Energyfolks Terms of Service
Last Updated: July 15, 2016
Welcome, and thank you for your interest in Energyfolks Inc., d/b/a Spark Clean Energy, a 501(c)(3) non-profit organization, (“Energyfolks,” “we,” or “us”) along with our online educational course platform at www.energyfolks.com, our related websites, networks, applications, and other services provided by us (collectively, our “Service”). These Terms of Service are a legally binding contract between you and Energyfolks regarding your use of the Service.
These Terms provide that all disputes between you and Energyfolks will be resolved by BINDING ARBITRATION. 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, and your claims cannot be brought as a class action. Please review Section 20 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Energyfolks.
About Us and Our Service. Energyfolks is a 501(c)(3) non-profit organization whose mission is to connect and empower the next generation of energy innovators and entrepreneurs. To accomplish this, we created the Service, an online educational platform that offers courses focused on entrepreneurship, innovation, and commercialization of clean energy technology and businesses (each course offered by us, a “Course”, and each student enrolled in a Course, an “Enrolled Student”).
Eligibility. You must be at least 13 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 13 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that organization to these Terms and you agree to be bound by these Terms on behalf of that organization.
Accounts and Registration. To access most features of the Service, such as uploading lectures, assignments or completed coursework, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address or other contact information. 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. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, comments on discussion boards, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
Limited License Grant to Energyfolks. By posting or publishing User Content, you grant Energyfolks a worldwide, non-exclusive, royalty-free, fully paid-up right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, solely for purposes of providing the Service.
Limited License Grant to Instructors and Enrolled Students. As part of the Service and providing Course instruction, instructors may upload recorded lectures, assignments, comments, and other content on the Service for Enrolled Students to access or complete, and Enrolled Students may upload completed assignments and other content for their instructors to evaluate. If you are an instructor, by uploading or sharing User Content to the Course portal, you grant the Enrolled Students a non-exclusive license to access, use, reproduce, and distribute that User Content solely for educational purposes and in connection with that Course. If you are an Enrolled Student, by uploading or sharing User Content to that Course portal, you grant the instructor of your Course a non-exclusive license to access, use, reproduce, and distribute that User Content for purposes of providing instruction for your Course.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Energyfolks and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Energyfolks, the Service, and these Terms; and
your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Energyfolks to violate any law or regulation.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Energyfolks may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Energyfolks with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Energyfolks does not permit copyright-infringing activities on the Service.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:Energyfolks Inc. d/b/a Spark Clean Energy
ATTN: Legal Department (Copyright Notification)
6437 Buna Ventura Ave.
Oakland, CA 94605
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Repeat Infringers. Energyfolks will promptly terminate without notice the accounts of users that are determined by Energyfolks to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
use the Service for any illegal purpose or in violation of any local, state, national, or international law
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right
post, upload or distribute any User Content or other content that contemplates committing illegal activities
post, upload or distribute any User Content or other content that contemplates trafficking contraband
post, upload or distribute any User Content or other content that is intentionally misleading or otherwise inaccurate
violate your educational institution’s Honor Code or any other policy of your educational institution regarding academic misconduct
post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) 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;
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer, advertisement or promotion to another user of the Service, including without limitation, providing links to other sites; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 12) or any right or ability to view, access, or use any Material; or
attempt to do any of the acts described in this Section 7, or assist or permit any person in engaging in any of the acts described in this Section 7.
Third-Party Services and Linked Websites. Energyfolks may provide tools through the Service that enable you to export information, including User Content, to third party services, such as through our Calendar or Job Board features. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
Termination of Use; Discontinuation and Modification of the Service. You may terminate your account at any time by contacting customer service at email@example.com. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Energyfolks may in its sole discretion terminate your user 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. We also reserve 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. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
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”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature or content on the Service, subject to Section 11. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time upon seven (7) days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Ownership; Proprietary Rights. The Service is owned and operated by Energyfolks. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Energyfolks are protected by intellectual property and other laws. All Materials included in the Service are the property of Energyfolks or our third-party licensors. Except as expressly authorized by Energyfolks, you may not make use of the Materials. Energyfolks reserves all rights to the Materials not granted expressly in these Terms.
No Implied Endorsements. In no event shall any reference on the Service to any third party or third party product or service be construed as an approval or endorsement by Energyfolks of that third party or of any product or service provided by a third party. Likewise, a link to any non-Energyfolks website does not imply that we endorse or accept any responsibility for the content or use of such a website.
Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Energyfolks an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Energyfolks and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Energyfolks Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use 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 that claim.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ENERGYFOLKS ENTITIES DISCLAIM 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. THE ENERGYFOLKS ENTITIES DO 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 DO 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 ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Energyfolks ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ENERGYFOLKS ENTITIES DO NOT WARRANT THAT ANY USER CONTENT MADE AVAILABLE ON THE SERVICE IS ACCURATE, CURRENT OR UP TO DATE. THE ENERGYFOLKS ENTITIES DO NOT WARRANT OR VERIFY THAT ANY USER CONTENT MADE AVAILABLE ON THE SERVICE (i) IS ORIGINAL, (ii) DOES NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY, OR (iii) DOES NOT VIOLATE ANY ACADEMIC MISCONDUCT POLICY OF THE EDUCATIONAL INSTITUTION OF THE USER WHO POSTED SUCH USER CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE ENERGYFOLKS 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 OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ENERGYFOLKS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 20.4(iii), THE AGGREGATE LIABILITY OF THE ENERGYFOLKS 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 $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
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 YOU AND Energyfolks UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND Energyfolks. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Energyfolks agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Energyfolks in the most expedient and cost effective manner, you and Energyfolks agree that every dispute arising in connection with these Terms 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, 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 ENERGYFOLKS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 20.1, 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; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Energyfolks will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Energyfolks.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Energyfolks's address for Notice is: Energyfolks Inc., d/b/a Spark Clean Energy, 6437 Buena Ventura Ave, Oakland, CA 94605. The Notice 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 is received, you or Energyfolks may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Energyfolks must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Energyfolks will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Energyfolks in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you commence arbitration in accordance with these Terms, Energyfolks will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Alameda County, California, but if the claim is for $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 AAA Rules. In that case, you agree to reimburse Energyfolks for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA 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 ENERGYFOLKS 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 Energyfolks 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 Energyfolks makes any future change to this arbitration provision, other than a change to Energyfolks's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Energyfolks's address for Notice, in which case your account with Energyfolks will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If Section 20.6 is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18 will govern any action arising out of or related to these Terms.
Contact Information. The Service is offered by Energyfolks Inc. d/b/a Spark Clean Energy, located at 6437 Buena Ventura Ave, Oakland, CA 94605. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.