Updated September 2015
I. Acceptance of Terms
As used in these TOU, the terms "you" and "User" shall mean any visitor to the Site or user of the Services (as defined in Section III, “Description of Services; Limitations on Services,” below), including any Third-Party Vendors (as defined in Section III, below) or any employee thereof, whether for their own personal use or on behalf of their employer.
By accessing the Site or using the Services you are agreeing to accept and comply with these TOU. In addition, by utilizing any of the resources or Services available at the Site, whether by directly accessing the Site or such Services via alternative means (for example, telephone, email, mail or facsimile transmission) you are agreeing to comply with these TOU and any applicable posted guidelines relating specifically to those resources or Services. EnergySage reserves the right to modify these TOU, and any such guidelines, at any time, without notice to you. (See Part II below, “Modifications to This Agreement.”)
If you object to any term or condition of the TOU, or any guidelines, or any subsequent modification to either the TOU or any such guideline, your only recourse is to immediately cease accessing the Site, and to cease using the resources and Services available at the Site. EnergySage retains, but is not obligated to exercise, the right to strictly enforce the TOU and posted guidelines through any means that it may deem necessary or desirable, including, without limitation, self-help and litigation.
II. Modifications to This Agreement
III. Description of Services; Limitations on Services
From time to time EnergySage shall provide Content (as defined below), together with certain resources and services, all as described more fully on the Site (the "Services").
The Services EnergySage provides to you may include, but not be limited to, the following: calculators, estimators, proposal solicitation platforms, graphical representations of financial and energy performance data, dashboards, self-evaluation guides (wizards), maps, summaries, digests, member forums, and web logs (blogs); information concerning third-party vendors including, but not limited to, product manufacturers, installers and other contractors, lenders and financial institutions (“Third-Party Vendors”); and product and service descriptions, including materials provided by Third-Party Vendors (whether such materials are delivered to you via the Site or through the Services, or delivered to you directly by a Third-Party Vendor in response to a Submitted Request, as defined in Section IV below, “Requests for Information and Services”). Your acceptance of these materials, whether displayed or transmitted on the Site, or through the Services by means including, but not limited to, text, User comments, messages, information, data, graphics, articles, brochures, photographs, images, illustrations, software, audio clips, and video clips (collectively, "Content"), is subject to these TOU. EnergySage may change, suspend or discontinue the Services, including any Content, at any time, for any reason. EnergySage may also place limitations on certain features and Services, or restrict your access to parts of or all of the Services, without notice or liability.
Unless expressly stated in writing on the Site or in Content relating to the Services, nothing contained therein shall constitute an offer or promise to deliver any products and services, whether by EnergySage or any Third-Party Vendor. Third-Party Vendors may not offer all products and services described on the Site, or described in Content relating to such services, in all states, or in all communities within a state, and the offer of certain products or services to Users may be subject to certain qualifying criteria that are not established by EnergySage, and over which EnergySage has no influence, authority or control.
IV. Requests for Information and Services
You may extend an invitation to EnergySage or any Third-Party Vendor to provide you with information about products and/or services, or to furnish you with proposals to deliver products and/or services (a “Submitted Request”). Any Submitted Request that you deliver to EnergySage or to a Third-Party Vendor will permit either or both of them, as appropriate, to deliver information and/or proposals to you via the Site, telephone (if you provide your telephone number as part of your Submitted Request), email, mail, facsimile transmission, or any other means. If you provide your telephone number as part of your Submitted Request, your Submitted Request shall also constitute an express written request that authorizes EnergySage or any such Third-Party Vendor to contact you via telephone, even if your telephone number is listed on a state or federal Do Not Call registry maintained pursuant to state or federal law. You will not be called, however, unless:
- you provide your telephone number as part of your Submitted Request, and
- either specifically request to be contacted by telephone or accept a Third Party Vendor’s proposal to deliver products and/or services to you.
