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.
3. Account Access.
Customer shall be given one user name and password combination by Company with which Customer can access the account on Company’s website. By sharing the password, Customer agrees to be responsible for assuring that any person accessing the account agrees to and complies with these Terms of Service. Customer shall be responsible for any action taken by any person to whom Customer has shared their account password.
4. Payment Obligations of Customer.
At least once per month, Company shall invoice Customer for Customer’s charges. The billing date (“Bill Date”) is when Company invoices Customer for these charges. Customer shall pay Company the full amounts that Company invoices to Customer. If Customer fails to make any payments due under this Agreement within the days identified by Company as when bill is due, “Due Date”, then Company may, under its sole discretion, immediately cancel this Agreement, and Company will have no further obligations under this Agreement. This includes, but is not limited to, payment of any utility bills received from a utility provider on behalf of Customer. Failure of Company to exercise this option at any time will not constitute a waiver of Company’s right to do so. If Customer pays by any method other than a Company-registered payment method, the payment must be received by the Company or postmarked by the Due Date. Any portion of the invoices that is not paid when due will accrue a late fee on the outstanding balance.
5. Final Billing Procedure
Should Property require Company to estimate a final utility bill, Company will provide an estimated final bill to Customer based on multiple prior month’s of utility service, historical data and weather factors. Customer agrees to pay Company this final estimated bill before the End Date of the Term. Customer can contact Company at email@example.com to true-up the final estimated bill with the final actual bill. If the estimated final bill is higher than the actual bill, Company will obtain the Customer’s current address and issue a refund check to Customer mailed to that address. If the estimated final bill is less than the actual bill, Company will make arrangements with Customer for Customer to cover any shortfall between the estimated final bill and actual bill amounts. Any balance left unpaid by Customer as a result of this true-up process may be sent to an outside collections agency. If Property does not require an estimated final utility invoice, Customer agrees to pay the final invoice, which shall consist of all utility charges received for the final month of utility service, and may be received by Customer after the End Date of the Term.
6. Designated Bill Payor
Company is the designated bill payor for each utility provider servicing Customer and will take the necessary action to receive and pay the utility providers.
7. Utility Payment.
Customer may be obligated under Customer’s residential lease agreement to be responsible to pay for all utility bills. Account Holder has delegated authority to Company to pay the utility bills and to collect utility payments from Customer.
8. Responsible Party
The utilities are either in the Account Holder’s name or, if Company has a bill-paying relationship with an electric utility in Texas de-regulated areas, in Company’s name. Customer is responsible for abiding by Customer’s prior agreements with Property and this Agreement. Customer shall indemnify and hold harmless Company for any liability arising out of Customer’s failure to abide by its agreements with Property.
9. Responsibility for Termination.
The Account Holder is responsible for the termination of all utility services at the Residence. If electricity services in Texas de-regulated areas are in the name of the Company, then Company is responsible for the termination of the electricity service at the Residence. Company shall terminate electricity service on the first business day following the final day of Customer’s Term. Should Customers at the same residence have different end dates, Company shall use the last end date of any Customer as the final day of the term.
10. Cost of Service.
By subscribing to the NuTiliti Subscription Service you agree that NuTiliti will charge your account a service fee (the “NuTiliti Service Fee”) per bill managed. Your account will be charged on the same day of each billing cycle until you cancel. If you are offered a free trial you must cancel before the end of the free trial period to avoid future charges; if you do not cancel then you agree that NuTiliti will charge your account the amount of the NuTiliti Subscription Service Fee automatically at the end of the free trial period. Monthly charges are not refundable.
Please note that NuTiliti retains the right in the future to change the terms and the amount of the NuTiliti Service Fee in its sole discretion, including for both current customers and new customers.
Every utility bill-paying Customer in a residence must register with Company to use this service. If at any point, Company is led to believe that any un-registered utility bill-paying residents are living in a Residence serviced by Company, then Company shall have the option of either (i) immediately charging registered Customers one (1) additional Monthly Fee per unregistered utility bill-paying resident, or (ii) immediately canceling this Agreement and have no further obligations under this Agreement. Company shall not be obligated to pass along to Customer any compensation it receives from any utility provider pursuant to its agreement with such provider.
11. Authorized Utility Providers
If utilities are set up by Account Holder, Customer must use the utility provider providing services to Account Holder. All customers living in Texas deregulated areas must register with Company for electric service. Company has a preferred electric provider that must be used. Customer shall designate which services are desired during the initial sign-up period. Such services will fall under the terms of this Agreement. Company has the right to refuse any utility provider.
12. Electricity Service.
The following two paragraphs shall apply only to Customer’s using the Texas De-regulated Model. (a) Customer appoints Company to serve as Customer’s agent and attorney-in-fact (with the full power and ability to act on behalf of Customer) during the Term of this Agreement for all purposes relating to Customer’s relationship with Company’s preferred electric provider, including, but not limited to (i) the taking of any action expressly authorized or contemplated by this Agreement, (ii) the receipt, on behalf of Customer, of any bills, notices, disclosures or other communications from Company’s preferred electric provider, and (iii) the taking of any other action reasonably necessary and related to Company’s preferred electric provider providing electric utility service to Customer. Company’s preferred electric provider shall be entitled to rely upon this appointment of Company as agent and attorney-in-fact, and Customer agrees to be bound by all actions taken by Company in connection with the provision of electric utility service to Customer by Company’s preferred electric provider.
