DAVID ENERGY ONLINE TERMS OF SERVICE
These Terms of Service (“Terms”) reflect a binding legal contract between you (“User” or “Customer”) and David Energy (“David Energy”). It is important that you read these Terms carefully because if you sign up with us, you consent to the practices we describe below.
THIS AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. YOU ARE ACCEPTING THE AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF ANOTHER PERSON OR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT PERSON OR ENTITY TO THIS AGREEMENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ENTER INTO THIS AGREEMENT. YOU FURTHER REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT.
Use of the Services and the David Energy Website
DES owns or is an authorized licensee for all intellectual property used for purposes of providing the DES Services under this Agreement, whether developed prior to the commencement of this Agreement or anytime thereafter (“DES Properties”). All right, title and interest (including, without limitation, all copyright, patent, trade secret, trademark and other intellectual property rights) in and to the DES Properties (including the DES Software) and any corrections, updates, adaptations, release notes, enhancements or copies of the foregoing shall remain or vest exclusively with David Energy. To enable Customer to use the DES Services, and upon Customer’s payment of all applicable Services fees, David Energy grants to Customer, during the Term, a personal, non-exclusive, non-sublicenseable, non-transferable and non-assignable license for Authorized Users solely to access and execute the DES Services through the DES Gateway strictly for the benefit of Customer’s internal business operations. David Energy shall own and retain all right, title and interest in and to the DES Services, all data collected pursuant thereto, aggregated, derived and modified. Customer is responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and Authorized Users’ conduct shall be imputed to Customer. Customer shall not cause or allow any third party or unlicensed user or computer system, other than an Authorized User, to access or use the DES Services or DES Software, nor shall Customer remove, obscure or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of the DES Services. The Parties agree that in the event of any breach or threatened breach of this Agreement, David Energy may suffer irreparable injury. Accordingly, in addition to remedies available at law, the Parties hereby agrees that David Energy shall be entitled to seek specific performance as well as injunctive relief as may be granted by a court of competent jurisdiction.
In order to access certain features of the Website or Services you may be required to become a registered User. In registering an account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted during the registration process and (b) maintain and promptly update the registration data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using the website or Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your account. You may not share your account or password with anyone, and you agree to (c) notify David Energy immediately of any unauthorized use of your password or any other breach of security; and (d) exit from your account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or David Energy has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, David Energy has the right to suspend or terminate your account and refuse any and all current or future use of the website or Services (or any portion thereof). You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an account or use the website or Services if you have been previously removed by David Energy, or if you have been previously banned from any of the Services or website.
Utility Account Access
If Customer chooses to enroll in David Energy’s Services, Customer will appoint David Energy as Authorized Customer Representative for energy data and usage matters related to Customer’s Utility account. You agree that David Energy may sign such contracts, agreements, and forms on your behalf with the signature “[USER FIRST NAME LAST NAME] BY DAVID ENERGY (LOA)” or similar language. Customer must notify Supplier of any changes or revocation in authority.
Communications by David Energy
By entering into this Agreement or using the Services and website, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems and that any calls may be recorded and the record of those calls may be retained by David Energy. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Website and Services, updates concerning new and existing features on the Website and Services, communications concerning promotions run by us or our third-party partners, and news concerning the David Energy and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. If you wish to opt out of communications from David Energy, please contact your account executive or email firstname.lastname@example.org. However, you acknowledge that opting out of receiving all texts may impact your use of related DES Services.
Third-Party Content and Links to Third-Party Websites
The communications between you and David Energy may take place via electronic means. For contractual purposes, you (a) consent to receive communications from David Energy in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that David Energy provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act.
For commercial customers, David Energy may run a credit check prior to contracting services.
ENROLLMENT IN DAVID ENERGY BILLING
By enrolling your account with David Energy, you agree that David Energy is authorized to send a bill for services as described below:
David Energy will send you one bill for services agreed to in your Customer Sales Agreement. You understand and agree that you will directly pay David Energy each month for that amount. Your Utility will continue to send you a bill for delivery charges.