V. Registration Requirements
You are required to register with EnergySage in order to access and use certain Services, and must provide a valid email in order to complete your registration. EnergySage will generate a “screen name” for you based on the email address that you provide if and when you register (a “User ID”). You can change your EnergySage-generated User ID at any time. You are further required to provide EnergySage with accurate, complete, and up-to-date registration information. Failure to provide registration information that meets these standards shall constitute a breach of these TOU, and will result in the immediate suspension and possible termination of your EnergySage.com account. You may not:
- select or use the name of another person as a User ID with the intent of impersonating that person;
- without proper authorization, select or use any name subject to any rights belonging to a person other than yourself; or
- create a User ID that is offensive, provocative, vulgar or obscene. EnergySage reserves the right in its sole discretion to refuse to register, or cancel any User ID. You are solely responsible for maintaining the confidentiality of your EnergySage.com User ID and password.
VI. User-Provided Content
You agree that you must evaluate, and bear all risks associated with, User-Provided Content, that you may not rely on said User-Provided Content, and that under no circumstances will EnergySage be liable in any way for any User-Provided Content, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, any User-Provided Content posted, emailed, or otherwise made available via the Site or through the Services. You acknowledge that EnergySage does not pre-screen User-Provided Content for accuracy or completeness, and does not endorse any User-Provided Content, either in whole or in part. EnergySage reserves the right, in its sole discretion, but is not obligated, to delete, move, or refuse to accept, any User-Provided Content that violates the letter or the spirit of these TOU, or for any other reason.
Many opinions regarding distributed energy products and services, and financial products and services, may be expressed on the Site or through the Services, whether by EnergySage or its registered Users. The opinions and statements of registered Users constitute User-Provided Content. EnergySage can make no claim as to the truthfulness, accuracy, or completeness of opinions and other statements made by registered Users, and under no circumstances will EnergySage be liable in any way for any User-Provided Content, including the opinions and statements of registered Users, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, User-Provided Content.
VII. Rights to User-Provided Content
When you provide EnergySage with User-Provided Content via the Site or the Services, You grant to EnergySage and its affiliates, representatives, and assigns a non-exclusive, fully-paid, world-wide, transferable, royalty-free license, with the right to grant sublicenses through multiple tiers of sublicensees, to display, publicly perform, distribute, store, transcode, syndicate (including, without limitation, syndication through third-party websites), broadcast, transmit, reproduce, edit, modify, create derivative works, and otherwise use and reuse your User-Provided Content (or any portions or derivative works thereof) in any manner, in any medium, for any purpose. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature with respect to any of your User-Provided Content. User-Provided Content is available to all Users of the Site and the Services. EnergySage reserves the right, in its sole and absolute discretion, to reject, remove or modify any User-Provided Content.
By providing EnergySage with User-Provided Content via the Site or the Services you thereby represent and warrant that:
- you own all rights in your User-Provided Content or, alternatively, you have acquired all necessary rights in your User-Provided to enable you to grant to EnergySage the rights in your User-Provided Content described herein;
- you have paid and will continue to pay in full all license fees, clearance fees, and any other financial obligations, of any kind, arising from any use or commercial exploitation of your User-Provided Content (if applicable);
- you are the individual pictured or heard in your User-Provided Content, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the applicable age of majority) who appears and/or is heard in your User-Provided Content to grant the rights to EnergySage described herein;
- the renewable or alternative energy system, if any, featured or pictured in your User-Provided Content has been installed at your home or place of business, or on one of your properties, or if you are a Third Party Vendor you have secured the permission of the owner of the system that is featured or pictured in your User-Provided Content, and you are in a position to provide User-Provided Content relating to such system;
- you will make all relevant permissions relating to the User-Provided Content available to EnergySage upon request;
- your User-Provided Content does not infringe the intellectual property rights, privacy rights, publicity rights, or any other legal or moral rights of any third-party; and
- you agree to keep all records necessary to establish that your User-Provided Content does not violate any of the foregoing representations and warranties, and to make such records available to EnergySage upon EnergySage’s request.
