Terms of Service
Last Revised: September 1, 2016
Terms of Services
Welcome to the Terms of Service Agreement (“Agreement”). This is a legal agreement between you and EnergyBin, LLC, a Minnesota limited liability company doing business as EnergyBin, LLC.com (hereinafter referred to as “EnergyBin,” “We,” “Us,” or “Our”). EnergyBin provides the services (“Services”) offered through the EnergyBin, LLC.com website (the “Site”) to You as a registered subscriber or authorized user, subject to the terms and conditions of this Agreement. In this Agreement, “Member,” “You,” “Your,” and “Yourself refers to an individual accessing the Site, regardless of any particular EnergyBin product or Services purchased or licensed. To the extent applicable, “Member,” “You,” and “Your” also includes the company or organization, on whose behalf an individual is accessing the Site.
By accessing the Site, You expressly acknowledge acceptance of the terms and conditions of this Agreement. The Agreement will continue in full force and effect until terminated pursuant to Section 5 (Termination). This Agreement is not a transfer of any of EnergyBin’s property, rights or interests nor a license of any of EnergyBin’s intellectual property.
Section 1. Modification
EnergyBin reserves the right, in its sole and absolute discretion, to modify or discontinue the Site, or modify the terms and conditions of this Agreement, without notice or reason given to You. All modified terms and conditions of this Agreement will be effective 45 days after they are initially posted on the Site. If a modification is unacceptable, You may terminate this Agreement by giving notice of termination to EnergyBin and following the procedures in Section 5 (Termination). If You do not give EnergyBin notice of termination within 15 days of such modification(s), Your continued use of the Site signifies Your acceptance and agreement to be bound by the modification(s) to this Agreement.
Section 2. Conditions for Membership
EnergyBin accepts only those Members that meet EnergyBin’s strict membership criteria. Accordingly, EnergyBin, in its sole and exclusive discretion, accepts only Members who are actively engaged in the energy industry as resellers, dealers, brokers, service centers, manufacturers, integrators, or variations of the preceding under certain conditions. In the sole and absolute discretion of EnergyBin, free trials and memberships will not be granted to competitors of EnergyBin, including, but not limited to, Energy Products, parts listing services, sourcing service websites, Energy Products brokering websites, or any company or individual that is a parent, subsidiary, division, or affiliate of any company or organization that competes with EnergyBin. Competitors or their affiliates approved for membership by standard, erroneous, or fraudulent means are in violation of this Agreement and the law, will be immediately terminated from Service, and may be prosecuted by EnergyBin to the fullest extent of the law. EnergyBin may, in its sole and absolute discretion, deny Membership or Service to any person or entity for any reason or no reason.
(a) Company Membership
To join the Site as a trial or subscribing company, logon to www.EnergyBin, LLC.com, choose the appropriate link, and fill out the required information. All information submitted to EnergyBin about Yourself and Your company must be valid, current, and accurate to the best of Your knowledge, or denial, termination, or suspension of the membership may occur. After filling out and submitting the required information, an EnergyBin representative will review Your application, during which time You may be eligible for a free trial membership (“Free Trial”). During the Free Trial period, if any is provided, Your company will have access to EnergyBin’s Platinum Service level. The individual who enrolled Your company will be appointed the company administrator (“Administrator”) by default. An EnergyBin representative will then e-mail Your Administrator a password (“Password”) and login (“Login”). All Logins and Passwords are considered property of EnergyBin and are to be used only by the intended person, the Administrator. Violation of this requirement may cause company suspension or termination of its membership and the Services. The Administrator is responsible for approving individuals within Your company to access the Site as Members, and is responsible for managing such Members, their actions, and the security levels for such Members. The security levels may be changed by the Administrator or an EnergyBin representative, in its sole and exclusive discretion. After Your Free Trial period expires, Your company may elect to continue Services. At such time, credit card or other payment information will be required after Your Administrator selects Your service level. The aforementioned rules regarding Administrator, Members, Login, and Password requirements shall continue after Your Free Trial period expires, and the fee for Services membership commences. Company membership may be suspended or terminated at any time without notice or reason in the sole and absolute discretion of EnergyBin.
(b) Member of a Subscribing Company
To join as a Member for a potential Free Trial or subscribing company, visit www.EnergyBin, LLC.com, choose the appropriate link, and fill out the required information. All information submitted to EnergyBin about Yourself must be valid, current, and accurate to the best of Your knowledge, or denial, termination, or suspension of membership and the Services may occur. After filling out the required information, an EnergyBin representative may, in its sole and exclusive discretion, grant You access by sending You a Login and Password via e-mail, provided Your company is currently subscribed as a Free Trial or a paying Member, and your application is approved by Your Administrator. All Logins and Passwords are considered property of EnergyBin and are to be used only by the intended person, the Member. Violation of this may cause company suspension or termination of Services. If You cannot find Your company while signing up, contact Your company Administrator.
Section 3. Billing
Your EnergyBin Service is billed either on a semi-annual or an annual basis unless a custom plan is implemented for you at EnergyBin’s sole discretion. The minimum length of subscription for the EnergyBin Service is twelve (12) months. Other EnergyBin products, custom memberships, or other services are billed annually with a minimum commitment of one (1) year, which services are also subject to this Agreement. Your subscription fees are payable in advance and are not refundable in whole or part.
3.1 Credit Cards
Accepted credit cards are Visa, MasterCard, American Express, and Discover. Billing will be proactive, taking place on the 1st, 8th, 15th, or 22nd of the month, dependent upon Your Service plan. Invoices are available upon request and unless specifically requested, will not be mailed. If We do mail You an invoice at your request, administrative fees may apply and may be billed to Your account. 3.2 Company Checks, Wire Transfers, and ACH Payments
Company checks, wire transfers, and ACH payments are also accepted means of payment. Billing will take place annually. EnergyBin will charge a $30 service fee for each check returned NSF or otherwise not honored.
