Last updated: May 18, 2021
Welcome and thank you for your interest in OhmConnect, Inc and our services, which include: (a) a mobile application that can be installed by users on a mobile device (the “App”), and (b) certain services that that are delivered through OhmConnect’s servers (the “Web App”). Together, the App and the Web App are defined as the “Services.” The Terms of Service (“Terms”) are a binding agreement between you and Ohmconnect, Inc. (together with its successors and assigns, “OhmConnect”) governing your use of and access to the Services that is effective until terminated in accordance with Section 13 below.
BY CHECKING THE BOX, CLICKING “I AGREE”, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU EXPRESSLY AGREE TO BE BOUND BY AND ABIDE BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE SERVICES. We may change these Terms by notifying you of such changes by any reasonable means, including by posting revised Terms through the Services. If we make a material change to the Terms, you will be notified of the revised terms when you first attempt to access the Services after such changes have become effective. You will not be notified of non-material changes to these Terms except by an amendment to The “Last Updated” legend, which indicates when these Terms were last changed. Your continued use of the Services following any changes to these Terms will constitute your acceptance of those changes.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND OHMCONNECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17)
BY ENROLLING WITH OHMCONNECT, YOU AGREE OHMCONNECT CAN EMPLOY YOUR DEMAND RESPONSE AND OR LOAD MANAGEMENT SERVICES THROUGH A VARIETY OF MARKET APPLICATIONS INCLUDING BUT NOT LIMITED TO THE DRAM PROGRAM IN CALIFORNIA, IESO DEMAND RESPONSE PROGRAM IN THE PROVINCE OF ONTARIO, CANADA, AND RESOURCE ADEQUACY AND ENERGY MARKETS OF CALIFORNIA.
YOU UNDERSTAND IF YOU ARE CURRENTLY ENROLLED IN A DEMAND RESPONSE PROGRAM WITH ANOTHER ENERGY SERVICES PROVIDER, YOU ACKNOWLEDGE YOUR INTENT TO DISENROLL FROM YOUR CURRENT DEMAND RESPONSE PROGRAM WITH THAT PROVIDER.
(a) General. In order to use the Services, you must create a user account through www.ohmconnect.com, as part of which you shall provide certain registration information concerning your email address and other details (the “Account Information”). You agree to provide accurate Account Information and you agree to notify OhmConnect immediately of any changes in such information.
(b) Eligibility. You must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old (or such other age as may be required in your jurisdiction to validly form legal agreements, if older than 18); (b) you have not previously been suspended or removed from the Services; (c) you have not relied on any representation, whether oral or otherwise, of OhmConnect or any employee, representative, or agent of OhmConnect as an inducement to entering into these Terms; and (d) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
(c) Responsibility. If you sign up directly with OhmConnect and do not use a third party service, your existing utility company password will be used. You may change the password for your account at any time. You must maintain the confidentiality of your password. OhmConnect encourages you to use “strong” passwords (passwords that use a combination of upper and lower case letters and numbers with your account). You are solely responsible for the activity that occurs on your account. You, and not OhmConnect, are responsible for any use or misuse of your account, user name, or password, and you must promptly notify us of any unauthorized use of your account. OhmConnect will not be liable for any losses caused by any unauthorized use of your account.
(d) Fees. Unless otherwise noted, the Services are provided to users free of charge in consideration of the right to monitor the energy consumption of each user and to coordinate and sell or otherwise monetize demand response, energy reductions and load modifications by the user. You acknowledge that you are not entitled to share in any revenues or benefits from such activities or to receive any compensation other than receiving points or Watts in accordance with Section 9.
2. License to Services
(a) Use of the Services. Subject to these Terms, OhmConnect grants you a non-exclusive, non-transferable and non-sublicensable right to access and use the Services solely for the purpose of managing your energy consumption as described below.
