In this Agreement, “YellowTin” and “we” mean the YellowTin company that is providing the Services to you, and with whom you are entering into this Agreement. The terms “User” and “you” mean any user of the Services or if acting on behalf of a company or entity, that you have the authority to bind such entity. This Agreement incorporates YellowTin’s standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this Agreement (collectively, the “YellowTin Policies”).
By accessing or using the Services or by clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER APPLICABLE TO USERS WHO ARE RESIDENTS OF THE UNITED STATES.
Part I – Energy Analysis, Design and Quotation Services
1. Utility Account: Energy usage and Billing Information. You may direct YellowTin to retrieve information maintained online by utilities with which YellowTin has a relationship. YellowTin makes no warranty as to the accuracy, legality or rights and licenses for use of this information, and relies solely on each utility to provide accurate information to us. YellowTin cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. YellowTin cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings.
3. Usage Guidelines. User agrees to use the YellowTin Sites and Services for lawful purposes. You must provide true, accurate, current and complete information. We may provide ongoing periodic or semi-periodic evaluations of your energy usage and production (if available) with recommendations, delivered by email to the email address you have provided or directly through our website by accessing your account. These recommendations are directed to, although not guaranteed to, help reduce your utility bills and advise you of any changes that may affect your ability to maximize your savings on your energy bills. YellowTin makes no representations or warranties regarding the actual savings outcomes of energy decisions and you agree and understand that the recommendations provided by YellowTin are advisory in nature only, shall be relied upon as only one input to your decision making process, and that all such decisions are based on your own analysis and review of options available in the marketplace.
You represent that you are a legal owner of or that you are authorized to provide us with any and all information necessary to facilitate your use of the Services. Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that YellowTin in its sole discretion, may elect to take. In no event will YellowTin be liable to any party for any loss, cost, or damage that results from any scheduled or unscheduled downtime. Your sole and exclusive remedy for any failure or non-performance of the Services shall be for YellowTin to use commercially reasonable efforts repair or adjust the Service.
Part II – Terms for All Services
4. Accessing the Website and Account Security. We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Website.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session and that, to the extent you rely on a persistent login you are responsible for any breach that may result. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
7. Technical Requirements. Use of the Services requires Internet access through your computer or mobile device. You are responsible for all mobile carrier data or text message charges resulting from your use of the Services, including from any notifications provided by the Services. In order to use the text message based services, you must maintain an active account with a carrier of electronic communications through mobile devices. YellowTin does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers.
8. Intellectual Property Rights. The features, information, and materials provided and depicted through the Services may be protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “YellowTin Content”) are provided to User by YellowTin or its partners or licensors solely to support User’s permitted use of the Services. The YellowTin Content may be modified from time to time by YellowTin in its sole discretion. Except as expressly set forth herein, no license is granted to User for any other purpose, and any other use of the Services or the YellowTin Content by User shall constitute a material breach of this Agreement. Specifically, you must not use the website or software in any way that is restricted pursuant to Section 10 below (Use Restrictions)
YellowTin and its partners or licensees retain all rights in the Services and YellowTin Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of YellowTin or any third party is granted under this Agreement.
9. License to Access and Use Your Data By submitting information, data, passwords, usernames, other log-in information, materials and other content to Energy Verified through the Services, you are licensing that content to YellowTin for the purpose of providing the Services. YellowTin may use and store the content in accordance with this Agreement and our Privacy Statement. You represent that you are entitled to submit it to YellowTin for use for this purpose, without any obligation by YellowTin to pay any fees or be subject to any restrictions or limitations. By using the Services, you expressly authorize YellowTin to access your account information maintained by your utility, on your behalf as your agent. You hereby authorize and permit YellowTin to use and store information submitted by you to accomplish the foregoing and to configure the Services so that it is compatible with utility websites for which you submit your information. YellowTin is not responsible for any Service-related issues that may arise from inaccurate account information delivered to us by your utility.
10. Use Restrictions. The Services and YellowTin Content are offered solely for User’s personal use for the purposes described in this Agreement. Any and all other uses are prohibited. YellowTin expressly reserves all its rights and remedies under applicable laws (including state, federal, and provincial/territorial laws). YellowTin reserves the right, in its sole discretion, to refuse service, terminate Accounts, remove or edit content, cancel quotation services, or deny access to the Services.
You agree not to (and not to allow any third party to): (1) use any deep-link, robot, spider, scraper, or other automatic or manual device, process, or means to access, copy, search, or monitor any portion of the Services or YellowTin Content, except as expressly authorized by YellowTin; (2) take any action that imposes or may impose (in YellowTin’s sole determination) an unreasonable or a disproportionately large load on the Services or YellowTin’s infrastructure; (3) utilize any device, software, viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful that will interfere or attempt to interfere with the functionality of the Services; (4) rent, lease, copy, provide access to or sublicense any portion of the Services or YellowTin Content to a third party; (5) use any portion of the Services or YellowTin Content to provide, or incorporate any portion of the Services or YellowTin Content into, any product or service provided to a third party; (6) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to YellowTin); (7) modify any Services or YellowTin Content or create any derivative product from any of the foregoing; (8) remove or obscure any proprietary or other notices contained in the Services or YellowTin Content; (9) use the Services or YellowTin Content for any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries); (10) publicly disseminate information regarding the performance of the Services or YellowTin Content or access or use the Services or YellowTin Content for competitive analysis or benchmarking purposes; (11) to impersonate or attempt to impersonate YellowTin, a YellowTin employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing). Although the YellowTin Sites may be accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the YellowTin Sites are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. YellowTin reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area.
