Last Modified: August 10th, 2023
If you have a Community Solar Subscription Agreement, SMART Community Solar Credit Purchase and Sale Agreement, or similar community solar agreement with Nexamp (each, a “Community Solar Subscription Agreement”) and there is a conflict between the Community Solar Subscription Agreement and these Terms, the Community Solar Subscription Agreement shall control to the extent of the conflict.
1. ACCEPTANCE OF TERMS
You acknowledge and agree that by clicking to accept or agree to these Terms or by accessing or using the Service, you, your heirs, and assigns (collectively “you”) are indicating that you have read, understand, and agree to be bound by these Terms and to comply with all applicable laws and regulations. If you do not agree to these Terms, then you may not access or use the Service.
2. GENERAL CONDITIONS
You warrant and represent that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.
To use the Service you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction) and able to agree to these Terms. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). If Nexamp has previously prohibited you from accessing or using the Service, you are not permitted to access or use the Service.
3. ACCOUNT REGISTRATION AND USE
You may be required to create an account to use the Service. If so, during the registration process, you must enter an e-mail address and password and provide us with additional information. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your e-mail address and password. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. We may assume that any communications we receive under your account have been made by you.
You are responsible for notifying us if you become aware of any unauthorized use of or access to your account. To contact us, please email us at email@example.com. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Nexamp will not be liable for any loss, damages, liability, expenses or lawyers’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and lawyers’ fees incurred by Nexamp or a third party due to someone else using your account.
4. ENROLLMENT IN ONE BILL
Nexamp may offer a service that allows you to consolidate the bills you receive from your Utility and Nexamp into one bill that is paid automatically each billing cycle (“One Bill”).To use the One Bill feature, you must be enrolled in our autopay program and paperless billing. If you are enrolled in the One Bill service:
5. AUTOPAY & RECURRING PAYMENTS
By enrolling in autopay for payments due under your Community Solar Subscription Agreement (“Nexamp Community Solar Subscription Bill”) or the One Bill service, you authorize and order Nexamp to have your payment method debited or charged for the amount noted on your monthly Nexamp Community Solar Subscription Bill or One Bill, as applicable. You understand that this authorization and order will remain in effect until you cancel it in writing, which must occur at least fifteen (15) days prior to the next Transaction Date in order to take effect for that billing period. You understand that funds may be withdrawn from your account each period no later than 10 days after your Utility bill(s) post to your Utility Account (or if you use One Bill with multiple Utilities, within 10 days of the earliest Utility bill posting to your Utility Accounts). If you are enrolled in the One Bill service and you stop automatic payment by notifying Nexamp in writing or disabling automatic payment through the Nexamp website, or if you are unenrolled from One Bill as described in Section 4, Nexamp will no longer pay your Utility bills.
If you stop automatic payment, you authorize an immediate debit or charge of your payment account for any currently outstanding balance. If you had been enrolled in the One Bill service, you will be responsible for paying all future Utility bill(s) directly to your utility. If you have a Community Solar Subscription Agreement in addition to One Bill, new Nexamp Community Solar Bill balances will continue to be visible through the Service, but new Utility bills will not be visible.
You agree to receive the notice required by 12 C.F.R. § 1005.10(d)(2) only if the difference between (a) your current Nexamp One Bill and your previous Nexamp One Bill or (b) your current Nexamp Community Solar Subscription Bill and your previous Nexamp Community Solar Subscription Bill meets an applicable threshold in this paragraph. For business customers, your One Bill must be $5,000 greater than the previous month’s One Bill or Nexamp Community Solar Subscription Bill. For residential customers, your Nexamp One Bill or Nexamp Community Solar Subscription Bill must be (1) $1,000 greater than the previous month’s One Bill or Nexamp Community Solar Subscription Bill, as applicable and (2) 150% variant greater than the average of your previous thirteen-months Nexamp One Bills or Nexamp Community Solar Subscription Bill, as applicable. However, if you are a residential customer who has solar power and has an annual “true-up” with your Utility, your Nexamp One Bill or Nexamp Community Solar Subscription Bill must be $5,000 greater than the previous month’s Nexamp One Bill or Nexamp Community Solar Subscription Bill.
