In this User Agreement:
The entity you are contracting with is: Energyard.com .565 Mason Rd Suite 216, Katy, TX 77494 , if you reside in the United States. In this User Agreement, these entities are individually and collectively referred to as "Energyard," "we," or "us."
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see "Disclaimer of Warranties; Limitation of Liability" and "Legal Disputes" provisions below). It also contains an Agreement to Arbitrate which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate. If you do not opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
2. About Energyard.com
Energaryd is a marketplace that allows users to offer, sell and buy goods and services in various geographic locations using a variety of pricing formats. Energaryd is not a party to contracts for sale between third-party sellers and buyers, nor is Eneryard a traditional auctioneer.
Any guidance Eneryard provides as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. We may help facilitate the resolution of disputes between buyers and sellers through various programs. Unless otherwise expressly provided, Eneryard has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or 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 or return an item.
3. Using Energyard
In connection with using or accessing our Services you agree to comply with this User Agreement, our policies, our terms, and all applicable laws, rules, and regulations, and you will not:
breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;
use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;
fail to pay for items purchased by you, unless you have a valid reason as set out in an Energyard policy, for example, the seller has materially changed the item's description after you bid (see our Unpaid item policy);
fail to deliver items sold by you, unless you have a valid reason as set out in an Energyard policy;
manipulate the price of any item or interfere with any other user's listings;
take any action that may undermine the feedback or ratings systems (our Feedback policies);
transfer your Energyard account (including feedback) and user ID to another party without our consent;
share your log in credentials with any third parties. If you require that authorized third parties (employees, agents, etc) have access to your account we offer a Multi-User Account Access program for that purpose.
create listings, post, or upload content in inappropriate categories or areas on our sites;
post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm Energyard or the interests or property of users;
use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of Energyard ;
circumvent any technical measures used to provide our Services.
interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
export or re-export any Energyard application or tool, except in compliance with the export control laws, and rules and policies of any relevant jurisdictions;
infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to Energyard . Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Energyard or someone else;
infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;
commercialize any Energyard application or any information, data or software associated with such application, except with the prior express permission of Energyard ; or
harvest or otherwise collect or use information about users without their consent.
Sellers must meet Energyard minimum performance standards. Failure to meet these standards may result in Eneryard charging sellers additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing Energyard and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating our policies prohibiting Offers to buy or sell outside of Energyard , you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. Also, as provided below in the Fees and Taxes section, if we believe you are violating our policy on buying or selling outside of Energyard , you may be charged final value fees.
We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers. The foregoing does not limit or impair our right to refuse, modify, or terminate all or part of our Services to anyone, or to terminate this agreement with anyone, for any reason at our discretion.
5. Fees and Taxes
We charge sellers for the use of our Services. In some cases, where a buyer receives supplemental Services such as authentication Services for items in certain categories, we may also charge the buyer for such supplemental Service.
The fees we charge sellers for using our Services are listed on our Selling fees pages. We may change our selling fees from time to time by posting the changes on the Energyard site fourteen (14) days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
If you are a seller, you are liable for fees arising out of all sales made using some or all of our Services, even if sales terms are finalized or payment is made outside of Energyard. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Energyard , you may be liable to pay a final value fee applicable to that item, even if the item doesn't sell, given your usage of our Services for the introduction to a buyer.
In any jurisdiction where Energyard has an obligation to collect sales taxes on sales you make using our Services, we or the Energyard Payment Entities may collect such sales taxes from you via the payment method on file.
