Master
Subscription Agreement
UtilityTRX Terms of Use:
Welcome
By clicking the “I accept” button as
displayed, you (“Subscriber”) agree to the following General
Terms and Conditions (the “Agreement”) governing your use of
UtilityTRX's online service, including offline components
(collectively, the “Service”), or if you do not agree with these
terms and conditions, you must select the “I decline” button and
may not use the service.
As part of the Service, UtilityTRX will
provide you with use of the Service, including a browser interface
and data encryption, transmission, access and storage. Your
registration for, or use of, the Service shall be deemed to be your
agreement to abide by this Agreement including any materials
available on the UtilityTRX website incorporated by reference herein,
including but not limited to UtilityTRX's privacy and security
policies. For reference, a Definitions section is included at the end
of this Agreement.
The pages and modules within the
UtilityTRX (aka “Site”) are as follows:
Hub -
Upon clicking the Hub icon on the top right, Hub is displayed as a
separate page view that details the tree view of the subscriber’s
organizational structure within UtilityTRX. It may also provide
page links and customization tools available through the Report
Engine application (Module)
Billing
- Shall include Site Summary, Y2Y Weather Normalized (use and
charge comparison), Dereg Analytics (compare delivery to supply use
and charges), Billing History (bill data, images and popup graphs)
and Spot Billing Gaps (lists a table of all meter points and
entered history)
Multi-Site
- A section that measures performance in spend, use and cost per
unit using the defined period to an equivalent period prior to that
period. The page sections include Summary (by service or utility
category), Summary Detail (by service), Year to Year (by site
listing spend, use and cost per unit), Benchmarking (by site),
Spend Analytics (by site) and Energy Star (optional premium service
listing scoring and other relevant data).
Reports -
A section that enables users to view one or more reports designated
by UtilityTRX. In addition, users can schedule reports to be
emailed to one or more emails daily, weekly or monthly. Reports
Engine (premium service) is a special application that enables
Subscribers to create reports from templates or from scratch using
UtilityTRX proprietary technology. In addition, Reports Engine
enables administrators to deploy custom reports as page drop down
selections on the Site dashboard.
Bill Audit
- A section that includes bill audit reports (designated by
UtilityTRX), case management, benchmark (dynamic application) and
rate optimization (including rate engine that is managed and
updated by subscriber’s administrators or designees).
Meter Data
- A section that includes meter data reports including but not
limited to Standard View (compare up to two data points), Peak
Demands (top 10 peak demands listed overall or varied spans of
time), Multi Panel (4 panel illustrating trended data), Daily View
(Each day in a time-span listed separately with ability to filter
points) and Meter Insight (trends meter data based on billing
month). The Meter Scan (optional premium service) provides
multi-site view of meters along with trended and totaled data.
Project Tracker
- A section that includes a Setup module and reporting for tracking
one or more changes simultaneously on a meter or meters, which
measures weather normalized use changes, fixed use changes, month
charge reductions and/or rate savings. Features built in weather
normalization module with baseline definition options.
Accounting -
A section that includes budget setup by site and by utility
service. Optional premium services include bill payment processing
( with general liability codes and cost center code tracking) and
file export for importing into subscriber accounting systems to
make payments.
My Account
- A section that includes contract or document upload and
reference, along with key fields of data relevant to document
tracking. In addition, benchmark, meter and HVAC data setups are
rendered with thin this section. Password resets, development
requests and bug fix requests are also included.
The Service Definitions shall be defined
as follows:
Bill Processing
- Bill data is populated each bill cycle within the Site and PDF
images posted when available. Subscribers will be responsible for
providing logins, granting UtilityTRX to establish logins or
sending imaged billing to billing@utilitytrx.com
As a premium service (“Client Support Service), import
exceptions (e.g. errors, new accounts or meters etc) are resolved
when possible, so that billing data may be populated within the
Site. Absent that customer support service, the customer is
accountable for updating accounts, meters or any other data, so
that bills may be imported and reported correctly.
Electronic Data Import
- Bill data is received from a third party and imported
electronically. As a premium customer support service, import
exceptions (e.g. errors, new accounts or meters etc) are resolved
when possible, so that billing data may be populated within the
Site. Absent that customer support service, the customer is
accountable for updating accounts, meters or any other data, so
that bills may be imported and reported correctly.