3.3 Late Payment
Past due accounts may be suspended or canceled without notice after any payment due becomes 15 days delinquent. EnergyBin reserves the right to charge a late fee of $15 per month on any past due account. You agree to be liable for all attorneys’ and collection fees arising from efforts to collect any unpaid balance of Your account (s). You agree to be billed for and to pay any outstanding balance in the event of cancellation or termination of Your account upon demand. Unless You notify EnergyBin of any billing discrepancies within 90 days after they first appear on Your account statement, they will be deemed accepted by You for all purposes, including resolution of inquiries made by Your credit card issuer. You waive and agree to release EnergyBin from all liabilities and claims of loss resulting from any billing discrepancy or error that is not reported to EnergyBin within 90 days of its publication in Your account.
3.4 Changes to Billing Terms
EnergyBin reserves the right, at any time, to change its fees and billing methods, including the addition of supplemental fees or separate charges for online areas, content, or Services provided by EnergyBin, which will be effective 45 days after posting such changes on the Site (the “Effective Date”). EnergyBin may also elect, in its sole and absolute discretion, to supplement such notice of billing changes through pop-ups, e-mail, or U.S. Mail to the address provided by Your Administrator. If any such change is unacceptable to You, You may terminate Your membership as provided in Section 5 (Termination). Your continued use of the Site after the Effective Date will constitute Your acceptance of such change(s). You acknowledge that the notice efforts outlined in this section are adequate to inform you of any billing changes with respect to the Services.
Section 4. Termination
This Agreement may be terminated by You upon providing 45 days advance written notice to EnergyBin. Three methods of notice of termination are acceptable: (1) e-mail to sales@EnergyBin, LLC.com, (2) fax to 507-292-5747, attention Sales Manager or (3) U.S. Mail to EnergyBin, LLC.com 32 7th Ave NE, Rochester, MN 55906, attention Sales Manager. EnergyBin will not provide any refunds under any circumstances to Members who elect to terminate their membership(s) / account(s) prior to the expiration of their membership. In its sole and absolute discretion, EnergyBin may terminate this Agreement and Your access to the Services at any time without notice or reason. In the event EnergyBin receives any complaint about your business or business practice while a Member “Ethics Complaint” with respect to You, EnergyBin may, in its sole and absolute discretion, terminate Your access to the Services. You agree not to mine, harvest or script any data located on this Site; in the event that EnergyBin receives any evidence of this activity with respect to You, EnergyBin may, in its sole and absolute discretion, terminate Your access to the Services. The aforementioned activities materially interfere with and cause damage to EnergyBin’s business; EnergyBin may seek monetary damages and / or equitable relief from You as a result therefrom. EnergyBin also, in its sole and absolute discretion, may suspend Your access to the Site at any time without notice or reason. In the event Your account is terminated or suspended, no refund will be granted to You.
Section 5. Access and User Responsibilities
All Logins and Passwords are the property of EnergyBin and may be revoked at any time without notice. Logins and Passwords must be appropriate and unique on the Site. Logins and Passwords are to be used only by the intended person, who is the Administrator or Member. Logins and Passwords supplied to the Member are non-transferable and may only be used by the persons registered under those Logins and Passwords. Unauthorized use may cause company suspension or termination of its membership and the Services. Lost Passwords may be retrieved by logging on to Password Recovery, speaking to Your company Administrator, or contacting an EnergyBin representative.
You and Your Administrator are responsible for the deletion of Members and their user information when a Member of Your company quits, is terminated, or engages in conduct that violates the terms of this Agreement. You understand and agree that unauthorized logins are prohibited even when accomplished with legitimate Logins and Passwords. Unauthorized logins include, but are not limited to, competitors and their affiliates, terminated Members, and site hackers. EnergyBin’s Site is protected under copyright and other laws. Any reproduction or distribution of this Site information, by, for, or to any third party, is expressly prohibited.
EnergyBin does not represent that its Services are appropriate or available for use in any particular location. Those who choose to access the Services do so on their own initiative and are responsible for compliance with all applicable laws. Membership in, and use of, the Services are void where prohibited. Software from the Services is subject to United States export controls and may not be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country with which the U.S. maintains a trade embargo prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entities List. By downloading or using such software, You represent and warrant that You are not: (a) located in or a national or resident of any such country or; (b) on any such list or acting on behalf of any person or entity on any such list.
Additionally, You agree that You will not:
take any action that imposes or may impose (in Our sole and absolute discretion)
an unreasonable or disproportionately large load on EnergyBin’s infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly
display any content (except for Your information) from the Site without the prior
expressed written permission of EnergyBin and the appropriate third party, as
interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
post content or items in an inappropriate category or area on the Site;
use the Site for any purpose that is unlawful, fraudulent, or contrary to this Agreement and the policies of EnergyBin, and You will cooperate fully with EnergyBin to investigate any suspected unlawful, fraudulent, or improper activity, including but not limited to granting authorized EnergyBin representatives access to any password-protected portions of Your Member account;
use the Site if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from Our Site;
interfere with any other Member’s listings;
use the Site in any manner that harasses another Member or could interfere with any other party’s use or enjoyment of the Site. You will respect the privacy of others and not use the Site for unwelcome, rude, or abusive communications
attempt to gain unauthorized access to any Member account information, computer systems, or networks associated with the Site;
attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site;
“frame,” “mirror,” or otherwise copy any portion of the Site without EnergyBin’s express written authorization;
use false identities or impersonate any other person or use a name that You are not authorized to use;
post false, inaccurate, misleading, defamatory, or libelous content on the Site (including personal information);
transfer Your Login and/or Password to another party without EnergyBin’s prior consent;
distribute or post unsolicited bulk e-mail or spam to Members or users of the Site;
distribute viruses or any other technologies that may burden or harm EnergyBin or the interests or property of EnergyBin’s Members;
copy, modify, or distribute content from the Site or EnergyBin’s intellectual property, copyrights and trademarks;
solicit, harvest or otherwise collect information about Members or users, including e-mail addresses; or
encourage or instruct any other individual to do any of the acts prohibited by this Section 6 or to violate any term of this Agreement or EnergyBin’s policies.
Section 6. Good Faith Clause
Each Member agrees to conduct Site business in an appropriate, honest, and ethical manner, including, but not limited to, accurately describing the Member’s company, the Member’s information, and the quantity, condition, age, stock status, price, and description of products the Member lists on the Site. Manipulation of the system to obtain premium listings is expressly prohibited. If any manipulation occurs, EnergyBin encourages You to report such Site business not conducted in good faith which may result in suspension or termination of the offending Members Services, in EnergyBin’s sole and exclusive discretion.