VIII. Digital Millennium Copyright Act Compliance; Designated Agent
EnergySage respects the intellectual property rights of others. Upon proper notice, EnergySage will remove User-Provided Content that violates copyright law, and will terminate the accounts of infringing Users. If you believe that any Content hosted by EnergySage infringes your copyright, simply provide us with the information requested here and we will remove your copyrighted works from the Site and/or the Services.
IX. Third-Party Content and Websites; Third-Party Transactions and Services
The Site may contain Content, features and functionalities that may link you or provide you with access to information and content provided by third parties, including Third-Party Vendors, that is completely independent of EnergySage, including web sites, directories, servers, networks, systems, databases, applications, software, programs, products, or services. EnergySage makes no representation or warranty as to the accuracy, completeness, or authenticity of the information obtained from or contained in any such web site, directory, server, network, system, database, application, software, program, product, or service, and under no circumstance will EnergySage be liable in any way for content provided by third parties, including Third-Party Vendors, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, such content.
EnergySage is an online resource for home and business owners who are evaluating the costs and the benefits of installing distributed energy systems in their homes and businesses. Among other things, EnergySage provides those home and business owners with opportunities to contact Third-Part Vendors including, but not limited to, distributed energy system manufacturers, distributed energy system installers (electricians, plumbers and other contractors), and financiers (banks and other lending institutions) in order to receive additional information from them, including project proposals, estimates for installation and other professional services, and project financing. (See “Submitted Requests,” in Section IV “Requests for Information and Services,” above.) EnergySage may, in turn, receive a fee or other compensation from these distributed energy system manufacturers, distributed energy system installers and financiers, for providing them with the opportunity to respond to Submitted Requests (“Opportunities”). EnergySage does not charge home or business owners a fee either to use the Site or any of the Services. Neither is EnergySage itself a distributed energy system manufacturer, a distributed energy system installer, a contractor, a distributor, or broker of energy-related products. Under no circumstance will EnergySage be liable in any way for services or products provided by third parties, including Third-Party Vendors, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, such products or services.
EnergySage is not authorized, and hereby specifically declines any such authority if offered, to act as an agent on behalf of any distributed energy system manufacturer, or any distributed energy system installer or other contractor, or financier, except for the purposes of generating Opportunities in the manner described in the previous paragraph.
Users may authorize EnergySage to provide them with consulting services, or to act as their agent on a fee-for-service basis. Users must provide any such authority expressly in writing, and in the absence of such a writing a User shall neither assume nor infer that EnergySage has agreed to provide consulting services, or to act as an agent on their behalf.
From time to time EnergySage does enter into partnerships with for-profit companies and firms, non-profit organizations, municipalities and other governmental entities, and employers (collectively “Channel Partners”), to offer their customers, clients, members, constituents, and employees the Services provided at the Site, as described in Section III, “Description of Services; Limitations on Services,” above.
Your dealings with organizations, firms, and/or individuals found on or through the Site or the Services, or with any Channel Partner with whom you are affiliated, including any payment(s) for the delivery of goods and/or services, and any other terms, conditions, warranties or representations associated with such dealings, whether or not you have authorized EnergySage in writing to serve as your agent on a fee-for-service basis, are solely between you and such organizations, firms, Channel Partners, and/or individuals. You should make whatever investigation you feel is necessary or appropriate prior to engaging in any transaction, financial or otherwise, with any of these third parties, including Channel Partners and Third-Party Vendors, whether or not you engage in any transaction, financial or otherwise, with any of these third parties, including upon the suggestion of EnergySage after authorizing EnergySage in writing to provide you with consulting services or to act as your agent on your behalf on a fee for service basis.
You agree that EnergySage shall not be responsible or liable for any loss or damage of any kind that is incurred as the result of any such dealings with organizations, firms, Third-Party Vendors, and/or individuals found on or through the Site or the Services, or with any Channel Partner. If there is a dispute between you and any other User(s) of the Site or the Services, or any third party, including any Channel Partner with whom you are affiliated, or Third-Party Vendor, you understand and agree that EnergySage is under no obligation to resolve the dispute, or assist with its resolution. In the event that you have a dispute with one or more other Users of the Site or the Services, or any third party, including any Channel Partner with whom you are affiliated, or Third-Party Vendor, you hereby release EnergySage, its officers, employees, agents and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you hereby waive California Civil Code 1542, which states: “[a] general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if know by him or her must have materially affected his or her settlement with the debtor.” If you are a resident of a state other than California with a law similar to the law just cited, you hereby waive that similar law.
