Last updated: April 4, 2022
California-Specific Terms Last Updated: April 4, 2022
New York-Specific Terms Last Updated: April 4, 2022
Welcome and thank you for your interest in OhmConnect, Inc. and its affiliates. Our services include certain services that are delivered through www.ohmconnect.com and OhmConnect’s servers (the “Web App”), and may include a mobile application that can be installed by users on a mobile device (the “App”). Together, the Web App and the App, along with other interactive features and communications we provide in connection with the Web App or App and any other services we may offer, are defined as the “Services.” These Terms of Service (“Terms”) are a binding agreement between you and OhmConnect, Inc. and its applicable affiliates (together with its successors and assigns, “OhmConnect”) governing your use of and access to the Services and are effective until terminated in accordance with Section 10 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 INCLUDING ANY UPDATES TO THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES, AND YOU MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE SERVICES.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 14. IT AFFECTS HOW DISPUTES ARE RESOLVED. Except for certain kinds of disputes described in Section 14 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 14).
CHANGES TO THE TERMS: We may change these Terms on a going-forward basis at any time and in our sole discretion. Our notice to you may include sending a message to the email address you provided to us (for a material change to the Terms applicable to you), and/or notice through the Services. We will also update the “Last Updated” date at the top of these Terms when we make changes. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. Your continued use of the Services following any changes to these Terms will constitute your acceptance of those changes. If you do not agree to the revised Terms, you must stop using the Service and delete your Account.
(a) General: The Services are designed to help consumers decrease energy usage when energy is in high demand and at other specific times, and to coordinate consumers’ energy reductions and load modifications and to sell aggregate reductions in energy markets and utility programs and sell potential aggregate reductions in capacity markets. For these purposes, the Services will monitor your energy consumption by, among other things, accessing and analyzing your electricity usage records on file with your electric utility company (“Utility Records”). Information concerning your energy reductions, capacity for energy reductions, and load modifications is shared with electricity and capacity market regulators, grid operators, wholesalers, and retailers to measure the amount of energy saved through OhmConnect’s coordination of energy reductions. For instance, you may sign up for a Service in which OhmConnect will notify you in advance of energy saving events in which you can earn Watts or other rewards in exchange for reducing your energy usage during the specified windows (“OhmHours”), which typically are one hour in length. For more information on OhmHours, please see our guide here. You also may authorize OhmConnect to remotely manage your smart devices on your behalf (including, but not limited to smart plugs, smart thermostats, and home appliances) that are connected to the Internet through various enabling services (“Connected Devices”). For more information on managing your Connected Devices, please see our guide here. To facilitate timely energy reduction, the Services contain a feature to automate the control of Connected Devices for your Account, including during shorter events, which typically are 15 minutes in length, in which OhmConnect will automatically power down or reduce the power consumption of your Connected Devices (“AutoOhms”). AutoOhms happen in response to real-time surges of demand in the electricity 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. You are solely responsible for purchasing, maintaining and using at your own expense all utility, Wi-Fi, access to the Internet, communications and other equipment and devices necessary to use the Services. You understand and agree that we are under no obligation to provide support for the Services and any support is “as available.
(b) 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, control Connected Devices, 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 as expressly set forth in these Terms.
(c) 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 (AS APPLICABLE) TO, RESOURCE ADEQUACY AND CAISO-ADMINISTERED ELECTRICITY MARKETS IN CALIFORNIA; THE DRAM PROGRAM AND/OR OTHER CALIFORNIA-SPECIFIC PROGRAMS; NYISO-ADMINISTERED ELECTRICITY, CAPACITY, AND ANCILLARY SERVICES MARKETS; ENERGY, CAPACITY, AND ANCILLARY SERVICES MARKETS ADMINISTERED BY PJM, ISO-NE, OR MISO; UTILITY-ADMINISTERED DEMAND RESPONSE AND ENERGY MANAGEMENT PROGRAMS, SUCH AS THE CSRP AND DLRP IN NEW YORK; AND THE IESO DEMAND RESPONSE PROGRAM IN THE PROVINCE OF ONTARIO, CANADA. FURTHER, BY ENROLLING WITH OHMCONNECT, YOU AGREE TO PROVIDE THE INFORMATION AND DOCUMENTS OHMCONNECT REQUESTS AND TO COMPLY WITH ALL APPLICABLE REQUIREMENTS, AS NECESSARY, FOR YOUR ENROLLMENT AND PARTICIPATION IN DEMAND RESPONSE AND/OR LOAD MANAGEMENT PROGRAMS, INCLUDING ANY STATE-SPECIFIC OR PROGRAM-SPECIFIC REQUIREMENTS, AS THOSE REQUIREMENTS MAY BE SUPPLEMENTED OR MODIFIED.
