Terms of Service
Terms of Service
INTRODUCTION
Thank you for your interest in Daylight Energy, LLC, doing business as “Daylight” and “Daylight Energy” (“Daylight”, “we”, “our” or “us”), our web site at godaylight.com (the “Site”), our mobile applications (the “App”, as applicable), along with our related web sites, hosted applications, desktop or other downloadable applications, and other services provided by us (collectively the “Service”). These Terms of Service are a legally binding contract between you and Daylight regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY: BY SIGNING UP OR REGISTERING WITH DAYLIGHT OR FOR ANY SERVICE, OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (TOGETHER THE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE, AND YOU SHOULD NOT USE, OUR SERVICE. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY DAYLIGHT AND BY YOU TO BE BOUND BY THESE TERMS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in the “Dispute Resolution and Arbitration” section below, you agree that disputes arising under these Terms will be resolved by binding individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND DAYLIGHT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See the “Dispute Resolution and Arbitration” section below for more details.)
Service Overview: Daylight offers a single, intuitive application through which Customers can audit their home energy efficiency, utilize energy efficiency and green energy resources, obtain expert energy upgrade recommendations tailored to your home, connect with vetted third-party vendors to perform energy upgrades, and receive discounted energy prices and other rewards through the Daylight store.
Eligibility: You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service complies with all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms, and you agree to be bound by these Terms.
Accounts and Registration: When you sign up for an account for the Service, you may be required to provide us with some information about yourself, your home, your energy spending, and related items. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. You are solely responsible for maintaining the confidentiality of your account credentials. If you believe your account is no longer secure, you agree to immediately notify us at support@godaylight.com.
FEES, SUBSCRIPTIONS & TAXESg
General Payment Terms: Daylight does not currently charge for access to its application and other online resources, nor for any upgrade recommendations or reports we ay provide, although we reserve the right to charge for such services in the future. Before you incur any fees, you will have the opportunity to review and accept the fees you will be charged. All fees will be in United States Dollars unless otherwise stated at the time of your subscription. All fees are non-refundable unless otherwise expressly authorized by a representative of Daylight.
Taxes: Your country, state, or local jurisdiction may require us to collect taxes above and beyond the fees we charge for the Service. You acknowledge that this is not always possible or practical for us to advise you particular tax payments prior to or at the time of purchase. You hereby authorize Daylight to add any government-required taxes to your service fees, and charge you for them. We do not charge additional fees for tax collection, nor do we make any profit or margin on taxes charged.
Delinquent Accounts: Should you fail to make any payment obligation to Daylight or its third party vendors pursuant to these terms of service or any other agreement between or among yourself, Daylight and/or such third party vendors, Daylight reserves the right to suspend or terminate access to the Service, including but not limited to the fee-based features, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or service charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. This right exists in addition to, and not in lieu of, any other rights that may be available to Daylight.
LICENSE & IP
Limited License: Subject to your complete and ongoing compliance with these Terms, Daylight grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one copy of any MacOS or Windows application or other downloadable application associated with the Service on a device or computer that you own or control; and (b) access and use the Service.
License Restrictions: Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, create derivative works of, or publicly perform the Service (or provide third parties with access to the Service, by service bureau or otherwise); (b) make modifications to or derivative works of the Service or reverse engineer or decompile the Service, or attempt to discern any source code or underlying algorithms, methods or processes within the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Feedback: If you choose to provide input or suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Daylight an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to use, and exploit the Feedback in any manner and for any purpose, without remuneration or attribution, including to improve the Service and create other products and services.
Ownership and Proprietary Rights: The Service is owned and operated by Daylight. The visual interfaces, graphics, design, information, data, compilation, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Components”) provided by Daylight are protected by intellectual property and other laws. You acknowledge that the Service and all Components are the property of Daylight or the third-party rights owners of such Components. Except as expressly authorized by Daylight in writing, you may not make use of the Components. Daylight reserves all rights to the Service and the Components (to the extent of our rights in the Components), not granted expressly in these Terms.