You promise not to use the Site or any of its Services for any purpose that is unlawful, that is otherwise prohibited by these TOU, or that is not reasonably intended by EnergySage. Neither may you use the Site nor any of the Services in any manner that could interfere with another party's use and enjoyment of the Site, or any of the Services.
You agree not to post, email, or otherwise make available Content:
- that is abusive, or intended to harass or threaten, intimidate or impersonate other Users;
- that is libelous or defamatory, offensive, profane, or entirely unrelated to the purpose of the Site or the Services;
- that violates the legal rights (such as the right to privacy) of others; or
- that infringes the copyright, trademark, patent, trade secret, or other proprietary right of any User or other party.
Each of the preceding is provided as an example of, and not as a limitation on, prohibited conduct.
You agree that, with the exception of accessing RSS feeds and other features provided by EnergySage allowing automated access to the Site or its Services, you will not use any other automated means to access the Site or any of the Services for any purpose without express written permission having been previously provided to you by EnergySage.
You further agree not to advertise to, or solicit, any User to buy or sell any products or services, except as permitted by EnergySage. You are prohibited from using any information obtained from the Site or the Services in order to contact, advertise to, solicit, or sell to any User without the express written consent of such User having exclusively first been obtained by means of a Submitted Request. (See Section IV, “Requests for Information and Services,” above.)
You further agree that you shall not:
- use the Site or any service on behalf of, at the request of, or pursuant to the instruction of, any third party, or
- sell or transfer your profile or user id to another.
EnergySage reserves the right, to be exercised in its sole discretion, to remove any Content, or deactivate any EnergySage.com User registration, at any time, for any reason, including but not limited to the receipt of reports or claims from third parties, or legal or regulatory authorities, relating to such Content or User, or for no reason at all. To report violations of these TOU, please email email@example.com.
You are solely responsible for your interactions with other Users of the Site and the Services, Channel Partners, and Third-Party Vendors. EnergySage reserves the right, but has no obligation, to monitor disputes between you and other Users that are the subject of Content posted by you or such other User at the Site, or materials provided or disseminated by either of you as part of the Services.
XII. Copyright, Trademark and Service Mark Notices
All contents of the Site are Copyright © 2015 EnergySage, Inc. and/or its Third-Party Vendors, all rights reserved. “EnergySage” is a trademark of EnergySage, Inc. Other product and company names mentioned at the Site or as part of the Services, including the names of other professionals and companies, may be the trademarks of their respective owners.
Nothing on the Site or included in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any service mark or trademark (individually and collectively, "Mark" or "Marks") displayed on the Site or as part of the Services, without the prior written permission of EnergySage or the applicable Mark holder specific for each such use. The Marks may not be used to disparage EnergySage, the other professionals, the applicable third party, or the products or services of such parties, nor shall they be used in any manner that may damage any goodwill in the Marks. Use of any Mark as part of a link to or from any site is prohibited, unless EnergySage provides written approval for the establishment of such a link in advance.
The Site and the Services contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site and the Services are copyrighted as a collective work under the United States copyright laws. EnergySage owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial or non-commercial exploitation of downloaded material will be permitted without the express written permission of EnergySage and the copyright owner. Elements of the Site and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors. In addition, certain resources of the Site and the Services may also be subject to patents that are currently pending, or that have previously been granted.
XIII. Disclaimers and Liability
EnergySage intends that the information contained in the Site and the Services be accurate and reliable; however, errors do sometimes occur. In addition, EnergySage may make changes and improvements to the information provided herein at any time. Under no circumstances will EnergySage be liable for any loss or damage caused by your reliance on information obtained through the Site or the Services. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site or the Services.
