Last Updated: November 18, 2019
Subscribers may be either property owners, managers and/or landlords (each, a “Manager” and collectively, “Managers”), or residents of properties operated by Managers (each, a “Resident” and collectively, “Residents”). The Website enables Mangers (via the “Community Manager Portal” accessible through the Website) to view utility analytics, track Resident bill payments and review other account status, and utilize other features, and enables Residents via the “Resident Portal” accessible through the Website) to access their accounts, review and pay past and current bills, and utilize other features.
1 This Agreement.
1.1 Acceptance via the Website. Please read this Agreement carefully before otherwise accessing the Website. In order to use the Website, and before you become a Subscriber, you must first agree to be bound by the provisions of this Agreement. For Users who are anonymous browsers or who have not yet registered with us, by accessing the Website you indicate that you have read, understood and agree to be bound by the provisions set forth in this Agreement. And for Subscribers who register with us via the Website, you indicate your agreement to the provisions of this Agreement by means of such registration. If you do not agree to be bound by this Agreement, you are not authorized to use the Website. Furthermore, you are not authorized to use the Website if you are barred from using the Website either (a) under the laws of the jurisdiction in which you reside or from which you are attempting to access the Website, or (b) due to prior violations of this Agreement.
1.2 Minors. If you are a minor in your state of residence, then you are not authorized to use the Website and thus you agree to use the Website if and only if (a) you have secured the authorization of your parent or legal guardian to use the Website and your parent or legal guardian has agreed to this Agreement on your behalf, (b) your parent or legal guardian has not revoked such agreement, and (c) you have agreed to the provisions of this Agreement and you have not revoked such agreement.
1.3 Modification. We reserve the right to modify this Agreement at any time. You shall periodically review this Agreement to be aware of such modifications. You further agree that your continued use of the Website after any such modifications have been made shall be deemed to be your conclusive acceptance of any modified version of this Agreement. We will indicate that changes to this Agreement have been made by updating the date indicated after “Last Updated” at the beginning of this Agreement. We will be happy to provide you with prior versions of this Agreement upon your written request to us. If you do not agree to abide by the initial version and each modified version of this Agreement, then you are not authorized to use the Website. A current version of this Agreement is accessible via the footer of the Website’s homepage.
2.1 Becoming a Manager or Resident. Our Subscribers who are Managers have provided us with certain PII of certain of their respective Residents (including name, address, and email address), and we will send each such Resident a copy of their current utility bill with an initial security code to be input into the “Resident Portal”. Once the Resident does this and becomes a Subscriber, we will send the Resident a confirmation email to such Resident’s email of record and will ask the Resident to validate that email address. Then such Resident will be prompted to select log-in and password credentials, which will enable such Residents to use the Website as a Resident. Subscribers who are Managers will be provided with log-in and password credential from us to utilize the Website as a Manager.
2.2 Accurate Information. Each Subscriber and each of its employees, agents or representatives using the Service (if applicable) shall provide us with accurate, complete and current information about themselves while using the Service, and each Subscriber shall update all information provided by such Subscriber or such individuals through the Service if and as soon as such information changes.
2.3 Account Access. You shall not allow any individual or entity to use your account to access the Service or otherwise, and you shall strictly safeguard the information that would allow any individual or entity to access the Service by using your account. You are solely responsible for your failure to strictly safeguard such information and/or otherwise to permit any other individual or entity to access or use the Service by using your account. You may not sell or otherwise transfer your account or any portion thereof. You shall notify SUB immediately of any unauthorized use of your account or any portion of the Service. SUB shall not be liable for any loss that results from the unauthorized use of your account, either with or without your knowledge.
2.4 Disabling or Revocation of account. We have the right to disable, suspend and/or cancel your account for any reason (without having to specify the reason) or for no reason, at any time, as determined by us in our sole discretion, including without limitation if we believe you (or your applicable Manager subscribing to the Service) has violated this Agreement. If we disable, suspend and/or cancel access to your account, you may be prevented from accessing the Service, your account details and/or any files relating to the Service and all other various Service materials, including without limitation all text, messages, comments, files, icons, images, tags, notes, links, photographs, audio, video and other information appearing on the Website or otherwise provided to you by us (collectively, “Content”) which is contained in or accessible through your account, all of which may be deleted by us. Such termination will mean that you will also lose access to all such Content, all Content that you submit to us through the Service (collectively, “Submitted Content”).
