PLEASE NOTE THAT YOUR USE OF AND ACCESS TO THE SERVICES (AS DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
In consideration of the mutual promises, covenants and conditions contained herein, the parties agree as follows:
The Term of this Agreement will commence upon the Effective Date and shall continue to the End Date as described above. This Agreement shall not renew for consecutive subsequent renewal periods unless agreed upon in writing by Company and Customer in accordance with the terms set forth in this Agreement (initial term and subsequent renewal terms are referred to herein as “Term”).
Company provides utility management service and is an authorized party and payee to the utility provider for the utility account holder (“Account Holder”).
For our compliance purposes and in order to provide the Services to you, you hereby authorize us to, directly or through a third-party, obtain, verify, and record information and documentation that helps us verify your identity. When you register for the Services and from time to time thereafter, we may require you to provide and/or confirm information and documentation that will allow us to identify you, such as:
By using the Services and providing User Information to us, you automatically authorize us to obtain, directly or indirectly through our third-party service providers and without any time limit or the requirement to pay any fees, information about you and your Utility Account from the institutions holding your Utility Accounts and other third-party websites and databases as necessary to provide the Services to you. For purposes of such authorization, you hereby grant NuTiliti and our third-party service providers a limited power of attorney, and you hereby appoint NuTiliti and our third-party service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for you and in your name, place, and stead, in any and all capacities, to access third-party websites, servers, and documents; retrieve information; and use your User Information, all as described above, with the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities, as fully to all intents and purposes as you might or could do in person.
YOU ACKNOWLEDGE AND AGREE THAT WHEN NUTILITI OR OUR THIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM SUCH THIRD-PARTY WEBSITES, NUTILITI AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS YOUR AGENT, AND NOT THE AGENT OR ON BEHALF OF THE THIRD PARTY.
You agree that other third parties shall be entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. You understand and agree that the Services are not endorsed or sponsored by any third-party account providers accessible through the Services. We make no effort to review information obtained from the third-party websites and databases for any purpose, including, but not limited to, accuracy, legality, or non-infringement. As between NuTiliti and our third-party service providers, NuTiliti owns your confidential User Information.
28. Additional Rules and Requirements.
Customer agrees to adhere to and abide by any additional policies posted on Company’s Internet site. Company shall have the right to revise this Agreement at any time, with 30 calendar days advance notice and with changes clearly posted on Company’s Internet site.
29. Disclaimer of Warranties.
Company hereby warrants and represents to Customer that any Services will be provided and performed in a timely, competent and professional manner. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
30. Limitation of Liability.
Company shall not be liable for loss, injury or damage caused by delays, interruptions or causes beyond Company’s control. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW, OF THE POSSIBILITY THEREOF.
31. Exclusive Remedy.
Customer acknowledges that its sole and exclusive remedy for Company’s breach of this Agreement is to cause Company to correct any failure on the part of Company in order to obtain the result for which the Customer contracted with Company. If Company is unable to provide the remedy set forth in this Section, Company’s liability to Customer for direct damages under this Agreement shall be limited to an amount equal to the aggregate fees paid by Customer to Company provided during the most recently concluded quarter.
If a dispute arises between Company and Customer arising from or related to this Agreement, such dispute shall ultimately be resolved via binding arbitration under rules promulgated by the American Arbitration Association. Prior to the initiation of arbitration, the complaining party shall give notice of the alleged claim and each party shall engage in a good faith effort toward resolution. If the dispute cannot be resolved through good faith negotiations, Company and Customer shall submit the dispute to binding arbitration by an arbitrator appointed by the American Arbitration Association and the dispute will be arbitrated (not mediated) by that individual under the Association’s Rules governing commercial arbitration disputes. The arbitration will be conducted in Austin, Texas unless all parties to the dispute otherwise agree in writing after the dispute arises and before commencement of the arbitration.
33. Legal Costs.
Customer agrees to pay Company’s costs and reasonable legal fees if Company is required to take legal action against Customer to collect monies due it or to enforce its rights under this Agreement.
34. Choice of Law; Venue.
This Agreement shall be governed by and construed in accordance with the law of the State of Texas.
35. Binding on Successors.
This Agreement is binding upon the Parties and their respective heirs, executors, administrators, legal representative, successors and assigns.
Customer may not assign this Agreement to any other person, including but not limited to, sub-lessees without Company’s express prior written consent.
Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
38. Severability Clause.
If any clause, sentence, paragraph, section or part of this Agreement is judged to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof.
39. Agency Authorization - Smart Meter Texas
By selecting the services on this Site that require our access to your Smart Meter, you authorize Nutiliti acting through its managers, officers, or employees, to (i) access or create Customer's account(s) with Smart Meter Texas, www.smartmetertexas.com; (ii) initiate a 3rd Party Energy Data Agreement for as a period at least as long as you are a customer of Nutiliti, enabling Nutiliti to view and download your energy usage, meter, and premise information, which is available in 15-minute daily or monthly intervals; (iii) update or modify your Smart Meter Texas account profile for the sole purpose of allowing Nutiliti to administer the 3rd Party Energy Data Agreement; (iv) and communicate with Smart Meter Texas on your behalf. By selecting the pertinent services, you hereby appoint Nutiliti Inc. as your agent with limited power of attorney to act on your behalf in obtaining the information described above.
Customer hereby represents that each and every Customer understands this Agreement and is signing it after having read it carefully.