(d) YOU MAY NOT PARTICIPATE IN MORE THAN ONE DEMAND RESPONSE PROGRAM AT A TIME. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE NOT CURRENTLY ENROLLED IN A DEMAND RESPONSE PROGRAM WITH ANOTHER ENERGY SERVICES PROVIDER AND THAT YOU WILL NOT JOIN OR PARTICIPATE IN SUCH PROGRAMS WHILE YOU ARE ENROLLED IN OHMCONNECT’S DEMAND RESPONSE PROGRAM.
(e) Service Limitations and Local Requirements: The Services are subject to limitations and restrictions outside OhmConnect’s control, which include such things as wireless network capabilities and Internet availability. In addition, 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 and where some Services are available only to customers of certain utilities based on local requirements. Those local terms are available here.
(f) Updates: The features and functions that are made available through the Services will change as our business evolves. New features and functions may be added, and others may be deleted or modified. 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. If a program with Rewards (as defined below) is terminated, we will provide information to you of the impact of such changes on your Rewards.
(g) Disenrollment and Account Termination: You may disenroll from the Services and terminate your Account (as defined in Section 2) at any time. To do so, you will need to contact OhmConnect customer service to initiate the termination, and you may request a cash out of any unused Watts, status, referrals and other unused benefits that have been awarded to you. This process may take up to thirty days to complete. OhmConnect has the right to accept or reject all re-enrollments after an Account has been disenrolled. Certain data associated with your Account, such as the Account Information or Utility Records, may not be deleted where such information is required by a regulatory entity for audit purposes, where information used in aggregate will enable OhmConnect to provide Services for the electrical grid, or where OhmConnect is required to maintain the data to comply with applicable laws.
(h) 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 a variety of factors, many of which are beyond OhmConnect’s control or knowledge.
(b) Setting up an Account: In order to use the Services, you must create a user account through www.ohmconnect.com (an “Account”), as part of which you shall provide certain registration information such as your email address, your zip code, your electric service provider and other details (the “Account Information”). You agree to provide accurate Account Information and you agree to notify OhmConnect and/or update your Account Information immediately of any changes in such information. Please contact OhmConnect for current availability of the Services in your community.
(c) Eligibility: You must be at least 18 years old to use the Services and may need an active account with an approved electric service provider. By agreeing to these Terms, you represent and warrant to us that: (i) 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); and (ii) if you are an entity, organization or company, the individual accepting these Terms has the authority to bind such an entity, organization or company to these Terms.
(d) Responsibility: You must maintain the confidentiality of your Account log-in information, including the password. OhmConnect encourages you to use a “strong” password (such as one that uses a combination of upper- and lower-case letters and numbers or symbols with no ties to your personal information). You may change the password for your Account at any time. 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. 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.
(a) Use of the Services: Subject to your compliance with 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. OhmConnect and our licensor(s) reserve all rights to the Service not expressly granted, whether by implication, estoppel, or otherwise.
(b) Licensee Restrictions: 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) Using the Services with Connected Devices and Utilities: To use the Services with your Connected Devices and to connect with your electric utility provider, you may need to provide certain log-in credentials or other authentications methods to the Connected Devices (“Connected Device Credentials”) or your electric utility (“Utility Credentials”). You have the ability to determine how OhmConnect controls the Connected Devices through your OhmConnect Account settings, and by setting such Account settings, you authorize OhmConnect to control your Connected Device. You hereby authorize and permit OhmConnect to use and store the foregoing information to configure the Services so that they are compatible with the Third Party Products as defined in these Terms, including utilities and other services that may manage your Connected Devices, and for purposes of these Terms you appoint OhmConnect as your agent to access these third party sites and to perform such things as you could do yourself. You understand and agree that the Services may or may not be sponsored or endorsed by some third parties and OhmConnect may experience issues in controlling a Connected Device due to Internet, wireless connectivity or other Service issues; this may impact OhmConnect’s ability to control your Connected Devices.