(b) Customer agrees to use electricity service through Company’s preferred electric provider. Company shall register for the electricity service and retain the account in Customer name, as agent and attorney-in-fact of Customer. Company shall obtain a unique Company-only electricity rate which will only be available to Customers using Company’s service. Should Customer decide to terminate Company’s service as provided herein, Company shall have the right to cause the disconnection of Customer’s electricity meter upon three (3) calendar days advance written notice following termination of this Agreement. If such a day is not a business day, then the following business day shall be used for all such purposes. Company shall automatically cause the disconnection of Customer’s electricity meter on the first business day following the final day of Customer’s term unless Company is provided advance written notice not to do so.
13. Termination of Electric Service.
This paragraph shall apply only to Customers using the Texas De-regulated Model. Company shall have the right to cause the disconnection of the electricity meter of any Customer who is in default under the terms of this Agreement.
14. Payment Options.
As a minimum requirement for using Company’s service, Customer must leave an accepted Payment Method on File with Company. Acceptable Payment Methods on File include the following: credit card, debit card, or bank account. Customer is not required to pay using Payment Method on File, but can pay with any of the following methods: check, money order, credit/debit card, recurring or one-time bank bill-payment, or bank draft. Customer may exchange Payment Method on File at any time, but Customer agrees that Payment Methods on File will not be removed unless immediately replaced by a different Payment Method on File. If Customer elects to pay by check, Company shall retain the account information contained on the check until this Agreement is terminated, and Customer authorizes Company to withdraw payment in the event Customer does not provide payment. If Customer elects to use an optional recurring automatic payment, Customer authorizes Company to automatically withdraw payment from its credit/debit card or bank account on or about the sixth (6th) calendar day following the Bill Date each month for the amount of the Customer’s invoice. In the event Company does not receive payment from Customer by Customer’s Due Date, Company will withdraw payment from Payment Method on File. By agreeing to these Terms of Service, Customer expressly authorizes Company to charge Customer’s Payment Method on File for any unpaid Individual Balance until this agreement expires or is terminated, and any unpaid Group Balance (as defined in Section 15), unless Company and Property have a separate agreement in place to handle in a separate manner. The previous statement is explicitly intended to include but is not limited to balances that have been invoiced after Customer has begun the process of cancelling Service. All payments are non-refundable, except deposits as described herein. Please note that to revoke your authorization of your payment method and cancel any scheduled draft to your account, Customer must email us at firstname.lastname@example.org to request revocation at least 3 business days prior to a scheduled draft. Changes received by Company after this period may be delayed until the following Bill Day. In addition, Customer agrees to replace their Method of Payment on File with another form of payment. For single payments made online, to revoke your authorization of your payment method or cancel this payment, Customer must email us at email@example.com within 24 hours of initiating the payment.
15. Utility Bill Division.
All bills for a single property will be added together (the “Group Balance”) for the Residence and assessed against all Customers at the Residence. Customer shall be primarily responsible for and pay to Company each month its proportional share of the Group Balance. All bills for the Residence shall be pro-rated and divided on a per-person, per-day basis. The pro-ration calculation shall be determined by adding up the number of days each Customer is present in the Residence for the usage dates of each utility bill. The total days for each Customer shall be divided by the total days of all residents to determine the schedule of days each Customer occupies the unit. This portion shall be multiplied by the total bill amount to determine how much is billed to each Customer. Notwithstanding the fact that each Customer at the Residence shall be primarily responsible only for a percentage of the Group Balance, Customer understands and agrees that each Customer in a Residence can be jointly and severally liable for all utility bills paid for by Company concerning Customer’s residence, and if one or more Customers at the Residence do not pay their share of the Group Balance, the other Customers at the Residence can be liable for the entire Group Balance.
Company shall invoice Customer electronically via its Internet site each month for the percentage of utility charges at Residence that Customer is responsible for and has agreed to pay to Company. All official notifications sent by Company shall be in e-mail format and shall be sent to e-mail addresses designated by Customer on file with Company, and Customer hereby consents to receipt of electronic notifications and bills from Company. E-mail notice shall be effective upon sending. Customer understands that it is solely Customer’s responsibility to ensure receipt of e-mail and in the event that no e-mail is received, it is Customer’s responsibility to notify Company of such. Customer understands and agrees that the only way to access utility billing information possessed by Company is through its Internet site. Company shall send all utility invoices each month after it receives the electricity bill for a given Residence. Any utility bills not received by Company in time to be sent out will be held by Company until the following month’s receipt of the electricity bill. If there is no electricity bill, billing will occur on a regular basis as determined by Company.
17. Direct Utility Payment.
Customer shall NOT pay the utility company directly unless told to in writing by Company. Customer agrees to pay Company for the amount invoiced, even if Customer has paid a utility company directly without Company’s prior written approval.
