NOTE: If you are authorizing UtilityAPI to collect and share data with a third party, your use of UtilityAPI is covered by the Utility Account Holder Authorization and Agreement.
Effective Date: December 8, 2018
This Data Services Agreement (this “Agreement”) is entered into by and between UtilityAPI, Inc., a Delaware corporation with offices at 1212 Broadway, 16th Floor, Oakland, CA 94612 (“UtilityAPI”) and the entity identified as the company seeking to obtain data services from UtilityAPI (“Company”). This Agreement is effective as of the day you check a box indicating your agreement with the terms of this Agreement (the “Effective Date”).
BY CHECKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AN AGENT OF COMPANY AND HAVE THE AUTHORITY TO BIND COMPANY TO THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Applicable Utility" means a Utility Account Holder’s (a) then-current provider of utility services or (b) then-current provider of utility service’s designated agent or vendor that manages the then-current provider of utility services data access program.
"Company" means the customer named above.
"Company Data" means all data and information submitted by Company and Company Users to the Services, including registered account information, and information collected automatically from Company Users’ use of the Services, such as request logs and session cookies.
"Company User" means an individual who is authorized by Company to use the Services under Company’s account.
"Consent" means (a) the explicit, written approval granted by a Utility Account Holder for its Utility Data to be accessed or shared with Company and (b) taking the form of an executed Account Holder Authorization or another format expressly authorized in writing by UtilityAPI.
"Fund" shall have the meaning set forth in the Schedule of Usage Fees, incorporated herein by reference.
"Intellectual Property Rights" means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, copyright, and any applications or right to apply for registration therefore, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, in any media, whether registered or unregistered.
"Services" means UtilityAPI’s process related to the collection and delivery of Utility Data to Company.
"Usage Fees" means the then-current schedule of fees accessible through the Schedule of Usage Fees.
"Utility Account Holder" means the customer of record on a utility account, or an agent authorized to act on behalf of the customer of record.
"Utility Data" means some or all of the information regarding a Utility Account Holder’s meter(s), tariffs, consumption and billing made available to its customers by a utility and made available to Company through the Services and subject to this Agreement.
"Access Data" means the authentication information provided by Utility Account Holder to UtilityAPI for UtilityAPI to access Utility Data.
UtilityAPI will make the Services available to Company pursuant to this Agreement, subject to reasonable maintenance and any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, or acts undertaken by third parties, including without limitation, denial of service attack.
UtilityAPI will provide Company with online training materials and commercially reasonable access to remote training during its normal business hours during the Term. Company may contact UtilityAPI for support at email@example.com. UtilityAPI reserves the right to change the contact information for support.
UtilityAPI will maintain administrative, physical, and technical safeguards to protect Company Data.
Company shall identify a primary owner for its account. Company may create subaccounts which will allow access to the Services by Company’s Authorized Users. Company is responsible for all activities that occur under Company’s accounts, including all subaccounts. Company and its Company Users are responsible for maintaining the confidentiality of its logins, access tokens, and accounts and for all activities that occur under its accounts.
Company acknowledges and agrees that UtilityAPI has no obligation to monitor or police the content of communications or data of transmitted through the Services, and that UtilityAPI is not responsible for the content of any such communications or transmissions.
Company will not:
Company agrees that UtilityAPI must have Consent before UtilityAPI will access or deliver Utility Data to Company.
Before seeking Consent, Company will provide Utility Users with notice of their privacy practices with respect to how Company will use, share, or otherwise treat Authorization Data and Utility Data. The notice of privacy practices must comply with applicable law, and Company will comply with its notice of privacy practices.
Company is solely responsible for its compliance with all applicable laws, regulations, and duties imposed on the collection, use, and treatment of Utility Data. Company understands that UtilityAPI has no obligation to inform Company of such laws, regulations, and duties.
The Schedule of Usage Fees sets forth the Usage Fees for Services.
Company agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by UtilityAPI regarding future functionality or features.