11. United States Government End Users. The Services constitute a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire any YellowTin Sites with only those rights set forth therein.
12. Termination. YellowTin may suspend your ability to use all or any element of the Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, YellowTin may suspend your access to the Services if we believe you to be in violation of any part of this Agreement (including any YellowTin Policies). After any suspension or termination, you may or may not be granted permission to use the Services or re-establish an Account. You agree that YellowTin shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Services at any time. You understand that any termination of your Account may involve deletion of any content stored in your Account for which YellowTin will have no liability whatsoever.
13. Your Representations and Indemnity. You represent and warrant that you own or otherwise control all of the rights to any User Content submitted by you; that all User Content submitted by you is accurate; and that exploitation of such User Content by YellowTin and its other Users, partners, and licensees will not violate this Agreement, cause injury to any person or entity, or infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity). You will indemnify, hold harmless, and (at YellowTin’s request) defend YellowTin, its affiliates, and its and their representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “YellowTin Parties”) from and against all claims resulting from (1) any User Content submitted by you, (2) your use of the Services, or (3) any breach or alleged breach by you of this Agreement.
14. Liability Limitations. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, IN NO EVENT SHALL THE YELLOWTIN PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT (INCLUDING ANY CHANGES THERETO), (2) ANY USE OF THE YELLOWTIN SITES, SERVICES, THE YELLOWTIN CONTENT, OR THE USER CONTENT, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF ANY OF THE SERVICES), OR (4) YOUR MEETING WITH ANY INSTALLER OR THE PERFORMANCE, NON-PERFORMANCE, CONDUCT, OR POLICIES OF ANY INSTALLER, VENDOR, UTILITY, GOVERNMENT AGENCY, OR MERCHANT IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE YELLOWTIN SITE BY REFERRAL, LINK, OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE YELLOWTIN CONTENT. YELLOWTIN IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY INSTALLER FOR WHICH A USER HAS MADE A REQUEST FOR QUOTE, CLAIMED AN OFFER OR PROMOTION, OR PAID AN INVOICE USING THE PAYMENT SERVICES.
TO EXTENT THE ABOVE PROVISION DOES NOT APPLY FOR ANY REASON, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF YELLOWTIN AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF $50 OR THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE SERVICE IN THE LAST 6 MONTHS OUT OF WHICH LIABILITY AROSE.
THE LIMITATION OF LIABILITY SET OUT ABOVE DOES NOT APPLY TO LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
You and YellowTin understand and agree that the disclaimers, exclusions, and limitations in this Section 14 and in Section 15 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that YellowTin would be unable to make the Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
15. Disclaimer of Warranties. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND YELLOWTIN CANNOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, ALL YELLOWTIN CONTENT, AND ANY OTHER INFORMATION, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. YELLOWTIN EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. YELLOWTIN DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT YELLOWTIN WILL REVIEW THE INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICES FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH INFORMATION OR MATERIALS WITHOUT LOSS. YELLOWTIN SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF YELLOWTIN .
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Third-Party Websites, Applications and Services. The Services may contain hypertext links to websites and applications operated by parties other than YellowTin. Such hypertext links are provided for User’s reference only, and YellowTin does not control such websites and is not responsible for their content. YellowTin’s inclusion of any hypertext links to such websites or applications does not imply any endorsement of the material on such websites or applications or any association with their operators. YellowTin assumes no liability whatsoever for any such third-party websites, applications or any content, features, products, or services made available through such third-party websites or applications.
17. Release. Installer are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your (or such recipient’s) interaction with or meeting with any Installer or from any promotion, offer, product or service of any Installer. Users must resolve all disputes directly with Installers. To the maximum extent permitted by applicable law, you hereby release the YellowTin Parties from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the YellowTin Parties pertaining to the subject matter of this Section 23.
18. Notify Us of Infringers. If you believe any of the Services violate your copyright, notify our copyright agent in writing. The contact information for our copyright agent is at the bottom of this Section.
In order for us to take action, you must do the following in your notice:
(a) provide your physical or electronic signature;
(b) identify the copyrighted work that you believe is being infringed;
(c) identify the item that you think is infringing your work and include sufficient information about where the material is located so that we can find it;
(d) provide us with a way to contact you, such as your address, telephone number, or email;
(e) provide a statement that you believe in good faith that the item you have identified as infringing is not authorized by the copyright owner, its agent, or the law to be used in connection with the Services; and
(f) provide a statement that the information you provide in your notice is accurate, and that (under penalty of perjury) you are authorized to act on behalf of the copyright owner whose work is being infringed.
Here is the contact information for our copyright agent:
Again, we cannot take action unless you give us all the required information.
19. Severability. If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
20. Assignment. This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by User, but may be freely transferred, assigned, or delegated by YellowTin.
21. Waiver. Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
22. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
If you are a resident of the United States (including its possessions and territories), you agree that any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the YellowTin Parties or their successors or assigns shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
In the case of arbitration and where permitted by law, you are thus agreeing to GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
In the case of arbitration and where permitted by law, you and YellowTin must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR YELLOWTIN MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, YellowTin will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) YellowTin also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either you or YellowTin may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Santa Clara County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Santa Clara County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Santa Clara County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of YellowTin Parties (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor YellowTin shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration (including any claims brought by parties outside the United States), the dispute shall be exclusively brought in state or federal court located in Santa Clara County, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
23. Choice of Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of California, U.S.A, consistent with the Federal Arbitration Act (to the extent permitted by applicable law), without giving effect to any principles that provide for the application of the law of another jurisdiction. You may also be entitled to certain consumer protection rights under the laws of your local jurisdiction and/or country of residency.