Updated September 2018
These Terms of Use, together with any documents expressly incorporated by reference herein (this “Agreement”), are entered into by and between you and OnSwitch, Inc., a Delaware corporation (“OnSwitch”, “we”, or “us”). This Agreement constitutes a legally binding agreement between you and OnSwitch that specifies your obligations when you access onswitchenergy.com, including all pages hosted at this domain (the “Site”), utilize the content, resources and services available at the Site, or use any of the Services (as defined in Section III, “Description of Services; Limitations on Services,” below), in each case whether as a guest or registered user. As used in this Agreement, the terms “you” and “User” shall mean any visitor to the Site or user of the Services, including any Third-Party Vendors (as defined in Section III, below) or any employee thereof, whether for their own personal use or on behalf of their employer.
Please review this Agreement carefully before accessing or using the Site or any Services. Please also review OnSwitch’s Privacy & Cookies Policy (see Section XI, “Privacy & Cookies Policy,” below), which describes how we meet our commitment to protect the privacy of our Users. Please print a copy of this Agreement for your records. To receive a non-electronic copy of this Agreement, please send a letter and self-addressed stamped envelope with sufficient postage to OnSwitch, Inc., 201 Spear Street, Suite 1100, San Francisco, CA 94105.
I. Acceptance of Terms
By accessing any portion of the Site or using any portion of the Services, you are agreeing to accept, comply with, and be bound by this Agreement. If you do not agree to all of the terms and conditions in this Agreement, then you may not access the Site, or utilize any of the resources or Services available at the Site. In addition, by utilizing any of the resources or Services available at the Site, whether by directly accessing the Site or such Services via alternative means (for example, telephone, email, mail or facsimile transmission), you are agreeing to comply with this Agreement and any applicable posted guidelines relating specifically to those resources or Services. OnSwitch reserves the right to modify this Agreement in its sole discretion, and any such guidelines, at any time, without notice to you. (See Part II below, “Modifications to This Agreement.”)
OnSwitch’s acceptance of your use of the Site and any related resource or Service is expressly conditioned upon your assent to all of the terms and conditions comprising this Agreement, to the exclusion of all other terms. If the terms and conditions comprising this Agreement are considered an offer, your acceptance is expressly limited to the terms and conditions set forth in this Agreement.
By accessing the Site or using any Services, you consent to receive this Agreement and all notices in electronic form. To withdraw this consent, you must cease using the Site and any Services, and notify OnSwitch in writing at OnSwitch, Inc., 201 Spear Street, Suite 1100, San Francisco, CA 94105.
II. Modifications to This Agreement
OnSwitch reserves the right, in its sole discretion, to change, modify, or otherwise alter this Agreement at any time, without notice. Such modifications shall become effective immediately upon the posting thereof. Your continued use of the Site or the Services following the posting of a revised Agreement means that you accept and agree to any changes in this Agreement. You are expected to review this Agreement on a regular basis to keep yourself apprised of any changes. The most current version of this Agreement can be reviewed by clicking on the “Terms of Use” link located at the bottom of each page on the Site.
III. Description of Services; Limitations on Services
From time to time OnSwitch shall provide Content (as defined below), together with certain resources and services, all as described more fully on the Site (the “Services”). The Services OnSwitch provides to you may include, but are not limited to, the following: (a) calculators, estimators, proposal solicitation platforms, graphical representations of financial and energy performance data, dashboards, self-evaluation guides (wizards), maps, summaries, digests, member forums, and web logs (blogs); (b) information concerning third-party vendors including, but not limited to, product manufacturers, installers and other contractors, lenders and financial institutions (“Third-Party Vendors”); and (c) product and service descriptions, including materials provided by Third-Party Vendors (whether such materials are delivered to you via the Site or through the Services, or delivered to you directly by a Third-Party Vendor in response to a Submitted Request, as defined in Section IV below, “Requests for Information and Services”). Your acceptance of these materials, whether displayed or transmitted on the Site, or through the Services by any means including, but not limited to, text, User comments, messages, information, data, graphics, articles, brochures, photographs, images, illustrations, software, audio clips, and video clips (collectively, “Content”), is subject to this Agreement. OnSwitch may change, suspend or discontinue the Services, including any Content, at any time, for any reason. OnSwitch may also place limitations on certain features and Services, or restrict your access to parts of or all of the Services, without notice or liability.
