These Terms of Service (these “Terms”) are an agreement between you and Nutiliti Inc. (“Nutiliti”). Please read theThese Terms of Service (these “Terms”) are anagreement between you and Nutiliti Inc. (“Nutiliti”). Please read themcarefully. If you do not agree to all of these Terms, do not access or use anyNutiliti products or services.
You and Nutiliti agree as follows:
1. Scope of These Terms. These Terms include the terms and conditions that apply to your use of and access to Nutiliti’s mobile app or other client application(s)(the “App”) and any services Nutiliti makes available through the App and/or the Nutiliti website (the “Services”).
2. Effectiveness of These Terms. These Terms come into effect on the earlier of (a)the date that you manifest assent to these Terms (which may be via your lease agreement, via the signup process when you sign up for an account to receive Services from Nutiliti (a “Nutiliti Account”), or any other way that you express agreement to the terms and conditions to access and use the App and/o rServices); or (b) the date that you first receive access to or use of the App and/or Services. These Terms remain in effect for the entire period that you receive access to or use of any Services or App, subject to termination as set forth below in these Terms.
3. Eligibility for Services; Nutiliti Account Information. To use the Services, you must: (a) express agreement to these Terms and to Nutiliti’s Privacy Policy; (b) register for a Nutiliti Account either through our website or through the App; (c) be a U.S. citizen or a legal U.S. resident who is at least18 years of age (or older if you reside in a state where the age of majority is older); (d) provide a valid payment method (e.g., bank account or credit or debit card) with a U.S. financial institution; (e) provide all other information requested by us in connection with providing the Services to you, such as your name, email address, mobile device number, utility account information, and such other information as we may request from time to time (collectively, “Nutiliti Account Information”); and (f) pay the fees for Services and utilities as described below. In addition to the Nutiliti Account Information that you provide to us, you hereby authorize us, either directly or through third-party services, to obtain, verify, and record Nutiliti Account Information for you, including documentation that helps us verify your identity (which may include, for example, a copy of your government-issued ID, a recent utility bill or bank statement with your name and address on it, or such other information as we may require to verify your identity). You represent and warrant that all Nutiliti Account Information you provide to Nutiliti from time to time is truthful, accurate, current, and complete, and you agree to update such information promptly if any of it changes or becomes inaccurate for any reason. You acknowledge and agree that Nutiliti and third parties may rely on the accuracy of your Nutiliti Account Information, whether provided by you or collected from a third party, and Nutiliti has no obligation or liability with respect to any Nutiliti Account Information, including its accuracy, compliance with laws, or non-infringement of third-party rights.
4. Utility Accounts and Information.
(a) Utility Account Management. The Services include management services relating to any and all utility account(s) for which Nutiliti has the ability to provide such services (the “Utility Accounts”), and Nutiliti is an authorized party and payee to the utility provider for the holder of any such Utility Account(the “Utility Account Holder”). Every Account Holder and anyone else responsible for paying utility bills in a residence must have a Nutiliti Account and pay Nutiliti the applicable fees for Services. If Nutiliti believes that a residence serviced by Nutiliti includes anyone who does not have a Nutiliti Account, then Nutiliti may, at its option, (i) charge Services fees for the individuals without Nutiliti Accounts to any other resident(s) at such address who do have Nutiliti Accounts, or (ii) immediately terminate your Nutiliti Account and stop providing Services to you with no further obligation to you or any other resident at your address. Nutiliti is not obligated to pass along or share with you any compensation it receives from any utility provider pursuant to its agreement with such provider.
(b) Utility Account Information. By using the Services and providing Nutiliti Account Information to us, you hereby authorize us, either directly or through third-party services, to obtain information about you, the Utility Account Holder, and all relevant Utility Account(s) from the relevant utility companies or other entities who have the information about the Utility Account(s) for which Nutiliti is to provide Services. For purposes of this authorization, you hereby grant Nutiliti and our third-party service providers a limited power of attorney, and you hereby appoint Nutiliti and our third-party service providers as your true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for you and in your name in any and all capacities to access third-party websites, services, and documents, to retrieve information relating to you, the Utility Account Holders, and the Utility Accounts; and use the information collected, all of which is included in Nutiliti Account Information, as described above. This includes the full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection with such activities for the Services, as if performed by you in person.