White Label (Portal)
- A customer-owned domain is rendered with a private label
UtilityTRX Site. All intellectual property, trademarks, license,
patents, reports and software remains owned by UtilityTRX. The
customer can however pay UtilityTRX (according to IT Support fees
and quoted project fees) to export their utility billing data
(extracted from utility bill sources) onto a data medium for the
subscriber to take with them upon termination. Exports of bill
images may or may not include indexing. The export also will not
include utility rates designed within the site’s rate engine
(performs calculations) or any contracts/documents loaded onto the
platform.
Support Services
offered as premium options for Subscribers
Client Support
shall include resolution of changes to accounts or meters,
statuses, site addresses or any other relevant bill processing
issue that can be resolved absent third party dependency in
responding.
Bill Audit
shall include a prescreening of audit cases produced from billing
in order to prequalify cases for assignment to a Subscriber’s
analyst or manager for resolution.
Project Support
shall include any task that falls outside of the definitions of
Support services and which are clearly define in scope and a
budget range or fixed fee (as mutually agreed to).
IT Professional Services
shall include any modifications to UtilityTRX site source code or
functionality that is not available in the standard or premium
offerings. These projects will be clearly defined with cost
estimates and signed addendum work orders.
Report Design
shall include any modification or newly designed reports that are
clearly defined in scope and signed addendum work orders.
1. Privacy
& Security; Disclosure
UtilityTRX's privacy and security
policies may be viewed at www.UtilityTRX.net/privacy
UtilityTRX reserves the right to modify its privacy policies in its
reasonable discretion from time to time. Individual users, when they
initially log in, will be asked whether or not they wish to receive
marketing and other non-critical Service-related communications from
UtilityTRX from time to time. They may opt out of receiving such
communications at that time or at any subsequent time by changing
their preference under Personal Setup. UtilityTRX Basic users will
not have the option of opting out unless they upgrade services. In
addition, all levels of service will receive advertising and sponsor
sections within their interface and reporting to support the
competitively priced service. Note that because the Service is a
hosted, online application, UtilityTRX occasionally may need to
notify all users of the Service (whether or not they have opted out
as described above) of important announcements regarding the
operation of the Service. If you become a paying customer of the
Service, you agree that UtilityTRX can disclose the fact that you are
a paying customer and the edition of the Service that you are using.
2. License
Grant & Restrictions
UtilityTRX hereby grants you a
non-exclusive, non-transferable, worldwide right to use the Service,
solely for your own internal business purposes, subject to the terms
and conditions of this Agreement. All rights not expressly granted to
you are reserved by UtilityTRX and its licensors.
You may not access the Service if you are
a direct competitor of UtilityTRX, except with UtilityTRX's prior
written consent nor may users
grant login access of the Site or Service to direct competitors
. In addition, you may not access
the Service for purposes of monitoring its availability, performance
or functionality, or for any other benchmarking or competitive
purposes.
You shall not (i) license, sublicense,
sell, resell, transfer, assign, distribute or otherwise commercially
exploit or make available to any third party the Service or the
Content in any way; (ii) modify or make derivative works based upon
the Service or the Content; (iii) create Internet “links” to the
Service or “frame” or “mirror” any Content on any other
server or wireless or Internet-based device; or (iv) reverse engineer
or access the Service in order to (a) build a competitive product or
service, (b) build a product using similar ideas, features, functions
or graphics of the Service, or (c) copy any ideas, features,
functions or graphics of the Service. User licenses cannot be shared
or used by more than one individual User but may be reassigned from
time to time to new Users who are replacing former Users who have
terminated employment or otherwise changed job status or function and
no longer use the Service.
You may use the Service only for your
internal business purposes and shall not: (i) send spam or otherwise
duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening, libelous, or
otherwise unlawful or tortious material, including material harmful
to children or violative of third party privacy rights; (iii) send or
store material containing software viruses, worms, Trojan horses or
other harmful computer code, files, scripts, agents or programs; (iv)
interfere with or disrupt the integrity or performance of the Service
or the data contained therein; or (v) attempt to gain unauthorized
access to the Service or its related systems or networks.