Section 7. Confidential Disclosure
You understand and agree that information disclosed through EnergyBin’s Site includes proprietary information belonging to EnergyBin. You agree not to copy or disclose to third parties, in whole or in part, any portion of the information, including, but not limited to, Site design, software, navigation, features of the Site, and information concerning other Members and the products they list on the Site. You further agree not to allow third parties to view Your screen sessions and the information contained in them while accessing the Site. The provisions of this Section 8 (Confidential Disclosure) survive termination or expiration of this Agreement.
Section 8. Content License
You are solely responsible for all materials, whether publicly posted or privately transmitted, that You upload, post, e-mail, transmit, or otherwise make available on Our Site (“Your Content”). You certify that You own all intellectual property rights in Your Content. You hereby grant Us, Our affiliates, and Our partners a worldwide, irrevocable, royalty-free, nonexclusive, sublicensable license (through multiple tiers) to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute, and publish Your Content and subsequent versions of Your Content for the purposes of: (i) displaying Your Content on Our Site; (ii) distributing Your Content, either electronically or via other media, to users seeking to download or otherwise acquire it, and/or; (iii) storing Your Content in a remote database accessible by end users, for a charge. This license shall apply to the distribution and the storage of Your Content in any form, medium, or technology now known or later developed.
Section 9. Unauthorized Use of Copyrighted Materials and Trademarks
EnergyBin is, unless otherwise stated, the owner or licensee of all rights in this Site and its contents, software, databases, and Services. The materials contained in this Site are protected by the copyright and trademark laws and other laws of the United States, as well as international conventions and the laws of other countries. No user of this Site has any right, title, or interest in the Site, its content, any intellectual property therein, unless any content, software, databases, or services have been specifically licensed to You in writing by EnergyBin or by its licensor.
You are prohibited from using the Site or its Services to transmit, route, provide connections to, or store any material that infringes copyrighted works, trademarks, or otherwise violates, or promotes the violation of, the intellectual property rights of EnergyBin or any third party.
EnergyBin is committed to respecting others’ intellectual property rights, and We ask Our Members to do the same. EnergyBin may, in its sole and absolute discretion, terminate the accounts or access rights of Members who violate others’ intellectual property rights.
If You believe that Your work has been copied in a way that constitutes copyright
infringement on Our Site, please deliver the following information to EnergyBin’s
an electronic or physical signature of the person authorized to act on behalf of the copyright owner;
a description of the copyrighted work that You claim has been infringed;
a description of where the material that You claim is infringing is located on Our Site;
Your address, telephone number, and e-mail address so that We may contact You; a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by You, made under penalty of perjury, that the information in Your notice to Us is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.
EnergyBin’s Copyright Agent for notice of claims of copyright infringement on Our Site can be reached as follows:
Attn: Copyright Agent 32 Seventh Ave. N.E.
Rochester, MN 55906
E-mail: Sales@EnergyBin, LLC.com
Section 10. Release
If You have a dispute with one or more Members or users of the Site, You hereby release EnergyBin (and its managers, members, directors, parents, governors, agents, subsidiaries, assigns, joint ventures, affiliates, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code §1542, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Residents of other states, nations, and jurisdictions waive their rights under analogous laws, statutes, and regulations. The provisions of this Section 11 (Release) survive termination or expiration of this Agreement.
Section 11. Indemnity
You hereby agree to indemnify, defend, and hold EnergyBin and all of Our managers, members, governors, owners, employees, successors, assigns. agents, information providers, affiliates, partners, and licensors (collectively, the “EnergyBin Parties”) harmless from and against any and all allegations, demands, claims, liabilities, damages, losses, fines, penalties, costs, and expenses of whatsoever nature (including attorneys’ fees) incurred by any EnergyBin Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement arising out of:
Your use of Our Site;
Any use or alleged use of Your accounts or Your Login/Password by any person, whether or not authorized by You;
The content, the quality, or the performance of content that You submit to Our Site;
Your connection to Our Site;
Your violation of this Agreement; or
Your violation of the rights of any other person or entity.
You may not enter into any settlement that adversely affects EnergyBin without Our prior written approval. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Us, and You agree to cooperate with Our defense of these claims.
The provisions of this Section 12 (Indemnity) survive termination or expiration of this Agreement.
Section 12. No Warranty; As Is
THE SITE AND SERVICES AND GOODS OBTAINED THROUGH THE SITE ARE
PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY OF ANY
KIND. ENERGYBIN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SITE, SERVICES, AND ALL COMMUNICATIONS
BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED
WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT. In addition,
EnergyBin makes no representation or warranty that the operation of the Site will be error
free. Some states or other jurisdictions do not allow the exclusion of implied warranties,
so the above exclusions may not apply to You.
The provisions of this Section 13 (No Warranty; As Is) survive termination or expiration of this Agreement.
Section 13. Limitation of Liability
ENERGYBIN WILL NOT BE LIABLE TO YOU FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS OPPORTUNITIES, LOST DATA OR ANY OTHER DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF ENERGYBIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, ENERGYBIN’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (a) the total fees You paid to ENERGYBIN in the 12 months prior to the action giving rise to the liability, or; (b) $100. ENERGYBIN WILL NOT BE LIABLE TO YOU FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS IN THE SITE OR SERVICES. Some states or other jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to You.
Without limiting the foregoing, under no circumstances will EnergyBin be held liable for:
other Members’ actions or inactions, including information they post on the Site.
You acknowledge that EnergyBin is not involved in the actual transactions between
Members who are buyers and sellers. EnergyBin has no control over and does not
guarantee the quality, safety, or legality of items advertised, the truth or accuracy
of listings, the ability of sellers to sell items, the ability of buyers to pay for items,
or that a buyer or seller will actually complete a transaction;
any incorrect or inaccurate information, whether caused by the Site, its users, or by any of the equipment or programming associated with or utilized in the Site. EnergyBin will have no responsibility or liability for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Site. EnergyBin will not be responsible and assumes no liability for any problems or technical malfunction of any telephone, network, cable or lines, computer, on-linesystems, servers or providers, computer equipment, software, failure of e-mail or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to participants or to any other person’s computer, related to, or resulting from, participating in, or downloading materials of, the Site;
any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, terrorism, governmental actions, orders of domestic or foreign courts or tribunals, nonperformance of third parties, or loss of or fluctuations in heat, light, or air conditioning; or
any unauthorized use of proprietary or confidential information concerning Your business contacts, including without limitation names and e-mail/business addresses.
