jurisdictions. To register for an Account (as defined below) on the Services you must be 18 years of age or older. In the event that you are agreeing to this Terms on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to these Terms, in which case, all references to “you” in these Terms shall be references to such third party.

BY CLICKING “APPLY REBATES”, BY CLICKING A BOX OR BUTTON THAT INDICATES THAT YOU ACCEPT OR AGREE TO THESE TERMS (E.G.,“I AGREE”), OR BY ACCESSING OR USING ANY SERVICES, YOU AGREE TO ENTER INTO AND BE BOUND BY THESE TERMS. If you do not agree to be bound by these Terms, do not access or use any part of the Services. These Terms are entered into as of the earlier of the date you first access or use the Services, click “Apply Rebates”, or click a box or button that indicates that you accept or agree to these Terms (e.g., “I Agree”) and will continue until terminated as set forth herein.

Except as otherwise expressly specified herein, in the case of any inconsistency between these Terms and information included in any other materials related to the Services (e.g., promotional materials and mailers), these Terms will always govern and take precedence.

SERVICES.

1.1. Services. The Services are designed to be used in connection with Energy Usage Data (as defined below) from your ESP and Uplight’s proprietary energy dashboard (the “Energy Dashboard”).

1.2. Energy Dashboard. The Services may include access to Uplight’s proprietary energy dashboard (the “Energy Dashboard”) pursuant to which Uplight may provide information, insights, tools, and strategies relating to your energy consumption. Any features or functionality available through the Energy Dashboard are considered a part of the “Services”. The Energy Dashboard also provides Users (as defined below) with the ability to access Energy Content. Energy Content may be provided directly from your ESP, and you may have separate rights to such Energy Content directly from your ESP.