3. Your
Responsibilities
You are responsible for all activity
occurring under your User accounts and shall abide by all applicable
local, state, national and foreign laws, treaties and regulations in
connection with your use of the Service, including those related to
data privacy, international communications and the transmission of
technical or personal data. You shall: (i) notify UtilityTRX
immediately of any unauthorized use of any password or account or any
other known or suspected breach of security; (ii) report to
UtilityTRX immediately and use reasonable efforts to stop immediately
any copying or distribution of Content that is known or suspected by
you or your Users; and (iii) not impersonate another UtilityTRX user
or provide false identity information to gain access to or use the
Service.
4. Account
Information and Data
UtilityTRX does not own any data,
information or material that you or your service providers submit to
the Service in the course of using the Service (“Customer Data”).
You or your service providers, not UtilityTRX, shall have sole
responsibility for the accuracy, quality, integrity, legality,
reliability, appropriateness, and intellectual property ownership or
right to use of all Customer Data, and UtilityTRX shall not be
responsible or liable for the deletion, correction, destruction,
damage, loss or failure to store any Customer Data. Bill data is
downloadable in csv or text formats within each view bill history
screen at any time within the term of this Agreement. UtilityTRX
reserves the right to withhold, remove and/or discard Customer Data
without notice for any breach, including, without limitation, your
non-payment. Upon termination for cause, your right to access or use
Customer Data immediately ceases, and UtilityTRX shall have no
obligation to maintain or forward any Customer Data.
5. Intellectual
Property Ownership
UtilityTRX alone (and its licensors,
where applicable) shall own all right, title and interest, including
all related Intellectual Property Rights, in and to the UtilityTRX
Technology, the Content and the Service and any suggestions, ideas,
enhancement requests, feedback, recommendations or other information
provided by you or any other party relating to the Service. This
Agreement is not a sale and does not convey to you any rights of
ownership in or related to the Service, the UtilityTRX Technology or
the Intellectual Property Rights owned by UtilityTRX Energy
Solutions. The UtilityTRX name, the UtilityTRX logo, and the product
names associated with the Service are trademarks of UtilityTRX or
third parties, and no right or license is granted to use them.
6. Third
Party Interactions
During use of the Service, you may enter
into correspondence with, purchase goods and/or services from, or
participate in promotions of advertisers or sponsors showing their
goods and/or services through the Service. Any such activity, and any
terms, conditions, warranties or representations associated with such
activity, is solely between you and the applicable third-party.
UtilityTRX and its licensors shall have no liability, obligation or
responsibility for any such correspondence, purchase or promotion
between you and any such third-party. UtilityTRX does not endorse any
sites on the Internet that are linked through the Service. UtilityTRX
provides these links to you only as a matter of convenience, and in
no event shall UtilityTRX or its licensors be responsible for any
content, products, or other materials on or available from such
sites. UtilityTRX provides the Service to you pursuant to the terms
and conditions of this Agreement. You recognize, however, that
certain third-party providers of ancillary software, hardware or
services may require your agreement to additional or different
license or other terms prior to your use of or access to such
software, hardware or services.
7. Charges
and Payment of Fees
You shall pay all fees or charges to your
account in accordance with the fees, charges, and billing terms in
effect at the time a fee or charge is due and payable. The initial
charges will be equal to the current number of total User licenses
requested times the User license fee currently in effect. Payments
must be made annually in advance unless otherwise mutually agreed
upon in an Order Form or through the Online Order Center. All payment
obligations are non-cancelable and all amounts paid are
non-refundable. You are responsible for paying for all User licenses
ordered for the entire License Term, whether or not such User
licenses are actively used. You must provide UtilityTRX with valid
credit card or approved purchase order information as a condition to
signing up for the Service. An authorized License Administrator may
add licenses by executing an additional written Order Form or using
the Online Order Center. Added licenses will be subject to the
following: (i) added licenses will be coterminous with the
preexisting License Term (either Initial Term or renewal term); (ii)
the license fee for the added licenses will be the then current,
generally applicable license fee; and (iii) licenses added in the
middle of a billing month will be charged in full for that billing
month. UtilityTRX reserves the right to modify its fees and charges
and to introduce new charges at any time, upon at least 30 days prior
notice to you, which notice may be provided by e-mail. All pricing
terms are confidential, and you agree not to disclose them to any
third party.
8. Data
Storage
The maximum disk storage space provided
to you at no additional charge is 2 gigabytes for all non-billing
related data such as document attachments related to contracts or
building specifications. If the amount of disk storage required
exceeds these limits, you will be charged the then-current storage
fees. UtilityTRX will use reasonable efforts to notify you when the
average storage used per license reaches approximately 90% of the
maximum; however, any failure by UtilityTRX to notify you shall not
affect your responsibility for such additional storage charges.