If when Nexamp attempts to debit or charge your payment method for the One Bill, there is a rejection for insufficient funds or declined credit, you understand that Nexamp may, at its option, attempt to contact you in order to resolve the missed payment, but if full payment is not received within three (3) calendar days of the invoice date, you will be removed from the One Bill.Once you are removed from the One Bill, you will become responsible for paying all Utility bill balances, currently outstanding as well as future balances, directly to your Utility. Nexamp is not responsible for delays in paying your Utility due to insufficient funds.If you have a Community Solar Subscription Agreement, you will become responsible for paying your Nexamp Community Solar Subscription Bill when due.Nexamp 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 as a result of your failure to maintain a sufficient balance or sufficient credit to process the payment to Nexamp. Nexamp reserves the right to charge you for any such fees or charges assessed to Nexamp that result from your failure to maintain a sufficient balance or sufficient credit to process the payment to Nexamp. In addition, transaction fees may apply for credit card and ACH bank debit payments. You agree not to dispute Nexamp’s recurring billing with your financial institution, bank or credit card company provided it is conducted in accordance with these Terms.
6. ELECTRONIC CONSENT REGARDING RECURRING PAYMENT AUTHORIZATION
If you enroll in autopay, you consent to receive a copy of your payment authorization for recurring monthly payments in electronic form only instead of receiving a paper copy. This consent applies only to recurring payment authorizations as to which we are required to provide you with a written copy under applicable law. If you would like a paper copy of your recurring payment authorization, you may contact us at firstname.lastname@example.org to request a paper copy. We may charge you a reasonable service charge for the delivery of a paper copy, but we will inform you of the applicable service charge at the time of your request.
7. ONE BILL
If you are enrolled in the One Bill service:
Within ninety (90) days following the Effective Date, you will receive one One Bill upon each utility statement being posted by the utility from Nexamp instead of a monthly bill from your Utility. Your One Bill will show (i) any amounts owed by you to your Utility; (ii) any amounts owed by you to Nexamp; and (iii) your savings resulting from any community solar credits you received, if applicable.It may also show any environmental impact associated with your participation in a program, if applicable. Nexamp will check the payment method you have on file to confirm that sufficient funds exist and send you your One Bill.Three calendar days after we send your One Bill, we will remit payment on your behalf to the Utility and charge your payment method.You agree to pay to Nexamp the amount shown on each One Bill.
8. UTILITY ACCOUNT CREDENTIALS
In order to enroll in the One Bill service, you must provide Nexamp with your Utility online username and your Utility online password (“Account Credentials”) necessary to access your online account with your Utility. By submitting your Account Credentials, you certify and confirm that you are entitled to disclose the Account Credentials and that you are an authorized user of your Utility Account.
You are solely responsible for the accuracy of your Account Credentials. Nexamp makes no effort to review your Account Credentials for accuracy. You agree to notify Nexamp of any changes you make to your Account Credentials. If you do not provide accurate Account Credentials or change your Account Credentials without notifying Nexamp, we cannot provide you with the Service and you will be unenrolled from One Bill as described in Section 4.
It is your responsibility to ensure that your Account Credentials remain confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your Utility Account and password(s). You are responsible for notifying us if you become aware of any unauthorized use of or access to your Utility Account. To contact us, please email us at email@example.com.
9. AUTHORIZATION TO ACCESS YOUR UTILITY ACCOUNT
If you enroll in the One Bill service, you authorize Nexamp to use your Account Credentials to access your Utility Account and retrieve your Utility bill(s), and you authorize your Utility to disclose those bills to us. Even if you do not enroll in One Bill, you may have the option of authorizing Nexamp to use your Account Credentials to access your Utility Account to facilitate Nexamp’s billing for your Community Solar Subscription.You further authorize Nexamp to make such changes to your Utility Account and Utility Account preferences that are necessary to provide you with the One Bill service. You understand and agree that Nexamp may need to change your Account Credentials from time to time in order to provide the Service. This authorization shall be valid from the date of your acceptance of these Terms until you terminate your Community Solar Subscription or you unenroll from Nexamp’s Utility bill access by emailing firstname.lastname@example.org.
You authorize Nexamp to download or otherwise obtain your historical utility consumption data, current and historical utility rate data, current and future Utility bills, low-income program eligibility (if applicable), and other utility-related data from the Utility. This authorization shall be valid from the date you accept these Terms (the “Effective Date”) until you terminate your Community Solar Subscription or you unenroll from Nexamp’s Utility bill access by emailing email@example.com.. You agree to update this information upon request if your utility usage, rate class, low-income program eligibility or other utility-related data changes.
In connection with the One Bill service, you authorize Nexamp to receive Utility notices on your behalf, where permitted, and you acknowledge and agree that we may not send any or all of these notices to you. You agree that Nexamp shall not be liable for any delays or failure to deliver any Utility notices to you.