1.3. Marketplace.

(a) Generally. The Services may include “Marketplace”, Uplight’s online marketplace that allows Users to purchase certain products listed through the Services (“Products”). Some Products may be available for sale directly on the Services (each such purchase, a “Direct Purchase”). Other Product purchases must be completed using a link to the manufacturer of the applicable Products or a third-party retailer that Uplight has partnered with to facilitate the sale of such Products (each, a “Merchant”). These Product purchases via Merchants (and not through Uplight or on the Services) are each referred to as “Merchant Purchases”. Both Direct Purchases and Merchant Purchases may require Uplight to share information relating to the purchase with the Merchant and/or Uplight’s fulfillment partners in order to complete the transaction. Additionally, by making a Direct Purchase or Merchant Purchase, you acknowledge and agree that Uplight may (i) collect your purchase-related data (e.g., Products purchased, e-mail address used), (ii) use your e-mail address associated with such purchase to contact you with offers, (iii) include such e-mail address in Uplight’s e-mail marketing list for Marketplace, and (iv) share such list with ESPs to enable such ESPs to update their records. In all cases, Uplight’s access to, and use of, your purchase-related data will be governed by Uplight’s Privacy Policy, which is currently available at https://uplight.com/privacy-policy/ (“Privacy Policy”). Please contact privacy@uplight.com if you would like more information regarding Uplight’s privacy practices.
(b) Rebates. Certain Products purchased through Marketplace may be eligible for a rebate (“Rebate”). Whether or not the purchase qualifies for a Rebate depends on a number of factors (“Rebate Requirements”), which may include (i) your ESP, (ii) whether you have previously earned a rebate for a similar product, (iii) where you use the Product purchased, (iv) whether you intend to use the Product in your primary residence, and (v) whether you participate in certain qualifying programs such as demand response management programs. The Rebate Requirements for each available Rebate are described on the Services. Uplight may rely on your confirmation that you meet the Rebate Requirements. You understand and agree that if Uplight applies a Rebate and subsequently learns that the Rebate Requirements have not be met, then Uplight may charge you the amount of the Rebate that was applied to the transaction (“Charge-back”). You further agree that Uplight shall have no liability to you or any third party arising from its applicable charge of a Charge-back.
(c) Payment Processor. For any Direct Purchase you make, Uplight will bill your credit card or other payment method you have provided via a payment service provider (“PSP”) for the retail price of the Product. Currently, on certain portions of the Services, Uplight’s payment processing services are provided by Shopify and are subject to the Shopify Payments Terms of Service currently available at: https://www.shopify.com/legal/terms-payments-us and the Privacy Policy currently available at https://www.shopify.com/legal/privacy (collectively, the “Shopify Services Agreement”). On other portions of the Services, Uplight’s payment processing services are provided by one or more other PSPs and are also subject to the respective terms and conditions of each applicable PSP providing such payment processing services (collectively, the “PSP Services Agreement”). By submitting a Direct Purchase transaction or otherwise utilizing Uplight for payment processing services, you agree to be bound by, as applicable, the Shopify Services Agreement or the applicable PSP Services Agreement (as each of the same may be modified by the applicable PSP from time to time). As a condition of Uplight enabling payment processing services through Shopify or another PSP (as specified on the Services), you agree to provide Uplight accurate and complete information about you and your business (if applicable), and you authorize Uplight to share with Shopify, or such other PSP, such information and transaction information related to your use of the payment processing services provided by Shopify or the applicable PSP. Your selected payment method will be charged for a Direct Purchase at the time the Order (as defined below) is placed.
(d) Direct Purchases. You may be permitted to place orders for a Direct Purchase (each an “Order”). By submitting any Order, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY METHOD OF PAYMENT UTILIZED IN CONNECTION WITH THAT ORDER. All Orders are subject to acceptance by Uplight, in its sole discretion, and Uplight may limit or restrict quantities of Products purchased without notice to you, even after the Order has been placed. In addition to these Terms, any Direct Purchase you make is governed by the terms displayed on the Services in connection with each Product and any additional terms provided to you in connection with your Order or any acceptance of your Order provided by Uplight, for example, if a Product is non-refundable, not available for returns, or if other terms apply, and includes Uplight’s shipping and return policies (taken together, the “Terms of Sale”). By placing an Order, you agree to be bound by the Terms of Sale with respect to that Order and all Products included in that Order. If these Terms conflict with the Terms of Sale, the Terms of Sale will govern and control with respect to the Products provided to you under that Order. All Products purchased via Direct Purchase are made pursuant to a shipment contract. This means that the risk of loss and title for any Products your purchase via Direct Purchase pass to you upon Uplight’s delivery of the applicable Products to the applicable carrier. Any Product descriptions or visualizations on the Services are for convenience purposes only, and Uplight does not represent that they are accurate. This includes size, weight, color, and other specifications provided. If a Product is listed at an incorrect price or with incorrect information, Uplight shall have the right to refuse or cancel any Order placed for those Products, whether or not the Order has been confirmed or your credit card has been charged or your other payment method processed. If your credit card has already been charged or your other payment method has already been processed for an Order and the Order is canceled, Uplight will issue you a credit or refund in the amount of the charge. Please note that for any sales tax errors, the issuance of a refund for the amount in error will be the exclusive remedy.
(e) Merchant Purchases. If you purchase a Product via Merchant Purchase, your purchase is subject to the terms and conditions of, and policies provided by, the applicable Merchant with whom you complete the transaction.
(f) Pricing. Except where otherwise noted, the prices displayed for Products represent the full retail price listed on the Product itself suggested by the manufacturer or supplier of the Product. The prices for Products listed for sale via Direct Purchase are subject to change without notice and may not reflect the current price in every market on any particular day. When a Product is listed for sale via Merchant Purchase, the final retail price will be provided by the applicable Merchant.
(g) Returns and Refunds. Products sold via a Merchant Purchase are subject to the return and refund policies of the applicable Merchant with whom you complete the transaction, and in no event shall Uplight or your ESP, if applicable, be responsible for any returns, refunds, or exchanges of such Products. If you purchase Products via Direct Purchase, please refer to the applicable return and refund policy located on the Services or otherwise provided or made available to you by Uplight in connection with such purchase. UPLIGHT MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS OR FOR THE CONDUCT OF ANY MERCHANT.

1.4. Orchestrated Energy.

(a) Generally. The Services may include participation in an “Orchestrated Energy” program offered or sponsored by your ESP (“Orchestrated Energy Program”). Your participation in an Orchestrated Energy Program will be subject to additional or separate program terms (collectively, “Orchestrated Energy Program Terms”). In the event of a conflict between the terms of these Terms and the Orchestrated Energy Program Terms, the Orchestrated Energy Program Terms will govern with respect to the Orchestrated Energy Program, and these Terms will govern in all other respects.
(b) Enrollment Incentives. From time to time, Uplight may offer you incentives (e.g., enrollment incentives) or other promotions (e.g., special free trials, promotional codes, credits, awards, other discounts) for your participation in an Orchestrated Energy Program (“Incentives”). All Incentives will be offered at the sole discretion of Uplight, and can be modified or terminated at any time by Uplight with or without advance notice. Incentives may be offered on a limited time basis and may be subject to certain restrictions. Uplight may offer Incentives that are non-transferrable, non-refundable for cash, and may be subject to additional terms and conditions. Whether or not you qualify for an Incentive depends on a number of factors (“Incentive Requirements”), which may include (i) your ESP, (ii) whether you have previously earned an incentive or promotion for a similar product, service, or program, (iii) where you participate in the Orchestrated Energy Program, (iv) whether you intend to participate in the Orchestrated Energy Program in connection with your primary residence, and (v) whether you participate in certain qualifying programs such as demand response management programs. The Incentive Requirements for each available Incentive are, or will be, described on the Services. Uplight may rely on your confirmation that you meet the Incentive Requirements. You understand and agree that if Uplight provides an Incentive to you and Uplight subsequently learns that the Incentive Requirements have not been met, then Uplight may charge you the amount of the Incentive that was provided to you (“Incentive Charge-back”). You further agree that Uplight shall have no liability to you or any third party arising from its applicable charge of an Incentive Charge-back.