The Site and the services, and the information, software, products and services associated with them are provided "as is." EnergySage and/or its suppliers, providers, energy research professionals, or other professionals, disclaim any warranty of any kind, whether express or implied, as to any matter whatsoever relating to the Site and the services, and any information, software, products and services provided therein, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title, and noninfringement. Your use of the Site and/or the services is at your own risk. Even if EnergySage and/or its suppliers, energy research professionals, providers or other professionals have been advised of the possibility of damages, neither EnergySage nor its suppliers, providers, energy research professionals, or other professionals shall be liable for any direct, indirect, punitive, incidental, special or consequential damages or other injury arising out of or in any way connected with:
- the use or the inability to use the Site and/or the services, or any delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to energysage’s records, programs or services;
- any information, software, products and services obtained through the Site or the services, including but not limited to reliance by you on any information obtained at the Site or the services, or that result from mistakes, omissions, interruptions, deletion of files or emails, errors, or defects;
- viruses, worms, trojan horses, trap doors, or other code or computer programming routines that contain contaminating or destructive properties, or that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information; or that
- otherwise arise out of the use of the Site or the services, whether resulting in whole or in part from breach of contract, tortious behavior, or negligence. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
As a condition for using the Site and/or the Services, you agree to indemnify EnergySage and its Third-Party Vendors from and against any and all liabilities, expenses (including attorneys' fees) and damages arising out of claims resulting from your use of the Site and/or the Services including without limitation any claims alleging facts that if true would constitute a breach by you of this Agreement.
XV. Errors and Delays
EnergySage is not responsible for any errors or delays in responding to a request or referral form caused by, including but not limited to, an incorrect email address provided by you or other technical problems beyond our reasonable control, or for any errors or delays in responding to a request or referral form submitted to any third-party, including Third-Party Vendors.
XVI. Dispute Resolution
Any claim or controversy arising out of or relating to the use of the Site or the Services, to any goods or services provided by EnergySage, or to any acts or omissions for which you may contend EnergySage is liable, including but not limited to any claim or controversy as to arbitrability ("Dispute"), shall be finally, and exclusively, settled by arbitration. The arbitration shall be held before one arbitrator under the commercial arbitration rules of the American Arbitration Association ("AAA") in force at that time. The venue of any such arbitration shall be Middlesex County, Massachusetts, except for Maine consumers for whom the location shall be a place reasonably convenient to the consumer. The arbitrator shall be selected pursuant to the AAA rules. Should no AAA rule regarding the selection of an arbitrator be in effect, the consumer shall select an arbitrator from a panel of arbitrators acceptable to EnergySage. In any arbitration, EnergySage will pay the filing fee, plus the costs associated with the first day of arbitration, with the remaining costs of arbitration paid by the non-prevailing party, provided, however, that in Maine any cost to the consumer shall be limited to the cost of filing a court case. To begin the arbitration process, a party must make a written demand therefor.
Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Middlesex County, Massachusetts. The arbitrators shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto, except in Maine where state law will control all rights and remedies in the arbitration. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of an arbitration under this agreement with an arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
This agreement provides that all disputes between you and EnergySage will be resolved by binding arbitration. You thus give up your right to go to court to assert or defend your rights. You also give up your right to participate in or bring class actions. Your rights will be determined by neutral arbitrators and not a judge or jury.
You are entitled to a fair hearing, and the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable as any court order and are subject to very limited review by a court. By using the Site and EnergySage's facilities and the Services, you consent to these restrictions.
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and EnergySage, the parties agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in and for Suffolk County, Massachusetts. If either party employs attorneys to enforce any right in connection with any Dispute or lawsuit, the prevailing party shall be entitled to recover reasonable attorneys' fees.
XVII. Other Terms
This Agreement (which hereby incorporates by reference any other provisions applicable to use of the Site and the Services, including, but not limited to, any supplemental terms governing the use of certain specific material contained in the Site and the Services and any operating rules for the Site or the Services established by EnergySage), constitutes the entire agreement between you and EnergySage and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and EnergySage with respect to the Site and the Services, and the information, software, products and services associated with either of them. This Agreement shall be subject to and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of laws principles. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.