Respect of Third-Party Rights: Daylight respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
PRIVACY
Provision and Collection of User Content: All data, information, communications, text, files, photographs, graphics, audio, video, messages and other materials or content, including credit reports, details about your energy consumption, home and homeownership and any other information uploaded, submitted, posted or otherwise provided by you or on your behalf, including via any device installed or located at your property, to Daylight (whether via the site, an application or any other means), or collected from you or your devices by the Service (collectively the “User Content”), shall be subject to these Terms as provided herein. You hereby confirm, represent and warrant that (a) you have and will comply with all applicable laws, rules, regulations, and third party agreements with respect to your collection, provision and use of User Content in connection with your use of the Service and these Terms and you have the full right and authority to, and have obtained all necessary authorizations, licenses and consents required for: (i) the provision of the User Content to, and the collection of the User Content by, the Service, (ii) the analysis, storage, processing and use of the User Content by and for the Service; (iii) Daylight to provide the Service and otherwise perform its obligations hereunder with or using the User Content; and (iv) the grant to Daylight of the rights in User Content expressly set forth in these Terms, without violating the intellectual property, privacy or other rights of any individuals or entities and without violating any applicable laws, rules or regulations. Under no circumstance will Daylight be liable for any User Content, including any errors or omissions in any User Content, or for any loss, liability or damage of any kind incurred as a result of the use of or reliance upon any User Content or the analysis, loss or modification of any User Content in connection with the Service or these Terms.
Protection, Privacy and License of User Content: Your User Content remains your property or the property of the third parties you licensed it from, and Daylight desires to prevent unauthorized uses or disclosures of such User Content. Daylight will endeavor to protect the privacy and security of your User Content in accordance with these Terms and our Privacy Policy referenced herein. Notwithstanding anything to the contrary herein, we reserve the right to access, use and/or disclose any User Content that is or becomes publicly available (through no fault of Daylight) or as required to comply with applicable law or lawful requests from governmental authorities, and Daylight will not be liable with respect to any such access, use and/or disclosure. In addition, Daylight may make your User Content available to third parties as permitted under the Privacy Policy, which may include monetizing such User Content as permitted under law. You understand and agree that by using the Service, you authorize and consent to the access, collection, storage, modification, creation of derivatives, use and/or disclosure of User Content by Daylight, as described in these Terms, and in accordance with the Privacy Policy. Subject to the restrictions, protections and authorizations described in these Terms and the Privacy Policy, you agree that Daylight may use (including without limitation to store and process) your User Content to provide, operate, maintain, improve, modify and administer the Service and otherwise perform our obligations under these Terms. You and any of your applicable third-party licensors, as applicable, retain any intellectual property rights in the User Content, subject to a worldwide, perpetual, royalty-free and (except as required by law) irrevocable license in and to such User Content for the benefit of Daylight and its assigns, as well as the foregoing rights, licenses and other authorizations.
INDEMNITY, DISCLAIMERS AND LIMITATIONS ON LIABILITY
Indemnity: To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Daylight, its affiliates, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Daylight Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys' fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers and No Warranties by Daylight: THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. DAYLIGHT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. DAYLIGHT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DAYLIGHT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR DAYLIGHT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE DAYLIGHT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALINGS WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
AUDIT DISCLAIMER: THE SERVICES MAY INCLUDE AN “AUDIT” OF YOUR PROPERTY’S ENERGY USAGE BASED ON DATA DERIVED FROM SEVERAL POSSIBLE SOURCES, INCLUDING (I) A DEVICE INSTALLED AT YOUR PROPERTY BY DAYLIGHT, A DAYLIGHT AFFILIATE OR THIRD PARTY, (II) CURRENT AND PAST ENERGY BILLS AND (III) ANY OTHER SOURCE WE MAY COLLECT FROM OR HAVE ACCESS TO, OR THAT YOU MAY MAKE AVAILABLE TO US. WHILE SUCH AUDITS ARE HELPFUL AND MAY BE USED IN PREPARING CERTAIN PROPOSALS TO YOU (E.G. FOR THE PROVISION OF ENERGY UPGRADES TO YOUR HOME) WE EXPRESSLY MAKE NO REPRESENTATION OR WARRANTY OR WHATSOEVER KIND, AND EXPRESSLY DISCLAIM ALL LIABILITY RESULTING FROM, ANY INNACURACIES IN THE SUCH AUDIT INFORMATION, AND YOU HEREBY AGREE THAT SUCH AUDIT IS PROVIDED “AS-IS”.
ENERGY-UPGRADES AND REFERRALS DISCLAIMER: THESE TERMS DO NOT, AND ARE NOT INTENDED TO COVER, ANY TERMS SPECIFICALLY RELATED TO THE UPGRADE OF ANY ENERGY OR SIMILAR INFRASTRUCTURE OR EQUIPMENT AT YOUR HOME. ANY SUCH UPGRADES, WHETHER PROVIDED BY DAYLIGHT OR A THIRD PARTY REFERRED TO YOU BY DAYLIGHT, SHALL BE COVERED PURSUANT TO A SEPARATE, WRITTEN AND SIGNED AGREEMENT BETWEEN YOU AND DAYLIGHT OR SUCH THIRD PARTY. DAYLIGHT EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY UPGRADES UNDERTAKEN BY ANY THIRD PARTY OF AFFILIATE REFERRED TO YOU BY DAYLIGHT, AND YOU HEREBY ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO INDEPENDENTLY VET AND ENGAGE WITH ANY SUCH AFFILIATE OR THIRD PARTY.