ACCESS.

2.1. To the Services. Subject to your compliance with these Terms, Uplight grants you a personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to access and use the Services solely for lawful purposes and only in accordance with the terms of these Terms and any other agreement you agree to with Uplight before being given access to any specific aspects of the Services. Any additional agreement is in addition to these Terms and will govern your use of the portions of the Services to which the additional agreement applies in the event of a conflict between the terms of these Terms and the additional agreement. You may use the Services only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Services after any termination or expiration of these Terms for any reason.

2.2. To Energy Content. Unless otherwise noted on the Services, all Energy Content, including all text, audio, video, photographs, illustrations, graphics, and other media available through the Services, is owned by Uplight or Uplight’s other third-party providers. All Energy Content is provided for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all Energy Content and for your use of any Energy Content. Uplight has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Energy Content. Except as set forth in these Terms, you are granted no licenses or other rights in or to any Energy Content from Uplight. For the avoidance of doubt, you may have separate rights to Energy Content based on your relationship with your ESP, and nothing in these terms limits those rights.

USER CONTENT AND SUBMISSIONS.

3.1. Your Energy Usage Data. Certain aspects of the Services rely on access to data about your energy consumption (“Energy Usage Data”). As a part of the registration process, Uplight will provide instructions about how you can authorize Uplight to access this Energy Usage Data from your ESP. Some ESP’s cannot share Energy Usage Data. If your ESP cannot share Energy Usage Data with Uplight, or if you do not wish to have your ESP share your Energy Usage Data with Uplight, your use of certain aspects of the Services may be limited. In all cases, Uplight’s access to, and use of, your Energy Usage Data will be governed by Uplight’s Privacy Policy.

3.2. Your User Content. “User Content” means any and all information, data, and other content (e.g., submissions, questions, reviews, comments, and other content including, text, audio, video, music, sound, photographs, illustrations, graphics, messages, testimonials, and other media) that a User provides, uploads, transfers, or otherwise makes available to the Services or generates through the User’s Account (e.g., Account information and any other Account passwords, usernames, or other personal information; content uploaded or tagged or in a public posting; Energy Usage Data; Customer Data (defined below); and service related information); but excluding in all cases any Ideas (defined below) and/or Energy Content (whether embodied or incorporated in any of the foregoing or otherwise). Except as expressly provided in these Terms, you are solely responsible for your User Content and Uplight does not claim ownership rights in any of your User Content. By submitting your User Content and accepting the consideration set forth in these Terms, you unconditionally grant to Uplight a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, royalty-free transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in your User Content, to (a) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, store, adapt, translate, and otherwise use your User Content throughout the world in any form, medium, format, software, or technology of any kind, whether now known or hereafter discovered, and (b) exercise any and all other present or future rights in your User Content. As between you and Uplight, you remain the owner of all of your User Content that you make available in connection with the Services. You represent and warrant to Uplight that: (1) you are the owner of the copyright to your User Content or that you have written permission from the copyright owner to use such User Content; and (2) you have all right, title, interest, and consent in your User Content necessary to allow Uplight to use your User Content for the purposes for which you provide your User Content to Uplight. In addition, you warrant that all moral rights in all of your User Content have been waived. You agree to indemnify and hold Uplight harmless for any violation of this provision. Uplight is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of your User Content.

3.3. User Content Generally. You represent and warrant that you will comply with the Rules of Conduct (defined below) as to all User Content available through the Services. Each User is solely responsible for any and all of its User Content. Because Uplight does not control User Content, you acknowledge and agree that Uplight is not responsible for any User Content. Uplight makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and Uplight assumes no responsibility for any User Content. Your interactions and transactions with any other User are solely between you and such User. You agree that Uplight will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any other User, Uplight is under no obligation to become involved. Without limiting the foregoing, Uplight will not be held liable to you or any other third party for any User Content (including your User Content) under a federal law called the Communications Decency Act or CDA, 47 U.S.C. § 230.

