TERMS OF USE AGREEMENT

FOR UTILITYSCORE AND WATERGENIUS

ACCEPTANCE OF TERMS

By clicking acceptance of the terms of use of the Data (defined below) you agree to all of the terms of this Agreement.

GENERAL TERMS

This Agreement sets forth the terms and conditions for your access and use of the Data provided by UtilityScore and WaterGenius, separate divisions of BKi Software Solutions, a California corporation.

By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Data, you agree to be bound by the terms and conditions of this Agreement and the WaterGenius/UtilityScore Privacy and Security Policy, as each may be amended from time to time in the future (see “Modifications” below). If you do not agree to this Agreement, then you may not use the Data.

This Agreement sets forth the terms on which UtilityScore and WaterGenius makes the Data available for use by approved licensees on the Site using API (defined below) or other methods.

By using the Data you and the organization identified in your registration application ("you") agree to be bound by the terms of use under this Agreement.

UTILITYSCORE AND WATER GENIUS API

The API allows you to retrieve the Data. The API consists of multiple application program interfaces for retrieving various types of Data, grouped generally by the type of Data retrieved, and includes, without limit, calls to retrieve Data for use by you. UtilityScore and WaterGenius may release subsequent versions of the API and require you to obtain and use the most recent version. New versions may not be compatible with your previous implementation.

DESCRIPTION OF OUR DATA AND SERVICES

We provide you with the following:

Data

Our Data and related software tools can be adapted to serve a broad range of customers in the real estate and building industries—real estate listing providers, realtors, property managers, lenders, building and landscape professionals, manufacturers, retailers, utilities, and government agencies.

Our Data capture rates associated with use of electricity, natural gas, water and sewer utilities and costs for heating oil.

Our Data also include utility territories, climate Data, default resource use variables, city and county data, building professionals, products, restrictions and rebates.

Services

Software and website developers can use the API to:

  1. Display estimated utility costs (electric, natural gas, water/sewer and heating oil) and scores on real estate listings,
  2. Enable search by estimated utility costs and scores on your site,
  3. Show a map that compares utility costs and scores of homes within a metro area, and
  4. Enhance websites, mobile sites, and mobile applications.

REGISTRATION FOR ACCESS TO OUR DATA

To allow you access to our Data, you will need to sign up for an account (“Account”) and obtain a key on http://developer.myutilityscore.com/. We may verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include, without limit, asking you for further information, requiring you to provide your name, email address, company name and contact information. You also will be required to provide credit card information to the extent necessary to pay license fees. If you do not provide this information or we cannot verify your identity, we can refuse to allow you to access the Data.

You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your LoginID e-mail address, allows you to access the Site and the Data.

That LoginID and password, together with other information you provide to us, will be your “Registration Information.”

By providing us with your e-mail address, you agree to receive all required notices electronically, by displaying links to notices generally on the Site, to that e-mail address. It is your responsibility to update or change that email address, as appropriate.

Notices will be provided in HTML (or, if your system does not support HTML, in plain-text) in the text of the e-mail or through a link to the appropriate page on our Site, accessible through any standard, commercially available internet browser.

By registering with UtilityScore/WaterGenius, you agree that we may use your identity and that you registered with our Site in our marketing materials unless otherwise agreed in writing by us.

If you become aware of any unauthorized use of your Registration Information or Account Information, you agree to notify UtilityScore immediately at its email below.

If you believe that your Registration Information or Account Information has been lost or stolen or that someone is using your Account without your permission, then you must notify UtilityScore/WaterGenius immediately in order to minimize your adverse consequences.

Our contact information for all purposes under this Agreement:

Telephone: 510-463-6140

Email: info@myutilityscore.com

Address: 1000 Broadway St., Suite 410, Oakland, CA 94607

YOUR ACCESS TO THE DATA AND SERVICES

Your access and use of the Data may be interrupted from time to time for any of several reasons, including, without limit, the malfunction of equipment, periodic updating of the Site, maintenance or repair of the Data or Services or other actions that we, in our sole discretion, choose to take. In no event will we be liable to any party for any loss, cost, or damage that results from your inability to access or use the Data or Services at any time.

Your sole and exclusive remedy for any inability to access the Data or Services will be our commercially reasonable efforts to adjust or repair the applicable in ability.