Selling fees don't purchase exclusive rights to item exposure on our Services. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, including your listing, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
6. Listing Conditions
When listing an item for sale on our Services, you agree to comply with Energyard Listing policies and Selling practices policy and also agree that:
You assume full responsibility for the item offered and the accuracy and content of the listing,
Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Energyard can't guarantee exact listing duration,
Your fixed-price listings may renew automatically every calendar month, based on the listing terms at the time, until all quantities sell or the listing is ended by you or Energyard , in its sole discretion,
The content you provide complies with all of our listing policies, including the Images, videos and text policy,
Content that violates any of Energyard policies may be modified, obfuscated or deleted at Energyard sole discretion,
We may revise product data associated with listings to supplement, remove, or correct information,
We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
buyer's location, search query, browsing site, and history;
item's location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
seller's history, including listing practices, Detailed Seller Ratings, Energyard policy compliance, feedback, and defect rate; and
number of listings matching the buyer's query,
To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer,
Some advanced listing upgrades will only be visible on some of our Services,
Energyard Duplicate listings policy may also affect whether your listing appears in search results,
Metatags and URL links that are included in a listing may be removed or altered,
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and/or current listings; results may vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers,
For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, Energyard may require the use of certain payment methods, subject to our Payments methods policy. For example, for inventory covered by authentication services, buyer and sellers may be subject to escrow and/or payment handling requirements,
You will not sell and will promptly remove all listings for any product recalled by a manufacturer or governmental agency if the sale of the product is prohibited by law or regulation or the product poses a health or safety hazard as specified by any governmental agency. Energyard has no responsibility or liability for the safety or performance of any product that you list or sell using our Services, including any product that is subject to a recall. You are solely responsible for any non-conformity or defect in, or compliance with any public or private recall of any product you list or sell using our Services,
Energyard may publish and promote your listings, including related content such as username, product reviews and feedback on the websites or in the applications, services and tools of other Energyard.com. corporate family members or cooperating third-party operators of websites, applications, services and tools.
7. Purchase Conditions
When buying an item using our Services, you agree to the Rules and policies for buyers and that:
You are responsible for reading the full item listing before making a bid or offer, buying, or committing to buy,
You enter into a legally binding contract to purchase an item when you buy, commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted),
For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller,
We do not transfer legal ownership of items from the seller to you,
Utah Code Annotated § 70A-2-401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
8. International Buying and Selling; Translation
Given the nature of Energyard global marketplace, listings may be viewed and purchased by, and shipped to, buyers around the world. Many of our Services are accessible internationally. We offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
If you purchase an item on an Energyard site that is different from your registration site, you are subject to the User Agreement and applicable policies of that other Energyard site with respect to that particular purchase, as detailed in the International selling policy.
For sellers, you agree that we may display your listing for sale on an Energyard site other than the site where you listed your item for sale, based on your shipping settings. You may adjust these settings as detailed in the International selling policy. If you list your items with an international shipping option, the appearance of your listings on sites other than the listing site is not guaranteed. If you sell an item on an Energyard site that is different from your registration or listing site, you are subject to the User Agreement and applicable policies, including any buyer protection programs, of that other Energyard site with respect to that particular sale, as detailed in the International selling policy.
You authorize us to use automated tools to translate your Energyard content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
One of the ways that we may make Energyard.com listings available to international buyers on Energyard.com and on Energyard international sites is through the Global Shipping Program. For eligible items located in the United States and purchased by an international buyer through the Global Shipping Program, you (as seller) will simply ship the item to a parcel processing facility located in the United States after receiving notification of payment from the buyer. Pitney Bowes Inc., a third-party global shipping provider, will oversee the processing, customs clearance, and international shipment of the item on behalf of your international buyer. To the extent a buyer has a question about your Global Shipping Program listings, Energyard may respond directly to the buyer if the question pertains to the services overseen by Pitney Bowes Inc. (for example, customs or international shipping). Sellers pay no additional fees for selling through the Global Shipping Program.
Pursuant to a routed export transaction under the U.S. Export Administration Regulations and Foreign Trade Regulations, the buyer, as the Foreign Principal Party in Interest, will agree to assume responsibility for the export shipment, with Pitney Bowes Inc. acting as your buyer's forwarding agent. You remain liable for the accuracy of information you provide about items, and you agree to provide timely responses to requests for additional information.
You consent to the disclosure of certain personally identifiable information, as well as listing and order information, by Energyard to Pitney Bowes Inc., and by Pitney Bowes Inc. to its affiliates, service providers, and other third parties (such as customs and revenue authorities, as well as other government agencies), in connection with the processing, export and customs clearance, and international transportation of any item. Energyard does not control the privacy policies of Pitney Bowes Inc., its affiliates, or its service providers, and you are subject to the privacy policies of those parties, as applicable.