3.4. Submissions. You shall not obtain any User Content using the Services that would violate this Section 3.4 if such User Content was your User Content. You further agree that your User Content:

(a) does not violate these Terms or any applicable laws, rules, or regulations (“Laws”);
(b) is not libelous, defamatory, threatening, abusive, obscene, pornographic, profane, an invasion of privacy, or could otherwise give rise to any civil or criminal liability under applicable law;
(c) does not constitute an infringement or misappropriation of the intellectual property rights or rights of privacy or publicity of any third party;
(d) is not an advertisement or solicitation of funds, goods, or services;
(e) is not false, misleading, or inaccurate;
(f) could not be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message, or a disruptive advertisement; or
(g) is not, and will not be, sent from an anonymous or false address.

3.5. Review of User Content. While Uplight does not and cannot review all User Content on the Services, and is not responsible for User Content, Uplight reserves the right to remove, delete, move, or edit User Content that Uplight, in its sole discretion, deems abusive, defamatory, obscene, in violation of Law, including copyright or trademark law, or otherwise unacceptable. Uplight will not be liable for any of your User Content (of a submission or otherwise). You agree to indemnify and hold Uplight harmless for any violation of this provision.

3.6. Ideas. You may submit comments or ideas about or through the Services (“Ideas”), including about how to improve the Services or Uplight’s products. By submitting any Idea, you agree that: (a) your disclosure is gratuitous, unsolicited, and without restriction and will not place Uplight under any fiduciary or other obligation, and (b) Uplight is free to use the Idea without any additional compensation to you and to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your Idea submission, Uplight does not waive any rights to use similar or related ideas previously known to Uplight, or developed by its employees, contractors, or agents or obtained from sources other than you.

ACCOUNT REGISTRATION.

Before accessing certain online features or portions of the Services you and any person you authorize to access the Services, as well as any other end user thereof (each, a “User”) are required to establish an account on the Services (“Account”). You may log into your Account using a unique username and password. Each Account and the username and password for each Account (“Account ID”) is personal in nature. You are solely responsible for safeguarding your Account ID and you agree not to disclose, distribute, transfer, or otherwise provide your Account ID to any third party. You are solely responsible for any activities or actions taken, including any use of the Services under your Account ID, whether or not you have authorized such activities, actions, or use. Any transactions completed through your Account or under your Account ID will be deemed to have been lawfully completed by you. You agree that: (i) the information that you provide to Uplight about yourself upon registration of your Account, in connection with Rebate Requirements, and at all other times (“Customer Data”), will be true, accurate, current, and complete, and (ii) you will maintain and promptly update your Customer Data to ensure that it remains true, accurate, current, and complete. You may not (a) impersonate any other person or use a username or password that you are not authorized to use; (b) select or use an Account ID of another person with the intent to impersonate that person; or (c) use an Account ID that Uplight, in its sole discretion, deems offensive. Uplight reserves the right to require you to change your password for any reason at any time. You will ensure the security and confidentiality of your Account ID and if you become aware of any unauthorized use of your Account, or if your Account ID is lost, stolen, or otherwise compromised, you will notify Uplight immediately at legal@uplight.com or via such other methods provided on an applicable customer support page or as otherwise instructed by Uplight.

APP STORE.

Certain Apps may be obtained through a third-party distribution platform (e.g., the Apple App Store or Google Play App Store) (each an “App Store”) and such Apps are to be used solely on a mobile device owned or controlled by you that operates such third party’s operating system. You agree to comply with all applicable third-party terms of the App Store (the “Usage Rules”) when using such an App. To the extent these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. These Terms incorporate by reference the terms of the Addendum to these Terms and any other terms available at the respective App Store from which you have obtained the applicable App. You agree that these Terms are between you and Uplight, and not with the App Store. The App Store is not responsible for any App, maintenance and support services or any warranty thereof, or addressing any claims related thereto. You agree to pay all fees charged by the App Store in connection with such Apps (if any). The Apps may also be subject to additional terms and conditions and privacy policies, and Uplight is not a party to nor responsible for those additional terms.

PAYMENT.

6.1. Except for Marketplace purchases, the Services are primarily made available to you without charge. However, Uplight reserves the right to begin charging for the Services, or any component thereof. Any fees for the Services will be posted through the Services.