(b) Restrictions on License. The Services are licensed, not sold. OhmConnect and its licensors retain all right, title, and interest in and to the Services, all content and other subject matter contained in or made available through the Services, and all related intellectual property rights. You obtain no rights in or to the Services under these Terms or any content or other subject matter made available through the Services. You may not reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of the Services, except as expressly authorized herein. You may not reverse engineer, decompile or disassemble any portion of the Services, provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, OhmConnect shall retain the maximum protection available against reverse engineering, decompiling, or disassembly under applicable law. You also may not remove any patent, copyright, trade name, trademark, service mark, logo or other proprietary rights notice from the Services.
(c) Description of Services. The Services are designed to coordinate energy reductions and load modifications at specific times and to sell those aggregate reductions on energy markets. For these purposes, the Services will monitor your energy consumption by, among other things, accessing and analyzing your electricity records on file with your utility company (“Utility Records”). Information concerning your energy reductions and load modifications is shared with energy market regulators, wholesalers, and retailers to measure the amount of energy saved through OhmConnect’s coordination of energy reductions. As part of the Services, OhmConnect will notify you of energy saving events, in which you can earn Watts that can be redeemed for rewards or cash in exchange for reducing your energy usage during the specified window (“OhmHours”). For more information on OhmHours, please see our guide here. You may also authorize OhmConnect to remotely manage your devices on your behalf (including, but not limited to home appliances and thermostats) that are otherwise connected to the Internet through various enabling services (“Connected Devices”). To facilitate timely energy reduction, the Service contains a feature to automate the control of Connected Devices for your account, including during brief events in which OhmConnect will automatically power down your Connected Devices (“AutoOhm(s)”). AutoOhms occur in 15-minute increments and happen in response to real-time surges in the energy grid, so OhmConnect may not provide advance notice of these events. You may at any time elect to manage your Connected Devices directly or to override any actions taken by the Services. These Connected Devices may be managed through services operated by third parties, such as the manufacturers of those devices and your use of such Connected Devices may be subject to the third party provider’s terms and conditions (“Third Party Terms”). To use the Services with your Connected Devices, you may need to provide certain log-in credentials or other authentications methods to the Connected Devices (the “Connected Device Credentials”). By providing the Connected Device Credentials for your device you agree and understand:
(e) Deactivation of Your Account. You may deactivate or delete your account at any time through the Services. However, certain data associated with your account, such as the Account Information or Utility Records, may not be deleted where such information is required by regulators for audit purposes or where information used in aggregate will enable OhmConnect to optimize Services for the electrical grid. To initiate your deactivation in the OhmConnect program, you will need to contact customer service who will start the process, which can take up to thirty (30) days.
(f) Disenroll from OhmConnect Services. You may disenroll at any time from the OhmConnect services. In order to disenroll your OhmConnect account, you will need to contact customer service to initiate the cancellation. This process may take up to thirty (30) days to complete. By disenrolling, users forfeit outstanding point values, status and referrals. OhmConnect has the right to accept or reject all re-enrollments after an account has been deactivated.
(g) Updates to the Services. Over time, the features and functions that are enabled within the Services will change as our business evolves. New features and functions may be added, and others may be deleted or modified. You agree that OhmConnect may update, modify, or discontinue the Services (in whole or in part) or any features or functions within the Services, at any time, in OhmConnect’s sole discretion. In order to provide you with a more seamless user experience, we may update or modify the Services remotely without notifying you in order to ensure the safe and proper operation of the Services (e.g., bug fixes), and you consent to such updates or changes by OhmConnect.
3. Acceptable Use Policy
You may use the Services only in compliance with these Terms, and all local, state, national, and international laws, statutes, rules and, regulations applicable to your use of the Services. You must not:
(a) Post, transmit or otherwise make available through or in connection with the Services any materials that are or may be:
(b) Post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
(c) Interfere with or disrupt the operation of the Services or the servers or networks used therefore.
(d) Use the Service to establish a competitive product.
(e) Impersonate any person, business, entity, or IP address.
(f) Frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service, without OhmConnect’s express prior written consent.