UtilityTRX reserves the right to establish or modify its general
practices and limits relating to storage of files and Customer Data.
9. Billing
and Renewal
UtilityTRX charges and collects in
advance for use of the Service. UtilityTRX will automatically renew
and bill your credit card or issue an invoice to you each year on the
subsequent anniversary or as otherwise mutually agreed upon. The
renewal charge will be equal to the then-current number of total User
licenses times the license fee in effect during the prior term,
unless UtilityTRX has given you at least 30 days prior written notice
of a fee increase, which shall be effective upon renewal and
thereafter. Fees for other services will be charged on an as-quoted
basis. UtilityTRX's fees are exclusive of all taxes, levies, or
duties imposed by taxing authorities, and you shall be responsible
for payment of all such taxes, levies, or duties, excluding only
United States (federal or state) taxes based solely on UtilityTRX's
income.
You agree to provide UtilityTRX with
complete and accurate billing and contact information. This
information includes your legal company name, street address, e-mail
address, and name and telephone number of an authorized billing
contact and License Administrator. You agree to update this
information within 30 days of any change to it. If the contact
information you have provided is false or fraudulent, UtilityTRX
reserves the right to terminate your access to the Service in
addition to any other legal remedies.
Unless UtilityTRX in its discretion
determines otherwise: (i) entities with headquarters and a majority
of users resident in the United States will be billed in U.S. dollars
and subject to U.S. payment terms and pricing schemes (“U.S.
Customers”); (ii) entities with headquarters and a majority of
users resident in Japan will be billed in Japanese yen and subject to
Japanese payment terms and pricing schemes (“Japanese Customers”);
and (iii) all other entities will be billed in U.S. dollars, Euros or
local currency and be subject to either U.S. or non-U.S. payment
terms and pricing schemes at the discretion of UtilityTRX
(“Non-U.S./Japan Customers”).
If you believe your bill is incorrect,
you must contact us in writing within 60 days of the invoice date of
the invoice containing the amount in question to be eligible to
receive an adjustment or credit.
10. Non-Payment
and Suspension
In addition to any other rights granted
to UtilityTRX herein, UtilityTRX reserves the right to suspend or
terminate this Agreement and your access to the Service if your
account becomes delinquent (falls into arrears). Delinquent invoices
(accounts in arrears) are subject to interest of 1.0% per month on
any outstanding balance, or the maximum permitted by law, whichever
is less, plus all expenses of collection. You will continue to be
charged for User licenses during any period of suspension. If you or
UtilityTRX initiates termination of this Agreement, you will be
obligated to pay the balance due on your account computed in
accordance with the Charges and Payment of Fees section above. You
agree that UtilityTRX may charge such unpaid fees to your credit card
or otherwise bill you for such unpaid fees.
UtilityTRX reserves the right to impose a
reconnection fee in the event you are suspended and thereafter
request access to the Service. You agree and acknowledge that
UtilityTRX has no obligation to retain Customer Data and that such
Customer Data may be irretrievably deleted if your account is 30 days
or more delinquent.
11. Termination
upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective
Date. For UtilityTRX Accounting and Pro licenses, the Initial Term
will be as you elect during the online subscription process or as
otherwise mutually agreed upon in an UtilityTRX Energy Solutions
Access Agreement form. Upon the expiration of the Initial Term, this
Agreement will automatically renew for successive renewal terms equal
in duration to the Initial Term (or one year, if the Initial Term is
greater than one year) at UtilityTRX's then current fees. Either
party may terminate this Agreement or reduce the number of licenses,
effective only upon the expiration of the then current License Term,
by notifying the other party in writing at least five (5) business
days prior to the date of the invoice for the following term. In the
case of free trials, notifications provided through the Service
indicating the remaining number of days in the free trial shall
constitute notice of termination. In the event this Agreement is
terminated (other than by reason of your breach), UtilityTRX will
make available to you a file of the Customer Data within 30 days of
termination if you so request at the time of termination for a
mutually agreed upon fee. You agree and acknowledge that UtilityTRX
has no obligation to retain the Customer Data, and may delete such
Customer Data, more than 30 days after termination.