6.2. If you sign up for any portion of the Services for which payment is required, you agree to pay Uplight in advance the applicable fees. Uplight will bill your credit card or other payment method (e.g., debit card, online payment account, mobile services account) for all fees. You will provide Uplight with accurate and complete billing information including legal name, address, telephone number, and credit card or payment account billing information. If such information is false or fraudulent, Uplight reserves the right to terminate your use of and access to the Services in addition to seeking any other legal remedies. Uplight is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by unauthorized parties. Each charge will be considered valid unless disputed by you in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. All fees will be paid in U.S. dollars and, unless otherwise provided on the Services, are due as set forth herein. Uplight’s fees are exclusive of all use, sales, and other taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, and duties, excluding only United States (federal or state) taxes based solely on Uplight’s income.

THIRD-PARTY SERVICES.

Uplight may provide you with the ability to access services, software, and other products developed, provided, or maintained by third-party companies through the Services (“Third-Party Services”), including via hyperlinks. Third-Party Services may integrate with, pull Energy Content from, or add Energy Content to the Services, including to your User Content. In addition to the terms of these Terms, your access to and use of any Third-Party Services is also subject to the respective terms and conditions to which you agree of the third party owning, manufacturing, or distributing such products and any other agreement you may agree to before being given access to the Third-Party Services (each, a “Third-Party Service Agreement”). The terms of any Third-Party Service Agreement will be between you and such third party and will apply to the applicable Third-Party Services provided under that Third-Party Service Agreement in addition to the terms of these Terms but will not apply to any other services or Energy Content you may access through the Services. Uplight makes no warranty with regard to the products or websites of any other entity, including any Third-Party Services. Uplight has no control over the content or availability of any third-party software or website or any other Third-Party Services. In particular, (i) Uplight makes no warranty that any third-party software you download, third-party website you visit, or any other Third-Party Services will be free of any contaminating or destructive code, such as viruses, worms, or Trojan horses; and (ii) Uplight hereby notifies you that it is your responsibility to become familiar with any website’s privacy and other policies and terms of service, and to contact that website’s webmaster or site administrator with any concerns related thereto.

SUSPENSION AND TERMINATION.

Uplight reserves the right to suspend or terminate your access to and use of the Services, at any time, without notice, for any reason, including (i) your breach of these Terms (including the Rules of Conduct), any additional terms, or any other policies or guidelines set forth by Uplight, or (ii) conduct that Uplight believes is harmful to other Users of the Services, or the business of Uplight or other third-party information providers. Further, you agree that Uplight shall not be liable to you or any third party for any termination of your access to or use of the Services. Uplight reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Uplight shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services. Without limiting the generality of the foregoing, these Terms may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under these Terms. Upon termination of these Terms for any reason: (a) all rights and licenses granted to you under these Terms will terminate; (b) you will immediately cease all use of and access to the Services, including your User Content and any Energy Content you obtained prior to termination; and (c) Uplight may, in its sole discretion, delete your Account or your User Content at any time. Sections 3 (User Content and Submissions), 6 (Pricing and Payment), 7 (Third-Party Services), 8 (Suspension and Termination), 10 (Representations and Warranties), 11 (Disclaimers), 12 (Rules of Conduct), 15 (Indemnity; Limitation of Liability), and 16 (General) will survive any expiration or termination of these Terms.

PRIVACY.

Uplight respects the privacy of its Users. Uplight collects, uses, and discloses information about you, including your Energy Usage Data, in accordance with the Privacy Policy. You understand and agree that, notwithstanding any measures taken to prevent unauthorized disclosure, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to confidential information. Accordingly, Uplight cannot and does not guarantee the privacy, security, or authenticity of any information so transmitted over or stored in any system connected to the Internet.

REPRESENTATIONS AND WARRANTIES.

You represent and warrant to Uplight that: (1) you have the legal right and authority to enter into these Terms; (2) these Terms form a binding legal obligation on your behalf; (3) you have the legal right and authority to perform your obligations under these Terms and to grant the rights and licenses described in these Terms; and (4) your use of and access to the Services and your User Content, will comply with all Laws and will not cause Uplight itself to violate any Laws.

DISCLAIMERS.

11.1. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UPLIGHT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE TECHNOLOGY (INCLUDING THE SERVICES), WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. UPLIGHT MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT THE ENERGY CONTENT, SITES, TECHNOLOGY, OR UPLIGHT’S SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE SERVICES WILL BE AVAILABLE, OR THAT DATA ARE SECURE FROM UNAUTHORIZED ACCESS. UPLIGHT (AND IF APPLICABLE, YOUR ESP) MAKES NO WARRANTY REGARDING ANY SOFTWARE, GOODS, PRODUCTS, SERVICES, PROMOTIONS, OR THE DELIVERY OF ANY GOODS, PRODUCTS, OR SERVICES, PURCHASED, ACCESSED, OR OBTAINED THROUGH THE SERVICES OR ADVERTISED THROUGH THE SERVICES. UPLIGHT DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF ANY ENERGY CONTENT AND DOES NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED THROUGH THE SERVICES. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY UPLIGHT, ANY OF ITS EMPLOYEES, AGENTS, OR AFFILIATES, OR THE SERVICES SHALL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION (IF ANY).