RIGHTS YOU GRANT TO US

By submitting information, passwords, usernames, credit card information, other log-in information and other content to us through the Site (“Account Information”), you are licensing your Account Information to us for the purpose of providing the Data and Services to you. We may use and store your Account Information under this Agreement and under our Privacy Statement. You represent that you are entitled to submit your Account Information to us for use for this purpose, without any obligation by us to pay any fees and without any restrictions or limits on our use of your Account Information.

LICENSE TO ACCESS AND USE DATA AND API

If you are approved by UtilityScore/WaterGenius for access to the Data and use of the Services, then, subject to this Agreement, you are licensed to access the Data and use the Services for which you have received approval, implement any components of the Services on your site(s), and use and resell the Data in your business all in accordance with our Brand and Links (as defined below).

This license is subject to the following restrictions:

  1. All access to the Data and use of the Services must be under your identification and password.
  2. You agree to keep your password confidential and not to share it with any third party. This license is personal to you, and any affiliate must obtain its own license and password.
  3. You may present the Data only on a transactional basis. You will not store the Data on your computer(s) without our prior written consent, and you will not permit your customers to access the Data in bulk.
  4. You may not retain any copies of the Data. Your license to access and use Data is limited to making direct access to the Data and use of the Services and distributing the Data or making the Data available to your customers on your site(s).
  5. You may not present the Data (or permit the Data to be presented) unless you display on your site(s) immediately adjacent to the Data a UtilityScore Attribution Logo and include as part of our logo a hyperlink to myutilityscore.com. UtilityScore may update the text, image, and hyperlink content of the UtilityScore Attribution Logo at any time. The Attribution Logo code is available here: https://developer.myutilityscore.com/docs/Home/
  6. You may not use the Data for direct marketing (i.e., mailing) or telemarketing lists or to provide a service for other businesses without our prior written consent.
  7. You may not separately extract and provide or otherwise use data elements from the Data to enhance the data files of third parties. You must use commercially reasonable efforts to prevent the Data from being downloaded in bulk or otherwise scraped. Such efforts include “spider traps,” “C.A.P.T.C.H.A.,” velocity checks, source IP analysis, or other methods that are as effective.
  8. You agree not to otherwise reproduce, modify, decompile, disassemble or reverse engineer any portion of the API or Data.
  9. You are limited to the number of calls per day you selected when you registered for use of this Site. If your use exceeds the number of call per day that you selected for a period of more than 30 days, we reserve the right to change your registration for the next highest use category and charge you the higher rate effective as of the first day of the month immediately following the month in which you exceed the limits. We may approve higher daily calls if you adhere to this Agreement and pass our audit and review.
  10. If you become aware that any user of your implementation is in material breach of this Agreement or the terms of our Brand and Links ("Applicable Terms"), then you agree to notify us promptly of that breach to our e-mail address under our contact information, and to take prompt commercially reasonable corrective action at your sole expense to remedy that breach. In addition, on our request you will either (a) use commercially reasonable efforts to obtain equitable relief to prevent harm to us or our licensors or (b) assign any of your applicable rights to permit us or the applicable licensor to seek any equitable relief.

OBLIGATION TO USE BRAND AND LINKS

You agree, and we grant you a license, to implement the UtilityScore name and logo(s) on any site incorporating the API, Data or both, utilizing the UtilityScore Attribution Widget. The Attribution Logo code is available here: https://www.myutilityscore.com/developer/docs_widget_bill.

When displaying Data to end-users that is incorporated from the API, the “as of” date provided via API must be displayed adjacent to the UtilityScore and bill or savings estimates.

ACCEPTABLE USE

You agree not to use the API, Data, or our Brand and Links in any way that is unlawful, or harms us, our service providers, our suppliers, your end users or any other person. Further, under Termination below, we may terminate your use of the API, Data and our Brand and Links if and when we determine, in our sole and absolute discretion, that your use is inappropriate.

PRIVACY AND YOUR PERSONAL INFORMATION

Your privacy rights and our use of your personal information are described in our Privacy Policy at https://www.myutilityscore.com/developer/privacy .

INTELLECTUAL PROPERTY

The API, Data and our Brand and Links are the property of UtilityScore/WaterGenius, and subject to the intellectual property rights of us and our licensors. Ⓒ 2015 BKi Software Solutions. All rights reserved.

DATA STORAGE

You acknowledge that, unless expressly agreed otherwise in a writing signed by you and us, Data storage is not guaranteed by us. You agree that we will not have any liability whatsoever to you for any damages, liabilities, losses (including any loss of Data or profits) or any other consequences that you may incur with respect to the loss or deletion of your Data.

DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

THE SITES, SERVICES, INFORMATION, DATA, API, FEATURES AND ALL CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICES, DATA AND API OR PROVIDED THROUGH THEM (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE AND OUR AFFILIATES AND OUR THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY, "SUPPLIERS") MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SITE OR OF THE SERVICES, DATA OR API. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES, DATA OR API IS AT YOUR SOLE RISK.

NEITHER WE NOR OUR SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE SITES, DATA, API OR SERVICES (WHETHER OR NOT SPONSORED).

WE EXPRESSLY DISCLAIM ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER WE NOR OUR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SERVICES, DATA AND API IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE STATES EXCLUSIONS ARE ALLOWED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

LIMITATIONS ON OUR LIABILITY

WE WILL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMIT LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE SITES, YOUR USE OF THE SERVICES, DATA OR API, THE SITES OR THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIVE HUNDRED UNITED STATES DOLLARS.

SOME JURISDICTIONS RESTRICT LIMITS ON LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITS MAY NOT APPLY TO YOU.

YOUR INDEMNIFICATION OF US

You will defend, indemnify and hold harmless us and our officers, directors, shareholders, vendors, linked sites, employees and agents from and against all claims, lawsuits, proceedings, damages, losses, liabilities and expenses (including attorneys’ fees and costs), whether in tort, contract or otherwise, that arise out of or relate to, in whole or in part, any breach of this Agreement or any activity by you in relation to the Sites or your use of the Services.

DEFINITIONS

"API" means an application-programming interface for use of the Data or feature of the Data which is provided to you by us.

“Brand and Links” means branding and display requirements for access to the Data and use of our Services and Site(s).

“Data” means data we create related to utility use, utility scores, natural gas use, heating oil use and water use and any other data provided now or in the future by UtilityScore as part of its services or Sites and any applications for use of that Data including API or other services.

“Services” means the services provided by us to you under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the those items made generally available by us, including without limit the Data, APIs and any software materials provided to you in connection with your use of the Services.

“Services” means the services provided by us to you under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the those items made generally available by us, including without limit the Data, APIs and any software materials provided to you in connection with your use of the Services.

CHANGES TO AGREEMENT

We reserve the right to change this Agreement, and you are responsible for regularly reviewing this Agreement. Your continued use of the Services after the effective date of those changes will constitute acceptance of and agreement to any those changes.

TERMINATION

We may change, suspend or discontinue your access to Data and use of the Services which may result in the forfeiture and destruction of all information associated with your Account. You also may terminate this Agreement by ceasing your access to Date, discontinuing use of the Services, ceasing use of our Brand and Links, removing implementation of the API from your site(s), and deleting all copies of the Data and our Brand and Links.

CHOICE OF LAW AND DISPUTES

This Agreement is governed by the laws of the State of California without giving effect to its conflict of laws provisions. You agree to submit to exclusive jurisdiction and venue in the state and federal courts in Oakland, California for any and all disputes, claims and actions arising from or in connection with the Services, this Agreement or both. In any dispute arising under this Agreement, the prevailing party will be entitled to its attorneys' fees and expenses.

MISCELLANEOUS

You represent that you have the authority to bind the organization (if any) identified in your application for the Services.

You agree not to export from anywhere any part of the API, Data, or our Brand and Links provided to you or any direct product thereof except in compliance with, and with all licenses and approvals required under, applicable export laws, rules and regulations.

If provided to the U.S. government, the API, Data, or our Brand and Links are provided with the commercial license rights described in this Agreement.

If any part of this Agreement is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be replaced with a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

The section headings and captions in this Agreement are solely used for the convenience of reference and have no legal or contractual significance.

We may assign this Agreement, in whole or in part, at any time with or without notice to you.

You may not transfer, assign, or delegate any obligations or rights under this Agreement and your password to any third party.

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

Except as expressly stated in this Agreement, this Agreement constitutes the entire agreement between you and us with respect to access to the Date and use of the Services and of our Brand and Links and supersedes all prior or contemporaneous communications of any kind between you and us with respect to the Data, Services or Brand and Links.

Any cause of action by you must be instituted within one year after use or be forever waived and barred.

All obligations under this Agreement that, by their nature, should survive termination of this Agreement in order to enforce those obligations, will survive termination of this Agreement, including, without limit, ownership provisions, reporting obligations, warranty disclaimers, indemnity and limits of liability.

UPDATED AUGUST 31, 2015