David Energy Utility Consolidated Billing
David Energy will access your Utility Account on a regular basis and combine your Utility Statement charges with your David Energy bill, if any, and send you one consolidated Bill, along with any additional charges for services agreed to in your Customer Sales Agreement. You understand and agree that you will directly pay David Energy each month for your David Energy bill and that we will facilitate payment of your Utility charges. We will use reasonable efforts to facilitate your payments properly and on time. However, David Energy makes no guarantees, warranties, representations or commitments regarding when payments will reach your Utility. David Energy shall not be responsible for any fees, penalties, or late payment interest charged to you by your Utility or any third party as a result of a delay in payment. However, David Energy will pay any fees, penalties, or late payment interest charges charged to you by your Utility if it determines that a late payment was caused solely by David Energy. David Energy is not responsible for any failure to complete or delay in completing any payment due to any of the following:
- Your Payment Account does not contain sufficient funds or your Payment Method does not have available credit to complete the payment or the charge is rejected or returned by your bank or financial institution;
- The payment processing center is not working properly and you know or have been advised by us about the malfunction before you execute the transaction;
- Your Utility rejects or returns the payment for any reason;
- Your equipment, software or any communications link is not working properly;
- You have provided us with incorrect information about your Utility;
- Your Utility mishandles or delays handling or posting any payment;
- Circumstances beyond our control that prevent or delay the payment from being completed;
- You have revoked the monthly recurrent payment authorization;
- You have not provided us with the correct bank account or credit card information
Monthly Recurring Payments
By choosing AutoPay, or by enrolling in any of our Services that require AutoPay, you authorize and order David Energy to have your Payment Method debited or charged for the amount noted on your monthly David Energy bill (please note that credit card payments will incur an additional 3% processing fee). Your monthly charges will be deducted from or charged to your Payment Account up to three (3) days prior to the due date.
You understand that this authorization and order will remain in effect until you cancel it in writing, and you agree to notify David Energy of any changes in your account information or termination of this authorization and order at least fifteen (15) days prior to the next billing date. If the above noted payment date does not fall on Business Day, you understand that the payment may be executed on the next Business Day.
You understand that because this is an electronic transaction, these funds may be withdrawn from your account each period as soon as the above noted transaction date. You have the right to stop automatic payment by notifying David Energy of that fact as contemplated above, but if you do so David Energy will no longer pay your Utility bill. This authorization is to remain in full force and effect until David Energy has received written notification from you in such time and in such manner as set forth above. You agree to receive the notice required by 12 C.F.R. § 1005.10(d)(2) only if the difference between your current David Energy Bill and your previous David Energy Bill falls outside of a specific range as defined below:
- Commercial Customers: Your Bill must be $5000 greater than the previous month’s Bill
- Residential Customers: Your Bill must be (1) $1000 greater than the previous month’s Bill
If a transaction is rejected for non-sufficient funds or declined credit you understand that David Energy may at its discretion attempt to process the charge again within thirty (30) days. David Energy is not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) charged to you by your financial institution from your failure to maintain a balance or have available credit in the Payment Account sufficient to process our payment. David Energy reserves the right to charge you for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) assessed to David Energy that result from your failure to maintain a balance or credit in the Payment Account that is sufficient to process your payment. You acknowledge that the origination of payment transactions to the Payment Account must comply with the provisions of U.S. law.
You will not dispute David Energy’s recurring billing with your financial institution, bank or credit card company so long as the transaction corresponds to the terms indicated in these Terms. Any disputes should be first brought to our attention by contacting us at email@example.com or (855) 524-0270. Transaction fees may apply for credit card and ACH bank debit payments.
David Energy Multiple Services & Auto-Pay
If you are enrolled in multiple David Energy Services, and terminate one service, you may continue to be enrolled in the additional services. You will continue to be enrolled in Autopay for those additional services until your contract term ends or until you terminate those services.