2.5 Cessation of Website. The form and nature of the services offered through the Website may change from time to time without prior notice to you. As part of our continuing innovation, we may stop (permanently or temporarily) providing certain Website features to you in our sole discretion, without prior notice to you.
3 Processing Payments.
3.1 Payments; Information. In order to process payments made by Residents by using the Website, such Residents will be asked by us to supply certain payment information, including without limitation, such Resident’s legal name, the credit card holder’s full name, billing address and credit card information. Subscribers shall provide us with accurate, complete and current information at all times, and comply with the provisions of this Agreement and any ancillary agreement requested by our credit card settlement provider or otherwise in connection with the making of any payments. SUB and/or such a provider may store and use all payment information (including credit card information) for processing payments and for related reasons, and otherwise in connection with Subscriber requests.
3.2 Descriptions. We attempt to be accurate in forwarding utility bills to Residents; however, we do not warrant or represent that all such descriptions are complete, current or error-free. Specifically, we have endeavored to accurately display the images of all Resident bills, but we cannot guarantee that these images will accurately appear on the monitor viewed by each Resident. We also cannot guarantee the availability of any of the Website.
3.3 All Charges Final. All payments made by a Resident through such Resident’s account are final. The right of Residents right to use the Website is conditional on our timely receipt of all applicable fees by such Resident’s respective Manager who is subscribing to the Website. If any payment of such fees by a Manager cannot be charged to such Manager’s credit card or if a charge is returned or rejected for any reason, including without limitation by means of a chargeback, we reserve the right to suspend or terminate the accounts of all Residents related to such Manager, which may involve the deletion of all of the Submitted Content or such Resident or other Content saved to such Resident’s account. Each Resident is fully responsible for all charges made under such Resident’s account.
3.4 Refunds of Fees to Managers. In the event that we charge any Manager any fees in error, such Manager shall be refunded (as a credit to such Manager’s credit card) such mistakenly charged fees upon either (a) our receipt of written notice by such Manager describing the claim that such an error has been made along with corresponding evidence of such claim, and the independent verification by us after we have undertaken a good faith review to investigate such a claim, or (b) SUB independently learning of and verifying that such an error has occurred. Any refund provided by us shall be such Manager’s sole remedy for any erroneous charge of fees by us or any person operating on our behalf. If a Manager notices any charge on such Manager’s credit card that was not authorized by such Manager, such Manager must immediately report this charge to us and to such Manager’s credit card company.
3.5 Refunds of Fees to Residents. In the event that we charge any Resident any charges in error, such Resident shall be refunded (as a credit to such Resident’s credit card) such mistakenly charged fees upon either (a) our receipt of written notice by such Resident describing the claim that such an error has been made along with corresponding evidence of such claim, and the independent verification by us after we have undertaken a good faith review to investigate such a claim, or (b) SUB independently learning of and verifying that such an error has occurred. Any refund provided by us shall be such Resident’s sole remedy for any erroneous charge of fees by us or any person operating on our behalf. If a Resident notices any charge on such Resident’s credit card that was not authorized by such Resident, such Resident must immediately report this charge to us and to such Resident’s credit card company.
3.6 Taxes. You are responsible for paying all fees, payments and applicable taxes associated with your use of the Website in a timely manner with a valid payment method acceptable to us. If your payment method fails or your account is past due, we will attempt to collect all fees owed to us by a Manager using other collection mechanisms (including without limitation deducting the amount owed from your credit card), and for accounts over a certain number of days past due we may retain collection agencies and/or legal counsel, and you shall be responsible for all such costs and expenses that we incur in pursuing such actions.