During the Term and subject to Company and Company Users’ compliance with this Agreement, Company and Company Users have the limited right to access and use the Services for Company’s business purposes.
Subject to the limited rights expressly granted hereunder, UtilityAPI reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Company hereunder other than as expressly set forth herein. Without limiting the foregoing, Company acknowledges that the structure, organization, and code used in conjunction with the Services are proprietary to UtilityAPI and/or UtilityAPI’s supplier(s), and that UtilityAPI and/or its suppliers retain exclusive ownership of the Services, documentation, and any other Intellectual Property Rights relating to the Services, including all of UtilityAPI’s modifications, enhancements, derivatives, and other software and materials relating to the Services.
Company grants UtilityAPI and its Affiliates (including its third party hosting providers acting on its behalf) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Company Data (a) as reasonably necessary to provide the Services to Company Users and Utility Account Holders in accordance with this Agreement; (b) to prevent or address service or technical problems or at Company’s request in connection with customer support matters; or (c) as compelled by law in accordance with the Confidentiality section below or as expressly permitted in in writing by Company. Subject to the limited licenses granted herein, UtilityAPI acquires no right, title or interest under this Agreement in or to Company Data. Notwithstanding anything to the contrary, UtilityAPI may aggregate, anonymize, or otherwise de-identify any information collected from Company, Company Users in the course of this Agreement and use and disclose such information without restriction, provided that such aggregated, anonymous, or otherwise de-identified data does not individually identify Company (“Anonymized Data”) prior to disclosure to a third party, except that UtilityAPI may disclose individually identifiable information to its third party contractors who are subject to confidentiality obligations, and Authorization Data, which can include Company Data, to Applicable Utilities if requested or purchased. UtilityAPI retains all intellectual property rights in Anonymized Data. This Section 5.3 shall survive termination of this Agreement.
If Company (including any Company User) sends UtilityAPI any feedback or suggestions regarding the Services, Company grants UtilityAPI and its Affiliates an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use or share any such feedback or suggestions for any purpose without any obligation or compensation to Company or any Company User.
Company grants to UtilityAPI and its Affiliates a worldwide, royalty-free license to use any of Company’s trademarks, brand names, and/or logos for the limited purpose of disclosing that UtilityAPI provides services to Company. The license set forth in this Section 5.5 shall be valid only during the period of time in which Company has an active account and shall expire at the termination of this Agreement.
If UtilityAPI receives information about an infringement or misappropriation claim related to the Services, UtilityAPI may in its discretion and at no cost to Company elect to: (a) modify the Services so that they no longer infringe or misappropriate, without breaching UtilityAPI’s warranties under Section 8.2; (b) obtain a license for Company’s continued use of the Services in accordance with this Agreement; or (c) terminate Company’s account upon 30 days’ written notice and refund Company any money remaining in Company’s Fund. Notwithstanding any contrary provision in this Agreement, if UtilityAPI provides any of the remedies set forth in this Section 5.6, Company agrees that such action satisfies UtilityAPI’s obligations under this Agreement, and Company is not eligible for further relief.
This Agreement commences on the Effective Date and continues until all Company’s account (including any subaccounts created under Company’s account) has been deactivated or otherwise terminated (the “Term”).
Company has the right to terminate its account and this Agreement at any time by deactivating or terminating its account; provided, that any money remaining in the Fund is non-refundable and non-cancelable. UtilityAPI reserves the right to terminate this Agreement at any time for convenience with thirty (30) days’ notice to Company (via email will suffice); provided, that, UtilityAPI will refund Company any unused money remaining in the Fund.
A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, UtilityAPI may terminate the Agreement immediately if Company (a) commits fraud in the collection or provision of Consent or (b) uses UtilityAPI’s email communication tool for any purpose other than the collection of Consent.
Upon any termination for cause by Company, UtilityAPI will refund Company any unused money remaining in the Fund. Upon any termination for cause by UtilityAPI, Company shall not be entitled to receive a refund of any unused money in the Fund.
Following the Term, UtilityAPI shall have no obligation to maintain or provide any Company Data.