Unless expressly stated in writing on the Site or in Content relating to the Services, nothing contained therein shall constitute an offer or promise to deliver any products and services, whether by OnSwitch or any Third-Party Vendor. Third-Party Vendors may not offer all products and services described on the Site, or described in Content relating to such services, in all states, or in all communities within a state, and the offer of certain products or services to Users may be subject to certain qualifying criteria that are not established by OnSwitch, and over which OnSwitch has no influence, authority or control.
IV. Requests for Information and Services
You may extend an invitation to OnSwitch or any Third-Party Vendor to provide you with information about products and/or services, or to furnish you with proposals to deliver products and/or services (a “Submitted Request”). Any Submitted Request that you deliver to OnSwitch or to a Third-Party Vendor will permit either or both of them, as appropriate, to deliver information and/or proposals to you via the Site, telephone, email, mail, facsimile transmission, or any other means. Your acceptance of this Agreement constitutes an express written request that authorizes OnSwitch or any such Third-Party Vendor to contact you via telephone, even if your telephone number is listed on a state or federal Do Not Call registry maintained pursuant to state or federal law.
V. Registration Requirements
You are required to register with OnSwitch in order to access and use certain Services, and must provide a valid email address and certain Google or Microsoft account information in order to complete your registration. You are further required to provide OnSwitch with accurate, complete, and up-to-date registration information. You may not select or use the name or email address (a) of another person with the intent of impersonating that person or (b) subject to any rights belonging to a person other than yourself (without proper authorization). Failure to provide registration information that meets these standards shall constitute a breach of this Agreement, and will result in the immediate suspension and possible termination of your OnSwitch.com account.
OnSwitch reserves the right in its sole discretion to refuse to register or cancel any registration. You are solely responsible for maintaining the confidentiality of your registration information and password, and you are solely responsible for all activities that occur under your registered account. You agree to immediately notify OnSwitch of any disclosure or unauthorized use of your registered account or any other breach of security, and ensure that you log out from your account at the end of each session.
VI. User-Provided Content
All content provided by registered Users of the Site, including, but not limited to, messages, text, files, images, photos, video, audio, data or other materials posted on, transmitted through, or linked from the Site (collectively, “User-Provided Content”), is the sole responsibility of the person or Third-Party Vendor who originated such User-Provided Content. You are entirely responsible for each individual item of User-Provided Content that you post, email, or otherwise make available via the Site or through the Services. OnSwitch does not control, and is not responsible for, User-Provided Content made available via the Site or through the Services, and you acknowledge that by using the Site and/or the Services, you may be exposed to User-Provided Content that is subjective, inaccurate, incomplete, or misleading. Furthermore, User-Provided Content may contain links to other websites that are completely independent of OnSwitch. OnSwitch makes no representation or warranty as to the accuracy, completeness or authenticity of the information hosted or presented by any such site. If you browse any other websites linked as, or as part of, User-Provided Content, that are not hosted by OnSwitch, you do so solely at your own risk. Information (including Personal Information, as defined in Section XI, “Privacy & Cookies Policy,” below) that is collected by third-party websites, whether or not such websites are linked as, or as part of, User-Provided Content, is governed by and subject to the privacy practices of those third-party websites, and is not governed by or subject to OnSwitch’s Privacy & Cookies Policy. You are encouraged to learn about the privacy policies and practices that pertain to, or are published by, those third-party websites.
You agree that you must evaluate, and bear all risks associated with, User-Provided Content, that you may not rely on said User-Provided Content, and that under no circumstances will OnSwitch be liable in any way for any User-Provided Content, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, any User-Provided Content posted, emailed, or otherwise made available via the Site or through the Services. You acknowledge that OnSwitch does not pre-screen User-Provided Content for accuracy or completeness, and does not endorse any User-Provided Content, either in whole or in part. OnSwitch reserves the right, in its sole discretion, but is not obligated, to delete, move, or refuse to accept, any User-Provided Content that violates the letter or the spirit of this Agreement, or for any other reason.
