Last Updated: August 31, 2016
1. Accounts. (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) 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.
2. License to Services. (a). Use of the Services. Subject to these Terms, OhmConnect grants you a non-exclusive, non-transferrable 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 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 reduction is shared with energy market regulators and wholesalers (“Regulators”) to measure the amount of energy saved through OhmConnect’s coordination of energy reductions. To facilitate timely energy reduction,the Service contains a feature (Connect) to automate the control of devices for your Account. You may authorize OhmConnect to remotely manage your devices on your behalf (such as home appliances and thermostats) that are otherwise connected to the Internet through various enabling services (“Connected Devices”). You may at any time elect to manage your 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 (“Third Party Sites”), where you have opened an account and provided certain log-in credentials to the Connected Devices (the “Connected Device Credentials”). By providing the Connected Device Credentials for your device you agree and understand:
1. You have the authority and rights to provide your credentials to OhmConnect
2. You authorize OhmConnect to control your device, based on your settings, during #OhmHours
3. You may override the automated control of your device for any #OhmHour
4. OhmConnect may not be able to turn your device back on at the end of an #OhmHour due to Internet, wireless connectivity or other Service issues
5. You may need to manually turn the device off or back on
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: (i) threatening, violent, dangerous, hateful, harassing, or otherwise fail to respect the rights and dignity of others; (ii) defamatory, libelous, fraudulent, or otherwise tortious; (iii) obscene, indecent, pornographic, or otherwise objectionable; or (iv) protected by copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner; or (v) is otherwise unlawful. (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 and E-4754, 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” means 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. Back-up Generation does 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 BACK-UP GENERATION DURING ANY ENERGY REDUCTION EVENT COORDINATED BY OHMCONNECT.
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. Some energy data presented through the Services are estimates based on available data, and may not reflect actual figures. For instance, data on the “Energy Map” are forecasted based on the likelihood of each plant being turned on, rather than calculations based on actual on-line energy assets. Energy consumption data presented on the “Home Analysis” section of the Services are estimates based on data provided by your smart meter, and may not reflect actual usage.
6. Privacy & Security. By using the Services, you consent to the collection, use, disclosure and sharing of data as set forth in OhmConnect’s privacy polices located at www.ohmconnect.com/privacy-policy. OhmConnect is committed to maintaining the security of the data you provide us and will take reasonable organizational, technical and administrative measures to protect your personal information. However, the Services are provided through wireless networks and the Internet, and there is always some risk in transmitting information over the Internet. For this reason, OhmConnect cannot guarantee the security and privacy of wireless transmissions or transmissions via the Internet, and you agree that we will not be liable for any lack of security relating to the use of the Services by you. You agree that you will not hold OhmConnect liable for any damages resulting from any loss of privacy or security occurring in connection with any communications over such networks.
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. Just text STOP to 41099. 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 41099. 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 and Point Credit Program. By purchasing a hardware device (the “Device”) on the OhmConnect store and using Credit Points you, the identified buyer (“you” or “Buyer”), choose to buy the Device associated with the promotion code provided using Credit Points, and you acknowledge that you have read and agree to the OhmConnect Point Credit Program and to pay OhmConnect, Inc., a Delaware corporation (“OhmConnect”) the amount financed in OhmConnect points or U.S. funds. You understand and agree to be personally responsible for and guarantee payment of any sums that become due for your account.
Any purchase from the OhmConnect store will incur California state sales tax for the full MSRP of the product. Amount financed is the difference between the MSRP on the OhmConnect store and the price charged, except sales tax, at time of order.
We will provide you a current Point Credit program balance for your purchase on your user dashboard. Your Point Credit program outstanding balance is equal to 15,000 points minus the total Credit Points showing on your user dashboard at any time. You are required to maintain an active OhmConnect account for as long as there is a point balance outstanding under the Agreement. You may pay the total amount due or outstanding balance at any time.
You bear the entire risk of loss, theft or damage to the Device from any cause during the entire term of this Agreement. Even if the Device is lost, stolen or damaged, you remain obligated for any outstanding payments due under this Agreement. We recommend that you obtain property insurance on the Device.