12. Termination
for Cause
Any breach of your payment obligations or
unauthorized use of the UtilityTRX Technology or Service will be
deemed a material breach of this Agreement. UtilityTRX, in its sole
discretion, may terminate your password, account or use of the
Service if you breach or otherwise fail to comply with this
Agreement. In addition, UtilityTRX may terminate a free account at
any time at its sole discretion. You agree and acknowledge that
UtilityTRX has no obligation to retain the Customer Data, and may
delete such Customer Data, if you have materially breached this
Agreement, including but not limited to failure to pay outstanding
fees, and such breach has not been cured within 30 days of notice of
such breach.
13. Representations
& Warranties
Each party represents and warrants that
it has the legal power and authority to enter into this Agreement.
UtilityTRX represents and warrants that it will provide the Service
in a manner consistent with general industry standards reasonably
applicable to the provision thereof and that the Service will perform
substantially in accordance with the online UtilityTRX help
documentation under normal use and circumstances. You represent and
warrant that you have not falsely identified yourself nor provided
any false information to gain access to the Service and that your
billing information is correct.
14. Mutual
Indemnification
You shall indemnify and hold UtilityTRX,
its licensors and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys
and agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys' fees
and costs) arising out of or in connection with: (i) a claim alleging
that use of the Customer Data infringes the rights of, or has caused
harm to, a third party; (ii) a claim, which if true, would constitute
a violation by you of your representations and warranties; or (iii) a
claim arising from the breach by you or your Users of this Agreement,
provided in any such case that UtilityTRX (a) gives written notice of
the claim promptly to you; (b) gives you sole control of the defense
and settlement of the claim (provided that you may not settle or
defend any claim unless you unconditionally release UtilityTRX of all
liability and such settlement does not affect UtilityTRX's business
or Service); (c) provides to you all available information and
assistance; and (d) has not compromised or settled such claim.
UtilityTRX shall indemnify and hold you
and your parent organizations, subsidiaries, affiliates, officers,
directors, employees, attorneys and agents harmless from and against
any and all claims, costs, damages, losses, liabilities and expenses
(including attorneys' fees and costs) arising out of or in connection
with: (i) a claim alleging that the Service directly infringes a
copyright, a U.S. patent issued as of the Effective Date, or a
trademark of a third party; (ii) a claim, which if true, would
constitute a violation by UtilityTRX of its representations or
warranties; or (iii) a claim arising from breach of this Agreement by
UtilityTRX; provided that you (a) promptly give written notice of the
claim to UtilityTRX; (b) give UtilityTRX sole control of the defense
and settlement of the claim (provided that UtilityTRX may not settle
or defend any claim unless it unconditionally releases you of all
liability); (c) provide to UtilityTRX all available information and
assistance; and (d) have not compromised or settled such claim.
UtilityTRX shall have no indemnification obligation, and you shall
indemnify UtilityTRX pursuant to this Agreement, for claims arising
from any infringement arising from the combination of the Service
with any of your products, service, hardware or business process(s).
15. Disclaimer
of Warranties
UtilityTRX AND ITS LICENSORS MAKE NO
REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY,
TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR
COMPLETENESS OF THE SERVICE OR ANY CONTENT. UtilityTRX AND ITS
LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE
WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN
COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B)
THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY
STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE
SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS
PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UtilityTRX AND ITS
LICENSORS.
16. Internet
Delays
UtilityTRX'S SERVICES MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE
INTERNET AND ELECTRONIC COMMUNICATIONS. UtilityTRX IS NOT RESPONSIBLE
FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS.
17. Limitation
of Liability
IN NO EVENT SHALL EITHER PARTY'S
AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE
FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY
AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY
TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER
ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS
SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE
SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY
INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN
THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR
SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
18. Additional
Rights
Certain states and/or jurisdictions do
not allow the exclusion of implied warranties or limitation of
liability for incidental, consequential or certain other types of
damages, so the exclusions set forth above may not apply to you.