YOU ACKNOWLEDGE AND AGREE THAT WHEN NUTILITI OR OURTHIRD-PARTY SERVICE PROVIDERS ACCESS AND RETRIEVE INFORMATION FROM ANY THIRD PARTY,NUTILITI AND OUR THIRD-PARTY SERVICE PROVIDERS ARE ACTING AS YOUR AGENT WITHTHE REQUISITE POWER AND AUTHORITY TO DO SO. You further acknowledge and agree that the Services are not endorsed or sponsored by any third-party account or information providers, including any utility company who permits Utility Account management through the Services.
5. Nutiliti Account Access. Nutiliti provides you with one set of login credentials (such as a username and password), which you use to access your Nutiliti Account. You should safeguard these credentials to keep them safe, and you agree not to share these credentials with any third party. You are fully responsible and liable for any use of your Nutiliti Account with your login credentials.
6. Authorized Utility Providers. If Utility Accounts are set up by the Account Holder, you must use the utility provider providing services to the Account Holder. If your residential lease agreement requires you to use Nutiliti’s Services for certain utilities and/or utility providers, you must include those in the Services under your Nutiliti Account. Nutiliti has the right to refuse any utility provider and may not have relationships with all utility providers in connection with the Services.
7. License Grant and Restrictions.
(a) Licenses. Subject to your compliance with these Terms, including the payment of applicable fees, Nutiliti hereby grants to you a limited, non-exclusive, personal, non-sublicensable, non-transferable license to: (i) access and use the Services for your personal use, and(ii) to access and use the App. If you receive the App via a third-party app or distribution point (e.g., the Apple App Store or Google Play), you are also subject to those third-party distributors’ terms and conditions, and Nutiliti has no control over or liability for such third parties.
(b) Restrictions. Nutiliti and its suppliers or licensors, if any, retain ownership of all intellectual and proprietary rights in and relating to the App and Services and any related documentation. All rights not expressly granted in these Terms are reserved by Nutiliti. Except as expressly permitted in these Terms, you will not, and will not permit or encourage any third party, to do or attempt to do any of the following:(i) remove any copyright or proprietary rights notices from the App or any other products, services, or documentation provided by Nutiliti; (ii)disassemble, decompile, reverse engineer, modify, or create derivative works of the App or any other products or services provided by Nutiliti; (iii)redistribute, sell, assign, sublicense, lease, loan, rent, timeshare, or otherwise transfer to any third party any of your rights to the products or services provided by Nutiliti; (iv) transmit through or submit to the App or Services any information, data, or material that is unlawful, libelous, defamatory, tortious, infringing, threatening, obscene, or harmful to minors;(v) transmit through the App or Services any data or material containing viruses, malware, or other harmful computer code, files, scripts, agents, or programs; (vi) interfere with or disrupt the integrity or performance of the Services or attempt to gain unauthorized access to any Nutiliti or third-party services or systems; (vii)) write or develop, or have written or developed, any software or program based on the products or services provided by Nutiliti; or(viii) use or authorize others to use the Nutiliti products or services in anyway not expressly permitted in these Terms. This Section 7(b) will survive the expiration or termination of these Terms for any reason.
8. Fees and Invoices.
(a) Nutiliti Subscription Fees. Nutiliti provides the Services on a subscription basis. By subscribing to the Services, you agree to pay the then-current fees applicable to the Services (“Nutiliti Subscription Fees”) as any such fees become due throughout the period that you receive Services. All Nutiliti Subscription Fees are nonrefundable. Nutiliti may modify or update its Nutiliti Subscription Fees from time to time and will communicate any such changes before they become effective. Nutiliti will invoice you on a monthly basis for your Nutiliti Subscription Fees, and you must pay such amounts as set forth in these Terms.