This paragraph shall only apply to Customers using the Texas De-regulated Model. Should a Residence signing up for Company’s service be a single-payor residence, Customer agrees to pay a deposit of no less than $150.00, due immediately upon executing this Agreement. Customer agrees to allow Company to deduct the funds directly from Customer’s Payment Method on File. The deposit shall be refunded to Customer within thirty (30) calendar days after the termination of this Agreement if Customer is not in default under this Agreement. Company shall have the right to use deposit monies for its business purposes subject only to the obligation to refund deposit to Customer if Customer is not in default at the termination of this Agreement. Company may also charge a deposit of no less than $150.00 per Residence, regardless of the number of Customers, in response to circumstances associated with certain geographical areas.
19. Event of Default.
A failure to comply with one or more of the terms and conditions of this Agreement on the part of one or more of the Customers at the Residence shall constitute an event of default.
Customer agrees to allow Company to share any account or payment information with other Customers at the Residence, the parents of any Customer at the Residence, the Property and other bill-paying parties upon request. Company shall not share credit/debit card numbers, automatic bank draft account information, social security numbers, and birth dates with any party except as provided herein. Notwithstanding the preceding sentence, if Company is required to send an account to an outside debt collections agency, Company shall provide any information necessary to employ such a service.
21. Failed Payment.
Should payment fail due to incorrect information, lack of funds, expiration, or for any other reason, Company will continue to attempt automatic withdrawal from Payment Method on File periodically until Company determines the funds to be noncollectable. Customer agrees to transfer funds as necessary in order to pay any outstanding balance and all NSF or other fees Company may have incurred while attempting to collect. Customer shall be in default on an invoice from Company if payment is not received by Company by Customer’s Due Date. Company shall give all Customers in a Residence written notice by e-mail upon the occurrence of a default in payment by any Customer in a Residence. This notification shall be in electronic format as outlined herein. If payment has not been received by the tenth (10th) calendar day after Due Date, Company may, at its sole discretion, remove the Customer from Company’s service and continue to invoice remaining customers as outlined herein. Any balance left unpaid by Customer may be sent to an outside collections agency.
22. Customer Removal.
The Property, or all Customers in a Residence, must agree in writing for one or more Customers in that Residence to be removed from Company’s service. In this event, Company will recalculate the percentage owed by each remaining Customer.
23. Procedure Following Removal of a Customer.
Should a Customer be removed from Company’s service, a new Standard Percentage will be created by removing one roommate, then dividing among remaining roommates. Customer agrees to pay the new Standard Percentage of the Group Balance and all bills from that point to the end of service with Company. Customer agrees that once a roommate is removed from Company, the remaining Group Balance left unpaid by removed roommate will be divided according to the new Standard Percentage and added to the next month’s invoice. Once a Customer has been removed from Company’s service, he/she may only resume upon completing additional financial requirements and at the sole discretion of Company. Should any Customer who is part of a multiple-tenant residence who has been previously removed wish to be reinstated on an account, that Customer shall be charged a non-refundable administrative fee of $50. This fee shall be charged per Customer per occurrence. Under the Texas De-regulated Model, should any Customer who is part of a single-tenant residence wish to resume service after being terminated, that Customer shall be charged a refundable $150.00 deposit. This shall be effective immediately after Company issues a request to have electricity service terminated. Also, if any Payment Method on File by Customer is determined invalid for payment, Company may require a new Payment Method on File and that it be validated before resuming service.
Company may cancel this Agreement immediately upon default by Customer or otherwise on three (3) calendar days written notice to any Customer. Customer may terminate this Agreement at any time; provided, however, that every Customer at the Residence must agree in writing to such termination and pay any outstanding Group Balance and/or Individual Balance. Any deposits or fees charged by any utility company after discontinuing Company’s service are solely the responsibility of Customer. Company shall have no obligation to pay any further utility bills pursuant to this Agreement following receipt of written notice to terminate. Each Customer at the Residence is jointly and severally liable and fully responsible to pay Company an amount equal to any bills charged to and paid for by Company notwithstanding termination of this Agreement.
NuTiliti reserves the right to terminate your access if Customer is delinquent in any prior charges for water, gas, heat, light, power, telephone, sewage, air conditioning and ventilating, scavenger, janitorial, landscaping, and all other utilities supplied.
25. Email Communications
As part of the service provided by Company, Customer will receive email and other communications from Company, such as invoices, bill notifications, password recovery, and account updates, relating to Customer’s account. Company may use Customer’s email address to contact Customer for issues with Customer’s account, to advise Customer of any changes to Company’s website, and to send Customer messages about Company’s additional service promotions with Customer’s consent or as permitted by law. Customer may choose not to receive Company’s marketing emails by clicking on the unsubscribe link in the emails Customer receives from Company. Please note that even if Customer opts out, Company may continue sending Customer service-related information.
26. 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.
27. 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.
28. 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.
29. 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.
31. 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.
32. Choice of Law; Venue.
This Agreement shall be governed by and construed in accordance with the law of the State of Texas.
33. 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.
36. 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.
Customer hereby represents that each and every Customer understands this Agreement and is signing it after having read it carefully.