11.2. Uplight may provide certain Energy Content, recommendations, and informational services via the Services on the basis of information provided by you as to your particular requirements and information provided by other sources, including your ESP. Uplight accepts no responsibility or liability and does not provide any guarantees, undertakings, or warranties concerning: the suitability or accuracy of a specific recommendation to improve energy efficiency; the accuracy, completeness, or current nature of the Energy Content or other information provided to Uplight by the ESP or its contractors or providers; and the Services, functionality, operation, compatibility, install ability, maintenance, level of service, or any other matter in connection with any product or service offering of any third-party provider; and any aspect of the terms and conditions of use, installation, function, maintenance, price, or payment in connection with any product or service offering of any third-party provider.

11.3. Except as otherwise expressly stated, the providers and other third-party companies and state agencies that may be directly or indirectly referenced or may directly or indirectly provide Energy Content or Services are not associated or affiliated with Uplight. Uplight does not represent or endorse the accuracy or reliability of any Energy Content, User Content, or other information, content, or advertisements contained on, distributed through, or linked, downloaded, or accessed from the Services, nor the quality of any products, Energy Content, or other information or other materials displayed, purchased, or obtained by you as a result of an advertisement or any other information or offer in or in connection with the foregoing.

11.4. You hereby acknowledge that any reliance upon any Energy Content shall be at your sole risk. Uplight reserves the right, in its sole discretion and without any obligation, to make improvements to, or correct any error or omission in, any portion of Energy Content. Any bill calculators, rate data, and other documentation provided through the Services do not constitute official prices and cannot be used to make claims against Uplight or your ESP.

RULES OF CONDUCT.

The following sets forth Uplight’s “Rules of Conduct”:

12.1. Distribution of User Content. You agree that you will not collect, upload, transmit, display, or distribute any User Content that:

(a) violates these Terms or any Laws;
(b) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; is bigoted, hateful, or racially or otherwise offensive; is violent, vulgar, obscene, pornographic, or otherwise sexually explicit; or otherwise harms or can reasonably be expected to harm any person or entity;
(c) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including User Content that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
(d) infringes, misappropriates, or violates any right of a third party including any: (i) intellectual property right; (ii) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (iii) confidentiality obligation;
(e) is commercial, business-related, or advertises or offers to sell any products, services, or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
(f) contains a virus or other harmful component, or otherwise tampers with, impairs, or damages the Services or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Services;
(g) does not generally pertain to the designated topic or theme of the Services;
(h) would cause Uplight to violate any Laws;
(i) would cause you to violate any obligations or restrictions imposed by any third party;
(j) violates any specific restrictions applicable to a public forum, including its age restrictions and procedures; or
(k) is antisocial, disruptive, or destructive, including “flaming”, “spamming”, “flooding”, “trolling”, and “griefing” as those terms are commonly understood and used on the Internet.

12.2. Use of the Services. You expressly agree that you are solely responsible for any and all acts and omissions that occur under your Account or Account ID, and you shall not engage in any unacceptable uses of the Services, which include use of the Services to:

(a) register for the Services if you have not acknowledged reading and agreed to abide by these Terms and the Privacy Policy;
(b) interfere, disrupt, or attempt to gain unauthorized access to other accounts on the Services or any other computer network;
(c) use the Services in connection with any commercial endeavors;
(d) post your personal information such as instant messaging addresses, personal URLs, physical addresses, or phone numbers in any publicly viewable areas of the Services;
(e) post or give out any financial information or transmit electronically or physically any money to other Users;
(f) create Accounts by automated means or under fraudulent or false pretenses;
(g) create or transmit unsolicited electronic communications such as spam to Users or promote any products or services;
(h) submit or upload any type of material that is unlawful, harmful, hateful, threatening, abusive, harassing, defamatory, offensive, obscene, pornographic, lewd, lascivious, or otherwise objectionable, as determined by Uplight;
(i) submit or upload any User Content for which you do not have all applicable right, title, interest, and consent in or that infringes, misappropriates, or otherwise violates any intellectual property rights of any person or entity;
(j) submit, engage in, or upload any type of competitions or User Content that can cause physical or mental harm to the participants or visitors of the Services;
(k) harass, threaten, or intentionally embarrass or cause harm or distress to another person or group;
(l) collect and publish any information about any Users of the Services;
(m) use any spider, robot, retrieval application, or any other device to retrieve any portion of the Services;
(n) reformat any of the pages that are part of the Sites or Apps;
(o) disseminate, store, or transmit viruses, worms, trojan horses, or other malicious codes or programs;
(p) encourage conduct that would constitute a criminal or civil offense;
(q) violate any Law;
(r) exploit any person, including exploiting any minor or child under 18 years of age;
(s) invade the privacy of any person, including submitting personally identifying or otherwise private information about a person without their consent;
(t) solicit personal information from a child under 13 years of age;
(u) submit false or misleading information to Uplight, the Services, or other Users; or
(v) engage in any other activity deemed by Uplight to be in conflict with the spirit of these Terms or the Privacy Policy.

