ACCEPTANCE OF TERMS
DESCRIPTION OF SERVICE
ShopMyPower.com currently provides access to informational and interactive resources relating to electricity service, which may include news, articles, statistics, shopping services, and personalized content (collectively or individually, the "Service"). Unless explicitly stated otherwise, these TOS will apply to any new features of or enhancements to the current Service. The Service is provided "AS-IS" for CUSTOMER use.
When CUSTOMER registers with ShopMyPower.com ("SMP"), CUSTOMER agrees to provide true, accurate, current and complete information about himself. We have the right to suspend or terminate the CUSTOMER's account and refuse any and all current or future use of the Service (or any portion thereof) if CUSTOMER provides any untrue, inaccurate, not current or incomplete information, or if SMP reasonably suspects that CUSTOMER has provided untrue, inaccurate, not current or incomplete information.
All information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. CUSTOMER is responsible for all Content that it uploads, posts emails, transmits or otherwise makes available via the Service. SMP does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. SMP shall not be in any way responsible for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
CUSTOMER understands and agrees that the Service may include advertisements and that these advertisements may be necessary for CUSTOMER to provide the Service. CUSTOMER also understands and agrees that the Service may include certain communications from SMP, such as service announcements, administrative messages and the SMP Newsletter, and that these communications are considered part of SMP membership and neither CUSTOMER or prospective CUSTOMER Participants will be able to opt out of receiving them.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new SMP properties, shall be subject to this Agreement. CUSTOMER understands and agrees that the Service is provided "AS-IS" and that SMP assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. CUSTOMER is responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). CUSTOMER is responsible for those fees, including those fees associated with the display or delivery of CUSTOMER advertisements, if any. In addition, CUSTOMER must provide and are responsible for all equipment necessary to access the Service.
CUSTOMER shall be prohibited from using the Service to :
upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
to access the Service using any robot, spider, scraper or other automated means;
upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
upload, post, email, transmit or otherwise make available 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;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law;
SMP may or may not pre-screen Content. However, SMP and its designees shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, SMP and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. CUSTOMER must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
Disclosure of Account Information
SMP may access, preserve and disclose CUSTOMER's account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of SMP, its users and the public.
The technical processing and transmission of the Service, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
The Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by SMP and/or content providers who provide content to the Service. CUSTOMER may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
SMP does not claim ownership of Content that CUSTOMER submits or makes available for inclusion on the Service. However, with respect to Content that CUSTOMER submits or makes available for inclusion on publicly accessible areas of the Service, CUSTOMER grants SMP the following worldwide, royalty-free and non-exclusive license(s), as applicable:
With respect to photos, graphics, audio or video CUSTOMER submits or makes available for inclusion on publicly accessible areas of the Service, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time CUSTOMER removes or SMP removes such Content from the Service.
"Publicly accessible" areas of the Service are those areas of the SMP network of properties that are intended by SMP to be available to the general public.
NO RESALE OF SERVICES
CUSTOMER shall not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
GENERAL PRACTICES REGARDING USE AND STORAGE
SMP may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that uploaded Content will be retained by the Service, the maximum disk space that will be allotted on SMP's servers, and the maximum number of times (and the maximum duration for which) CUSTOMER may access the Service in a given period of time. CUSTOMER acknowledges and agrees that SMP reserves the right to log off accounts that are inactive for an extended period of time. SMP reserves the right to modify these general practices and limits from time to time.
MODIFICATIONS TO SERVICE
SMP reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Yahoo! shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
DEALINGS WITH ADVERTISERS
CUSTOMER's correspondence or business dealings with, or participation in promotions of, REPs or advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between CUSTOMER and such REP or advertiser. CUSTOMER agrees that SMP shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such REPS or advertisers on the Service.
DISCLAIMER OF WARRANTIES
CUSTOMER expressly understands and agrees that:
USE OF THE SERVICE IS AT CUSTOMER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SMP AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SMP AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT CUSTOMER'S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMP OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
CUSTOMER will indemnify and hold harmless SMP and its officers, directors, agents, representatives and employees and its affiliates, their respective officers, directors, agents, representatives and employees, for any costs or expenses of every kind and character, including court costs and attorneys' fees, resulting from claims, including injury to and death of persons, arising from any act, omission, or incident arising directly or indirectly from the performance of its duties under this Agreement
Trademarks and Trade Names.
CUSTOMER agrees not to display or use, in marketing, telemarketing, advertising or otherwise, any of SMP's or its parent corporation's, subsidiaries' or affiliates' trade names, logos, trademarks, trade devices, service marks, symbols, codes, specifications, abbreviations or registered marks, or contractions or simulations thereof (hereinafter referred to collectively as "Marks") and will not permit the same to be used or displayed by third parties, except with SMP' s prior written consent or except as required by any applicable law, order, regulation or ruling. CUSTOMER shall not claim ownership or any other rights in SMP's Marks.