Many opinions regarding distributed energy products and services, and financial products and services, may be expressed on the Site or through the Services, whether by OnSwitch or its registered Users. The opinions and statements of registered Users constitute User-Provided Content. OnSwitch can make no claim as to the truthfulness, accuracy, or completeness of opinions and other statements made by registered Users, and under no circumstances will OnSwitch be liable in any way for any User-Provided Content, including the opinions and statements of registered Users, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon, User-Provided Content.
VII. Rights to User-Provided Content
When you provide OnSwitch with User-Provided Content via the Site or the Services, you grant to OnSwitch and its affiliates, representatives, and assigns a non-exclusive, fully-paid, world-wide, transferable, royalty-free license, with the right to grant sublicenses through multiple tiers of sublicensees, to display, publicly perform, distribute, store, transcode, syndicate (including, without limitation, syndication through third-party websites), broadcast, transmit, reproduce, edit, modify, create derivative works, and otherwise use and reuse your User-Provided Content (or any portions or derivative works thereof) in any manner, in any medium, and for any purpose. You acknowledge and agree that you have no expectation of compensation or confidentiality of any nature with respect to any of your User-Provided Content. User-Provided Content is available to all Users of the Site and the Services. OnSwitch reserves the right, in its sole and absolute discretion, to reject, remove or modify any User-Provided Content. By providing OnSwitch with User-Provided Content via the Site or the Services you hereby represent and warrant that:
(i) you own all rights in your User-Provided Content or, alternatively, you have acquired all necessary rights in your User-Provided Content to enable you to grant to OnSwitch the rights in your User-Provided Content described herein;
(ii) you have paid and will continue to pay in full all license fees, clearance fees, and any other financial obligations, of any kind, arising from any use or commercial exploitation of your User-Provided Content (if applicable);
(iii) you are the individual pictured or heard in your User-Provided Content, or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the applicable age of majority) who appears and/or is heard in your User-Provided Content to grant the rights to OnSwitch described herein;
(iv) the renewable or alternative energy system, if any, featured or pictured in your User-Provided Content has been installed at your home or place of business, or on one of your properties, or if you are a Third-Party Vendor you have secured the permission of the owner of the system that is featured or pictured in your User-Provided Content, and you are in a position to provide User-Provided Content relating to such system;
(v) you will make all relevant permissions relating to the User-Provided Content available to OnSwitch upon request;
(vi) your User-Provided Content does not infringe the intellectual property rights, privacy rights, publicity rights, or any other legal or moral rights of any third-party; and
(vii) you agree to keep all records necessary to establish that your User-Provided Content does not violate any of the foregoing representations and warranties, and to make such records available to OnSwitch upon OnSwitch’s request.
VIII. Digital Millennium Copyright Act Compliance; Designated Agent
OnSwitch respects the intellectual property rights of others. Upon proper notice, OnSwitch will remove User-Provided Content that violates copyright law, and will terminate the accounts of infringing Users. If you believe that any Content hosted by OnSwitch infringes your copyright, provide us with the information requested here and we will remove your copyrighted works from the Site and/or the Services.
IX. Third-Party Content and Websites; Third-Party Transactions and Services
The Site may contain Content, features and functionalities that may link you or provide you with access to information and content provided by third parties, including Third-Party Vendors, that is completely independent of OnSwitch, including web sites, directories, servers, networks, systems, databases, applications, software, programs, products, or services. ONSWITCH MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, COMPLETENESS, OR AUTHENTICITY OF THE INFORMATION OBTAINED FROM OR CONTAINED IN ANY SUCH WEB SITE, DIRECTORY, SERVER, NETWORK, SYSTEM, DATABASE, APPLICATION, SOFTWARE, PROGRAM, PRODUCT, OR SERVICE, AND UNDER NO CIRCUMSTANCE WILL ONSWITCH BE LIABLE IN ANY WAY FOR CONTENT PROVIDED BY THIRD PARTIES, INCLUDING THIRD-PARTY VENDORS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF, OR RELIANCE UPON, SUCH CONTENT.