12.3. Technology. The Services, and the databases, software, hardware, and other technology used by or on behalf of Uplight to operate the Services, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), may constitute valuable trade secrets of Uplight. You will not, and will not permit any third party to: (a) access or attempt to access the Technology except as expressly provided in these Terms; (b) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (c) use automated scripts to collect information from or otherwise interact with the Technology; (d) alter, adapt, modify, reproduce, or create derivative works of the Technology; (e) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology or otherwise make the Technology available to any third party; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (g) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (h) monitor the availability, performance, or functionality of the Technology; (i) interfere with the operation or hosting of the Technology; or (j) remove or modify any notice of confidentiality or intellectual property rights (e.g., trade secret, trademark, or copyright) encoded or embodied in the Technology or displayed by, on, or in the Technology. Uplight uses reasonable means to protect the security of the Services, but you acknowledge that perfect security on the internet is impossible and that, as a result, your User Content may be exposed in the event of a breach. Uplight retains all right, title, and interest, including all intellectual property rights, in and to the Technology and any additions, improvements, updates, and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access the Services under these Terms. The names and logos of Uplight, and all product and service names associated with the Services are trademarks of Uplight and its licensors and you are granted no right or license to use them. Nothing in these Terns is intended to grant or create any right or license to either party with respect to any intellectual property rights owned, licensed, or controlled by the other party, except as expressly specified herein.

12.4. Monitoring. Uplight cannot and does not assure that other Users are or will be complying with the foregoing Rules of Conduct or any other provisions of these Terms, and, as between you and Uplight, you hereby assume all risk of harm or injury resulting from any such lack of compliance.

PROPRIETARY AND PRIVACY PROTECTION FOR OTHER USERS’ CONTENT ON THE SITES.

Uplight hereby notifies you that all User Content on the Services may be protected by U.S. and international copyright and other intellectual property Laws and by other Laws, including privacy laws. Uplight is unable to provide you with permission to copy, display, or distribute User Content for which you do not own the copyright or other intellectual property rights. You may not copy or distribute such User Content without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property right violations that you may incur as a result of your activities on the Services. Uplight has the absolute right to terminate your Account or exclude you from any portion of the Services if you use the Services to violate the intellectual property rights or other rights of any third party. You agree to and shall indemnify and hold Uplight harmless for any violation of this provision.

COPYRIGHT INFRINGEMENT.

14.1. Claims of Copyright Infringement. Uplight has adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by Uplight in its sole discretion, of Users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to the service provider’s (i.e., Uplight’s) designated agent.

Notification must be submitted to the following:

Service Provider: Uplight, Inc.
Attn: Legal
Full Address: 2530 Junction Place, Suite 200, Boulder, CO 80301
Email: legal@uplight.com

14.2. Notice of Infringement. To be effective, the notification must be a written communication that includes the following:

(a) A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted 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 that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Uplight to locate the material;
(d) Information reasonably sufficient to permit Uplight to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(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.

14.3. Take Down Notices. Uplight may give you notice that Uplight has removed or disabled access to certain material by means of a general notice on the Services, electronic mail to your e-mail address in Uplight’s records, or by written communication sent by first-class mail to your physical address in Uplight’s records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:

(a) Your physical or electronic signature;
(b) Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
(c) A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
(d) Your name, physical address, and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Uplight may be found, and that you will accept service of process from the person who provided notification of the allegedly infringing material or an agent of such person.

INDEMNITY; LIMITATION OF LIABILITY.

15.1. You agree to indemnify, and hold Uplight, its officers, directors, shareholders, affiliates, employees, contractors, and agents, harmless from and against any claims, liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (a) your access to or use of the Services; (b) your violation of these Terms or any Law; (c) your violation of any third-party right, including any intellectual property right or any publicity, confidentiality, property, or privacy right; or (d) any claim that your use of or access to the Services caused damage to a third party.