(d) Information Provided by You: By providing Account Information, Connected Device Credentials, Utility Credentials, log-in information and other relevant information (together, the “Information”), you are granting a license to OhmConnect for the purposes described above for the purpose of providing the Services. By providing the Information, you represent and warrant that you have the authority and rights to provide the Information and grant the relevant rights.
(e) Third Party Goods and Services: The Services may offer products (such as smart plugs, smart thermostats or gift cards) and provide links to or require functionality that interacts with third party websites, applications, products and services (“Third Party Products”), including those related to social media applications. Your use of the Third Party Products may be subject to the third party provider’s terms and conditions (“Third Party Terms”). You understand and agree that OhmConnect is not a party to the Third Party Terms, and is not responsible for and has no liability related to the Third Party Products or Third Party Terms, even though the Third Party Products are made available to you through the Services. Your use of the Third Party Products is at your own risk. We encourage you to review and understand applicable Third Party Terms.
(f) Ownership: OhmConnect and our licensor(s), vendor(s), agent(s), and content provider(s) own all of the content and intellectual property made available through or featured or displayed on the Service, including software, code, trademarks and service marks, text, graphics, photographs, images, moving images, sound, and illustrations (“Content”). All elements of the Service, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark, and other laws relating to intellectual property rights. You may not modify any Content and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Service. The Service, Content, and all related rights remain the exclusive property of OhmConnect or its licensors, vendors, agents, and/or Content providers unless otherwise expressly agreed, and are protected by U.S. and international copyright laws.
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, including taking any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our systems.
(d) Use the Service to establish a competitive product.
(e) Impersonate any person, business, entity, or IP address or use the Services for fraudulent purposes.
(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.
(i) Bypass any measures we may use to prevent or restrict access to the Service.Any violation of this Acceptable Use Policy automatically terminates the permissions and licenses granted to you by OhmConnect.
(a) If you purchase a product or other item using a credit card or other payment method, or by redeeming your Watts as described in Section 9, through OhmConnect’s Services (the “Store”), the terms in this Section 6 apply.
(b) You may be required to provide a billing and shipping address. There may be limits on where we can ship Third Party Products and they may be subject to customs and export control laws and regulations. You agree to comply with all applicable international and national laws and regulations.
(c) By providing OhmConnect with a payment method, you: (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate and (ii) authorize OhmConnect to charge you for any products or services purchased using your payment method. You agree to promptly update your Account and other information, including your email address and credit card numbers and expiration dates, so that OhmConnect can complete your transaction and contact you as needed in connection with your transactions. We reserve the right to terminate or suspend your transaction if your payment method is declined or if we suspect any fraud.
(d) We use a third party payment provider for processing payment transactions. The third party payment provider may impose insufficient funds fees, charges or other fees. We are not responsible for your interactions with third party payment providers or for any charges or fees they may impose. When you use any of the Services that require payment, a temporary pre-authorization hold may be placed on your designated payment method to verify that the card or other payment method is valid and has funds available for your intended purchase. The amount of this pre-authorization hold may be greater or less than the order total for your transaction. In the event the pre-authorization is greater than the final amount, the difference will be released after your order is completed or cancelled; depending on your bank, it may take up to 5 business days to receive access to these released funds.
(e) Prices and availability are subject to change at any time and without notice. OhmConnect may place a limit on the quantities that may be purchased per order, per Account, per payment method, per person, or per household. If the product that you ordered is unavailable, we may offer you an alternative product. If you do not choose to purchase the alternative product, we may cancel your order.
(f) OhmConnect may refuse or reject any order at any time, refunding you any money you have paid for the order, for reasons that include, but are not limited to, if you have not met the conditions specified at the time of the order, if your payment cannot be processed, if the ordered Third Party Product is not available, or for pricing or other errors. In the event of pricing or other errors, we reserve the right, in our discretion, to either cancel your order or contact you for instructions.