Without limiting the foregoing, You acknowledge that the Site contains links to websites controlled by companies other than EnergyBin, and You agree that EnergyBin is not responsible for and does not endorse, or accept any liability for, the content or use of those websites.
Electronic Communications Privacy Act Notice (18 U.S.C. § 2701-2711): Without limiting the foregoing, EnergyBin makes no guaranty of the confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. EnergyBin will not be liable for the privacy of the information, e-mail addresses, registration and identification information, disk space, communications, confidential or trade secret information, or any other content transmitted over networks accessed by the Site, or otherwise connected with Your use of the Site. The provisions of this Section 14 (Limitation of Liability) survive termination or expiration of this Agreement.
Section 15. Binding Arbitration
Each Party agrees that any controversy or claim arising out of or relating to this Agreement, the breach thereof, or its subject matter must be settled by binding arbitration in accordance with the commercial arbitration rules (then existing) of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration must be conducted in Rochester, Minnesota, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. If a Member files a claim or counterclaim against EnergyBin, the Member must do so on an individual basis and not with any other Member or as part of a class action. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings of any arbitration held pursuant to this Section 16. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which hereby is expressly excluded. Notwithstanding anything to the contrary, EnergyBin, the Member, or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any state or federal court of competent jurisdiction in Olmsted, Ramsey, or Hennepin County, Minnesota (the “Court”), and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of the Court for the purpose of seeking injunctions or other forms of equitable relief pending the completion of the arbitration. The provisions of this Section 16 (Arbitration) survive termination or expiration of this Agreement.
Section 16. Relationship of the Parties
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement
Section 17. Electronic Signature Provisions
You represent and warrant that You have the legal right, power, and authority to agree to the terms of this Agreement on behalf of Yourself and any subscribing Member affiliated with You. You further agree that Your use constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”) and that You have formed, executed, entered into, accepted the terms of, and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of ESign, UETA, and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by You and any subscribing Member affiliated with You. You consent to the use of (a) electronic means to provide You with any notices given pursuant to this Agreement and (b) electronic records to store information related to this Agreement and Your use of the Site and Services.
Section 18. Governing Law
This Agreement and the rights of the parties hereunder will be governed by, interpreted, and enforced in accordance with the internal laws, and not the laws pertaining to choice or conflict of laws, of the State of Minnesota and the Federal Arbitration Act.
Section 19. General Provisions
You may not assign or transfer this Agreement or any Member rights or obligations, in whole or in part, by operation of law or otherwise, without the prior written consent of EnergyBin which may be withheld in its sole and exclusive discretion. EnergyBin may assign this Agreement in whole or in part without Your consent.
No waiver of this Agreement, or any part hereof, will be binding unless made in writing and signed by the party claimed to have made such waiver. No waiver of any breach or condition of this Agreement will be deemed to be a waiver of any other conditions or subsequent breach whether of like or different nature. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party’s rights to subsequently enforce the provision.
This Agreement together with the rules and policies of EnergyBin constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
If any provision of this Agreement is, becomes, or is deemed invalid, illegal, or unenforceable in any jurisdiction: (a) such provision will be deemed amended to conform to applicable laws of such jurisdiction so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, it will be stricken; (b) the validity, legality, and enforceability of such provision will not in any way be affected or impaired thereby in any other jurisdiction; and (c) the remainder of this Agreement will remain in full force and effect. Furthermore, in lieu of any invalid, illegal, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. The provisions of this Section 20 (General Provisions) survive termination or expiration of the Agreement.
Web Site Hosting Service
Last Revised: September 1, 2016
Terms of Services
The following WEB SITE HOSTING SERVICE AGREEMENT (“Agreement”) is a legal agreement by and between you (“You” or “Your”) and EnergyBin, LLC, a Minnesota limited liability company doing business as EnergyBin, LLC.com (“EnergyBin”) of 32 - 7th Avenue NE, Rochester, MN 55906, and is effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of EnergyBin’s Web Site Hosting services (collectively, the “Services”) and represents the entire agreement between You and EnergyBin. By using the Services, You acknowledge that You have read, understand and agree to be bound by all the terms and conditions of this Agreement, along with any Policies (defined below and available on EnergyBin’s web site).
In consideration of the mutual promises contained in this Agreement, EnergyBin and You agree:
Section 1. Description of Service
EnergyBin currently provides the Services to its customers for a monthly fee. EnergyBin will host Your web site on EnergyBin’s servers, provided, however, You abide by the terms and conditions set forth herein and in each of EnergyBin’s policies and procedures here.
Section 2. License of Your Web Site Content
You grant to EnergyBin and EnergyBin accepts from You, a non-exclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet Your web site content in connection with EnergyBin’s performance or enforcement of this Agreement.
Section 3. Availability of Services
Subject to the terms and conditions of this Agreement, EnergyBin shall attempt to provide the Services for twenty-four (24) hours per day, seven (7) days per week throughout the term of this Agreement. You agree that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that EnergyBin may undertake from time to time, or; (c) causes beyond the control of EnergyBin or that are not reasonably foreseeable by EnergyBin, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge that the Internet is neither owned nor controlled by any one entity and that that EnergyBin has no control of availability of the Services on a continuous or uninterrupted basis; therefore, EnergyBin can make no guarantee that any given party shall be able to access the server made available by EnergyBin as a part of the Services at any given time. EnergyBin represents that it shall make every good faith effort to ensure that the Services are available as widely as possible and with as little service interruption as possible. Furthermore, in no event will EnergyBin be responsible for and no credit will be given in relation to (aa) periodic scheduled maintenance or repairs EnergyBin may undertake from time to time, (bb) errors caused by You from custom scripting or coding, (cc) outages that do not affect the appearance of the web site but merely affect access to the web site such as FTP and email, (dd) causes beyond the control of EnergyBin or that are not reasonably foreseeable by EnergyBin, or (ee) outages related to the reliability of certain programming environments.