4 License; Usage Restrictions.
4.1 Grant of Rights. You may use all Content for your personal use only or otherwise as expressly described on the Website, but not for any commercial use, and you agree not to sell, resell, reproduce, duplicate, distribute, copy or use for any commercial purposes any portion of our Content. However, you may print copies of materials on the Website for your personal, noncommercial use only, provided that you must keep intact all copyright, Trademark, and other proprietary notices appearing therein and that you use such materials only in the manner permitted by this Agreement and never in any manner which directly or indirectly competes with us.
4.2 Usage Restrictions. You shall not use the Website in any manner which:
(a) enables you (or enables any other person) to (i) copy, modify, create a derivative work of, any Content, or (ii) copy, modify, create a derivative work of, reverse engineer, translate, adapt or decompile (or attempt to translate, adapt or decompile) or otherwise attempt to extract any software underlying any portion of the Website or the source code of the software underlying the Website, or any portion thereof;
(b) interferes with operations or services provided by the Website or otherwise disrupts the Website in any way;
(c) interrupts, destroys or limit the functionality of, any computer software or hardware or telecommunications equipment (including without limitation by means of software viruses, Trojan horses or any other computer code, files or programs);
(d) infringes any copyright, trademark, trade secret, patent or other right of any party (including the promoting of an illegal or unauthorized copy of another person’s copyrighted work), or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);
(e) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable, as determined by us in our sole discretion;
(f) creates a false identity or otherwise attempts to mislead any person as to the identity or origin of any communication;
(g) exports, re-exports, or permits downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies and authorities, or without all required approvals, licenses, or exemptions;
(h) causes us to lose (in whole or part) the services of our internet service providers or other suppliers;
(i) consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, or otherwise transmits, posts or sends unsolicited commercial messages, removes or modifies any postings, unauthorized commercial advertisements, affiliate links, and other forms of solicitation;
(j) links to materials or other content, directly or indirectly, to which you do not have a right to link or which we determine in our sole discretion is not appropriate to be linked to from the Website; or
(k) violates, or encourages others to violate this Agreement (or engages in any other activity deemed by us to be in conflict with this Agreement), or violates or encourages others to violate any applicable local, state, national, or international law.
4.3 Reporting Violations. You shall immediately notify us in writing of any Content that you view through the Website which you deem to be offensive, inappropriate or otherwise a violation of this Agreement.
4.4 Disabling or Revocation of Use. We have the right to cancel or suspend your use of the Website including any purchase made by you, for any reason, as determined in our sole discretion, including without limitation if we believe you have violated this Agreement.
5 Intellectual Property.
5.1 Proprietary Rights. All Content provided by SUB or any of our third party licensors through the Website is protected by copyright, trademark and other laws of the United States and/or other jurisdictions. Other than for third party Trademarks (as hereinafter defined) appearing on the Website, you acknowledge and agree that as between you and us, all right, title and interest (including without limitation all copyright, trademark, patent, trade secret and other intellectual property rights) in and to Website (including without limitation all other Content appearing therein) is owned by us, and that you have no rights in and to the Website other than as expressly set forth in this Agreement. Other than for the limited license granted in Section 4.1 above) and except for that information which is in the public domain, no Content or any software underlying the Website may be sold, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without our prior written consent.
5.2 Trademarks. “Synergy” is a trademark of SUB. All other Trademarks referenced on the Website, are the property of their respective owners. SUB is not affiliated with, or sponsored or endorsed by any third party trademark owner whose Trademark appears on the Website and whose owner is not indicated to be SUB. As used herein, the term “Trademarks” means, collectively, all service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress which indicate a source of goods or services. Trademarks are protected by the trademark laws of the United States and/or other jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademarks in any way, including without limitation in the distribution of any Content, for advertising or publicity or otherwise, without our prior written consent or the prior written consent of such third party Trademark holder, as applicable. Unless you have been expressly authorized to do so in writing by SUB or any other applicable Trademark holder, you shall not use any Trademark of any individual or entity in a way that is likely or intended to cause confusion with such Trademark holder. The owners of any third party product, service, information, content, Trademark or copyright appearing on the Website are not sponsors of SUB and have not endorsed and are not affiliated with SUB, and SUB is not a sponsor and does not endorse any such third parties.