You acknowledge and agree that when Nexamp is accessing and retrieving your account information from third-party sites, Nexamp is acting on your behalf as your agent, and not as the agent for or on behalf of the third party.
By using the One Bill service, you acknowledge and agree that Nexamp is acting only as an intermediary between you and your Utility and is not a party to any transaction between you and your Utility. Nexamp assumes no responsibility or liability of any kind with respect to your relationship with your Utility, including with regards to the delivery of electricity, natural gas or any other utility provided by your Utility, and Nexamp does not endorse, recommend, and/or assume any responsibility or liability for any products, services or statements made by your Utility.
Nexamp is not liable for the accuracy of your Utility bills or errors by the Utility. If you believe your Utility bill is inaccurate, you must address this directly with your Utility. Nexamp uses commercially reasonable efforts to generate your One Bill in a timely manner with accurate information. However, we do not guarantee the accuracy of the content of any One Bill, and Nexamp will not be liable for any delays or failure to deliver your Utility bill(s). You agree to hold Nexamp harmless should your Utility fail to deliver your Utility bill(s). You are responsible for ensuring timely payment of all Utility bills.
These Terms do not alter any liability or obligations that currently exist between you and your Utility. You understand and agree that your relationship with your Utility is governed solely by your agreement(s) with your Utility.
10. TEXT MESSAGING TERMS & CONDITIONS
Consent to Text Messages.You can provide us with your consent to receive text messages (e.g., SMS and MMS) from us in multiple ways, such as by providing us with your phone number during or after registration or purchase, through communications or transactions with us, or by opting into receiving marketing text messages.By providing consent, you authorize us to use automated or nonautomated technology to send text messages to the number associated with your consent. You may opt into receiving text messages with marketing content, and consent to receiving marketing texts is not a condition of purchase.
You further represent that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and for which you are authorized to opt into text messages.
Message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
Cancellation:Text the keyword STOP to the number you are receiving text messages from to cancel. After texting STOP to that number you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that Nexamp and its service providers will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you may continue to receive text messages from Nexamp through any other programs you have joined until you separately unsubscribe from those programs.
Mobile Phone Number Change:In the event that you change or deactivate your mobile phone number, you agree to notify Nexamp by emailing firstname.lastname@example.org.
11. INTELLECTUAL PROPERTY RIGHTS
The Service is owned and operated by Nexamp and contains materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) that are derived in whole or in part from materials supplied by Nexamp and its affiliates, as well as certain third parties, and are protected by copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws.
You agree to abide by all applicable copyright and other laws. You acknowledge that the Service has been developed, compiled, prepared, revised, selected, and arranged by Nexamp and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Nexamp and such others.
You agree to protect the proprietary rights of Nexamp and all others having rights in the Service during and after the term of these Terms and to comply with all reasonable written requests made by Nexamp or its vendors and licensors to protect their and others’ contractual, statutory, and common law rights in the Service. You agree to notify Nexamp immediately upon becoming aware of any claim that the Service infringes upon any copyright, trademark, or other contractual, statutory, or common law rights.
All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service shall, as between you and Nexamp, at all times be and remain the sole and exclusive property of Nexamp. Any unauthorized use of any material contained on or through the Service may violate copyright laws, trademark laws, laws of privacy and publicity and communications regulations and statutes.
12. USER FEEDBACK
By sending us any feedback, comments, questions, or suggestions concerning Nexamp, the Service or any of our other services, whether online, by email, by postal mail, or otherwise (collectively, “Feedback”), you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, and (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback. This Feedback section shall survive any termination of your account or any aspect of the Service.
14. PROHIBITED CONDUCT
Use of the Service for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
16. USER SUBMISSIONS
Except as provided under Submission of Ideas (below), Nexamp does not claim ownership of any information or material a user provides to Nexamp or posts, uploads, input, submits, or transmits to the Service (“Submission”). You agree that you will not make any Submission that is, in whole or in part, libelous; scandalous; inflammatory; discriminatory; defamatory; false; threatening; vulgar; obscene; pornographic; profane; abusive; harassing; invasive of another’s privacy; hateful or bashing; aimed at gender, race, color, sexual orientation, national origin, religious views, or disability; in violation of local, state, national, or international law; or that infringes on, or violates, any right of any party. Additionally, you agree that you will not: (a) make any Submission that is an advertisement or solicitation of business; (b) disrupt the normal flow of dialogue or make a Submission unrelated to the topic being discussed (unless it is clear the discussion is free-form); (c) post a chain letter or pyramid scheme; impersonate another person; (d) distribute viruses or other harmful computer code; (e) harvest or otherwise collects information about others, including email addresses, without their consent; (f) post the same note more than once or “spamming”; or (g) engage in any other conduct that restricts or inhibits any other person from using or enjoying the Service, or which, in the judgment of Nexamp, exposes Nexamp or any of its licensors, partners, or customers to any liability or detriment of any type.