19. Local
Laws and Export Control
This site provides services and uses
software and technology that may be subject to United States export
controls administered by the U.S. Department of Commerce, the United
States Department of Treasury Office of Foreign Assets Control, and
other U.S. agencies and the export control regulations of Switzerland
and the European Union. The user of this site (“User”)
acknowledges and agrees that the site shall not be used, and none of
the underlying information, software, or technology may be
transferred or otherwise exported or re-exported to countries as to
which the United States, Switzerland and/or the European Union
maintains an embargo (collectively, “Embargoed Countries”), or to
or by a national or resident thereof, or any person or entity on the
U.S. Department of Treasury's List of Specially Designated Nationals
or the U.S. Department of Commerce's Table of Denial Orders
(collectively, “Designated Nationals”). The lists of Embargoed
Countries and Designated Nationals are subject to change without
notice. By using the Service, you represent and warrant that you are
not located in, under the control of, or a national or resident of an
Embargoed Country or Designated National. You agree to comply
strictly with all U.S., Swiss and European Union export laws and
assume sole responsibility for obtaining licenses to export or
re-export as may be required.
This site may use encryption technology
that is subject to licensing requirements under the U.S. Export
Administration Regulations, 15 C.F.R. Parts 730-774 and Council
Regulation (EC) No. 1334/2000
UtilityTRX and its licensors make no
representation that the Service is appropriate or available for use
in other locations. If you use the Service from outside the United
States of America, Switzerland and/or the European Union, you are
solely responsible for compliance with all applicable laws, including
without limitation export and import regulations of other countries.
Any diversion of the Content contrary to United States, Swiss or
European Union (including European Union Member States) law is
prohibited. None of the Content, nor any information acquired through
the use of the Service, is or will be used for nuclear activities,
chemical or biological weapons, or missile projects, unless
specifically authorized by the United States government or
appropriate European body for such purposes.
20. Notice
UtilityTRX may give notice by means of a
general notice on the Service, electronic mail to your e-mail address
on record in UtilityTRX's account information, or by written
communication sent by first class mail or pre-paid post to your
address on record in UtilityTRX's account information. Such notice
shall be deemed to have been given upon the expiration of 48 hours
after mailing or posting (if sent by first class mail or pre-paid
post) or 12 hours after sending (if sent by email). You may give
notice to UtilityTRX (such notice shall be deemed given when received
by UtilityTRX) at any time by any of the following: letter sent by
email to UtilityTRX at tong@utilitytrx.com
; letter delivered by nationally recognized overnight delivery
service or first class postage prepaid mail to UtilityTRX at the
following address: UtilityTRX, 5665 Atlanta Hwy 9, Ste 102B-194,
Alpharetta, GA 30004.
21. Modification
to Terms
UtilityTRX reserves the right to modify
the terms and conditions of this Agreement or its policies relating
to the Service at any time, effective upon posting of an updated
version of this Agreement on the Service. You are responsible for
regularly reviewing this Agreement. Continued use of the Service
after any such changes shall constitute your consent to such changes.
22. Assignment;
Change in Control
This Agreement may not be assigned by you
without the prior written approval of UtilityTRX but may be assigned
without your consent by UtilityTRX to (i) a parent or subsidiary,
(ii) an acquirer of assets, or (iii) a successor by merger. Any
purported assignment in violation of this section shall be void. Any
actual or proposed change in control of you that results or would
result in a direct competitor of UtilityTRX directly or indirectly
owning or controlling 50% or more of you shall entitle UtilityTRX to
terminate this Agreement for cause immediately upon written notice.
23. General
With respect to Customers located in
North, Central of South America (including the Caribbean), this
Agreement shall be governed by Georgia law and controlling United
States federal law, without regard to the choice or conflicts of law
provisions of any jurisdiction, and any disputes, actions, claims or
causes of action arising out of or in connection with this Agreement
or the Service shall be subject to the exclusive jurisdiction of the
state and federal courts located in Fulton County, Georgia. With
respect to Customers located in Europe, the Middle East or Africa,
this Agreement shall be governed by the laws of Switzerland, without
regard to the choice or conflicts of law provisions of any
jurisdiction, and any disputes, actions, claims or causes of action
arising out of or in connection with this Agreement or the Service
shall be subject to the exclusive jurisdiction of the courts of
Switzerland. With respect to Customers located in Asia, Australia,
New Zealand and the Pacific islands (but not Customers located in
Japan), this Agreement shall be governed by the laws of Singapore,
without regard to the choice or conflicts of law provisions of any
jurisdiction, and any disputes, actions, claims or causes of action
arising out of or in connection with this Agreement or the Service
shall be subject to the exclusive jurisdiction of the courts of
Singapore. Unless otherwise provided by UtilityTRX in its discretion,
Customers in Japan shall be governed by the Japanese language version
of this Agreement accessible through www.UtilityTRX.net/jp/
. No text or
information set forth on any other purchase order, preprinted form or
document (other than an Order Form, if applicable) shall add to or
vary the terms and conditions of this Agreement. If any provision of
this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then such provision(s) shall be construed,
as nearly as possible, to reflect the intentions of the invalid or
unenforceable provision(s), with all other provisions remaining in
full force and effect. No joint venture, partnership, employment, or
agency relationship exists between you and UtilityTRX as a result of
this agreement or use of the Service. The failure of UtilityTRX to
enforce any right or provision in this Agreement shall not constitute
a waiver of such right or provision unless acknowledged and agreed to
by UtilityTRX in writing. This Agreement, together with any
applicable Order Form, comprises the entire agreement between you and
UtilityTRX and supersedes all prior or contemporaneous negotiations,
discussions or agreements, whether written or oral, between the
parties regarding the subject matter contained herein.