OnSwitch is an online resource for businesses and building owners who are evaluating the costs and the benefits of installing distributed energy systems at their facilities. Among other things, OnSwitch provides those businesses and building owners with opportunities to evaluate distributed energy systems and financing options provided by Third-Party Vendors including, but not limited to, distributed energy system providers (engineering, procurement, construction and other providers) and financiers (banks and other lending institutions) in order to receive additional information from them, including project proposals, estimates for installation and other professional services, and project financing. (See Section IV, “Requests for Information and Services,” above.) OnSwitch may, in turn, receive a fee or other compensation from these distributed energy system providers and financiers for providing them with the opportunity to respond to Submitted Requests (“Opportunities”). OnSwitch does not charge businesses or building owners a fee to use the Site or any of the Services. OnSwitch is not a distributed energy system manufacturer, a distributed energy system installer, a contractor, a distributor, or broker of energy-related products. UNDER NO CIRCUMSTANCE WILL ONSWITCH BE LIABLE IN ANY WAY FOR SERVICES OR PRODUCTS PROVIDED BY THIRD PARTIES, INCLUDING THIRD-PARTY VENDORS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF, OR RELIANCE UPON, SUCH PRODUCTS OR SERVICES.
OnSwitch is not authorized, and hereby specifically declines any such authority if offered, to act as an agent on behalf of any distributed energy system manufacturer, or any distributed energy system installer or other contractor, or financier, except for the purposes of generating Opportunities in the manner described in the previous paragraph.
Users may authorize OnSwitch to provide them with consulting services, or to act as their agent on a fee-for-service basis. Users must provide any such authority expressly in writing, and in the absence of such a writing a User shall neither assume nor infer that OnSwitch has agreed to provide consulting services, or to act as an agent on their behalf.
From time to time OnSwitch may enter into partnerships with for-profit companies and firms, non-profit organizations, municipalities and other governmental entities, and employers (collectively “Channel Partners”), to offer their customers, clients, members, constituents, and employees the Services provided at the Site.
Your dealings with organizations, firms, and/or individuals found on or through the Site or the Services, or with any Channel Partner with whom you are affiliated, including any payment(s) for the delivery of goods and/or services, and any other terms, conditions, warranties or representations associated with such dealings, whether or not you have authorized OnSwitch in writing to serve as your agent on a fee-for-service basis, are solely between you and such organizations, firms, Channel Partners, and/or individuals. You should make whatever investigation you feel is necessary or appropriate prior to engaging in any transaction, financial or otherwise, with any of these third parties, including Channel Partners and Third-Party Vendors, whether or not you engage in any transaction, financial or otherwise, with any of these third parties, including upon the suggestion of OnSwitch after authorizing OnSwitch in writing to provide you with consulting services or to act as your agent on your behalf on a fee for service basis.
You agree that OnSwitch shall not be responsible or liable for any loss or damage of any kind that is incurred as the result of any such dealings with organizations, firms, Third-Party Vendors, and/or individuals found on or through the Site or the Services, or with any Channel Partner. If there is a dispute between you and any other User(s) of the Site or the Services, or any third party, including any Channel Partner with whom you are affiliated, or Third-Party Vendor, you understand and agree that OnSwitch is under no obligation to resolve the dispute, or assist with its resolution. In the event that you have a dispute with one or more other Users of the Site or the Services, or any third party, including any Channel Partner with whom you are affiliated, or Third-Party Vendor, you hereby release OnSwitch, its officers, employees, agents and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you hereby waive California Civil Code 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 know by him or her must have materially affected his or her settlement with the debtor.” If you are a resident of a state other than California with a law similar to the law just cited, you hereby waive that similar law.