(b) Utility Fees. The payment relationship with utilities for Utility Accounts that are managed via the Services are either in the Account Holder’s name or in Nutiliti’s name. In both cases, Nutiliti is the designated bill payor for each such utility provider and will take the necessary action to pay the utility providers for fees due under Utility Accounts (“Utility Fees”). You may be obligated under your residential lease agreement to pay all applicable Utility Fees. You and/or the Account Holder delegate authority to Nutiliti to pay such Utility Fees to the utility providers and to collect payments from you for those fees. You should NOT pay such Utility Fees directly unless told to do so in writing by Nutiliti. Nutiliti will invoice you for any amounts due for Utility Fees as such amounts are invoiced from the utility provider or, if there is no invoice from the utility provider, then on a monthly basis or as otherwise determined by Nutiliti. You must pay Nutiliti for any amount invoiced for Utility Fees asset forth in these Terms, even if you have paid the utility company directly for such amount without Nutiliti’s prior written direction.
(c) Utility Fee Division. If your property or residential address (e.g., a single house, apartment, or building unit) has multiple residents who wish to split Utility Fees, then each such resident must sign up for a Nutiliti Account and agree to pay his or her share of Utility Fees. In that case: (i) Nutiliti will invoice each resident with a Nutiliti Account for a pro-rata share of the Utility Fees based on the number of residents with Nutiliti Accounts and the number of days in the applicable billing cycle that each resident had a Nutiliti Account, and (ii) you are primarily responsible for payment to Nutiliti of your pro-rata share of Utility Fees. However, notwithstanding the fact that each person with a Nutiliti Account is primarily responsible for his or her pro-rata share of Utility Fees, you understand and agree that all residents with Nutiliti Accounts are jointly and severally liable for all Utility Fees applicable to that address, and if one or more residents fails to pay his or her share of such Utility Fees when due, then the other Nutiliti Accountholders at such residence must pay the non-paying resident’s share upon demand from Nutiliti.
9. Payments.
(a) Payment Methods and Authorization. As a requirement of having a Nutiliti Account and receiving Services, you must maintain in your Nutiliti Account a valid U.S. bank account or a credit or debit card from which Nutiliti may draw funds to satisfy your payment obligations under these Terms. If you have not timely opted out of autopayment in your Nutiliti Account, you hereby authorize Nutiliti to automatically withdraw payments from such credit/debit card or bank account on the dates payments are due to Nutiliti for all payments under these Terms, including for Nutiliti Subscription Fees, Utility Fees, fees of payment processors, and any other amounts that you may owe arising from or relating to these Terms throughout the period that these Terms are in effect (and including any amounts that may be due after termination of these Terms). If you do timely opt out of autopayment in your Nutiliti Account, then you must initiate all such payments manually in a timeframe that Nutiliti receives payments of all amounts due under these Terms on or before the due dates. Please note that any changes you make in your Nutiliti Account (including, without limitation, changes to your payment method on file) may take 3 business days or more to become effective. If you have questions about your payment method, please email Nutiliti at support@nutiliti.com.
(b) Payments. Payments for your Utility Fees are due 7 calendar days prior to date payment is due to the utility company for the amount of your utility invoice. Payments for all other amounts, including Subscription Fees, are due upon receipt of invoice or other notification from Nutiliti that such amount is due. In addition, Nutiliti’s payment processors may charge transaction fees for each payment you make under these Terms (which may be a percentage of the payment, a flat fee, or a combination of the two), and you are responsible for payment of such payment processing fees. You agree to pay Nutiliti the full amounts appearing on each invoice from Nutiliti, without any set-off, counterclaim, or deduction. All payments made under these Terms are nonrefundable.