5.3 Removal of Notices. You shall not remove, obscure, or alter any proprietary rights or notices (including without limitation copyright and Trademark notices) which may be affixed to or contained within any Content. You shall abide by all such notices.
6 Links; Third Party Resources. The Website may provide links to third party resources which may be of possible interest to you. Because we do not endorse or otherwise have control over such resources, we are not responsible or liable, directly or indirectly, for (a) the availability of such resources, (b) any content, data, text, software, music, sound, photographs, video, messages, tags, links, advertising, services, products, or other materials on or available from such resources, (c) your participation, correspondence or business dealings with any third party found on or through the Website regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, which are solely between you and any such third party, or (d) any damage or loss caused or alleged to be caused by or in connection with your interaction with any such third party or any other third party whom you form a connection with through or because of the Website. Your use of any resources linked to from the Website is subject to the policies and procedures of the owner of such resource, and your use of all such resources is subject to such policies and procedures and not to the provisions of this Agreement.
7 Representations, Warranties and Covenants. You represent and warrant that (a) you have all rights, power and the full legal authority to enter into this Agreement (and if you are entering into this Agreement on behalf of any entity that you are fully authorized by such entity to so enter into this Agreement on its behalf), (b) you have carefully read this Agreement and shall comply with all of your obligations under this Agreement and any other terms or conditions posted on the Website, and (c) this Agreement is enforceable against you in accordance with its terms and conditions.
8 DISCLAIMER OF WARRANTIES. YOUR USE OF THE WEBSITE IS STRICTLY “AS IS”, “AS AVAILABLE”, AND AT YOUR SOLE RISK. NONE OF THE SUB PARTIES HAS OR SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, THROUGH YOUR USE OF THE WEBSITE OR OTHERWISE RELATED TO YOUR SUBSCRIPTION OR OTHERWISE. SUB FURTHER DOES NOT MAKE ANY GUARANTY OF THE ACCURACY, CORRECTNESS, USEFULNESS, TIMELINESS OR COMPLETENESS OF, AND IS NOT LIABLE FOR LOSSES OR DAMAGES ALLEGED TO ARISE FROM OR ARISING FROM OR RELATED TO, ANY USE OF THE WEBSITE. SPECIFICALLY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE SUB PARTIES DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE REGARDING THE WEBSITE. SUB DOES NOT WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, UNDER NO CIRCUMSTANCES SHALL SUB BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE ALLEGED TO ARISE OR ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE, OR YOUR INTERACTION WITH ANY THIRD PARTY LINKED TO FROM THE WEBSITE OR OTHERWISE.
9 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY OF THE SUB PARTIES BE LIABLE FOR LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, YOUR USE OF THE WEBSITE (INCLUDING WITHOUT LIMITATION YOUR LOSS OF ANY DATA, INCOME, OR PROFIT; OR LOSS OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE WEBSITE), WHETHER OR NOT ANY OF THE SUB PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE SUB PARTIES TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE RELATED TO USE OF THE WEBSITE IS LIMITED TO ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTION 8 OR THIS SECTION 9 MAY NOT APPLY TO YOU, BUT IN SUCH A CASE ALL LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10 Indemnification. You shall indemnify, defend and hold harmless each of the SUB Parties from all claims, demands, actions, causes of action and/or lawsuits (each, a “Claim” and collectively, “Claims“) and all resulting costs, liabilities, losses, expenses, and damages, actual and consequential, direct and indirect, of every kind and nature, including without limitation reasonable attorneys’ fees and disbursements (collectively, “Losses“) made by any third party arising out of or related to (a) the breach by you of any of your representations, warranties, covenants or obligations under this Agreement, (b) your negligence or misconduct, or (c) your violation of any law or regulation. You shall provide all applicable SUB Parties with prompt written notice of any Claim or potential Claim of which you become aware. Upon the assertion or commencement of any Claim against one or more of the SUB Parties by any third party that may give rise to liability of any such SUB Party hereunder, you shall assume the control of the defense of such Claim at your sole expense with counsel reasonably acceptable to each such applicable SUB Party; provided, however, that each such SUB Party may take part in and/or fully assume such defense, in its sole discretion and at its own expense after you assume the control thereof. You shall not enter into any settlement of any Claim which any of the SUB Parties believes is adverse to its interests, without receiving the prior written consent of each of the SUB Parties affected by such Claim. In no event shall any of the SUB Parties be obligated to participate in any settlement which any such party reasonably believes would have an adverse effect on such party’s business interests.
