Utility Account Holder Authorization and Agreement
Effective Date: December 8, 2018
IMPORTANT NOTICE: THIS UTILITY ACCOUNT HOLDER AUTHORIZATION AND AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTIONS BELOW. PLEASE READ CAREFULLY.
We help you share your utility account, billing, and usage data with third parties.
UtilityAPI provides a platform that allows you to share your utility account, billing, and usage information (“Utility Data”) with third parties that you authorize (“Authorized Persons”). This Utility Account Holder Authorization and Agreement (this “Agreement”) sets forth the terms and conditions under which we provide this service (the “Service”) through our website at utilityapi.com (the “Site”) or embedded in software used by third parties (the “Software”).
If you don’t agree to this Agreement, do not sign it and do not use the Service.
By clicking to accept or agree to this Agreement where that option is made available or by signing this Agreement (including via digital signature) and submitting your information to us, you certify that you have read and agree to be bound by the terms and conditions of this Agreement and by our Privacy Policy. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT AND OUR PRIVACY POLICY, PLEASE DO NOT CLICK TO ACCEPT OR AGREE TO THESE TERMS OR ACCESS OR USE THE PLATFORM.
To use the Service, you must be able to form a binding contract with us.
To use the Service, you must be legally authorized to accept and be bound by the terms of this Agreement and be of a legal age to form a binding contract with UtilityAPI.
If you use the Service on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Agreement will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
1. Authorization
The Service only works if we have your permission to access your Utility Data, and you can revoke your permission anytime.
By clicking to accept or agree to this Agreement or by signing this Agreement (including via digital signature), and providing your login and/or registration information for your online account with your utility service provider (the “Account”), you hereby request and authorize UtilityAPI to: (i) access your Account as is reasonably necessary and perform any actions necessary in order to collect your Utility Data over the time period for which you request us to do so through the Site or Software; (ii) store your Utility Data and provide it to the Authorized Persons (including in a downloadable format); and (iii) receive your information, such as an email, from the Authorized Persons, so that we may send you a receipt confirmation of the actions taken on your behalf.
To the extent required by your utility or jurisdiction, you hereby appoint UtilityAPI as your agent with authority to access your Account and collect and store Utility Data on your behalf solely for purposes of providing Utility Data to the Authorized Persons, as described in UtilityAPI’s Authorization Form.
You may revoke the foregoing authorization and appointment at any time via the link on the receipt email sent to your provided email or by sending an email to support@utilityapi.com with your name, email address and receipt confirmation number.
In the event of a merger, sale of capital stock or assets, reorganization, consolidation or similar transaction (a “Business Transfer”) involving UtilityAPI, this authorization will automatically be revoked.
2. Account
You must be the owner of the account or be authorized to appoint UtilityAPI as the Account owner’s limited agent.
You represent and warrant to UtilityAPI that you are the owner of the Account or are legally authorized to act on behalf of the Account owner and that you have all necessary rights to provide to us the right to access your Account as contemplated hereunder, including the ability to appoint UtilityAPI as the Account owner’s agent with authority in Section 1.
3. Utility Data
We may not always be able to provide the Utility Data to Authorized Persons.
You acknowledge that no software is error-free and our Service may be subject to interruption or malfunction for a variety of reasons, including because of changes made by the utility to its interface from which the Service accesses your Utility Data. As such, we do not guarantee that the Service will be able to successfully provide the Utility Data to the Authorized Persons, and you acknowledge that you may ultimately need to obtain and provide the Utility Data to the Authorized Persons through other means. To the maximum extent permitted by law, we will have no liability to you for any failure to accurately and completely provide your Utility Data to your Authorized Persons. You acknowledge that the Service is provided to you for convenience purposes at no charge based in part on our reliance upon your assent to this Agreement.
UtilityAPI does not review the Utility Data for accuracy, legality, or non-infringement, and is not responsible for the Utility Data.
4. Authorized Persons
We are not responsible for your interactions with Authorized Persons.
You acknowledge that (i) UtilityAPI is an entirely separate business entity than each of the Authorized Persons and (ii) UtilityAPI does not control the acts or omissions of any of the Authorized Persons in any way and will have no liability in relation thereto or in relation to any products or services provided by or on behalf of the Authorized Persons to you. You are solely responsible for all of your dealings with the Authorized Persons.
5. Privacy
Read our Privacy Policy to learn how we use your information.
Please review UtilityAPI’s Utility Account Holder Privacy Policy (the “Privacy Policy”), which explains how we use and disclose information that you submit or that we otherwise obtain, including Utility Data.