Electronic Consent Regarding Recurring Payment Authorization
You acknowledge and agree that by accepting these recurring payment terms and conditions (“Recurring Payment Terms”), you consent to receive a copy of your payment authorization for recurring monthly payments in electronic form only instead of receiving a paper copy. If you wish to obtain a paper copy of your recurring payment authorization, you may do so by printing the Recurring Payment Terms yourself or by calling us at (855) 524-0270 to request a paper copy. We may charge you a reasonable service charge for the delivery of a paper copy of the Recurring Payment Terms.
LEGAL & MISCELLANEOUS
The services provided by David Energy to Customer are governed by the terms and conditions of this Agreement and the relevant state rules and regulations.
Liability, Damages, Waivers
Except as provided in Section 2 (Use of the Services and David Energy Website) the remedy in any claim or suit by one party against the other will be solely limited to direct actual damages, and all other remedies at law or in equity are hereby waived. In no event will either David Energy or User be liable for consequential, incidental, indirect, special or punitive damages. These limitations apply without regard to the cause of any liability or damages. There are no third-party beneﬁciaries to this Agreement. The failure of David Energy to enforce any provisions of these Terms or respond to a breach by you or other parties will not in any way waive its right to enforce subsequently any terms or conditions of these Terms or to act with respect to similar breaches.
Each Party shall indemnify, defend and hold harmless the other Party from and against any Claims brought by a third party arising from or out of any event, circumstance, act or incident caused by the negligence or willful misconduct of the indemnifying party.
Representation & Warranties
This Agreement, including any enrollment documents, sales agreements, and applicable attachments, as written makes up the entire Agreement between Customer and David Energy. David Energy makes no representations or warranties other than those expressly set forth in this Agreement, and David Energy expressly disclaims all other warranties, express or implied, including merchantability and ﬁtness for a particular use. Customer represents and warrants David Energy during the Term that:
- The information provided concerning its Account(s) is true and correct to its general knowledge.
- Any transactions entered into by Customer related to this Agreement are understood by Customer and made at Customer’s sole election in the exercise of independent judgment and Customer assumes any associated risks.
Actions by David Energy
If we have reason to believe that you have violated these Terms, we may take various actions to protect David Energy, a third party, or you from fees, costs, expenses, fines, penalties and any other liability. The actions we may take include but are not limited to the following: We may close, suspend, or limit your access to your Account or the Services; We may update inaccurate information you provided us; We may refuse to provide the Services to you in the future; David Energy may close, suspend, or limit your access to your Account or Services; and We may take legal action against you. David Energy, in its sole discretion, reserves the right to terminate access to its Website, to your Account, or to the Services for any reason and at any time upon notice to you. If we close your Account or terminate your use of the Services for any reason, we will provide you with notice of our actions. If we limit access to your Account, we will provide you with notice of our actions and the opportunity to request restoration of access if appropriate in our sole discretion.
Waiver of jury trial and class action claims
Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action, claim or proceeding relating to this agreement. each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action, claim or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have not been induced to enter into this agreement by among other things the mutual waivers and certifications in this section. Both Parties further agree irrevocably and unconditionally to waive any right to initiate or become a party to any class action claims with respect to any action, suit or proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated by this Agreement.
This Agreement is binding upon the parties hereto and their respective successors and assigns.
In the event that any of the terms of this Agreement are in conflict with any rule or laws, regulations, provisions or are otherwise unenforceable under the laws or regulations of any governmental authority or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
“Authorized User” shall mean an employee, consultant, independent contractor, representative or member entity of Customer, and identified by Customer as such, who i) has received a valid password and login ID from David Energy or from Customer’s User Administrator to access and utilize DES Services though a DES Gateway and ii) has accepted and agreed to the terms of this Agreement.
“Account or Customer Service Account” means, for each Facility, each account at such Facility to be included in a Transaction and identified by a specific account designation number.
“Affiliate” means with respect to any Person, any other Person controlling, controlled by or under the common control with the first Person. The term “control” will mean the possession, directly or indirectly, of the power to direct or cause the direction of the management of the policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Billing Cycle” means, for each Account, the period between successive invoices rendered either by Supplier or the applicable LDC during the applicable Transaction Term.