By making a Submission, you agree that such Submission is non-confidential, non-proprietary, and may be disseminated or used by Nexamp. If you make a Submission, you automatically grant—or warrant that the owner of such content has expressly granted—Nexamp a royalty-free, perpetual, irrevocable, worldwide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the Submission in any media or medium, or any form, format, or forum now known or hereafter developed. Notwithstanding the foregoing, Nexamp is not required to use any Submission.
Nexamp reserves the right (but is not obligated) to:
17. SUBMISSION OF IDEAS
Nexamp policy is to not accept or review unsolicited ideas or suggestions from persons outside Nexamp. Notwithstanding such policy, any ideas, suggestions, know-how, or concepts that are offered or communicated to Nexamp through the Service or otherwise shall be the property of Nexamp, and may be treated by Nexamp as non-confidential information. Nexamp shall have the unrestricted right to use and disclose such ideas, suggestions, know-how or concepts for any purpose without compensation or obligation to any party.
18. NOTICE AND TAKE DOWN PROCEDURES
If you believe any Submission accessible on or from the Service infringes your copyright, you may request removal of those materials (or access thereto) from the Service by contacting Nexamp (address identified below) and providing the following information:
Our address for copyright issues relating to this website is as follows:
101 Summer Street
Boston, MA 02110
Attn: General Counsel
In an effort to protect the rights of copyright owners, Nexamp maintains a policy for the termination, in appropriate circumstances, of users of the Service who are repeat infringers.
19. DISCLAIMER OF WARRANTIES
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ITS CONTENTS, WHETHER PROVIDED BY NEXAMP, ITS AFFILIATES, ITS LICENSORS, ITS VENDORS, OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED, LEGAL OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED. SPECIFICALLY, BUT WITHOUT LIMITATION, NEXAMP DOES NOT WARRANT THAT: (i) PAYMENTS WILL BE DELIVERED TO YOUR UTILITY ON TIME (ONE BILL SERVICE); (ii) THE INFORMATION AVAILABLE ON THE SERVICE IS FREE OF ERRORS; (iii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iv) DEFECTS WILL BE CORRECTED, OR (v) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEXAMP MAKES NO WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE TIMING OF PAYMENTS TO THE UTILITY IN CONNECTION WITH THE ONE BILL SERVICE. YOU SHALL BE LIABLE FOR ANY COST INCURRED BY YOU OR NEXAMP DUE TO ANY DELAY IN PAYMENT TO THE UTILITY NOT CAUSED BY NEXAMP, INCLUDING ANY DELAY IN PAYMENT CAUSED BY (A) INSUFFICIENT FUNDS RECEIVED FROM YOU, INCLUDING FROM ANY AUTOMATIC PAYMENT METHOD THAT YOU AUTHORIZED, (B) INCORRECT INFORMATION PROVIDED BY YOU, (C) THE UTILITY, OR (D) FORCE MAJEURE. NEXAMP SHALL BE RESPONSIBLE FOR ANY LATE FEES OR PENALTIES CHARGED BY THE UTILITY DUE TO A DELAY IN PAYMENT TO THE UTILITY CAUSED BY NEXAMP.
20. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NEXAMP OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, UNAUTHORIZED ACCESS TO DATA, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE, OR ANY LINK PROVIDED ON THE SERVICE, WHETHER OR NOT NEXAMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT NEXAMP IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO NEXAMP IN CONNECTION WITH THE SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF NEXAMP FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY NEXAMP’S GROSS NEGLIGENCE, (2) ANY INJURY CAUSED BY NEXAMP’S FRAUD OR FRAUDULENT MISREPRESENTATION, OR (3) IN CONNECTION WITH THE ONE BILL SERVICE ONLY, ANY LATE FEES OR PENALTIES CHARGED BY THE UTILITY DUE TO A DELAY IN PAYMENT TO THE UTILITY CAUSED BY NEXAMP.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NEXAMP AND YOU.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, THIS SECTION DOES NOT APPLY TO PREVENT A RIGHT TO RECOVER CERTAIN DAMAGES (INCLUDING PUNITIVE DAMAGES) WHERE A HARMED PERSON PROVES WITH THE REQUIRED EVIDENCE THAT THE HARM SUFFERED WAS THE RESULT OF THE DEFENDANT’S “ACTS OR OMISSIONS AND SUCH ACTS OR OMISSIONS WERE ACTUATED BY ACTUAL MALICE OR ACCOMPANIED BY A WANTON AND WILLFUL DISREGARD OF PERSONS WHO FORESEEABLY MIGHT BE HARMED BY THOSE ACTS OR OMISSIONS.” SIMILARLY, THIS SECTION DOES NOT LIMIT NEXAMP’S TORT LIABILITY UNDER NEW JERSEY LAW RESULTING FROM NEXAMP’S OWN INTENTIONAL OR RECKLESS CONDUCT.