PROPOSALS DISCLAIMER: DAYLIGHT MAKES NO REPRESENTATION AS TO THE ACCURACY OF ANY UNDERLYING INFORMATION, OR ANY CONCLUSIONS DERIVED FORM SUCH INFORMATION, THAT ARE INCLUDED IN ANY PROPOSAL DAYLIGHT MAY PROVIDE TO YOU, PURSUANT TO THE SERVICES OR OTHERWISE. FURTHERMORE, SHOULD IT BE DISCOVERED THAT ANY PROPOSAL MADE TO YOU BY DAYLIGHT WAS BASED ON MATERIALLY INACCURATE INFORMATION AND SUCH INFORMATION RESULTED IN A MATERIALLY SIGNIFICANT ADDITIONAL COST OR EXPENSE TO YOU, DAYLIGHT MAY, IN ITS SOLE DISCRETION, WORK WITH YOU IN GOOD FAITH TO REMEDIATE SUCH PROPOSAL, BUT SHALL BE UNDER NO OBLIGATION TO DO SO UNLESS THE INCLUSION OF SUCH MATERIALLY INNACURATE INFORMATION OR CONCLUSIONS WAS DUE TO THE GROSS NEGLIGENCE OF DAYLIGHT.
Limitation of Liability: TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE DAYLIGHT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, ANY MATERIALS OR CONTENT ON THE SERVICE OR THESE TERMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY DAYLIGHT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN THE “NOTICE OF ARBITRATION AND PROCESS” AND “NO CLASS ACTIONS” SECTIONS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE DAYLIGHT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE LESSER OF: (a) THE AMOUNT YOU HAVE PAID TO DAYLIGHT FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM, OR (b) USD $500.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
PROHIBITED CONDUCT
By using the service, you agree not to (a) use the Service for any illegal purpose or in violation of any local, state, national, or international law; (b) use the Service for any purpose not intended by us (as described in these Terms or other communications from Daylight); (c) harass, threaten, demean, embarrass, bully, or otherwise harm any person; (d) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; (e) access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Daylight; (f) interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; (g) interfere with the operation of the Service or any user's enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service; (h) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any other Service account without permission; (i) except to the extent permitted by the functionality of the Service, sell or otherwise transfer the access granted under these Terms or any Components (as defined in the “Ownership and Proprietary Rights” section above) or any right or ability to view, access, or use any Components; or (k) attempt to do any of the acts described in this section or assist or permit any person in engaging in any of the acts described in this section.
GENERAL TERMS OF SERVICE
Term: These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and their effectiveness ends when the Service is terminated.
Termination: If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, Daylight may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@godaylight.com.
Effect of Termination: Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Daylight any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and the “Feedback,” “Ownership and Proprietary Rights,” “Effect of Termination,” “Indemnity,” “Disclaimers”, “Limitation of Liability”, “Dispute Resolution and Arbitration” and “Miscellaneous” sections will survive.
Modification of Terms: We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions, unless otherwise stated. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this section, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
Modification of the Service: Daylight reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Daylight will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. If Daylight terminates these Terms for convenience or modifies a paid feature of the Service in a manner that materially and adversely affects the functionality of the paid feature, Daylight will refund you any prepaid but unused subscription fee.
Communications: We may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in the promotional email itself.
No Support: Our support services are not provided under obligation to you, but as a courtesy to help you use the Service.
Third-Party Services and Linked Websites: Daylight may provide tools or functionality through the Service that enable you to import and/or export information, from or to third-party applications and services, including through features that allow you to link your account on Daylight with an account on the third-party application or service. By using one of these tools or functionalities, you agree that Daylight may transfer that information from and to the applicable third-party application or service. Third-party applications and services are not under Daylight’s control, and, to the fullest extent permitted by law, Daylight is not responsible for the use of your exported information by any third-party applications or services, nor for any information originating from such third party applications or services, or any other problems or issues with such third party applications or services. The Service may also contain links to third-party websites. Linked websites are not under Daylight’s control, and Daylight is not responsible for their content, operation or functionality.