Additional information about the program, including policies governing feedback, the handling of lost, damaged, and undeliverable items, returns, and the resolution of buyer protection claims for items that you sell through the program, can be found on our Global Shipping Program and Global Shipping FAQs pages.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against Energyard , our assignees, our sublicensees, and their assignees in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Energyard takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including Energyard users). You may use that content solely in your Energyard listings. Energyard may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that Energyard is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.
The name "Energyard " and other Energyard marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Energyard in the U.S. and other countries. They may not be used without the express written prior permission of Energyard .
10. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Energyard Verified Rights Owner (VeRO) program works to ensure that items and content using our Services do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our VeRO team and we will investigate. Learn how to submit a notice to Energyard .
11. Holds and Restricted Funds
12. Authorization to Contact You; Recording Calls; Analyzing Message Content
Energyard may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Energyard may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by our User Privacy Notice. As described in our User Privacy Notice, Energyard may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. You may change your marketing communications preference for calls at any time. You may also opt-out of a specific text marketing campaign by replying "STOP" to such marketing text message.
Energyard may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Energyard to carry out the purposes identified above.
Energyard may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Energyard or its agents for quality control and training purposes, or for its own protection.
Energyard automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of Energyard User Agreement, including the incorporated terms, notices, rules, and policies. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Energyard may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If Energyard provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose or distribute a user's information to a third party for purposes unrelated to our Services. Additionally, you may only send marketing communications to users who have consented to receive them in accordance with applicable laws, and only using Energyard Services.
13. Additional Terms
Returns and cancellations for sellers
Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, Energyard will set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within My Energyard . Where settings have been set to automatically accept requests for returns or replacements, an Energyard -generated return shipping label will be provided to your buyer. You agree to comply with our returns policy.
When an item is returned or if a transaction is cancelled after payment has been completed, Energyard may issue a refund to the buyer on the seller's behalf and charge the seller for the amount of the refund.
Additionally, Energyard may charge sellers for the cost of return shipping labels and/or other reasonable fees from sellers when:
An Energyard -generated return shipping label is used, and the seller is responsible for its cost;
Returns have been automated;
The seller fails to send the buyer a return shipping label and, instead, an Energyard -generated shipping label is used; and/or
The item is not as described in the listing and is returned in accordance with Energyard Money Back Guarantee or other applicable terms.
All seller cancellations of orders must be in accordance with our Order cancellation policy.
Returns and cancellations for buyers
Buyers generally do not have the right to cancel an order. Buyers can request to cancel an order on Energyard within the time period and as provided in our Order cancellation policy, and the seller will have 3 days to accept or decline the request. If the order cannot be cancelled, buyers may still be permitted to return the item if the item is eligible for return.
In certain instances, a buyer may be responsible for the cost of return shipping for an item returned to a seller. If the buyer is responsible for the return shipping costs, the buyer may elect to use an Energyard -generated shipping label or purchase a shipping label directly from a carrier. By choosing to use an Energyard -generated shipping label, you (as a buyer) agree that Energyard may deduct the cost of the shipping label from the refund owed to you.
14. Payment Services
If you are a buyer:
You may pay for items and services using the payment methods that the Energyard Payment Entities make available, and the Energyard Payment Entities will manage settlement of the payment to sellers. When buying on our Services, you authorize the Energyard Payment Entity to initiate payments using your selected payment method and collect the transaction amounts on behalf of the seller. Accordingly, payments received by the Energyard Payment Entity from you will satisfy your obligations to pay the seller in the amount of payments received.
In certain instances, your transaction may be declined, frozen, or held for any reason including for suspected fraud, AML compliance, compliance with economic or trade sanctions, in connection with Energyard internal risk controls or due to potential violations of any policy of Energyard or the Energyard Payment Entity, or a policy of one of the Payment Entity's third-party payment services providers.