12 Notices. All notices hereunder shall be given by certified mail, postage prepaid and return receipt requested, to: Synergy Utility Billing LLC, Attn: Legal Department, 155 Oberlin Avenue N, Unit C, Lakewood, NJ 08701 and by email to e-mail at email@example.com and to each Subscriber at the address and email listed provided to us by such Subscriber upon registration. Notice shall be deemed given three (3) days after the date of such mailing and upon receipt of such email.
13 Governing Law; Arbitration; NO CLASS CLAIMS; TIMELY FILING OF CLAIMS. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, excluding New Jersey’s choice-of-law principles. Any dispute arising out of or relating to this Agreement (including without limitation regarding any breach hereunder), or your use of the Website including any of the Products, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (the “CAB”) but if the AAA does not agree to adjudicate such dispute under the CAB then by a private professional arbitrator and associated rules determined reasonably agreed upon by the parties in writing. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in Ocean County, NJ by an arbitrator with applicable expertise in data subscription industry, who shall be named in accordance with such rules. The award of the arbitrator shall be final and binding on you and us, without a right of appeal, and shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such arbitration proceedings including without limitation all evidence and materials submitted by you and/or us shall be deemed to be confidential information and shall not be made public by either you or us. If the party who initiates the arbitration action is unsuccessful to all claims raised, then such party shall pay the other party’s costs and expenses associated with such arbitration, including but not limited to the other party’s reasonable attorneys’ fees. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED AND YOU HEREBY WAIVE YOUR RIGHTS TO BRING ANY SUCH CLAIM. Notwithstanding the foregoing, you and we may each apply to any court of competent jurisdiction for injunctive relief or for enforcement of this arbitration provision, without breach of this arbitration provision. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM THAT YOU MAY HAVE AGAINST ANY OF THE SUB PARTIES WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR OTHERWISE RELATED YOUR USE OF THE WEBSITE INCLUDING ANY OF THE PRODUCTS, MUST BE FILED BY YOU PURSUANT TO THIS SECTION 13 WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.
14 No Assignment. You shall not resell or assign your rights, duties or obligations under this Agreement and that any attempted assignment or delegation will be void ad initio and of no force or effect whatsoever. This Agreement may be automatically assigned by SUB, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limitation of the foregoing, we may sell, transfer or otherwise share some or all of our assets, including without limitation your PII, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, including without limitation in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy.
15 No Waiver; No Agency. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to a subsequent or similar breach or breaches. If SUB does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which SUB has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of SUB’s rights, and all such rights or remedies shall still be available to SUB. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and SUB by this Agreement or as a result of your use of the Website.
16 Force Majeure. In addition to any excuse provided by applicable law, SUB shall be excused from liability arising from or related to any cause or event beyond our reasonable control, whether or not foreseeable by either party and whether or not similar to any of the following described causes or events, including but not limited to: labor disturbance, war, fire, accident, adverse weather, electrical outage, Internet delay or failure, inability to secure transportation, governmental act or regulation.
17 Miscellaneous. If any provision of this Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This Agreement and any ancillary terms and conditions referenced herein sets forth the entire understanding and agreement between you and us with respect to the subject matter hereof. The provisions of this Agreement shall survive termination or expiration to the extent necessary to carry out the obligations of you and SUB hereunder.
18 Contact Us. If you have any questions or concerns regarding the Website, please contact us by e-mail at firstname.lastname@example.org or write to us at Synergy Utility Billing LLC, 155 Oberlin Avenue N, Unit C, Lakewood, NJ 08701.