(g) Systematically download and store Services content, or alter, damage, or delete any content provided by OhmConnect.
(h) Use any robot, spider, or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services, without OhmConnect’s express prior written consent.
4. Restriction on Back-up Generators (BUGs)
For purposes of compliance with California Public Utilities Commission (CPUC) Resolutions E-4737, E-4754 and E-4838, OhmConnect requires that users with back-up generation on their premises do not use this generation during energy reduction events coordinated by OhmConnect. Back-up generation includes fossil-fueled back-up generation owned or used by a retail electric customer including, but not limited to, distributed generation technologies using gasoline, diesel, natural gas, propane or liquefied petroleum gas, whether or not in a combined heat and power (CHP) configuration (“Prohibited Resources”). Prohibited Resources do not include energy storage systems, provided such energy storage systems meet the greenhouse gas emission factor thresholds in effect from time to time under the CPUC’s Self-Generation Incentive Program (SGIP). YOU HEREBY ATTEST THAT YOU WILL NOT USE PROHIBITED RESOURCES DURING ANY ENERGY REDUCTION EVENT COORDINATED BY OHMCONNECT. User compliance to the attestation may be subject to verification. The consequences of non-compliance:
(a) For residential, any user that does not accept the prohibition will not be eligible to participate in Demand Response.
(b) For non-residential, if the instance of non-compliance involves clerical or administrative errors, such as an inaccurate listing of a user name or the nameplate value of a Prohibited Resource in an attestation, or a failure to include a user’s Prohibited Resource on an attestation, provided in all cases that such Prohibited Resource is not used in violation of the terms of this Agreement (collectively, “Type One Non-Compliance”), OhmConnect shall specify that the user will have sixty days from receipt of notice to cure such Type One Non-Compliance. If the instance of noncompliance involves either (i) the user attested to the “does not have” or “no-use” provisions of Prohibited Resource(s) but is verified to have used a Prohibited Resource to reduce load during a demand response event; or (ii), a user intentionally submits an invalid nameplate capacity value for the Prohibited Resource(s) (collectively “Type Two Non-Compliance”), then the user will be removed from OhmConnect’s DR program as follows. If there is an instance of an uncured Type One Non-Compliance, or a Type Two Non-Compliance, the consequences will be removal from OhmConnect’s DR program and ineligibility to enroll in any DR program subject to the prohibited resource requirement in D.16-09-056 for twelve calendar months from the removal date (for a single instance of noncompliance), or three years from the removal date (for two or more instances of noncompliance).
5. Service Limitations
(a) Availability. Because the Services are delivered over the Internet, the availability of the Services is subject to certain limitations. You agree that the Services are subject to limitations and restrictions outside OhmConnect’s control, which include such things as wireless network capabilities, and Internet availability. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
(b) Energy Savings and Benefits. OhmConnect does not guarantee or promise any specific level of energy savings or other benefit from the use of the Services. Actual energy savings and benefits vary depending on factors beyond OhmConnect’s control or knowledge.
6. Privacy & Security
7. Short Code Messaging
When you opt-in to the OhmConnect service, we will send you an SMS message to confirm your signup. You can cancel the SMS service at any time by texting STOP to 41099 or reply STOP to an existing SMS message. After you send the SMS message STOP to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
If at any time you forget what keywords are supported, just text HELP to 4109 After you send the SMS message HELP to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
We will send recurring messages for the OhmConnect service to alert you to energy saving events. We estimate you will receive one to three messages per week.
8. OhmConnect Store
DISCLAIMER OF WARRANTIES and RETURN POLICY. OhmConnect makes no warranties, express or implied, regarding any hardware device, and there will be no implied warranties of merchantability or of fitness for a particular purpose. Devices carry the warranties specified by the applicable third party manufacturers. We have a LIMITED return policy, available here on the Help page.
You are eligible only to receive one account authorization promo, which is featured on the page on which you originally submit your email, zip code, and set password.