6. License
You’re giving us a license to use your Utility Data to provide and improve the Service. You can revoke this license at any time.
You hereby grant UtilityAPI a perpetual, non-exclusive, assignable, fully paid up, royalty-free, sublicensable and worldwide license to use the Utility Data, including to provide the Service and in accordance with UtilityAPI’s Utility Account Holder Privacy Policy.
7. Ownership
Your Utility Data belongs to you. The Site and the Service belong to us.
Except for the Utility Data, for which you have granted UtilityAPI a license, UtilityAPI shall retain all right, title and interest in and to the Site and Service, including without limitation all intellectual property rights. Subject to this Agreement, UtilityAPI grants you a limited license to use the Site and Service. Any future release, update or other addition to the Site or Service shall be subject to this Agreement. UtilityAPI, its suppliers and service providers reserve all rights not granted in this Agreement.
8. Feedback
You don’t have to, but if you choose to give us feedback, you agree that we are free to use it without any restriction or compensation to you.
If you choose to submit comments, ideas or feedback (“Feedback”), you agree that we are not obligated to keep them confidential and that we are free to use them without any restriction or compensation to you. By accepting your submission, UtilityAPI does not waive any rights to use similar or related Feedback previously known to UtilityAPI, or developed by its employees, or obtained from sources other than you.
9. Restrictions on Access and Usage
You have to abide by our rules to use the Service.
When accessing and using the Service, you specifically agree to:
- Only use (or attempt to use) the Service through interfaces provided by UtilityAPI; and
- Comply with the instructions in any robots.txt file present on the Service.
When accessing and using the Service, you specifically agree not to:
- Engage in activity that is in violation of this Agreement or is unlawful, harmful, tortious, invasive of another’s privacy, or otherwise objectionable;
- Engage in conduct that is fraudulent or otherwise harmful to UtilityAPI, our partners, or any other user;
- Access the Service if we have prohibited you from such access;
- Probe, scan, or test the vulnerability of the Site or breach any security or authentication measures;
- Use a third party’s credentials, conceal your true IP address, or otherwise impersonate or misrepresent your identity, your affiliation with any person or entity;
- Use any meta tags or other hidden text or metadata utilizing a UtilityAPI trademark, logo, URL, or product name without UtilityAPI’s express written consent; or
- Infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party.
And, you will not attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited in this list of bulleted items, or attempt, permit, encourage, assist, or allow any other violation of this Agreement.
10. Third Party Links
We’re not responsible for any third party links on our Site.
The Site may contain links to third party services such as third party websites, applications, or ads (“Third Party Links”). We do not control and are not responsible for Third Party Links. We provide these Third Party Links only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third Party Links is at your own risk.
11. Indemnification
You agree to indemnify and hold UtilityAPI and its affiliated companies, suppliers, licensors and partners, and each of their officers, directors and employees, (collectively, “UtilityAPI Parties”) harmless from any claims, demands, losses, damages, losses, expenses, or liabilities, including attorney’s fees, arising out of or in connection with any claims concerning (a) your use or misuse of the Service or Site, (b) violation of the rights of any other person or entity, (c) any breach of this Agreement, or (d) your violation of any applicable laws, rules or regulations.
We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. This provision does not require you to indemnify any of the UtilityAPI Parties to the extent the claim arises out of such party’s unconscionable commercial practice, negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your authorization, this Agreement, or your use of the Service.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold UtilityAPI and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of this Agreement.
If you are a California resident, you waive California Civil Code Section 1542, which provides: “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.”
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
12. Disclaimers
THIS DISCLAIMERS SECTION IS AN ESSENTIAL PART OF THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED IN THESE TERMS, YOUR USE OF THE SERVICE AND SITE AND IS AT YOUR SOLE RISK.
THE SERVICE AND SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UTILITYAPI EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OF TRADE OR PERFORMANCE. UTILITYAPI AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE SERVICE WILL BE CORRECT, UNINTERRUPTED, TIMELY OR ERROR-FREE. UTILITYAPI AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UTILITYAPI SHALL NOT BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT, THE SITE OR SERVICE, FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING ANY FAILURE TO ACHIEVE COST SAVINGS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE SITE OR SERVICE OR ANY OTHER INTERACTIONS WITH UTILITYAPI, EVEN IF UTILITYAPI OR A UTILITYAPI AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL UTILITYAPI’S AGGREGATE LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SITE OR SERVICE EXCEED FIFTY U.S. DOLLARS ($50).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, UTILITYAPI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
14. ARBITRATION
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH UTILITYAPI AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and UtilityAPI agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. In the event of a dispute, UtilityAPI or you must provide the other notice of the dispute. This notice must provide a brief, written description of the dispute, the relief requested and the contact information of the party giving it. You must send any such notice to UtilityAPI by email to support@utilityapi.com and by U.S. Mail to UtilityAPI, Inc. Attn: Operations Officer, 1212 Broadway, 16th Floor, Oakland, CA 94612. To the extent that UtilityAPI has your contact information, it will send any such notice to you by U.S. Mail and your email address.