X. Conduct
You agree to use the Site and the Services only as permitted by this Agreement. Your use of the Site and the Services must comply with all applicable laws and regulations. You are not permitted to, and hereby agree not to, use the Site or any of the Services for any purpose that is unlawful, that is otherwise prohibited by this Agreement, or that is not reasonably intended by OnSwitch. In furtherance of, and not in limitation of, the foregoing, you are not permitted to do any of the following:
(i) use the Site or any of the Services in any manner that could interfere with another party’s use and enjoyment of the Site or any of the Services;
(ii) post, email, or otherwise make available Content (a) that is abusive, or intended to harass or threaten, intimidate or impersonate other Users, (b) that is libelous or defamatory, offensive, profane, or entirely unrelated to the purpose of the Site or the Services, (c) that is intended to obtain password, account, or Personal Information (as defined in Section XI, “Privacy & Cookies Policy,” below) from any other User, (d) that violates the legal rights (such as the right to privacy) of others, or (e) that infringes the copyright, trademark, patent, trade secret, or other proprietary right of any User or other party;
(iii) express or imply that any statements you make are endorsed by OnSwitch without the prior, written consent of OnSwitch;
(iv) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Site or the Services;
(v) collect registration information and/or email addresses of other users of the Site or the Services by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Site;
(vi) interfere with or disrupt the Site or the servers or networks connected to the Site;
(vii) email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(viii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Site (either directly or indirectly through use of third-party software);
(ix) “frame” or “mirror” any part of the Site or the Services;
(x) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Site or any software used on or for the Site, or cause others to do so;
(xi) post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Site other than solely in connection with your use of the Site in accordance with this Agreement;
(xii) use any automated means to access the Site or any of the Services for any purpose (other than accessing RSS feeds and other features provided by OnSwitch allowing automated access to the Site or its Services) without the prior, written consent of OnSwitch;
(xiii) using any information obtained from the Site or the Services in order to contact, advertise to, solicit, or sell to any User without the express written consent of such User having exclusively first been obtained by means of a Submitted Request (see Section IV, “Requests for Information and Services,” above);
(xiv) use the Site or any service on behalf of, at the request of, or pursuant to the instruction of, any third party, or
(xv) sell or transfer your account to another person.
You are solely responsible for your interactions with other Users of the Site and the Services, Channel Partners, and Third-Party Vendors. OnSwitch reserves the right, but has no obligation, to monitor disputes between you and other Users that are the subject of Content posted by you or such other User at the Site, or materials provided or disseminated by either of you as part of the Services.
You agree that OnSwitch may access, preserve, and disclose your account information if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary, such as to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that your use violates the rights of third parties; (d) respond to your requests for customer service or allow you to use the Site or Services in the future; or (e) protect the rights, property or personal safety of OnSwitch or any other person.
OnSwitch reserves the right, to be exercised in its sole discretion, to remove any Content, or deactivate any User account, at any time, for any reason, including but not limited to the receipt of reports or claims from third parties, or legal or regulatory authorities, relating to such Content or User, or for no reason at all. To report violations of this Agreement, please email admin@onswitchenergy.com.
XI. Privacy & Cookies Policy
See OnSwitch’s Privacy & Cookies Policy to learn about the types of information we may collect from you (including information that can be associated with a specific person and can be used to uniquely identify or contact a person, “Personal Information”), how we may use that information, how we store it and the steps we take to protect it, the circumstances under which we may disclose or transfer it, and the choices you have regarding submitting and maintaining the information you provide to us. We urge you to read the Privacy & Cookies Policy and to become familiar with our privacy practices. The most current version of the Privacy & Cookies Policy can be reviewed by clicking on the “Privacy & Cookies Policy” link located at the bottom of each page on the Site.
XII. Copyright, Trademark and Service Mark Notices
The Site and the Services contain copyrighted material, trademarks and other proprietary information of OnSwitch and its Third-Party Vendors, including, but not limited to, text, software, photos, video, graphics, music and sound. The entire contents of the Site and the Services are copyrighted as a collective work under the United States copyright laws. OnSwitch owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. “OnSwitch” and all related names, logos, product and service names, designs, and slogans are trademarks of OnSwitch, Inc. Other product and company names, logos, product and service names, designs, and slogans mentioned at the Site or as part of the Services, including the names of other professionals and companies, may be the trademarks of their respective owners.
Nothing on the Site or included in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any service mark or trademark (individually and collectively, “Mark” or “Marks”) displayed on the Site or as part of the Services, without the prior written permission of OnSwitch or the applicable Mark holder specific for each such use. Except as otherwise expressly permitted under copyright law, you agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or the Services, without first obtaining the prior written consent of OnSwitch or, if such property is not owned by OnSwitch, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
Elements of the Site and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors. In addition, certain resources of the Site and the Services may also be subject to patents that are currently pending, or that have previously been granted.