Energyard , the Energyard Payment Entity or its affiliates may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on our Services when you make a purchase, redeem a coupon, or make any other transaction on our Services where card information is entered. Such stored payment information may be used as your default payment method for future transactions on our Services. At any time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You may make changes to your default payment method through the Personal Information section under the Account tab in My Energyard . You are responsible for maintaining the accuracy of information we have on file, and you consent to Energyard updating such stored information from time to time based on information provided by you, your bank or other payments services providers. You will only provide information about payment methods that you are authorized to use.
You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of the services provided by the Energyard Payment Entities. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the Energyard Payment Entity has no control over, or responsibility or liability for, such fees or actions.
15. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in Energyard applications may not occur in real time. Such functionality is subject to delays beyond Energyard control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, in no event will Energyard (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or Energyard was advised of such damages or losses. Without limiting the generality of the foregoing, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
the content you provide (directly or indirectly) using our Services;
your use of or your inability to use our Services;
pricing, shipping, format, or other guidance provided by Energyard ;
delays or disruptions in our Services;
viruses or other malicious software obtained by accessing or linking to our Services;
glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any Energyard Service;
the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
a suspension or other action taken with respect to your account or breach of the Using Energyard Section above;
the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) 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. In entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of our Services or your breach of any law or the rights of a third party.
18. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND ENERGYARD HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term "related third parties" includes your and Energyard respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, Energyard, and these entities' respective employees and agents.
You and Energyard agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Energyard (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Energyard or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Energyard , except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
You and Energyard each agree that any and all disputes or claims that have arisen, or may arise, between you and Energyard (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of Energyard or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court.
Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act ("FAA"), and to the extent not inconsistent with the FAA, the laws of the State of Utah, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND ENERGYARD AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND ENERGYARD AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court (pursuant to Section 18.C below), subject to your and Energyard right to appeal the court's decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be administered by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules and the AAA's Commercial Arbitration Rules, and the AAA's International Centre for Dispute Resolution Rules (as applicable), as modified by this Agreement to Arbitrate. Absent agreement of the parties, the AAA shall decide which AAA rules apply to the arbitration. The AAA's rules are available at www.adr.org and www.icdr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court (pursuant to Section 18.C below) shall select the administrator.
If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Salt Lake County, Utah, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Energyard may attend by telephone, unless the arbitrator requires otherwise. The language of the arbitration will be English.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Energyard user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If you complied with the Notice of Dispute procedures of Section 2 of this Agreement ("Arbitration Procedures") and the value of the relief sought is $10,000 or less, at your request, Energyard will pay all administration and arbitrator fees associated with the arbitration. Any request for payment of fees by Energyard should be submitted by mail to the AAA along with your Demand for Arbitration and Energyard will make arrangements to pay administration and arbitrator fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Energyard for all fees associated with the arbitration paid by Energyard on your behalf that you otherwise would be obligated to pay under the AAA's rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME.
For your convenience, we are providing an Opt-Out Notice form. You must complete and mail that to us in order to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Energyard Service account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Energyard prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Energyard . We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.Energyard.com at least 30 days before the effective date of the amendments and by providing notice through the Energyard Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
All claims or disputes that are not subject to the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate and all matters brought pursuant to and in aid of the Agreement to Arbitrate will be resolved exclusively by a state or federal court located in Salt Lake County, Utah. You and Energyard agree to submit to the personal jurisdiction of the courts located within Salt Lake County, Utah for the purpose of litigating all such claims, disputes, or matters.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.Energyard.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the Energyard Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an Energyard representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
Without limiting Energyard ability to refuse, modify, or terminate all or part of our Services, Energyard may also terminate this Agreement with anyone at any time for any reason, at our sole discretion, by giving notice of such termination.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the Energyard Service.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Energyard , and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees and Taxes, Content, Holds and Restricted Funds, Payment Services, Additional Terms, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs.
Pursuant to 815 ILCS 414/1.5(c), for transactions involving tickets to events in Illinois, buyers and sellers may elect to submit complaints against one another to the American Arbitration Association ("AAA") under its rules and procedures. The AAA's rules are available at www.adr.org. Such complaints shall be decided by an independent arbitrator in accordance with this User Agreement. Buyers and sellers further agree to submit to the jurisdiction of the State of Illinois for complaints involving a ticketed event held in Illinois.