Section 4. Web Site Content
Except to the extent you have purchased web site design, development or support services from EnergyBin, You shall be solely responsible for providing, updating, uploading and maintaining Your web site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your web site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. Your web site content shall also include any registered domain names provided by You or registered on behalf of You in connection with the Services.
Notwithstanding anything in this Agreement to the contrary, if You are using ad- supported hosting, in no event shall Your web site consist of the following: search results, registration, “thank you”, error, email or chat pages, pages comprised primarily of other advertising or pages containing any of the following: (a) pornographic, obscene, excessively profane or adult-oriented content; (b) content intended to advocate or advance computer hacking or cracking, to violate any copyright or trademark or to destroy others property or information; (c) gambling; (d) illegal activity; (e) controlled substances, drug paraphernalia or contraband; (e) weapons; (f) pirated materials; or (g) hate, violence or racial or ethnic intolerance.
You represent and warrant to EnergyBin that: (i) Your Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation; (ii) infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person or entity; and (iii) that You own Your web site content and all proprietary or intellectual property rights therein, or have express written authorization from the owner to copy, use and display the content on and within Your web site. You also warrant that the web site being hosted by EnergyBin will not be used in connection with any illegal activity. If You are hosting Your web site on EnergyBin’s servers, You are responsible for ensuring there is no excessive overloading on EnergyBin’s servers. In the event You exceed Your allotted bandwidth or disk space and thereby overload EnergyBin’s servers, You shall be assessed any and all fees, costs and penalties associated with such overloading. You may not use EnergyBin’s servers and Your web site as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities. Server hacking or other perpetration of security breaches is prohibited and EnergyBin reserves the right to remove sites containing information about hacking or links to such information. Use of Your web site as an anonymous gateway is prohibited. EnergyBin prohibits the use of software or scripts run on its servers that cause the server to load beyond a reasonable level, as determined by EnergyBin. You agree EnergyBin reserves the right to remove Your web site temporarily or permanently from its servers if EnergyBin is the recipient of activities that threaten the stability of its network. Further, if You are using ad- supported hosting, You acknowledge and agree EnergyBin has the right to terminate Your Services in its sole discretion and for any reason, including, but not limited to, Your failure or unwillingness to comply with the terms and limitations of this Agreement, specifically, the content and material restrictions set forth in this Agreement. You agree not to engage in unacceptable use of any Services, which includes, without limitation, use of the Services to: (i) disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, provided, EnergyBin, in its sole discretion, may permit You, if You have a legitimate purpose and after request, to send more email than EnergyBin’s standard SMTP relay limit; (ii) disseminate or transmit any material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (iii) disseminate or transmit files, graphics, software or other material, data or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (iv) create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication; (v) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions; (vi) interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which You do not have authorization to access or at a level exceeding Your authorization; (vii) disseminate or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or program; (viii) engage in any other activity deemed by EnergyBin to be in conflict with the spirit or intent of this Agreement or any EnergyBin policy; or (ix) use Your server as an “open relay” or similar purposes. EnergyBin reserves the right, but is not obligated to review the content posted via the Services and to refuse or remove any such materials in its sole discretion, without notice at any time.
All activities on your web site may be monitored, recorded, and examined by any authorized person, including law enforcement. EnergyBin reserves the right, but is not obligated, to review the content posted via the Services and to refuse or remove any prohibited materials in its sole discretion without notice at any time. EnergyBin may disclose any of Your information in its possession, including, without limitation, internet transmissions and web site activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or governmental request, to protect EnergyBin or others from harm, and/or to ensure the proper operation of the Services. EnergyBin has no obligation to notify any person, including the Subscriber about whom information is sought, that EnergyBin has provided the information.
Section 5. SSL Certificates
Any SSL certificate You purchase from EnergyBin or its affiliates to use in conjunction with the Services provided by EnergyBin, is intended for its specific use as described in the Subscriber Agreement and will not be exported from the server to be used with any other web hosting service. If You are using an SSL certificate on a web site hosted by EnergyBin, EnergyBin will generate and securely store a corresponding private key. For security reasons, at no time will EnergyBin release Your private key, even at Your request. If You wish to export Your SSL certificate for use on a non- EnergyBin server, You will need to make a request to EnergyBin no earlier than thirty (30) days after Your initial SSL subscription began. After Your account with EnergyBin has been canceled, Your SSL certificate will become invalid.
Section 6. Storage and Security
At all times, You shall bear full risk of loss and damage to Your web site and all of Your web site content. You are entirely responsible for maintaining the confidentiality of Your password and account information. You agree You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with the Site or any of Your web site content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your web site content; (ii) maintain independent archival and backup copies of Your web site content; (iii) ensure the security, confidentiality and integrity of all your web site content transmitted through or stored on EnergyBin servers; and (iv) ensure the confidentiality of Your password. EnergyBin’s shared hosting servers are not an archive and EnergyBin shall have no liability to You or any other person for loss, damage or destruction of any of Your content. You acknowledge and agree that EnergyBin has the right to carry out a forensics examination in the event of a compromise to Your server or account.
Section 7. Term
You agree to the initial term of service (“Term”) selected by you during the registration process or at the time of purchasing web site design or development services from EnergyBin. Upon the expiration of Your initial Term, Your hosting service shall automatically renew for the same period of time not to exceed one year and Your payment method shall be charged for the renewal term on the renewal date. You acknowledge and agree that in the event You do not desire to automatically renew Your hosting services for the same period of time, it is Your responsibility and obligation to access Your account manager and manually turn off the default renewal and Your failure to access Your account manager and manually select to renew on a month-to-month basis shall be deemed acceptance of the renewal term.
Section 8. Failure to Pay
Your failure to remit payment to EnergyBin by the invoice due date is cause for removal of Your web site files from the EnergyBin hosting server. You agree that EnergyBin shall not be held liable for such removal or disconnection. EnergyBin may charge a reinstatement fee if Your account is reinstated after such removal or disconnection.
Section 9. Refund Policy
As detailed above, cancellation by You must be in writing with 30 days notice. Setup charges are not refundable under any circumstances, and You are not entitled to any refund of any monies under any circumstances should this agreement be terminated before the end of the term of service.