You further agree not to use, or permit the use of, any Marks to (a) disparage OnSwitch, the other professionals, the applicable third parties, or the products or services of such parties, (b) damage any goodwill in the Marks, or (c) as part of a link to or from any site (without the prior, written consent of OnSwitch).
XIII. Disclaimers and Liability
OnSwitch endeavors to provide accurate and reliable information on the Site and the Services; however, errors do sometimes occur. In addition, OnSwitch may make changes and improvements to the information provided herein at any time. Under no circumstances will OnSwitch be liable for any loss or damage caused by your reliance on information obtained through the Site or the Services. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site or the Services.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ONSWITCH PROVIDES THE SITE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DISCLAIMS ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATED TO THE SITE OR THE SERVICES (INCLUDING THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE CONTENT CONTAINED THEREIN), INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ONSWITCH DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, SECURE OR THAT ANY DEFECTS OR ERRORS ON THE SITE OR THE SERVICES WILL BE CORRECTED.
YOUR USE OF THE SITE AND/OR THE SERVICES IS AT YOUR OWN RISK. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OR CORRUPTION OF DATA THAT RESULTS OR MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
From time to time, OnSwitch may make third-party opinions, advice, statements, offers, or other third-party information or content available on the Site or the Services. All third-party content is the responsibility of the respective authors thereof and should not necessarily be relied upon. Such third-party authors are solely responsible for such content. ONSWITCH DOES NOT: (A) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD-PARTY CONTENT ON THE SITE OR THE SERVICES, OR (B) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE BY ANY PARTY THAT APPEARS ON THE SITE OR THE SERVICES. UNDER NO CIRCUMSTANCES WILL ONSWITCH OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE OR THE SERVICES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ONSWITCH OR ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, IN NO EVENT WILL ONSWITCH OR ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH:
(i) the use or the inability to use the Site and/or the Services, or any delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to OnSwitch’s records, programs or services;
(ii) any information, software, products and services obtained through the Site or the Services, including but not limited to reliance by you on any information obtained at the Site or the Services, or that result from mistakes, omissions, interruptions, deletion of files or emails, errors, or defects;
(iii) viruses, worms, trojan horses, trap doors, or other code or computer programming routines that contain contaminating or destructive properties, or that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or personal information; or that
(iv) otherwise arise out of the use of the Site or the Services, whether resulting in whole or in part from breach of contract, tortious behavior or negligence.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ONSWITCH’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ONSWITCH. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SITE OR THE SERVICES OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
XIV. Indemnity
As a condition for using the Site or the Services, you agree to indemnify and hold harmless OnSwitch, its Third-Party Vendors, and each of its and their officers, directors, employees and agents, from and against any and all claims, losses, liabilities, expenses (including attorneys’ fees) and damages arising out of: (a) your breach of or failure to comply with this Agreement, (b) your access to or use of the Site or the Services, or (c) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. OnSwitch reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with OnSwitch in connection therewith.
XV. Errors and Delays
OnSwitch is not responsible for any errors or delays in responding to a request or referral form caused by, including but not limited to, an incorrect email address provided by you or other technical problems beyond our reasonable control, or for any errors or delays in responding to a request or referral form submitted to any third-party, including Third-Party Vendors.
XVI. Dispute Resolution
Any claim or controversy arising out of or relating to the use of the Site or the Services, to any goods or services provided by OnSwitch, or to any acts or omissions for which you may contend OnSwitch is liable, including but not limited to any claim or controversy as to arbitrability (“Dispute”), shall be finally, and exclusively, settled by binding arbitration. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website. The determination of whether a dispute or claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court of proper jurisdiction rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules.
The arbitrators shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of an arbitration under this Agreement with an arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND ONSWITCH WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT BY A JUDGE OR JURY.
You are entitled to a fair hearing, and the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable as any court order and are subject to very limited review by a court. By using the Site or the Services, you consent to these restrictions.
