© 2016 kWh360, Inc.
Effective August, 2017
You acknowledge and agree that this EULA is between you and kWh360, not with any third party (including, but not limited to Apple®, Google®, or any mobile carrier), and that kWh360 is solely responsible for the Software.
Scope of License
You must be 18 years, or the age of majority in the country in which you reside, or older to use the Software. You agree that you may only use the Software in a manner consistent with this EULA.
You may not rent, lease, lend, sell, redistribute, sublicense decompile, reverse engineer, copy, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software or remove, delete, alter, or obscure any trademark or any copyright or trademark notices from the Software. Any attempt to do so is a violation of the rights of kWh360 and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The use of the Software should not replace the judgement of a user who will have a better understanding of the application.
kWh360 may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that kWh360 has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement.
Intellectual Property Rights
Information, documents, and materials in this Software are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of kWh360 and its affiliates are and shall remain the exclusive property of kWh360. Nothing in this Agreement shall grant you the right or license to use any of the marks.
Third Party Materials
The Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that kWh360 is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. kWh360 does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
Disclaimer of Warranties; Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND kWh360 HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. kWh360 DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY kWh360 OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL kWh360 OR ITS AFFILIATES HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.
IF YOU ARE USING THE SOFTWARE ON AN APPLE IOS DEVICE, IN THE EVENT OF ANY FAILURE OF THE SOFTWARE TO CONFORM TO ANY APPLICABLE WARRANTY, YOU MAY NOTIFY APPLE, AND APPLE MAY REFUND THE PURCHASE PRICE FOR THE SOFTWARE TO YOU, BUT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SOFTWARE, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE KWH360’S SOLE RESPONSIBILITY.
IN NO EVENT SHALL KWH360’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIVE DOLLARS ($5.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend and hold harmless kWh360 and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the use of the Software or the breach of this EULA by you or any other user.
You acknowledge and agree that kWh360, and not Apple (if you downloaded the Software to an Apple iOS device) or Google (if you downloaded the Software to a device with the Android operating system), is responsible for addressing any claims of you or any third party relating to the Software or your possession and/or use of that Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) in to any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list you also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
This section applies to your use of the Software and explains what information we collect, how we collect it, what we use it for, how we protect it, and when we disclose it to third parties. If you do not agree with this section, you may not use this Software.
We may collect your name and e-mail address if you provide it to us when requesting technical support. We consider your name and e-mail address to be “Personal Information,” defined as information that can be associated with a specific person or can be used to identify that person. We use this information to provide you with technical support. If you do not want us to collect Personal Information about you, you can decide not to submit it to us, but be aware that we may not be able to provide you with support if we do not collect certain information from you.
We may also collect certain data from the device you are using the Software on, but we receive this data in aggregate form, meaning that we see information and statistics on multiple users at a time, and do not associate the data with anyone’s Personal Information. The information we receive this way may include, but is not limited to: a breakdown of the countries our Software is being used in, data about the date and time the Software is being used, data about which device model is being used with the Software, data about which carriers are being used, data about the version of the operating systems being used in connection with the Software, and the versions of Software being used (collectively, “Analytics Data”). We may receive this Analytics Data from the company behind your operating system (for example, Apple or Google), or we may collect this data from your device, including with the help of a third party analytics company. We use this information to provide the Software, to provide general statistics regarding use of the Software, to improve the Software, and as part of research and analysis aimed at improving our products, services and/or technologies.
Other Information. We may also collect and use other information with your consent or as permitted or required by law.
Sharing Information. We may share Analytics Information with third parties –this will not include sharing your Personal Information. We may share your Personal Information under the following circumstances:
When you provide us with consent.
We may share your information as necessary to provide you with products, services, or information you have requested. In our efforts to provide the best quality service and experience to you, we may hire service providers (including affiliates, which are companies controlled by, under common control with, or controlling kWh360) to help us with our business. These service providers may provide services such as handling the processing and delivery of mailings, providing customer and technical support (note that all calls may be recorded for quality assurance and training purposes, as well as record keeping purposes), creating or maintaining databases, hosting websites, processing transactions, or performing statistical analysis of our Services. Our service providers will be permitted to obtain or have access to only the Personal Information they need to provide support for the Software. They are required to maintain the confidentiality of the information, use reasonable and appropriate measures to protect it, and are prohibited from using it for any purpose other than for providing Software support in accordance with our instructions and policies. Some of our service providers, including our affiliates, may be located in the United States of America, Canada, and the Philippines, and we may share your information with them for the purposes described above, including to provide technical support. Your information will be subject to the laws of the country in which our service permits law enforcement, government and national security authorities to have access to your information in certain circumstances.