Unless otherwise specified, all promotions are limited to one (1) discount code per service account.
9. Watts Reward Program & Other Promotions
(For users participating in OhmConnect’s legacy reward point program that have not been converted to the Watts reward program, this Section 9 will govern their receipt and use of reward points in the same manner as Watts. Once converted, this Section 9 will govern a user’s participation in the Watts reward program.)
The Watts reward program allows a user to receive “Watts” (referred to as points or reward points under OhmConnect’s legacy reward point program) based on a user’s level of participation in the Services and conditions in the energy market prevailing during relevant use periods. Watts can be redeemed for a variety of goods or services that OhmConnect may make available from time to time, including gift cards, activities or cash rewards (“Rewards”). Rewards are available based on a variety of factors including, but not limited to, location, time of day, grid conditions, total amount of energy saved by a user, or the availability of a particular Reward at the time a user redeems their Watts. Rewards may be subject to additional terms and conditions. Any Reward that is obtained due to OhmConnect’s error or a user’s fraudulent, deceptive or illegal activity (including in violation of these Terms) is void. OhmConnect may add, remove or change Rewards at any time without notice. Users are solely responsible for compliance with federal, state, and local tax and other laws, and any costs, associated with accepting and using a Reward.
Watts are issued on a promotional basis only, and are not available for purchase. There is no fee associated with participating in the Watts reward program. Watts may only be used for personal use only; any commercial or business use is prohibited. Watts are non-transferable and may not be sold, exchanged, shared or assigned to or with another user or OhmConnect account. Watts may not be combined with any other offers or discounts except as expressly permitted by OhmConnect. OhmConnect reserves the right to impose limits on the amount of Watts that a user may receive or maintain in their OhmConnect account at any time, or the amount, frequency or type of Rewards for which a user may redeem Watts. Watts have no cash value and cannot be redeemed for cash, merchandise or other benefits except as expressly specified by OhmConnect.
Participation in the Watts reward program requires an active membership in the Services. If a user fails to have any qualifying activity over three (3) consecutive months, the user’s OhmConnect account will be deemed inactive and all accrued Watts in the OhmConnect account will be forfeited. A “qualifying activity” means: (a) engaging with the service such as logging in or opening an email, (b) posting OhmConnect related activities to social media (e.g., Facebook), (c) purchasing an item from the OhmConnect Store, (d) connecting a device to the OhmConnect service, or (e) inviting new members to activate with the OhmConnect service.OhmConnect reserves the right, in its sole discretion, to suspend or terminate a user’s ability to receive or redeem Watts, or to void any accrued Watts in a user’s OhmConnect account, if OhmConnect suspects that the user’s participation in the Watts program violates these Terms or that the user is engaged in fraudulent, deceptive or unlawful activities. OhmConnect may modify, suspend or terminate the Watts reward program at any time. If OhmConnect terminates a user’s participation in the Watts reward program or terminates the Watts reward program, or a user closes their OhmConnect account, all accrued Watts in the user’s OhmConnect account will become void.
Promotions. OhmConnect, from time to time, may offer different promotions, such as a Referral Programallowing users to refer new members to join the OhmConnect platform. At the discretion of OhmConnect, referring a new member (“Referred User”) to the OhmConnect platform may result in a reward of Watts or cash (“Referral Award”) for the person making the referral (“Referrer”); it also may result in a reward of Watts or cash to the Referred User.
You will be provided a unique code for referrals (“Referral Code”) to distribute to eligible friends, family, neighbors, small and medium business and community members. To redeem the Referral Code, the Referred User must use the Referral Code during account activation on the OhmConnect platform for a new and unique household and eligible electricity account. If a Referred User receives multiple Referral Codes, only the last Referral Code used will be given the Referral Award for the Referred User.