24. Definitions
As used in this Agreement and in any
Order Forms now or hereafter associated herewith: “Agreement”
means these online terms of use, any Order Forms, whether written or
submitted online via the Online Order Center, and any materials
available on the UtilityTRX website specifically incorporated by
reference herein, as such materials, including the terms of this
Agreement, may be updated by UtilityTRX from time to time in its sole
discretion; “Content” means the audio and visual information,
documents, software, products and services contained or made
available to you in the course of using the Service; “Customer
Data” means any data, information or material provided or submitted
by you to the Service in the course of using the Service; “Effective
Date” means the earlier of either the date this Agreement is
accepted by selecting the “I Accept” option presented on the
screen after this Agreement is displayed or the date you begin using
the Service; “Initial Term” means the contract term, beginning on
the contract start date and ending on the contract end date,
specified on the applicable Order Form; “Intellectual Property
Rights” means unpatented inventions, patent applications, patents,
design rights, copyrights, trademarks, service marks, trade names,
domain name rights, mask work rights, know-how and other trade secret
rights, and all other intellectual property rights, derivatives
thereof, and forms of protection of a similar nature anywhere in the
world; “License Administrator(s)” means those Users designated by
you who are authorized to purchase licenses online using the Online
Order Center or by executing written Order Forms and to create User
accounts and otherwise administer your use of the Service; “License
Term(s)” means the period(s) during which a specified number of
Users are licensed to use the Service pursuant to the Order Form(s);
“Order Form(s)” means the form evidencing the initial
subscription for the Service and any subsequent order forms submitted
online or in written form, specifying, among other things, the number
of licenses and other services contracted for, the applicable fees,
the billing period, and other charges as agreed to between the
parties, each such Order Form to be incorporated into and to become a
part of this Agreement (in the event of any conflict between the
terms of this Agreement and the terms of any such Order Form, the
terms of this Agreement shall prevail); “Online Order Center”
means UtilityTRX's online application that allows the License
Administrator designated by you to, among other things, add
additional Users to the Service; “UtilityTRX” means collectively
Alexander Tomas and Associates Inc. dba UtilityTRX having its
principal place of business at 10695 Medlock Bridge Pkwy Ste 300,
John Creek GA 30097, an S Corporation having its registered office at
10695 Medlock Bridge Pkwy Ste 300, Johns Creek GA 30097; “UtilityTRX”
means all of UtilityTRX's proprietary technology (including software,
hardware, products, processes, algorithms, user interfaces, know-how,
techniques, designs and other tangible or intangible technical
material or information) made available to you by UtilityTRX in
providing the Service; “Service(s)” means the specific edition of
UtilityTRX's online customer relationship management, bill viewer and
payment, billing, data analysis, or other corporate services
identified during the ordering or contractual process, developed,
operated, and maintained by UtilityTRX, accessible via
www.UtilityTRX.net
or another designated web site or IP address, or ancillary online or
offline products and services provided to you by UtilityTRX, to which
you are being granted access under this Agreement, including the
UtilityTRX.net Technology and the Content; “User(s)” means your
employees who are authorized to use the Service and have been
supplied user identifications and passwords by you (or by UtilityTRX
at your request).
Questions or Additional Information:
If you have questions regarding this
Agreement or wish to obtain additional information, please send an
e-mail to tong@UtilityTRX.com