This provision does not require you to indemnify us for any unconscionable commercial practice by Nexamp or for Nexamp’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this Section will survive any termination of your account, these Terms or your access to the Service.
Notwithstanding the foregoing, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Nexamp and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
22. THIRD-PARTY LINKS AND SERVICES
The Service may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Nexamp is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information-handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Nexamp shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
23. MODIFICATIONS TO THE SERVICE
Nexamp reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice. Nexamp shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by cancelling the Service or notifying us by email to email@example.com that you no longer wish to use our Service. We may terminate or suspend your use of the Service at any time and without prior notice for any reason in our discretion, including if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon any such termination or suspension, your right to use the Service will immediately cease, and we may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated information and materials, without any obligation to provide any further access to such information or materials.
Even after your right to use the Service is terminated, these Terms will remain enforceable against you and any unpaid amounts you owe will remain due. If you were enrolled in the One Bill service, once your use of the One Bill service has been terminated, you will be solely responsible for paying your Utility bills.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, and any terms regarding ownership or intellectual property rights.
Please note that cancelling the One Bill serivce or terminating these Terms will not terminate your Community Solar Subscription Agreement or any other service provided by Nexamp. To cancel the One Bill service or your community solar subscription, or to inquire about any other Nexamp services, please email firstname.lastname@example.org email address.
25. GENERAL TERMS
Electronic Communications.The communications between you and Nexamp may take place via electronic means, whether you visit Nexamp properties or send e-mails to Nexamp, or whether Nexamp posts notices on Nexamp properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Nexamp in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Nexamp 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 at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your account, in any way (by operation of law or otherwise) without Nexamp’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms and any dispute of any sort that might arise between you and Nexamp will be interpreted in accordance with the law of the Commonwealth of Massachusetts and the United States of America without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
Exclusive Venue. Any claim or dispute that between you and Nexamp that arises out of or is related to the Service and is not eligible for small claims action shall be decided exclusively by a court of competent jurisdiction located in Suffolk County, Massachusetts, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Suffolk County, Massachusetts.
Force Majeure. Under no circumstances shall Nexamp or its licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control (“Force Majeure”).
Notices. We may deliver notice to you by email, posting a notice on the Service or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received by mail at Nexamp, 101 Summer Street, 2nd Floor, Boston, MA 02110, Attn: General Counsel. Such notice shall be deemed given when received by Nexamp by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you used the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law.
Entire Agreement. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Nexamp with respect to your use of the Service, and supersede any prior agreements between you and Nexamp on the subject matter, except as expressly provided herein. These Terms apply only to the Service and do not supersede any terms specific to Community Solar in your Community Solar Subscription Agreement.
Severability. In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, the unenforceable portion shall be deemed to be severed from these Terms, and such determination shall not affect the validity and enforceability of any other remaining provisions.
Relationship of the Parties. No partnership, joint venture or employee-employer relationship is intended or created by these Terms. No agency relationship is intended or created by these Terms beyond or other than the agency relationship created and described in Section 9.
Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
System Availability. Nexamp will use commercially reasonable efforts to make the Service available at all times except for: (a) planned downtime, or (b) any unavailability due to Force Majeure. Planned downtime and routine maintenance and updates may result in temporary unavailability of the Service. Nexamp will have no liability to you or any third party in respect of your inability to access the Service at any time.
Waiver. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations.
Interpretation. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
Section Titles. The headings used in the Terms are included for convenience only and will not limit or otherwise affect these Terms.
26. CHANGES TO THESE TERMS
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms. The most current version of the Terms will be posted on the Service and it is your responsibility to check the Service periodically for changes. If the changes include material changes that affect your rights or obligations, we will notify you of the changes as required by law. Your continued use of the Service following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Service.
27. CONTACT US
If you have any questions about these Terms or the Service, please contact us at email@example.com.