If you, the user, use a method or methods to abuse the Referral Program, you will forfeit any Watts or cash received as part of a Referral Award and you will not be allowed to participate on the OhmConnect platform. OhmConnect may suspend or terminate the Referral Program or a user’s ability to participate in the Referral Program at any time for any reason. Referral Codes are for promotional purposes only and are eligible for Watts or cash only. The amount, timing and conditions of receiving Watts or cash as part of your Referral Award shall remain solely within the discretion of OhmConnect. All rewards will be forfeited at account closure.
10. User Provided Content
The Services may contain features that allow you and other users to make available certain content and materials, including, without limitation, text and images (“User Content”) through or in connection with the Services, including through any interactive features of the Services. Your User Content can be controlled via various privacy settings available to you on the “Settings” page. These settings will enable you to control the extent that you would like to share any of your User Content, if any. We may (but have no obligation to) monitor, evaluate, alter or remove User Content before or after it appears on the Services. We may disclose any User Content and the circumstances surrounding its transmission to anyone for any reason or purpose. OhmConnect has no control over, and is not responsible for, any use or misuse (including any distribution) by any third party of any User Content. For purposes of clarity, you retain ownership of your User Content. For all User Content provided by you, you hereby grant to us and our affiliates a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable license, without additional consideration to you or any third party, to reproduce, distribute, perform and display, create derivative works of, adapt, modify and otherwise use and exploit such User Content, in any format or media, and for any purpose related to our business or the business of our affiliates (including promotional purposes, such as testimonials, and publishing User Content as such User Content may be modified and compiled by or for us). You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding your User Content that you may have under any applicable law under any legal theory. By providing User Content via the Services, you affirm, represent, and warrant that: (a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize OhmConnect to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section; (b) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause OhmConnect to violate any law or regulation; and (c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. IF YOU CHOOSE TO MAKE ANY OF YOUR USER CONTENT (INCLUDING ANY PERSONAL INFORMATION) OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
We always appreciate getting feedback on our products and services. If you provide us with any ideas, proposals, suggestions or other materials relating to the Services, (“Feedback”), OhmConnect may use such Feedback in any manner for any purpose without restriction or compensation, and you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous and unsolicited, and does not place OhmConnect under any fiduciary or other obligation. By submitting Feedback, you represent and warrant to OhmConnect that you have all necessary rights in and to such Feedback, to provide such Feedback to OhmConnect and all information it contains, and that such Feedback does not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information or material.
All trade names, trademarks, service marks and logos on the Services are the property of their respective owners. You are not granted any rights to use any trade names, trademarks, service marks or logos on or in the Services under these Terms.
13. Term and Termination
This Agreement is effective until terminated. OhmConnect may terminate or suspend your use of the Services at any time and without prior notice, for any reason or no reason, including if OhmConnect believes that you have breached any provision of these Terms. Upon any such termination or suspension, all rights and licenses granted under these Terms, including your right to use the Services will immediately cease, and OhmConnect may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Sections 1, and 11- 20 shall survive expiration or any termination of these Terms.
14. DISCLAIMER OF WARRANTIES
WE ARE NOT PROVIDING ANY WARRANTIES RELATING TO THE SERVICES. THE SERVICES AND ALL INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SERVICES ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. OHMCONNECT DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF ANY INFORMATION OR CONTENT CONTAINED IN THE SERVICES OR THE RESULTS THAT YOU MAY OBTAIN THROUGH THE SERVICES. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF OHMCONNECT, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. OHMCONNECT IS NOT IN THE BUSINESS OF PROVIDING ELECTRICITY OR OTHER UTILITY SERVICES AND IS NOT RESPONSIBLE FOR YOUR ELECTRIC OR OTHER UTILITY SERVICES.