We may share your Personal Information with governmental entities, or third parties in response to subpoenas, court orders, other legal process, or as we believe is necessary to exercise our legal rights, to defend against legal claims that have been brought against us, or to defend against possible legal claims that we determine in our sole discretion might be brought against us. We may also share your Personal Information if we determine, in our sole judgement, that the release of your information may protect the rights, property, or safety of you, us, or another person. We may also report to law enforcement agencies any activities that we believe to be unlawful, or that we believe may aid a law enforcement investigation.
If kWh360 becomes involved in a merger, acquisition, or any form of sale of some or all of our assets or business, your information may be provided to the entities and advisors involved, for the purposes of determining whether to proceed with the transaction and, where applicable, concluding the transaction. Your information may be transferred to a successor or assign of all or part of our assets or business, who may use and disclose the information for similar purposes as those described in this section.
We do not knowingly allow third parties to collect Personal Information about you through our Software.
We will use reasonable practices to protect your Personal Information from unauthorized access, use, or disclosure. We use security technologies and procedures to help protect your Personal Information from unauthorized access, use, or disclosure. While we will use such efforts, we cannot ensure the security of your Personal Information. Accordingly, TO THE MAXIMUM EXTENT PERMISSABLE BY LAW, WE ASSUME NO LIABILTY FOR ANY DISCLOSURE OF DATA DUE TO ERRORS IN TRANSMISSION, UNAUTHORIZED THIRD PARTY ACCESS OR OTHER ACTS OF THIRD PARTIES, OR ACTS OR OMISSIONS BEYOND OUR CONTROL.
Some web browsers and devices permit you to broadcast a preference that you not be “tracked” online. At this time we do not modify your experience based upon whether such a signal is broadcast.
The license is if effective until terminated by you or kWh360 at any time without notice. Your rights under this license will terminate automatically without notice from kWh360 if you fail to comply with any term(s) of this EULA. Upon termination of the license, you shall cease all use of the Software and destroy all copies, full or partial, of the Software.
All representations, warranties, indemnifications, and limitations of liability contained in this EULA shall survive the termination of this EULA; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
Third Party Terms and Beneficiaries
You must comply with all applicable third party terms of agreement when using the Software. If you are using the Software on an Apple iOS device, you agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary thereof.
You agree that your rights and obligations under this EULA are not assignable. We may freely assign our rights and obligations under this EULA with or without notice to you. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns.
This EULA and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this EULA, and they replace any and all prior written or verbal agreements. If any portion of this EULA is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If kWh360 fails to insist upon or enforce strict performance of any provision of this EULA, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this EULA. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this or any specific term or conditions hereof.
The terms of this section entitled “Dispute Resolution” will apply to all disputes that may arise out of, are connected with or relate to this EULA or this Software, subject only to the following two exceptions: (1) if kWh360 reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to kWh360 or any third party, kWh360 may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court but subject to the informal resolution below. Furthermore, in no event will the terms of this section limit kWh360’s ability to investigate complaints or reported violations of this EULA or to take any action kWh360 deems necessary and appropriate to mitigate actions against kWh360, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
Informal Resolution. If you have any dispute with us or any related third party, arising out of, relating to, or connected with the Software, you agree to contact us; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give the kWh360 thirty (30) days within which to resolve the dispute to your satisfaction. If the kWh360 does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
Arbitration Agreement. Any claims by the kWh360, or claims by you that are not resolved by the informal resolution procedure as provided above, arising out of, relating to, or connected with this EULA or this Software must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). This agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 USC §1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this EULA including any claim that all or any part of this EULA is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided below) or to serve in a representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against us or related third parties arising out of, relating to, or connected with this EULA.
Limitation of Time to File Claims. ANY DISPUTE RELATING TO A CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
This EULA is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule.
Maintenance and Support
Please contact us at the information below for customer support. kWh360 is solely responsible for providing maintenance and support services for the Software. Third party operating system providers such as Apple and Google have no obligation to provide maintenance or support services for the Software.
If you have questions, complaints or claims with respect to the Software, you can contact kWh360 at:
879 Meander Ct.
Medina, MN 55340