The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Notwithstanding the foregoing, disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Website shall not be subject to arbitration, and the notice and good faith negotiation required by this paragraph shall not apply to these types of disputes.
Binding Arbitration. Except as provided herein, if we cannot resolve a dispute informally, any dispute will be resolved only by binding arbitration to be held in the U.S. state in which you reside. For residents outside the United States, arbitration shall be initiated in Oakland, California. UtilityAPI and you further agree to submit to the personal jurisdiction of any state or federal court in Oakland, California to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the Operations Officer, UtilityAPI, Inc., 1212 Broadway, 16th Floor, Oakland, CA 94612. The arbitration will be conducted by a single arbitrator. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at https://www.jamsadr.com/ or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If there is a conflict between the JAMS Rules (or the rules of the alternative arbitral forum selected by the parties) and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to your state’s law.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, UtilityAPI will pay the additional cost. UtilityAPI shall also bear the cost of any arbitration fees, unless the arbitrator finds your claims, defenses, or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorney’s fees and expert witness costs unless UtilityAPI is specifically required to pay such fees under applicable law.
If UtilityAPI’s or your claim is solely for monetary relief of $10,000 or less and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted, through a telephonic hearing, or by an in-person hearing under the JAMS Rules, solely based on documents submitted to the arbitrator.
You or UtilityAPI may choose to pursue a claim in small claims court where jurisdiction and venue over you and UtilityAPI otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide UtilityAPI with advance notice by email to support@utilityapi.com and by U.S. Mail to UtilityAPI, Inc., 1212 Broadway, 16th Floor, Oakland, CA 94612.
Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and UtilityAPI. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties – see Section 16 below for more information. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND UTILITYAPI HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and UtilityAPI are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: UtilityAPI, Inc. Attn: Arbitration Opt-Out, 1212 Broadway, 16th Floor, Oakland, CA 94612, or by email to support@utilityapi.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used on your authorization form, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
Parents, Subsidiaries, Affiliates. This Arbitration Section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of UtilityAPI, or any employee, officer, director, or investor of UtilityAPI, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to this Agreement (such as with respect to their validity or enforceability), the Service, any person’s access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service.
Changes to This Section: UtilityAPI will provide thirty (30) days’ notice of any changes to this section by posting on the UtilityAPI website or app, sending you a message, or otherwise notifying you when you are logged into your Account. Amendments will become effective thirty (30) days after they are posted on the UtilityAPI website or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Website.
Severability. Subject to Section 16, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with UtilityAPI.
15. WAIVER OF CLASS OR CONSOLIDATED ACTIONS
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
UtilityAPI and you agree to resolve any dispute will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. UtilityAPI and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other UtilityAPI customers, and cannot be used to decide other disputes with other customers.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Oakland, California.
If any clause within this Class Action Waiver Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
This Class Action Waiver Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of UtilityAPI, or any employee, officer, director, or investor of UtilityAPI, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
This Class Action Waiver section shall survive any termination of your account or the Service.
16. Miscellaneous
Severability. Subject to Sections 14 and 15, above, if any provision of this Agreement is adjudicated to be invalid, illegal or unenforceable, such provision shall be deemed severed from this Agreement and the remainder of the Agreement shall remain unaffected.
Waiver. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.
Governing Law. This Agreement and any dispute of any sort that might arise between you and the UtilityAPI will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute between you and UtilityAPI that arises out of or is related to the Service and is not subject to arbitration shall be decided exclusively by a court of competent jurisdiction located in Alameda County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Alameda County, California.
Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between us concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
Section Titles. The section headings used herein are for convenience only and shall not be given any legal import.
17. Contacting Us
If you have any questions about this Agreement please contact us at support@utilityapi.com or (510) 907-0009 or UtilityAPI, Attn: Authorization Agreement, 1212 Broadway, 16th Floor, Oakland, CA 94612.