(c) Late Payments. If you fail to make any payment as and when due, then Nutiliti may, at its option, immediately terminate your Nutiliti Account and the provision of Services to you under these Terms. In that event, Nutiliti has no further obligations to you under these Terms or otherwise. Failure of Nutiliti to exercise this termination option at any time will not constitute a waiver of Nutiliti’s right to do so. Any amount invoiced but not paid when due will accrue, and you must pay, (a)late-payment interest, calculated daily and compounded monthly, on the outstanding balance at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law; (b) any late fees, interest, or other charges imposed by the applicable utility provider(s); and any fees, costs, or expenses incurred as a result of Nutiliti’s attempts to collect amounts owed by you.
10. Disclosure of Your Information. You hereby agree that Nutiliti may, in its discretion, share your account or payment information with other residents at your address with whom you share responsibility for Utility Fees, the parents of any such residents, the owner and/or manager of your property, the applicable utility companies, and any other bill-paying parties. However, Nutiliti will not share your credit or debit card numbers, bank account information, social security number, or birthdate with any party except to the extent such disclosure is necessary to verify your identity, to make or receive payments as provided in these Terms, or to engage a collection service for payments you did not make.
11. Termination.
(a) By Nutiliti. Nutiliti reserves the right to terminate your access to and use of the App and Service(or any portion of the Service) in its sole discretion, without notice and liability, including, without limitation, if Nutiliti believes your conduct fails to conform with these Terms, including without limitation any failure to make payments when due under these Terms. Nutiliti also reserves the right to investigate suspected violations of these Terms.
(b) By You. You may terminate your Nutiliti Account and your receipt of Services and use of the App if Nutiliti receives notice from your property owner or manager (or from you, with confirmation from your property owner or manager) that you are no longer a resident who is responsible for any Utility Fees. Any such termination is not effective if you continue to use the App or the Services.
(c) Effect of Termination. Upon termination of these Terms by either you or Nutiliti: (i) you must immediately stop using and delete any App, (ii) any deposits or fees charged by any utility company after termination are solely your responsibility, and (iii) Nutiliti shall have no further obligation to provide Services or pay any utility bills under these Terms. The Account Holder is responsible for the termination of all utility services at this address. If residents at the same address have different Service end dates, Nutiliti shall use the last end date of any resident as the final day of these Terms. Your sole and exclusive remedy, and Nutiliti’s sole obligation, if you allege any breach or other shortcoming by Nutiliti, is that Nutiliti will use reasonable efforts to correct any actual failure of Nutiliti to comply with its obligations under these Terms.
(d) Final Billing Procedure. You are responsible for payment of all fees, including Nutiliti Subscription Fees and Utility Fees, through the last day that Nutiliti provides Services to you. Nutiliti will invoice, and you will pay, all such amounts even if they become due after termination of these Terms. In addition, if a property owner or manager requires Nutiliti to estimate a final utility bill, Nutiliti will provide an estimated final bill to you based on multiple prior months of utility services, historical data, and weather factors. You agree to pay Nutiliti this final estimated bill before the last date of Services to you under these Terms. You can contact Nutiliti atsupport@nutiliti.com to true-up the final estimated bill with the final actual bill. If the estimated final bill is higher than the actual bill, Nutiliti will use reasonable efforts to issue a refund to you of the overpayment. If the estimated final bill is less than the actual bill, you authorize Nutiliti to withdraw the amount due using the payment method on file even if you have previously opted out of autopayments of other amounts due under these Terms.
12. Indemnification. You agree to indemnify and hold harmless Nutiliti, its affiliates, and its and their officers, directors, employees, and agents from and against any liability arising out of or relating to your breach of these Terms and/or your breach or alleged breach of any related agreement with any third party (including, without limitation, any agreement with a property owner or manager or a utility provider).