Section 10. Taxes
EnergyBin shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases or sales made from Your or EnergyBin’s server. You agree to take full responsibility for all taxes and fees of any nature associated with such products sold or purchased.
Section 11. Trademarks & Copyrights
You warrant that You have the right to use any applicable trademarks or copyrighted material used in connection with this service.
Section 13. Age
You certify that You are of full legal age to enter into this agreement.
Section 14. Policies
Section 15. Termination
This Agreement may be terminated by either party, without cause, by giving the other party
45 days written notice. Written notice may be by postal, email or fax transmission.EnergyBin reserves the right to verily all cancellations before terminating service.
Notwithstanding the above, EnergyBin may terminate service under this Agreement at any
time, without penalty, if the You fail to comply with any of the terms of this Agreement.
Termination for any violation of the EnergyBin Policies and Terms of Service Agreement
shall be immediate. EnergyBin may, at its option, cancel or suspend service immediately
should it believe You have violated or are about to violate EnergyBin Policies or should
You fail to remit payment to EnergyBin by the Your invoice due date. Written notice of
cancellation may be by postal mail, email or fax transmission.
If this Agreement or Your use of the Services is terminated, or when the Term expires, moving Your web site and web site content off of the EnergyBin’s hosting servers is Your responsibility. EnergyBin will not transfer, FTP or manage transfer of Your web site or Your web site content to another provider. If Your use of the Services is terminated prior to its term, it is Your responsibility to update and maintain the DNS information (including contact information) with the registrar and point Your domain name to the proper server, and You release EnergyBin for any losses suffered by You with respect to transitioning your domain name and web site.
Section 16. Force Majeure
In the event of “force majeure” (as defined below), EnergyBin may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” means circumstances or occurrences beyond EnergyBin’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which EnergyBin cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, terrorism, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the Services are located or maintained or through which the Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority. EnergyBin reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that EnergyBin shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Services.
Section 17. No Assignment by You; Assignment by EnergyBin
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by You without EnergyBin’s prior written consent. In particular, You may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon Your successors and assigns, if any. EnergyBin may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
Section 18. Disclaimer of Warranties and Representations
Without affecting the “No Warranty; As Is” provision contained in the Terms of Service, YOU ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. ENERGYBIN HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY ENERGYBIN OR ENERGYBIN’S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, CUSTOMER SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. ENERGYBIN DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NONINFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. ENERGYBIN DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. ENERGYBIN DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR ENERGYBIN IN PARTICULAR. ENERGYBIN WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY BE SUFFERED BY YOU, INCLUDING LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES OR SERVICE INTERRUPTIONS BY ANY CAUSE OR YOUR ERRORS OR OMISSIONS. USE OF ANY INFORMATION OBTAINED BY WAY OF ENERGYBIN IS AT YOUR OWN RISK, AND ENERGYBIN SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. CONNECTION SPEED REPRESENTS THE SPEED OF AN END-TO-END CONNECTION. ENERGYBIN DOES NOT REPRESENT GUARANTEES OF SPEED OR AVAILABILITY OF END-TO-END CONNECTIONS. ENERGYBIN EXPRESSLY LIMITS ITS DAMAGES TO YOU FOR ANY NON-ACCESSIBILITY TIME OR OTHER DOWN TIME TO THE PRO-RATA MONTHLY CHARGE DURING THE SYSTEM UNAVAILABILITY. ENERGYBIN SPECIFICALLY DENIES ANY RESPONSIBILITIES FOR ANY DAMAGES ARISING AS A CONSEQUENCE OF SUCH UNAVAILABILITY.
Section 19. Limited Liability
Without affecting the limitation of liability contained in the Terms of Service, YOU EXPRESSLY AGREE THAT USE OF SERVICES IS AT YOUR SOLE RISK. NEITHER ENERGYBIN, ITS EMPLOYEES, DIRECTORS, MEMBERS, OFFICERS, GOVERNORS, PARENTS, SUBSIDIARIES, SUCCESSORS, ASSIGNS, AFFILIATES, AGENTS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL ENERGYBIN, ITS OFFICES, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, OFFICERS, GOVERNORS, PARENTS, SUBSIDARIES, AFFILIATES, MERCHANTS LICENSERS OR THE LIKE OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ENERGYBIN’S RECORDS, PROGRAMS OR SERVICES, REGARDLESS OF WHETHER ENERGYBIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT ON ENERGYBIN’S SERVERS PROVIDED THROUGH THE SERVICES. NOTWITHSTANDING THE ABOVE, YOUR EXCLUSIVE REMEDIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTIONS WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED TERMINATION OF THIS AGREEMENT PLUS THE AGGREGATE DOLLAR AMOUNT WHICH YOU PAID DURING THE LAST YEAR OF THE TERM OF THIS AGREEMENT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE RULES OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU OR ENERGYBIN MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION HAS OCCURRED. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, ENERGYBIN’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Section 20. Indemnification
You agree to defend, indemnify, save and hold EnergyBin harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees asserted against EnergyBin, its agents, its customers, servants, officers and employees, directors, members, governors, subsidiaries, parents, successors, or assigns, that may arise or result from any service provided or performed or agreed to be performed or any product sold by You, Your agents, affiliates, parents, subsidiaries, employees, successors or assigns. You agrees to defend (using counsel reasonably acceptable to EnergyBin), indemnify and hold harmless EnergyBin against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of any of the following:
20.1 Your violation of this Agreement or the Policies;
20.2 The use by You or any third party of EnergyBin’s web site, servers, colocation facilities and Sen/ices, except to the extent the foregoing directly result from EnergyBin’s own negligence;
20.3 Any use or alleged use of Your accounts or Your login/password by any person, whether or not authorized by You;
20.4 the content, the quality, or the performance of content that You include on your hosted web site;
20.5 Your violation of the rights of any other person or entity.
20.6 Any injury to person or property caused by any products sold or otherwise distributed in connection with EnergyBin’s Server service;
20.7 Any material supplied by You infringing or allegedly infringing on the proprietary rights of a third party;
20.8 Copyright infringement; and 20.9.
20.9 Any defective product which You sold on the Server offered by, or web site hosted by, EnergyBin.
20.10 You may not enter into any settlement that adversely affects EnergyBin without EnergyBin’s prior written approval. EnergyBin reserves the right, at EnergyBin’s expense, to assume the exclusive defense and control of any matter for which You are required to indemnify EnergyBin, and You agree to cooperate with EnergyBin’s defense of these claims. The provisions of this Section 20 (Indemnification) survive termination or expiration of this Agreement.