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and OnSwitch, you agree that jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in and for San Francisco, California. If either party employs attorneys to enforce any right in connection with any Dispute or lawsuit, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
You agree the above provisions concerning arbitration may not apply, at OnSwitch’s sole discretion, to (a) any disputed seeking to enforce or protect, or concerning the validity of, any of OnSwitch’s intellectual property rights, (b) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use of OnSwitch’s proprietary information, and (c) any claim by OnSwitch for injunctive relief.
XVII. Other Terms
You promise that you have the right, authority, and capacity to enter into this Agreement on your own behalf and on behalf on any entity for whom you are acting and to abide by all of the terms and conditions contained herein. If any aspect of your access or use of the Site or the Services violates provisions of the law to which you are subject, you will cease using the Site and Services and will close your account with OnSwitch.
This Agreement (which hereby incorporates by reference any other provisions applicable to use of the Site and the Services, including, but not limited to, any supplemental terms governing the use of certain specific material contained in the Site and the Services and any operating rules for the Site or the Services established by OnSwitch), constitutes the entire agreement between you and OnSwitch and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or electronic, between you and OnSwitch with respect to the Site and the Services, and the information, software, products and services associated with either of them.
This Agreement and all aspects of the Site and the Services shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law’s provisions) regardless of your location, except that any provisions governing arbitration of this Agreement shall be governed by the Federal Arbitration Act.
For the purpose of any judicial proceeding to enforce an arbitration award or incidental to such arbitration or to compel arbitration, or if for any reason a claim proceeds in court rather than in arbitration, you hereby submit to the non-exclusive jurisdiction of the state and Federal courts sitting in San Francisco County, California, and agree that service of process in such arbitration or court proceedings shall be satisfactorily made upon a party if sent by certified, express or registered mail addressed to it at the address set forth in the books and records of OnSwitch, or if no such address has been provided, by email to the email address provided by the relevant party to OnSwitch in connection with its use of the Site or the Services. With respect to any disputes not subject to arbitration by applicable law, you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in San Francisco 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 located in San Francisco County, California. To the extent non-U.S. laws mandate a different approach with respect to governing law, venue, statute of limitation, and dispute resolution method with respect to certain non-U.S. persons, each such required standard shall be applied, but all other provisions under this section shall remain in full force.
The failure of OnSwitch to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment of OnSwitch’s right to assert or rely upon any such provision or right in that or any other instance. In fact, OnSwitch may choose to enforce certain portions of this Agreement more strictly or to interpret certain provisions more strictly against certain users than it does against users in general, and such disparate treatment shall not be grounds for failing to comply with all this Agreement as so interpreted.
You and OnSwitch agree that if any portion of this Agreement is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which shall continue to be in full force and effect.
The section headings used herein are for convenience only and shall not be given any legal import. Upon OnSwitch’s request, you will furnish OnSwitch any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against OnSwitch by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
You may not assign this Agreement without the OnSwitch’s prior written consent. Any attempt to assign this Agreement without the OnSwitch’s consent shall be void.
No agency, partnership, joint venture or employment is created as a result of this Agreement and you may not make any representations or bind OnSwitch in any manner.
You acknowledge that the rights granted and obligations made hereunder to OnSwitch are of a unique and irreplaceable nature, the loss of which shall irreparably harm OnSwitch and which cannot be replaced by monetary damages alone, so that OnSwitch shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
OnSwitch operates and controls the Site and the Services from its offices in the United States. OnSwitch makes no representation that the Site or the Services are appropriate or available in other locations. Use of the Site and the Services is not directed to, or intended to be used by, any person in any jurisdiction where (by reason of that person’s nationality, residence or otherwise) the publication or availability of the Site or the Services is prohibited. Persons subject to such prohibitions must not access the Site or the Services and shall destroy any information related to, or obtained on, the Site in such persons’ possession.
Under California Civil Code Section 1789.3, California users of the Site or the Services receive the following specific consumer rights notice: “The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.”
A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
All rights not expressly granted herein are reserved.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
OnSwitch, Inc.
201 Spear Street,
Suite 1100
San Francisco, CA 94105
(415) 237-1401