(g) Unless stated otherwise, prices shown in the Store exclude taxes or charges (“Taxes”) that may apply to your purchase and also exclude delivery or shipping costs. Taxes and delivery or shipping costs (as applicable) will be added to the amount of your purchase and shown on the check-out page. You are solely responsible for paying such Taxes and costs.
(h) We work hard to publish accurate information. However, any of the content in the Store may be incorrect or out of date at any given time. OhmConnect reserves the right to make changes to the Store at any time, including to product prices, specifications, offers and availability.
(i) DISCLAIMER OF WARRANTIES and RETURN POLICY. OhmConnect makes no warranties, express or implied, regarding any Third Party Products available through the Store, including any software or services provided with the Third Party Products, and there are no implied warranties of merchantability or of fitness for a particular purpose. Your purchase and use of the Third Party Products are at your own risk. The Third Party Products carry the warranties specified by the applicable third party manufacturers. WE HAVE A LIMITED RETURN POLICY, available here.
(b) 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 the Services (including promotional purposes, such as testimonials). You further irrevocably waive any “moral rights” or other similar rights with respect to your User Content that you may have under applicable law.
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. You acknowledge and agree that such Feedback is not confidential and OhmConnect has no obligation to use the Feedback.
(a) Short Code Messaging:
(b) Watts Reward Program:
If you participate in the Watts reward program or other promotions, the terms in this Section 9(b) apply. The Watts reward program allows a user to receive “Watts” based on a user’s level of participation in the Services and conditions in the electricity 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.
(c) Referrals: OhmConnect, from time to time, may offer the opportunity to participate in the Referral Program, which allows users to refer new members to join OhmConnect and use the Services. At the discretion of OhmConnect, referring a new member (“Referred User”) to the OhmConnect platform may result in a reward of Watts or other awards (“Referral Award”) for the person making the referral (“Referrer”); it also may result in a reward of Watts or other awards to the Referred User.
(d) Promotions: OhmConnect, from time to time, may offer the opportunity to participate in promotions that allows you to earn gift cards, reimbursement, free or discounted smart devices and other incentives (“Promotions”).
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, your User Content and all associated materials, without any obligation to provide any further access to such materials. All sections that by their context ought to survive these Terms will survive any termination or expiration of these Terms.
WE ARE NOT PROVIDING ANY WARRANTIES RELATING TO THE SERVICES OR ANY THIRD PARTY DEVICES OR PRODUCTS THAT MAY BE MADE AVAILABLE IN CONJUNCTION WITH THE SERVICES. THE SERVICES AND ALL INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SERVICES ARE MADE AVAILABLE TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. OHMCONNECT DOES NOT WARRANT THAT YOU WILL ACHIEVE ANY LEVEL OF ENERGY SAVINGS OR THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. 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. OHMCONNECT DOES NOT WARRANT OR SUPPORT ANY THIRD-PARTY PRODUCTS THAT MAY BE PROVIDED IN CONJUNCTION WITH THE SERVICE, AND OHMCONNECT IS NOT RESPONSIBLE FOR ANY DISCLOSURE OF INFORMATION YOU PROVIDE TO THIRD PARTIES OR THAT YOU AUTHORIZE OHMCONNECT TO PROVIDE AS PART OF YOUR USE OF THE SERVICES AND SUCH THIRD-PARTY PRODUCTS. YOUR USE OF ANY THIRD-PARTY PRODUCTS OR SERVICES ARE AT YOUR OWN RISK AND OHMCONNECT WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE FOREGOING.
(a) 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. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
(b) EXCEPT AS PROVIDED IN SECTION 14 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 NOT EXCEED $100.00.
(c) 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 its Affiliated Entities (including the licensors, suppliers and service providers of OhmConnect and its Affiliated Entities) from and against all claims, damages, losses, costs and expenses (including attorneys’ fees) arising out of your use of the Services or any violation of these Terms by you. OhmConnect reserves the right, at its 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 14(b) and 14(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. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Services or these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises before, during or after the termination of these Terms, including any issue concerning the validity, enforceability, or scope of this Agreement or this agreement to arbitrate. The arbitrator (and not any court) shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this arbitration agreement can be enforced or applies to a dispute, you and OhmConnect agree that the arbitrator will decide that issue. 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. To the fullest extent possible, the Federal Arbitration Act (“FAA”) and federal arbitration law apply to this arbitration agreement under Section 14.