15. LIMITATION OF LIABILITY
OHMCONNECT AND ITS AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES OR FOR ANY DAMAGES FOR LOST PROFITS, LOSS OF USE OF THE SERVICES, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, LOSS OF OTHER INTANGIBLES, OR UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, YOUR DATA OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF OHMCONNECT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, OHMCONNECT WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. EXCEPT AS PROVIDED IN SECTION 17 BELOW, THE MAXIMUM AGGREGATE LIABILITY OF OHMCONNECT ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO OHMCONNECT TO USE THESE SERVICES, OR $100.00, WHICHEVER IS GREATER. ALL DISCLAIMERS, LIMITATIONS, OR EXCLUSIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF THE AFFILIATED ENTITIES AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless OhmConnect and the Affiliated Entities and each Affiliated Entity’s licensors, suppliers and service providers from and against all claims, damages, losses, costs and expenses (including attorneys’ fees) arising out any violation of these Terms by you. OhmConnect reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
As used in this Arbitration section, “you” and “your” mean the registered user(s) of the Services, and all of his/her heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, predecessors in interests, successors, assigns, as well as all authorized and unauthorized users or beneficiaries of services under this or prior agreements between us. “OhmConnect”, “We,” and “Our” shall mean OhmConnect and shall be deemed to include all of its heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, directors, officers, predecessors in interests, successors, assigns.
(a) Generally. In the interest of resolving disputes between you and OhmConnect in the most expedient and cost effective manner, and except as described in Sections 17(b)and 17(c), you and OhmConnect agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OHMCONNECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 17(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to email@example.com or OhmConnect Inc., Attention: Legal Department – Arbitration Opt-Out, 371 3rd Street, 2nd Floor, Oakland, CA 94607, that specifies: your full legal name, the email address associated with your account on the Services, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once OhmConnect receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
(d) Arbitrator. Except where prohibited by law, you and OhmConnect agree that any and all Claims are to be arbitrated by a single arbitrator. An arbitration commenced pursuant to these Terms shall be administered and governed by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”). To the extent there is any inconsistency between the terms of this Arbitration Section and the AAA Rules the provisions of these Terms shall apply. The AAA Rules, forms and information are available online at www.adr.org. Unless you and OhmConnect agree otherwise, any arbitration hearing(s) will take place in San Francisco, California.
(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). OhmConnect’s address for Notice is: OhmConnect Inc., 371 3rd Street, 2nd Floor, Oakland, CA 94607. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or OhmConnect may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or OhmConnect must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by OhmConnect in settlement of the dispute prior to the award, OhmConnect will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
(f) Fees. If you commence arbitration in accordance with these Terms, OhmConnect will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse OhmConnect for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(g) No Class Actions. YOU AND OHMCONNECT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OhmConnect agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(h) Enforceability. If Section 17(g) or the entirety of this Section 17 is found to be unenforceable, or if OhmConnect receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
(i) LIMITATION ON CLAIMS. YOU MUST CONTACT OHMCONNECT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
18. Governing Law
For our U.S. customers, these Terms are governed by and construed under the laws of the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. You and OhmConnect hereby submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
19. Export Controls
You are responsible for complying with United States export controls and sanctions laws and regulations and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (i) located in or a resident of, any country that is the subject of comprehensive U.S. sanctions (currently Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine), or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government lists of prohibited or restricted end users.
These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and OhmConnect. These Terms shall not be construed as creating third-party beneficiary rights in any person or entity, except as otherwise expressly provided in these Terms. If any provision of these Terms or portion of a provision is held to be unlawful, void or for any reason unenforceable, that provision (or portion of the provision), to the extent required, will be severed from these Terms but such severance will not affect the validity and enforceability of the remaining provisions of these Terms. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms. We may subcontract, assign, transfer or sublicense any or all of our rights or our obligations under these Terms without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. These Terms and all other terms and conditions referenced herein constitute the entire agreement between you and OhmConnect relating to the subject matter of these Terms, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and OhmConnect relating to such subject matter. Your use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. Without limitation, a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. OhmConnect will not be responsible for any delay or failure to fulfill any obligation under these Terms due to any cause beyond its control, including without limitation acts of God, acts of war, civil or military disturbances, terrorism, nuclear or natural catastrophes, earthquake, flood, pandemic or epidemic, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of Internet, communications or power grid infrastructure. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
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