Section 21. Domain Name Ownership, Disputes, and Use
21.1 Any domain name registered by EnergyBin on Your behalf is Your property after You have paid EnergyBin any registration fees that EnergyBin has incurred on Your behalf. EnergyBin claims no ownership over Your domain names that the You have paid to register. At its option, EnergyBin will either arrange for any billing for names registered by EnergyBin on Your behalf to be sent directly by the registrar or agent thereof to You, or EnergyBin will directly bill You for these registration fees plus applicable expenses, and/or service charges, if any.
21.2 You agree that EnergyBin may be presented with information that Your
domain name or product listing possibly violates the trademark rights or
other intellectual property rights of a trademark or other intellectual
property rights owner. In case of such action, You agree to the following:
(a) You agree to hold EnergyBin harmless of any action taken by such owner regardless of the outcome of such dispute and regardless of whether Domain Name Service hosting for Your domain is hosted at or continued to be hosted at EnergyBin.
(b) You agree that EnergyBin has the right to discontinue name service in the event of such dispute over a Your domain name.
(c) You agree that should EnergyBin discontinue name service for Your domain upon notification of such dispute that that EnergyBin will not be liable for any loss of business, interruption of business, loss of Your domain name, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if EnergyBin has been advised of the possibility of such damages.
(d) In no event shall EnergyBin’s maximum liability exceed one hundred ($100.00) dollars.
21.3 Technical Contact; Administrative or Billing Contact. You agree that an EnergyBin contact person shall be named as the “technical or zone contact” for any domains hosted at EnergyBin. You agree that EnergyBin may create and use network resources with the Your domain name for administrative, testing, and network infrastructure enhancement purposes. EnergyBin may also be named as the administrative and/or billing contact as needed to perform its duties under this Agreement or any contract between You and EnergyBin for web site design, development or support services.
Section 22. Entire Agreement
This Agreement and EnergyBin Policies constitute the entire understanding of the parties. Any changes or modifications to this Agreement are automatically agreed to by the parties upon any change or renewal of the Term or Services.
Section 23. Governing Law; Arbitration; Venue
This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota. You and EnergyBin are bound by the arbitration requirement contained in the Terms of Service. Any action arising out of any such arbitration, out of this Agreement or the Policies must be brought in either the Minnesota District Court for Olmsted County, Minnesota or the United States District Court for the District of Minnesota. You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that EnergyBin shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that EnergyBin acts to enforce this venue selection clause, regardless of whether EnergyBin prevails in the underlying action.
Section 24. Waiver of Trial by Jury
YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND ENERGYBIN THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT.
Section 25. Waiver of Rights to Participate in a Class Action Against EnergyBin or You
Neither You nor EnergyBin, may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND ENERGYBIN ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
Section 26. Relationship of the Parties
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Section 27. Additional Provisions
No waiver of this Agreement, or any part hereof, will be binding unless made in writing and signed by the party claimed to have made such waiver. No waiver of any breach or condition of this Agreement will be deemed to be a waiver of any other conditions or subsequent breach whether of like or different nature. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party’s rights to subsequently enforce the provision. This Agreement together with the rules and policies of EnergyBin constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. If any provision of this Agreement is, becomes, or is deemed invalid, illegal, or unenforceable in any jurisdiction: (a) such provision will be deemed amended to conform to applicable laws of such jurisdiction so as to be valid and enforceable or, if such provision cannot be so amended without materially altering the intention of the parties, it will be stricken; (b) the validity, legality, and enforceability of such provision will not in any way be affected or impaired thereby in any other jurisdiction; and (c) the remainder of this Agreement will remain in full force and effect. Furthermore, in lieu of any invalid, illegal, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
Section 28. Electronic Signatures and Provisions
You represent and warrant that You have the legal right, power, and authority to agree to the terms of this Agreement on behalf of Yourself and any subscriber affiliated with You. You further agree that Your use constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”) and that You have formed, executed, entered into, accepted the terms of, and otherwise authenticated this Agreement and acknowledged and agreed that this Agreement is an electronic record for purposes of E-Sign, UETA, and the Uniform Computer Information Transactions Act and as such is completely valid, has legal effect, is enforceable, and is binding on, and non-refutable by You and any subscribing Member affiliated with You. You consent to the use of: (a) electronic means to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement and Your use of the Site and Services.ENERGYBIN RESERVES THE RIGHT TO REFUSE SERVICE TO ANYONE FOR ANY REASON.
IF YOU DO NOT AGREE TO THE AGREEMENT POLICIES, YOU MUST DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER OR SUBSCRIBER, CANCEL YOUR ACCOUNT
Changes to the Agreement and the Policies Apply to You as provided above. You may review the most current version of this Agreement and the Policies at EnergyBin’s web site. If you do not agree to any such changes, your sole and exclusive remedy is to cancel your account as described above.
This is EnergyBin Usage Policy, which supplements the service agreement of each user of EnergyBin’s services (each, a “Subscriber “). Every Subscriber is subject to this Usage Policy, and by virtue of using EnergyBin’s services, network, and/or systems (collectively the” Services“) agrees to be bound by this Usage Policy. EnergyBin will revise this Usage Policy from time to time. A Subscriber’s use of the Services after revisions to the Usage Policy are posted on EnergyBin’s web site will constitute such person’s acceptance of any changes or additions to the Usage Policy.
Subscribers may only use the Services for lawful purposes.
Subscribers violate this Usage Policy when they (or their affiliates or customers) engage in the following prohibited activities.
Section 1. Violations of Intellectual Property Rights
Any violation of any person’s or entity’s intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. EnergyBin is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement or other intellectual property rights violation (see “Copyright Infringement Notice Information” below).
Section 2. Spamming
Spamming. Whether or not it overloads the Services or disrupts service to EnergyBin’s Subscribers, is prohibited. The term “spamming” includes, but is not limited to, the sending of unsolicited bulk and/or commercial message over the Internet or maintaining an open SMTP policy. EnergyBin reserves the right to determine, in its sole and absolute discretion, whether e-mail recipients were from an opt-in email list.
