Sunder Energy, LLC
Terms and Conditions
Effective Date: June 15, 2022
Welcome and Introduction
Welcome to Sunder Energy! We provide property owners access to solar energy products through our partner, Freedom Forever LLC (“Freedom”). We also provide access to our unique mobile and web application “Enzy” that allows organizations to manage and build their operations in a positive and holistic manner.
Please carefully read through these terms and conditions (“Agreement”), because it is a binding agreement between our website visitors, users, mobile and web application end users, current and potential customers, clients, our potential and actual employees, contractors, and other business partners (“you” or “your“) and Sunder Energy, LLC (“Sunder,” “Company,” “we,” “us,” “our”). This Agreement is effective when you sign up or otherwise use any of the Services or access any content or material that is made available by Sunder through the Services (the “Content”).
The term “Services” includes all software, mobile and web applications (including but not limited to Enzy), widgets, tools, and functionality made available through the Services, including our platform and any help desk system, connectivity API’s, related support services, and business relationship services. Any new features that augment or enhance the current Services, including the release of new features or products, including those that require additional fees, are also included in the term “Services.” If you have a separate agreement with us and the provisions of that separate agreement conflict with the provisions of this Agreement, the provisions of that separate agreement control.
You may access the Services via a mobile phone or other mobile device. You acknowledge that your mobile carrier’s standard charges and data rates apply to any access to the Services from any mobile device. Further, your access to the Services may be limited by your mobile carrier’s terms and policies or by your mobile device’s settings, software, and hardware. We are not responsible to provide the Services to you based on your mobile carrier’s or mobile device’s requirements or limitations.
Exchange and Use of Information
- Third-Party Data
As part of the Services, we may provide you access to certain third-party data that may originate with third parties and other users (“Third-Party Data”). All information we provide to you through the Services that we obtain from third parties and other users is included in the term “Third-Party Data.” Our license to you includes access to the Third-Party Data, but we do not offer any warranty or representation regarding the Third-Party Data, including its accuracy, timeliness, or completeness. You are solely responsible to ensure that the Third-Party Data you access or use is accurate, timely, and complete.
- Your Data
- Received Materials
If you send us any comments, reviews, materials, or letters including, without limitation, questions, feedback, comments, suggestions, criticisms, or the like (“Received Materials”), those Received Materials are non-confidential and free of any claims of proprietary or personal rights.
Furthermore, Company may use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, without compensation or any other obligations to anyone, including you.
- User-Generated Content
Certain portions of the Services allow you to upload or post your information to the Services. The information that you post may or may not be intended to be made available to third parties (including, for example, text, messages, compilations, personal information, names, pictures, payment information, reviews, and other information) (“User Content”). For the avoidance of doubt, “User Content” includes any such content posted to any support community we may establish, as well as to any other part of the Services.
You represent and warrant that, with respect to any User Content you post, (1) you have all requisite consent and authority, whether by ownership or right through a license to post such User Content, and (2) such User Content, or its use by Company as contemplated by this Agreement, does not violate this Agreement, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by Company or any entity or individual without express written consent from such individual or entity.
We may, but we have no obligation to, monitor or review User Content. In all cases, we reserve the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in our sole discretion, violates the Agreement. We may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content is at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
We may provide you the ability to share User Content via social media, electronic messaging, or otherwise. You are solely responsible for the User Content, including for all intellectual property rights contained in the User Content, when you share User Content in any manner.
You are solely responsible for all User Content that you post and share in any manner. We are not responsible for User Content, nor do we endorse any opinion contained in any User Content. TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU SHALL DEFEND, INDEMNIFY, AND HOLD US HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) IF ANYONE BRINGS A CLAIM AGAINST US RELATED TO USER CONTENT THAT YOU POST, ARISING OUT OF OR RELATED TO SUCH CLAIM.
Services, Payment, and Term
When you sign up using a credit card or other payment method, you authorize us to make the charges disclosed to you at the time you sign up, including recurring payments, where applicable.
The term of this Agreement is one (1) year, with one-year renewal terms occurring automatically at the end of each year unless a party notifies the other not less than thirty (30) days prior to the end of the then-current term that it intends to terminate this Agreement.
Trials and Beta Testing
From time to time, we or others on our behalf may offer access to beta models to some of the Services or trials of paid subscriptions for a specified period without payment or at a reduced rate (each, a “Trial”). We reserve the right, in our absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
For some Trials, we will require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU THE APPLICABLE FEES ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AUTHORIZE THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE TRIAL. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH YOUR ACCOUNT’S SUBSCRIPTION PAGE OR TERMINATE YOUR ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID.