We may, without your consent and without notice to you, assign this Agreement. You shall not assign this Agreement without our prior written consent.
DISCLAIMER OF WARRANTIES and RETURN POLICY. OhmConnect makes no warranties, express or implied, regarding the 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 FAQ page.
9. Fees and Rewards Program. The Services are provided to users free of charge. OhmConnect will pay a reward to each user based on that user's level of participation in the Services and conditions in the energy market prevailing during relevant use periods. These rewards will be in the form of points that can be redeemed for cash or other types of compensation. The amount of the rewards granted for each user is based on a variety of factors including, but not limited to, location, time of day, grid conditions, and total amount of energy saved by a user.
OhmConnect requires active membership to ensure successful participation in energy markets. To that end, user accounts will expire three (3) months from the date of the last qualifying activity event. If a user fails to have any qualifying activity events in three (3) months, the user account will become inactive and all points, awards, rewards, and promotional incentives will be forfeited. A qualifying activity event includes:
Confirming participation and reducing energy during an #OhmHour, Posting OhmConnect related activities to social media (i.e., Facebook), Purchasing an item from the OhmConnect Store, Connecting a device to the OhmConnect service, Inviting new members to activate with the OhmConnect service
OhmConnect, from time to time, may offer a Referral Program allowing 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 points (Referral Award) for the person making the referral (Referror).
You will be provided a unique code for referrals (Referral Code) to distribute to eligible friends, family, neighbors, small and medium business (SMB) 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 all OhmConnect points and 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 redeemable for points. The amount, timing and conditions of such rewards shall remain solely within the discretion of OhmConnect. All rewards hold no cash value and 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 personal 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. 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.
11. Feedback. 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.
12. Marks. 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, 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 3 - 18 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, AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, 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.
15. LIMITATION OF LIABILITY. OHMCONNECT 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. 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 THESERVICES, OR $100.00, WHICHEVER IS GREATER. ALL LIMITATIONS 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.
16. Indemnity. 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.
17. Arbitration. 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. "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) This Arbitration section is intended to be broadly interpreted. It applies to any and all claims, disputes, or controversies of any nature whatsoever whether in contract, tort or otherwise, including but not limited to statutory, common law, fraud (whether by misrepresentation or by omission) or other intentional tort, property, or equitable claims) arising out of, relating to, or in connection with the Services or these Terms including any claims relating to the validity, scope, interpretation, breach or enforceability of these Terms and claims that may arise after the termination of these Terms (all of which are collectively referred to herein as "Claims"). (b) Except where prohibited by law, You and We 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 We and You agree otherwise, any arbitration hearing(s) will take place San Francisco, California. (c) In the event that any provision of this Arbitration section is found to be invalid or unenforceable in a particular case or jurisdiction, that provision will be severable in that case or jurisdiction, as the case may be, without affecting the validity and enforceability of the remaining provisions of this Arbitration section. (d) In the event that You intend to commence an arbitration, You must first notify OhmConnect by contacting us at firstname.lastname@example.org ("Notice") and attempt to resolve Your Claim. If We and You do not reach an agreement to resolve Your Claim within 30 days after Notice has been provided, You or We may commence an arbitration in accordance with these Terms. (e) All administrative fees and expenses of arbitration will be divided equally between You and OhmConnect. (f) 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. Class Action Waiver. EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT. You expressly waive any right you may have to bring or participate in a Claim as a class, collective or representative proceeding in court or before an arbitrator. Further, unless both You and We agree in writing, the arbitrator may not consolidate Your claim with another person's claim, and may not otherwise preside over any form of a representative or class proceeding.
19. 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.
20. Export Controls. You are responsible for complying with United States export controls 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 or a national of, any country subject to a U.S. government embargo or other restriction, 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 restricted end users.
21. Miscellaneous. 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. 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 assign, transfer or sublicense any or all of our rights or 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. 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 failure to fulfill any obligation due to any cause beyond its control.