13. Notices; Electronic Communications. Nutiliti may communicate with you in a variety of ways, which may include email, text message, phone call, notifications in the App, mail, and any other method whether electronic or hard-copy. You hereby consent to receipt of any and all communications relating to the App and Services, including invoices and notices under these Terms, via any such method using the contact information provided in your Nutiliti Account Information. All such communications are deemed received when sent. You may opt out of marketing messages from Nutiliti, but may not opt out of messages relating to the App or Services.
14. Disclaimer. The App and the Services are provided to you “AS IS” and on an “AS AVAILABLE” basis. Without limiting that, NUTILITI EXPLICITLY DISCLAIMS ANY WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT ORNON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGEOF TRADE. Nutiliti makes no warranty that the App or the Services will meet the requirements of you or anyone else, or that they will be available on an uninterrupted, secure, or error-free basis.
15. Limitation of Liability. NUTILITI’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OFACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE AMOUNTS PAIDBY YOU IN NUTILITI SUBSCRIPTION FEES IN THE 3 MONTHS PRIOR TO YOUR CLAIMARISING, AND IN NO EVENT WILL THAT LIABILITY EXCEED $50. NUTILITI WILL NOT BELIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OFPROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES THAT ARISE FROM ORRELATE TO THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SERVICES OR APP,WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHERLEGAL THEORY, WHETHER OR NOT NUTILITI HAS BEEN INFORMED OF THE POSSIBILITY OFSUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH IN THESE TERMS IS FOUND TOHAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitations of liability, so some of the limitations above may not apply to you.
16. Modifications to These Terms. Nutiliti may modify or amend these Terms from time to time. If it does so, it will provide you with notice, which may be via any method of communication described above in these Terms, including the date that the new version of these Terms becomes effective. If you do not agree to a new version of these Terms, you may terminate your Nutiliti Account, your use of the App, and your receipt of Services, subject to any obligations in your residential lease agreement.
17. Governing Law; Dispute Resolution; Attorneys’ Fees. The laws of Texas govern all matters arising from or relating to these Terms, the App, and the Services, without regard to Texas’ rules regarding conflicts of law. If a dispute arises between Nutiliti and you arising from or related to these Terms, the App, or the Services, you and Nutiliti agree to first engage in a good-faith effort to resolve the matter informally. If the dispute cannot be resolved through good-faith negotiations, Nutiliti and you shall submit the dispute to binding arbitration by a single arbitrator under the then-current rules of the American Arbitration Association governing commercial disputes. The arbitration will be conducted in Austin, Texas unless all parties to the dispute otherwise agree in writing after the dispute arises and before commencement of the arbitration. Notwithstanding this agreement to arbitrate, if either party seeks equitable relief (such as an injunction), it must do so exclusively in the state or federal courts located in Austin, Texas, and each party hereby consents to the exclusive venue and personal jurisdiction of such courts. Each party hereby waives any objection that venue is improper or inconvenient in such courts or that such courts lack personal jurisdiction over Nutiliti and you. The prevailing party in any arbitration or court proceeding described in this Section, as determined by the arbitrator or judge, as applicable, is entitled to its reasonable attorneys’ fees and related costs and expenses, and the non-prevailing party shall promptly reimburse the prevailing party for all such fees, costs, and expenses awarded.
18. Miscellaneous. These Terms (including any policies, terms, or other agreements referred to in these Terms) contain the entire agreement and all understandings between Nutiliti and you concerning their subject matter, and no other representations, promises, agreements, or understandings have any force or effect. You may not assign these Terms or delegate any of your obligations under these Terms, in whole or in part, without Nutiliti’s prior written consent. Any unauthorized attempt to assign or delegate by you is null and void. Nutiliti may freely assign these Terms in connection with its performance of Services. Subject to the prior sentences, these Terms are binding on the parties and their respective successors, assigns, heirs, executors, and legal representatives. Except as otherwise expressly set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising in connection with these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege under these Terms preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any provision of these Terms is held to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction, provided that the parties’ essential rights and obligations under these Terms remain legal, valid, and enforceable.
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