“Change in Law” means applicable Law or Rules are amended, modified, nullified, suspended, repealed, found unconstitutional or unlawful, or changed or affected in any respect by any Law or Rule of any Governmental Authority after the Effective Date.
“Claim” means any loss, cost, expense (including reasonable attorneys’ fees) arising out of claims of any nature whatsoever, including any demand, liability, obligation, debt, cause of action, suit, proceeding, judgment, award, or assessment.
“Customer Premises” or “Facility” mean the Service Address of the Customer Accounts identified on Schedule 1 and all site locations and premises where Customer’s equipment or other facilities are located, whether owned, leased or otherwise used by Customer, individually or on a shared basis.
“Days” means Calendar Days, unless otherwise defined.
“David Energy” shall mean David Energy Systems, Inc. and its affiliates and subsidiaries, including David Energy Supply, LLC, David Energy Supply (Texas) LLC, and R3 Energy Management Audit & Review, LLC.
“DES Gateway“ shall mean the David Energy website, interface, portal, and applications through which Authorized Users of Customer may access the DES Services and, as applicable, related DES Software or other services.
“DES Properties“ means DES owns or is an authorized licensee for all intellectual property used for purposes of providing the DES Software, DES Hardware and the DES Services under these terms, whether developed prior to the commencement of the DES Services or anytime thereafter.
“DES Hardware“ means one or more DES supplied proprietary monitoring devices, including any related hardware, software and materials used in connection with the DES Services in support of such DES Hardware.
“DES Services“ or “Services“ shall mean certain DES energy assessment, reporting, management and monitoring services, including but not limited to Mycor.
“DES Software“ shall mean DES proprietary and licensed software module(s) in the delivery of the DES Hardware and DES Services.
“Force Majeure Events” shall include acts of God, ﬁre, ﬂood, storm, terrorism, pandemic, war, civil disturbance, accidents, strikes, labor disputes or problems, required maintenance work, inability to access the LDC system, curtailment by Customer’s LDC or any other cause beyond David Energy’s control.
“Governmental Authority” means any federal, state, local, municipal or other governmental authority, instrumentality, department, board, court, tribunal, regulatory commission, or other body, whether legislative, judicial or executive (or a combination or permutation thereof) and any arbitrator to whom a dispute has been presented under any Law or Rules or by agreement of the Parties with an interest in such dispute.
“Law” means any applicable statute, law (including common law), ordinance, rule, regulation, ruling, order, writ, injunction, judgment, decree, directive, policy or other legal or regulatory determination or interpretation by a Governmental Authority of competent jurisdiction, including without limitation, any such items dealing with or addressing the deregulation of the energy markets in the state where Facilities served pursuant to this Agreement are located.
“Person” or “User” means any Governmental Authority or any individual, firm, partnership, corporation, limited liability David Energy, joint venture, trust, unincorporated organization, David Energy or other entity or organization.
“Retail Electric Provider” means the corporation, generator, broker or any other entity that sells electricity to end-user Customers over regulated transmission or distribution facilities.
“Rules” means as applicable, the interim or final requirements, tariffs, rules, orders, regulations and procedures authorized or established by the applicable Governmental Authority that affect the sale, transmission and distribution of energy and other services contemplated by this Agreement.
“Taxes” means all taxes, assessments, levies, duties, fees, charges or withholdings of any kind whatsoever and all penalties, fines, additions to tax, or interest thereon, but excluding any taxes on net income, employment taxes, penalties or fines.
“Transaction” means a particular transaction for the purchase and sale of electric energy or other services pursuant to this Agreement as evidenced by a duly executed Confirmation.
“Term” means the term of a Transaction as specified in the applicable Confirmation.
“Transaction Data“ shall mean the Customer’s energy usage data and other information that will be collected by the DES Hardware or as provided by Customer during the Term of the DES Services.
“Utility” or “LDC“ means an electricity utility distribution David Energy, T&D Provider or other provider of tariffed services to the Facilities, including any “standard offer provider” or “provider of last resort”.
“Website” means www.davidenergy.com, all of its sub-pages and any successor pages.