15.2. YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS TO OR USE OF THE SERVICES, AND ANY RELIANCE UPON EITHER, IS AT YOUR SOLE RISK, AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL UPLIGHT OR YOUR ESP, IF APPLICABLE, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, ANY DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA, OR OTHER INTANGIBLES, OR THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SERVICES, FROM ANY CHANGES TO THE SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT, IN ANY CASE, EVEN IF UPLIGHT OR YOUR ESP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE, AND CONFIDENTIAL INFORMATION ABOUT YOURSELF IN YOUR USE OF THE SERVICES AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH USER CONTENT.

15.3. IF YOU ARE DISSATISFIED WITH THE SERVICES OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THE TOTAL CUMULATIVE LIABILITY OF UPLIGHT TO YOU IN CONNECTION WITH THESE TERMS AND UPLIGHT’S PROVISION OF THE TECHNOLOGY (INCLUDING THE SERVICES), WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES IN THE PRECEDING TWELVE (12) MONTHS. IT IS THE INTENTION OF YOU AND UPLIGHT THAT THIS PROVISION BE CONSTRUED BY A COURT AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH LAW.

15.4. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

GENERAL.

16.1. Modification. Uplight may modify the Services or the terms of these Terms, at any time, whether by making those modifications available on the Services or by providing notice to you as specified in these Terms. Any modifications will become effective immediately upon your first access to or use of the Services or delivery of such other notice after the “Last Revised” date at the top of these Terms. If you have created an Account, Uplight shall notify you of any material changes to these Terms by email sent to the most recent address you have provided to Uplight for your Account. You may cease using or accessing the Services or terminate these Terms at any time if you do not agree to any modification. However, your continued access to or use of the Services after such notice or after the modifications have otherwise become effective will be deemed your conclusive acceptance of and agreement to all such modifications. If you do not agree with the modifications, do not access or use the Services.

16.2. Applicable Law and Jurisdiction. You agree that regardless of any statute or Law to the contrary, any claim or cause of action arising out of or related to the use of or access to the Services or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred. You and Uplight agree that these Terms and any claims negotiations, arbitrations, or other proceedings hereunder shall be governed by and subject to the laws of the State of Colorado, without giving effect to any principles of conflicts of law. Subject to Section 16.3, each party will bring any action or proceeding arising from or relating to these Terms exclusively in a state or federal court in Denver, Colorado (U.S.A.), and you irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding brought in such courts by Uplight.

16.3. Arbitration. PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. It requires you to arbitrate disputes with Uplight and limits the manner in which you can seek relief from Uplight.

(a) Agreement to Arbitrate. Except as otherwise provided in Section 16.3(c), the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating, in any way, to these Terms, including the formation, validity, binding effect, interpretation, performance, breach, or termination of these Terms (each, a “Dispute”) through discussion between the parties as set forth herein. This Arbitration Agreement shall apply, without limitation, to all Disputes that arose or were asserted before the “Last Revised” date of these Terms or any prior version of these Terms. Except as otherwise provided in Section 16.3(c), if any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the arbitration rules of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Uplight in Denver, Colorado (U.S.A). The arbitrator will apply the law set forth in Section 16.2 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend these Terms or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
(b) Waiver of Class or Other Non-Individualized Relief. EXCEPT AS OTHERWISE PROVIDED IN SECTION 16.3(c), ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
(c) Exception to Arbitration. You agree that if Uplight reasonably believes you have, in any manner, violated or threatened to infringe Uplight’s intellectual property rights, then Uplight may seek emergency, preliminary, or other appropriate interim relief in the state or federal courts located in the State of Colorado. You further agree that if a decision is issued stating that applicable law precludes enforcement of any of Section 16.3(b)’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the state or federal courts located in the State of Colorado. All other claims shall be arbitrated.

16.4. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Uplight as a result of these Terms or use of the Services.

16.5. Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.

16.6. Force Majeure. Uplight will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause which is beyond Uplight’s reasonable control.

16.7. Waiver. The failure of Uplight to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Uplight in writing.

16.8. Construction. The headings of Sections of these Terms are for convenience only and are not to be used in interpretation. The words “include”, “includes”, and “including” mean “include”, “includes”, or “including”, in each case, “without limitation”.

16.9. Contact. Uplight is located in Boulder, Colorado. Any questions, comments, or suggestions, including any report of violation of these Terms should be provided to Uplight’s administrator as follows:

By Postal Mail: 2530 Junction Place, Suite 200, Boulder, CO 80301, Attn: Legal

16.10. Entire Agreement. These Terms constitute the entire agreement between you and Uplight governing your use of the Services, superseding any prior agreements between you and Uplight regarding such subject matter. The failure of Uplight to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and Uplight nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.