(b) Exceptions: Notwithstanding the provisions of Section 14(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 14 within thirty days after the date that you agree to these Terms by sending a message to email@example.com or a letter to 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 14 will be void and any action arising out of these Terms will be resolved as set forth in Section 15. The remaining provisions of these Terms will not be affected by your Opt-Out Notice. You may reject any change we make to Section 14 (except address changes) by sending us notice within thirty days of the change to the addresses provided above. If you do, the most recent version of Section 14 before the change you rejected will apply.
(d) Arbitrator: Except where prohibited by law, you and OhmConnect agree that any and all disputes 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”) and its Procedures for the Resolution of Disputes through Document Submission ("Document Submission Procedures"). The arbitration will be conducted solely based on written submissions. The arbitration will not require any personal appearance by the parties or witnesses unless the arbitrator determines that a telephonic or in-person conference or hearing is necessary based on the request of one or more of the parties. 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.
(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 thirty 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.
(f) Fees: If you commence arbitration in accordance with these Terms, OhmConnect will reimburse you for your payment of the initial filing fee, unless your claim is for more than $1,000, in which case the payment of any fees will be governed by the AAA Rules. If it is determined by the arbitrator that you cannot afford such fees, OhmConnect will pay all arbitration fees and expenses. 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 fourteen 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 14(g) or the entirety of this Section 14 is found to be unenforceable, or if OhmConnect receives an Opt-Out Notice from you, then the entirety of this Section 14 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
(i) LIMITATION ON CLAIMS: YOU MUST FILE IN SMALL CLAIMS COURT OR FILE ARBITRATION OF ANY DISPUTE WITHIN ONE 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.
For our U.S. customers, unless stated otherwise in these Terms, these Terms are governed by and construed under the laws of the State of California, 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 in Alameda County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
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, 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.
(a) In operating the Service, we may act as a “services provider” (as defined by DMCA) and offer services as online provider of materials and links to third party web sites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed, or otherwise made available using the Service. OhmConnect has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Service. OhmConnect has adopted a policy that provides for the immediate removal of any content or the suspension of any user that is found to have infringed on the rights of OhmConnect or of a third party, or that has otherwise violated any intellectual property laws or regulations, or any of the terms and conditions of these Terms. If you believe any material available via the Service infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will respond expeditiously to remove or disable access to the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the material. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is firstname.lastname@example.org.
(b) Please provide the following information:
(c) We may give notice to our users of any infringement notice by means of a general notice on the Service, electronic mail to a user's e-mail address in our records, or by written communication sent by first-class mail to a user's physical address in our records. If you receive such an infringement 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:
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 do not create third-party beneficiary rights in any person or entity. If any provision of these Terms is held to be unlawful, void or unenforceable, that provision (or portion of the provision), to the extent required, will be severed from these Terms but the remaining provisions of these Terms will remain valid and enforceable. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms. Any attempted transfer or assignment in violation hereof shall be null and void. We may subcontract, assign, transfer or sublicense any or all of our rights or our obligations under these Terms without restriction. 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, including but not limited to promotion terms (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 is not 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.
Please note these Terms do not apply to customers of OhmConnect Texas LLC dba OhmConnect Energy.
371 3rd Street, 2nd Floor,
Oakland, CA 94607
For support, please contact: email@example.com
For media inquiries, please contact: firstname.lastname@example.org
For other inquiries, please contact: email@example.com
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) Market Applications: In addition to the permissions set forth above, if you are a resident of the State of New York, you expressly consent to OhmConnect acting on your behalf in energy and capacity transactions, and act as the organization of record for all financial transactions as applicable to the OhmConnect Services. Installed Capacity Market (ICAP) participation payments to you are limited to 35% of your contribution to OhmConnect’s monthly awarded ICAP value.
(b) Governing Law: For residents of New York, these Terms are governed by and construed under the laws of the State of New York, without regard to its principles of conflicts of law. You and OhmConnect hereby submit to the personal and exclusive jurisdiction of the state courts and federal courts in New York City, New York, for resolution of any lawsuit or court proceeding permitted under these Terms.