All information, data, documents and materials provided by SMP to CUSTOMER, or acquired or learned by CUSTOMER from SMP files, documents, employees, agents, representatives, consultants or contractors in connection with the services of CUSTOMER's performance under this Agreement shall remain the sole and exclusive property of SMP, and CUSTOMER shall not obtain any rights whatsoever in any such information, data, documents or materials (whether under applicable patent, copyright, trade secret laws or otherwise).
he Service and any necessary software used in connection with the Service (''Software'') contain proprietary and confidential information that is protected by applicable intellectual property and other laws. CUSTOMER further acknowledges and agrees that Content contained in sponsor advertisements or information presented through the Service or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by SMP or advertisers, CUSTOMER agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
Grant of Limited License.
SMP grants CUSTOMER a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that CUSTOMER does not (and does not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. CUSTOMER agrees neither to modify the Software in any manner or form, nor to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. CUSTOMER agrees not to access the Service by any means other than through the interface that is provided by SMP for use in accessing the Service.
RELATIONSHIP OF THE PARTIES
CUSTOMER, in providing the services and obligations set forth herein, is acting as an independent contractor and not as SMP's agent, partner or employee and has no fiduciary or similar relationship with SMP. Accordingly, nothing in this Agreement is intended or will be construed to constitute or imply a joint venture, partnership, association or fiduciary duty, obligation or liability between SMP and CUSTOMER.
Limitation of Liability.
The exclusive measure of damages recoverable from claims arising from, under or in connection with the Agreement, whether arising by negligence, intended conduct or otherwise will be limited to DIRECT damages only and such damages will be the sole and exclusive remedy hereunder and all other remedies or damages are waived. In no event will any party be liable for ANY INCIDENTAL, consequential, punitive, exemplary or indirect damages, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, LOST OR PROSPECTIVE PROFITS, in tort, contract or otherwise. The provisions of this Section will survive the termination of this Agreement. This Agreement shall not provide any person not a Party to this Agreement with any remedy, claim, liability reimbursement, cause of action or other right in excess of those existing without reference to this Agreement. FURTHER, SMP shall not be liable to CUSTOMER for damages resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the Service.
Compliance with Law.
CUSTOMER shall, at all times during the term of this Agreement and at its own expense, comply with all applicable federal, state, and local laws, rules, and regulations.
Choice of Law/Venue.
THIS AGREEMENT IS GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN STATE OF TEXAS. THE PARTIES MUTUALLY CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS IN COLLIN COUNTY, TEXAS AND AGREE THAT ANY ACTION, SUIT, OR PROCEEDING CONCERNING, RELATED TO, OR ARISING OUT OF THIS AGREEMENT AND THE NEGOTIATION OF THIS AGREEMENT WILL BE BROUGHT ONLY IN A FEDERAL OR STATE COURT IN COLLIN COUNTY, TEXAS AND THE PARTIES AGREE THAT THEY WILL NOT RAISE ANY DEFENSE OR OBJECTION OR FILE ANY MOTION BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, INCONVENIENCE OF THE FORUM, OR THE LIKE IN ANY CASE FILED IN A FEDERAL OR STATE COURT IN COLLIN COUNTY, TEXAS.
his TOS constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous, oral or written, express or implied understanding between them respecting the subject matter hereof. No modification, amendment or waiver will be effective or binding without the written consent of the Parties.
No waiver or consent, express or implied, of any default in the performance of any provision herein will operate or be construed as a waiver or consent of any other default whether of a like or different nature. Failure to complain of any act or to declare a default with respect to this Agreement, regardless of how long that failure continues, will not constitute a waiver with respect to that default until the applicable statute of limitations period has run.
If any provision of this Agreement is, for any reason, adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment will not affect, impair or invalidate the remainder of this Agreement which shall be enforced as fully as possible, but will be confined in its operation to the provision directly involved in the controversy in which judgment will have been rendered. The provision rendered invalid or unenforceable shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the Parties as expressed herein.
No Third Party Beneficiaries.
This Agreement is intended for the exclusive benefit of the Parties and their respective successors and permitted assigns, and nothing in this Agreement shall be construed as creating any rights or benefits in or to any third party, except as specified in, hereto.
This Agreement shall not be interpreted either more or less favorably towards any party by virtue of the fact that such party or its counsel was responsible for the drafting of all or a portion hereof.
Headings contained in this Agreement are for convenience only and shall not be construed to define or limit any terms herein, or otherwise affect the meaning or interpretation of this Agreement.
Notwithstanding any assistance provided by the Parties to each other in implementing the Agreement to maximize value to both Parties, the Parties hereby acknowledge and agree that they are, and will in implementing the Agreement be, acting independently. Nothing herein is intended to or will make the Parties joint venturers, partners or otherwise authorizes a Party to act on behalf of the other or otherwise bind the other.