Section 3. Misrepresentation of Transmission information
Forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of a message is prohibited.
Section 4. Viruses and Other Destructive Activities
Use of the Services for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any Subscriber to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment) or conduct their business over the Internet.
Section 5. Hacking
“Hacking” and related activities is prohibited. “Hacking” includes, but is not limited to, the following activities; illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
Section 6. Anonymous Proxies
We do not allow the use of anonymous proxy scripts on our servers. They can be very abusive to the server resources, affecting all users on that server.
Section 7. Export Control Violations
The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software are prohibited.
Section 8. Child Pornography
The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. EnergyBin is required by law, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
Section 9. Other Illegal Activities
Transmission of any material in violation of any Federal, State or local regulation is prohibited. The use of the Services to engage in any activities that are determined by EnergyBin, in its sole and absolute discretion, to be illegal is prohibited. Such illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available Ponzi or pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable on-line privacy laws. EnergyBin will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
Obscene, Defamatory, Abusive or Threatening Language
Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language Is prohibited.
Section 11. Backup Storage
EnergyBin Web Hosting intends to offer services to host web sites, not store data. Using an account as an online storage space for archiving electronic files is prohibited.
Section 12. Privacy; Cookies
Subscriber shall comply with all applicable laws and its published privacy policies with regard to private or confidential information and cookies used on its web site.
Section 13. Other Activities
Engaging in any activity that, in EnergyBin’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, EnergyBin’s business, operations, reputation, goodwill, customers and/or customer relations, or the ability of EnergyBin’s customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Usage Policy. In addition, a Subscriber’s failure to cooperate with EnergyBin in correcting or preventing violations of this Usage Policy by, or that result from the activity of, a customer of a Subscriber is a violation of this Usage Policy.
In general, EnergyBin does not monitor its customers’ web sites or activities to determine whether they are in compliance with this Usage Policy. However, when EnergyBin becomes aware of any violation of this Usage Policy, its Terms of Service Agreement or the terms and conditions of any other EnergyBin user agreement, EnergyBin may take any action to stop or correct such violation, including, but not limited to, shutting down a web site, denying access to the Services or to the Internet, and/or removing information. In addition, EnergyBin may take action against a Subscriber or a customer of such Subscriber because of the activities of such customer. EnergyBin reserves the right to take any such action even though such action may affect other customers of the Subscriber.
EnergyBin may disclose any information in its possession, including, without limitation, information about Subscribers, internet transmissions and web site activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or governmental request, to protect EnergyBin or others from harm, and/or to ensure the proper operation of the Services. EnergyBin has no obligation to notify any person, including the Subscriber about whom information is sought, that EnergyBin has provided the information.
COPYRIGHT NOTICE INFRINGEMENT INFORMATION.
In accordance with the Digital Millennium Copyright Act, EnergyBin has adopted a policy that provides for termination of web sites hosted by EnergyBin that are found to infringe on copyrights of third parties, which is included in EnergyBin’s Terms of Service.
CHANGES TO THIS USAGE POLICY APPLY TO YOU.
You may review the most current version of the Usage Policy at our Web site. EnergyBin may change the Usage Policy, in whole or in part, at any time at EnergyBin’s sole discretion. Posting of such changed Usage Policy on its Web site shall constitute notice of such changes to you, although EnergyBin may choose additional types of notice. EnergyBin will use reasonable efforts to provide you with 7 days advance notice of changes to the Rules that materially and adversely impact your use of the Services. Your continued use of the Services following notice constitutes your acceptance of all changes. If you do not agree to any such changes, your sole and exclusive remedy is to cancel your account as described below.
Last Revised: June 1, 2016
Terms of Services
Collection of Information
EnergyBin collects personal information from You in various ways. We use this information
primarily to offer a customized experience to You as you use the Site services.
EnergyBin collects personal information when You register as a Member of the Site, when You use certain Site services, and when You visit certain Site pages.
When You register with the Site or subscribe to a membership, we ask You for Your name, organization, email address, and some other personal information. This information helps us to identify You and personalize Your online experience. Your registration information is passwordprotected for Your privacy and security.
When You visit an internet website you automatically disclose certain information about yourself, such as your Internet Protocol (IP) address, the time of your visit, and the referring location (the site or page that offered the link to a Site page). EnergyBin, like operators of many other sites, records this basic information about visits to its Site.
Use of Information
As set forth above, We use the personal information You provide for the following purposes. Personal information provided by You is typically used for purposes such as personalization, age verification, and credit card authorization. Information tracked on Our web server logs is used to maintain statistical data and for fraud protection purposes. This information also is used for system administration and provides information regarding the number of Site visitors to Our clients and advertisers. Again, cookies are used primarily for your convenience and to track certain statistical information that assists in maintaining a superior website. Cookies allow Us to save your passwords and preferences so you will not have to re-enter them each time you visit.
EnergyBin secures your personal information from unauthorized access, use, or disclosure. EnergyBin secures the personal information You provide on our Site in a controlled, secure environment, protected from unauthorized access, use, or disclosure. While We make every effort to ensure the integrity and security of Our network and systems, We cannot guarantee that Our security measures will prevent third-party “hackers” from illegally obtaining Your personal information. Please remember any information You may disclose in public areas of Our website or the internet becomes public information. You should exercise caution when deciding to disclose personal information in these public areas.
EnergyBin may use external links to redirect users to other EnergyBin websites and third party websites. Each of these sites may have different privacy policies and EnergyBin is not responsible for the practices of these third parties, or for the content on these sites.
Transfer of Information for Legal Purposes
EnergyBin may be required to disclose certain personal information to comply with a legal requirement, such as a statute, regulation, court order, subpoena, or search in the course of a legal proceeding or lawsuit. Further, if EnergyBin experiences a change in control (whether by sale, merger or otherwise), a Member’s personal information could be transferred in conjunction with the transaction and the transferee may use your personal information.
Modifying Your Account Information
EnergyBin offers Members the opportunity to access or modify information provided during registration. To access or modify such information, visit the My Profile and the My Company manage pages.
Changes to this Policy