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EUVA, Inc. (“EUVA”) is a not-for-profit organization that runs the Energy Up! program. This Site is an online service operated EUVA on the World Wide Web of the Internet, consisting of certain services and content provided by EUVA, its parent and affiliated companies and third parties.
(A) This End User Agreement (the "Agreement"), sets forth the terms and conditions that apply to use of the Site by each end user thereof ("End User"). By using the Site (other than to read this Agreement for the first time), End User agrees to be bound by and comply with all of the terms and conditions hereof. The right to use the Site is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User's user account(s) and password(s), if any. End User shall be fully responsible for the use of the Site by any other person it permits to access the Site. (B) EUVA shall have the right at any time and from time to time to change, modify, add or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms
EUVA shall have the right at any time and from time to time to change or modify the terms and conditions applicable to End User's use of the Site, or any part thereof, or to impose new conditions, including, but not limited to, requiring user registration, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which End User obtains notice thereof. Any use of the Site by End User after such notice shall be deemed to constitute acceptance by End User of such changes, modifications or additions, whether or not End User has reviewed them, unless End User notifies EUVA in writing that it has terminated this Agreement within five (5) business days of receipt by the End User of such notice, in which case the End User's conduct shall be deemed governed by the Agreement without such changes, modifications or additions.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Site and all charges related thereto.
5. End User Conduct
(A) End User shall use the Site for non-commercial, lawful purposes only. End User shall not post on or transmit through the Site any material which (i) violates or infringes in any way upon the rights of others, (ii) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, (iii) encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law, or (iv) without EUVA’s express prior written approval, contains advertising or any solicitation with respect to products or services. Any conduct by an End User that in EUVA’s sole and absolute discretion restricts or inhibits any other End User from using or enjoying the Site will not be permitted. Without limiting the foregoing, prohibited conduct includes, but is not limited to, (1) distribution of unsolicited chain letters, (2) propagation of computer worms, viruses and other such malicious code, (3) using (directly or indirectly) the Site or its computer network to make unauthorized entry to any other machine accessible via the Site or its computer network and (4) use of the Site to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users of the Site to become users of other on-line services competitive with the Site. Without limiting any other rights or remedies of EUVA, violations of the foregoing may result in removal of violating communications and/or early termination of the End User's access to the Site.
(B) The Site contains copyrighted material, trademarks and other proprietary information, that may include, but is not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are copyrighted as a collective work under the United States copyright laws. EUVA owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial or non-commercial exploitation of downloaded material will be permitted without the express permission of EUVA and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that it does not acquire any ownership rights by accessing or otherwise using the Site or copyrighted material.
(C) End User shall not upload, post or otherwise make available on the Site any material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with End User. End User shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such uploading, posting or submission. By publishing, displaying or uploading any text, links, photos, video, messages or other data or information to any public area of the Site, End User automatically grants, and represents and warrants that End User or the owner of such material has expressly granted and has the right to grant, EUVA the fully paid royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, edit and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other End User to access, view, store or reproduce the material for that End User's personal use. Please note that EUVA does not want to receive confidential information from any End User and any information received from or transmitted by End User will be deemed NOT to be confidential.
(D) The foregoing provisions of Section 5 are for the benefit of EUVA’s parent and affiliated companies/organizations and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Disclaimer of Warranty; Limitation of Liability.
(A) END USER EXPRESSLY AGREES THAT USE OF THE SITE IS AT END USER'S SOLE RISK. NEITHER EUVA, EUVA’S PARENT AND AFFILIATED COMPANIES/ORGANIZATIONS NOR ANY OF THEIR RESPECTIVE EMPLOYEES, PARTNERS, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS (COLLECTIVELY THE "EUVA PARTIES") WARRANT THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE SITE
(B) THE SITE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. END USER SPECIFICALLY ACKNOWLEDGES THAT EUVA IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH END USER.
(D) IN NO EVENT WILL EUVA, THE EUVA’S PARTIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SITE OR THE SITE'S SOFTWARE, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE. END USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SITE.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, EUVA, NOR THE EUVA PARTIES SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE SITE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE END USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES AND THE AGGREGATE, TOTAL LIABILITY OF THE EUVA PARTIES TO ANY END USER FOR ALL DAMAGES, INJURY, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SITE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF: (A) THE AMOUNT, IF ANY, PAID BY THE END USER IN CONNECTION WITH THE END USER'S USE OF THE SITE AND RETAINED EUVA OR (B) ONE HUNDRED DOLLARS ($100).
(F) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITY OR WARRANTIES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. In such jurisdictions, EUVA’s liability is limited to the greatest extent permitted by law.
EUVA shall have the right, but not the obligation, to monitor the content of the Site to determine compliance with this Agreement and any operating rules established by EUVA and to satisfy any law, regulation or authorized government request. Without limiting the foregoing, EUVA shall have the right to remove any material that EUVA, in its sole and absolute discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
End User agrees to defend, indemnify and hold harmless each of EUVA, and the EUVA Parties from and against all claims and expenses, including attorneys' fees, arising out of the use of the Site by End User, except to the extent such claims and expenses arise directly out of the gross negligence of EUVA.
Either EUVA or End User may terminate this Agreement at any time. Without limiting the foregoing, EUVA shall have the right to immediately terminate any passwords or accounts of End User in the event of any conduct by End User which EUVA, in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 5, 6, 7, 8, 10, 11, 12 and this Section 9 shall survive termination of this Agreement.
Trademarks appearing on the Site are the property of EUVA, affiliates of EUVA, or their respective owners.
11. Third Party Content.
EUVA is a distributor (and not a publisher) of content supplied by third parties and End Users. Accordingly, EUVA has no more editorial control over such content than does a public library, bookstore, or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, End Users or any other user of the Site, are those of the respective author(s) or distributor(s) and not of EUVA. Neither EUVA nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.) In many instances, the content available through the Site represents the opinions and judgments of the respective information provider, End User, or other user not under contract with EUVA. EUVA neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Site. Under no circumstances will EUVA be liable for any loss or damage caused by an End User's reliance on information obtained through the Site. It is the responsibility of End User to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through the Site.
This Agreement (which hereby incorporates by reference any other provisions applicable to use of the Site, including, but not limited to, any supplemental terms governing the use of certain specific material contained in the Site and any operating rules for the Site established by EUVA) constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of the Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. This Agreement shall be construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.
14. DMCA Notice
EUVA owns, protects and enforces copyrights in its own creative material and respects the copyright properties of others. Materials may be made available on or via the Site by third parties not within the control of EUVA. It is our policy not to permit materials known by us to be infringing to remain on this site. You should notify us promptly if you believe any materials on the Service infringe a third party copyright. Upon our receipt of a proper notice of claimed infringement under the Digital Millennium Copyright Act ("DMCA"), EUVA will respond expeditiously to follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue, including, where applicable, removing, or disabling access to material claimed to be infringing or by removing or disabling access to links to such material. Pursuant to the DMCA 17 U.S.C. 512 (c), EUVA has designated its Secretary as its agent for notification of claims of copyright infringement with respect to information residing, at the direction of a user, on the Site.