Third-Party Software: The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
Miscellaneous: These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Daylight regarding your use of the Service and associated subject matter hereof. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of, or exercise any right or remedy under, any provision of these Terms will not affect our right to require performance (or seek a right or remedy) at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. All waivers must be in writing signed by the waiving party to be effective hereunder. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
Privacy Policy: Please read the Daylight Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Daylight Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
Additional Terms: Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Consent to Electronic Communications: By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
Notice to California Residents: If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at 800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
APPLICATION-SPECIFIC NOTICES
Daylight Rewards: You may be issued certain reward loyalty points, referred to as “Daylight Points”. Daylight Points are considered by Daylight to be a loyalty incentive that is entirely discretional to Daylight, and you hereby acknowledge and agree that your decision to enter any agreement with Daylight (including your receipt of the Services pursuant to these Terms) is not in any way predicated, contingent on or conditional to the issuance of any Daylight Points to you. Daylight Points are typically issued when you undertake one or more actions, as more fully documented on the Site and in the App, including: (i) connecting energy devices to Daylight; (ii) completing energy upgrades through Daylight; (iii) referring users; and/or (iv) interacting with the broader Daylight community. We reserve the right, at our sole and absolute discretion, to restrict, limit, deny, or void any Daylight Points awarded to you and any other user. Daylight Points have no monetary value and will not be exchangeable for money. Daylight makes no representation or guarantee that any user will receive any Daylight Points or that the Daylight Points will be exchangeable or redeemable for any item of value. Daylight Points may be distributed if, and only if, certain conditions are met, as determined by Daylight in its sole discretion. Daylight Points are not, and may never convert to, accrue to, be used as basis to calculate, or become any other tokens or virtual assets or distribution thereof. In the event of any unauthorized access to your account in which Daylight Points are used, transferred or accessed without authorization, Daylight will not be responsible for any such losses. If a user’s Daylight Points are ever lost or corrupted as a result of a security breach or other incident, Daylight anticipates that it will take steps to replenish your Daylight Points the accrued Daylight Points earned by such means as it may determine, including by distribution of a new point or incentive system.
Notice Regarding Apple: This section only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Daylight only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party's intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
GOVERNING LAW; DISPUTE RESOLUTION
Governing Law: These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles.
Dispute Resolution and Arbitration: In the interest of resolving disputes between you and Daylight in the most expedient and cost-effective manner, and except as described in the “Arbitration Exceptions” and “Arbitration Opt-Out” sections, you and Daylight agree that every dispute arising in connection with these Terms, the Service, and communications from us will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Service, or any communications to or from us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DAYLIGHT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Arbitration Exceptions: Despite the provisions of the foregoing section, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitration Opt-Out: If you do not wish to resolve disputes by binding arbitration, you may opt-out of the provisions of the “Dispute Resolution and Arbitration” section within 30 days after the date that you agree to these Terms by sending a letter to Daylight Energy, LLC., Attention: Legal Department (Arbitration Opt-Out), 79 Walker St, New York, NY 10013, USA that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt-out of arbitration (“Opt-Out Notice”). Once Daylight receives your Opt-Out Notice, the “Dispute Resolution and Arbitration” section will be void, and any action arising out of these Terms will be resolved as set forth in the “Governing Law” section. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator: Any arbitration between you and Daylight will be settled under the Federal Arbitration Act and administered by the Judicial Arbitration and Mediation Services (“JAMS”) under its Comprehensive Arbitration Rules and Procedures (“JAMS Rules”) as modified by these Terms. The JAMS Rules and filing forms are available online at https://www.jamsadr.com/adr-rules-procedures/, by calling the JAMS at +1-800-352-5267, or by contacting Daylight. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration and Process: A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified US Mail or by Federal Express or UPS (in either case, signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Daylight’s address for Notice is: Daylight Energy, LLC., Attention: Legal Department (Notice of Arbitration), 79 Walker St, New York, NY 10013, USA. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Daylight may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Daylight must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Arbitration Fees: If you commence arbitration in accordance with these Terms, the prevailing party will reimburse the other for payment of reasonable arbitration costs, filing fees, and legal expenses. Any arbitration hearing will take place in New York County, New York, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a non-appearance-based telephone hearing. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Daylight for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
No Class Actions: YOU AND DAYLIGHT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND DAYLIGHT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Modifications to this Arbitration Provision: If Daylight makes any future change to this arbitration provision, other than a change to Daylight’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Daylight’s address for Notice of Arbitration, in which case your account with Daylight will be immediately terminated, and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
Enforceability: If the “No Class Actions” section or the “Dispute Resolution and Arbitration” section are found to be unenforceable, or if Daylight receives an Opt-Out Notice from you, then the terms of arbitration set forth herein will be null and void and, in that case, the exclusive jurisdiction and venue described in the “Governing Law” section will govern any action arising out of or related to these Terms.
CONTACT INFORMATION
You may contact us by sending correspondence to the following address or by emailing us at support@godaylight.com.
Daylight Energy, LLC
79 Walker St, Floor 5,
New York, NY 10013
United States