The following provisions shall survive termination of this Agreement:
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Company’s Confidential Information includes Company Data; UtilityAPI’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.
Except as otherwise specifically provided in this Agreement, or with advanced written authorization by the Disclosing Party, each Party covenants and agrees that it will not use, or publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement or as otherwise permitted by this Agreement. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed.
As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall (a) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (b) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality and security stated herein.
In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall notify the Disclosing Party within three business days and cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
UtilityAPI warrants that it will use commercially reasonable efforts to provide Company with the Services in accordance with Section 2.1. For any breach of an above warranty, Company’s exclusive remedies are those described in Sections 6.3 Termination for Cause and Section 6.4 Refund Upon Termination for Cause.
Company warrants that (a) at all times during the term of this Agreement, Company shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Company’s use of the Services or execution of this Agreement does not and will not conflict with Company’s obligations to any third parties, including, without limitation, Company’s employees, agents, or independent contractors.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND UTILITYAPI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY ACKNOWLEDGES THAT UTILITYAPI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, UTILITYAPI DOES NOT WARRANT THE ACCURACY OF UTILITY DATA EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT OF USAGE FEES BY COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Company shall defend UtilityAPI and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging Company's use of the Services, in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (including, without limitation, Company’s failure to obtain Consent or Company’s violation of a Utility User’s privacy rights) (collectively, a “Claim Against UtilityAPI”), and shall indemnify UtilityAPI for any damages, attorney fees and costs finally awarded against UtilityAPI as a result of, or for any amounts paid by UtilityAPI under a court-approved settlement of, a Claim Against UtilityAPI. For a Claim Against UtilityAPI, Company controls the defense and settlement of the Claim Against UtilityAPI and UtilityAPI agrees to give Company all reasonable assistance, at Company’s expense. Company will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against UtilityAPI without the prior written consent and approval of UtilityAPI unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of UtilityAPI, (c) imposes no affirmative obligation on UtilityAPI, (d) imposes no restriction on UtilityAPI’s business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of UtilityAPI. You shall reimburse UtilityAPI upon demand for any losses incurred by UtilityAPI that is subject to an indemnification obligation as set forth in this Section 10.1.
UtilityAPI will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for amounts paid by Company under a court-approved settlement of, a Claim Against Company, provided Company (a) promptly give UtilityAPI written notice of the Claim Against Company, (b) give UtilityAPI sole control of the defense (including selection of attorneys) and settlement of the Claim Against Company (except that UtilityAPI may not settle any Claim Against Company unless it releases Company of all liability), and (c) give UtilityAPI necessary assistance, at UtilityAPI’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Company arises from (i) Company Data; (ii) Company’s negligence, misconduct, or breach of this Agreement; (iii) any modification, combination or development of the Services that is not performed by UtilityAPI; or (iv) the use of any version of software other than the most current release made available by UtilityAPI.
This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to (i) UtilityAPI by email to firstname.lastname@example.org or by mail to 1212 Broadway, 16th Floor, Oakland, CA 94612 or (ii) Company’s address or Company’s email provided in the registration page, and will be deemed to have been duly given (a) when received, if personally delivered; (b) the first business day after sending by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
The state and federal courts located in Alameda County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, cyber-warfare, state-sponsored attacks, and governmental action.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
There are no third-party beneficiaries to this Agreement.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
This Agreement has been prepared with the participation of each Party and will not be strictly construed against either Party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, UtilityAPI will refund to Company any money remaining in its Fund. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. In the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of UtilityAPI’s assets, the acquiring party will not acquire Authorization Data.
This Agreement is the entire agreement between Company and UtilityAPI regarding Company’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Company’s purchase order or in any other of Company’s order documentation (excluding Order as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for UtilityAPI through Company action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if Company is informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.
This Schedule of Usage Fees sets forth the Usage Fees applicable to the Services, along with details regarding payments to the Fund. Undefined capitalized terms used herein shall have the meanings set forth in the Data Services Agreement.