IF THE TRIAL CONSISTS OF ACCESS TO A BETA MODEL, YOU ACKNOWLEDGE THAT THE BETA MODEL HAS NOT BEEN FULLY DEVELOPED AND MAY BE SUBJECT TO DEFECTS THAT WOULD BE UNACCEPTABLE IN A FULLY DEVELOPED VERSION. YOU ACKNOWLEDGE THAT THE LICENSE GRANTED UNDER A BETA TRIAL IS WITHOUT WARRANTY OF ANY NATURE, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AS WELL AS NON-INFRINGEMENT, AND ANY OTHER WARRANTY. BETA USERS HAVE NO CLAIM WHATSOEVER AGAINST US FOR ANY REASON WHATSOEVER WITH RESPECT TO THEIR USE OF THE SERVICES IN CONNECTION WITH A BETA TRIAL.
License and Acceptable Use
Company grants you, subject to this Agreement, a limited non-exclusive, non-sublicensable, non-transferable, revocable license to use the Services for your internal business or personal purposes. You have no rights in the Services other than as expressly provided in this Agreement. You may not download any portion of the website, any mobile or web application, or use any Services other than for your own personal or business use. You may not use any data mining, robots, or similar data gathering tools or otherwise exploit your access to the Services for any commercial purpose. You may not use any of the trademarks, logos, or other proprietary graphics without express written permission, which may be denied in Company’s absolute discretion. Company’s logos, product, and service names are Company’s trademarks. All other trademarks appearing in connection with the Services are trademarks of their respective owners, and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made.
In addition to any other things that might constitute a misuse of the Services, you shall not, and shall not attempt to do the following things:
- modify, alter, tamper with, repair, or otherwise create derivative works of any of the Services;
- reverse engineer, disassemble or decompile software used to provide or access the Services, or attempt to discover or recreate the source code used to provide or access the Services, except and only to the extent that the applicable law expressly permits doing so;
- use the Services for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
- sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
- remove, obscure or alter any proprietary rights notice pertaining to the Services;
- access or use the Services in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
- use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Company; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party;
- interfere with or disrupt servers or networks used by Company to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services;
- access or attempt to access Company’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means;
- cause, in Company’s sole discretion, inordinate burden on the Services or Company’s system resources or capacity; or
- share passwords or other access information or devices or otherwise authorize any third party to access or use the Services.
The Services may be integrated with third-party applications, websites, mobile applications, and services (“Third Party Applications”) to make available content, products, or services to you. Although you may pay for these Third-Party Applications through our Services, these Third-Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third-Party Applications is governed by and subject to such terms and conditions and privacy policies. You acknowledge that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Application or for any transaction you may enter into with the provider of any such Third-Party Applications despite integration with our Services.
Your Account and Collaborators
If your use of the Services necessitates creating and maintaining an account with us, you are responsible for maintaining the confidentiality of any account information, including your login, password, or other credentials, and for restricting access to your computer, mobile device, tablet, or other electronic device you use to access the Services, and you accept responsibility for all activities that occur under your account. Company reserves the right to refuse service, terminate accounts, remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account. You shall indemnify and hold Company harmless from and against any claim related to content, accuracy, or currency of the information you provide through the Services.
The Services may provide you with the opportunity to invite employees, contractors, and other service providers (“Collaborators”) to access Your Data and User Content associated with your account. If this functionality is made available to you and you use this functionality, you are solely responsible for the actions of your Collaborators. Company may limit the number of licensees with whom an individual Collaborator may collaborate and may require a Collaborator to obtain a paid license at any time, in Company’s sole and absolute discretion. Collaborators are not third-party beneficiaries of this Agreement and are not entitled to any remedies or rights under this Agreement.
Company is not responsible for the availability or content of such external sites, resources, or mobile applications.
Copyright and Title
The Services and all copyrights, trade secrets and other proprietary rights therein, including any derivative work, are, and will remain the sole property of Company, regardless of the use made by you; and are protected by certain United States and international copyright laws and trademark laws. The Services are licensed, not sold, to you. This Agreement does not confer any title of ownership in the Services and is not a sale of any rights in the Services, including any intellectual property rights related thereto.
Disclaimer of Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND EVERY ELEMENT THEREOF, INCLUDING WITHOUT LIMITATION THIRD-PARTY CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, CURRENCY, COMPLETENESS, ACCURACY, OR TRUTHFULNESS OF ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE, MOBILE AND WEB APPLICATIONS, AND DELIVERY OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR MEET YOUR DESIRED REQUIREMENTS.
Because some jurisdictions may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to you. Any warranties made in this Agreement are for your benefit only.
Limitation of Liability
IN NO EVENT WILL COMPANY, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH CLAIM ARISING. THE PARTIES ACKNOWLEDGE THAT THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT AND CONTINUES IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY.
Service Limitations and Modifications
Company will make reasonable efforts to keep the Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You acknowledge that Company has no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services. Company or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.
Either party may terminate this Agreement upon the breach of any material provision of this Agreement that is not cured within thirty (30) days after written notice of a breach. However, in the event of termination for any reason, you acknowledge that the perpetual licenses granted by you in relation to Your Data, Received Materials, and User Content are irrevocable and will continue after expiry or termination of this Agreement. We may terminate this Agreement or suspend your access to the Services at any time, with or without notice, in the event of your actual or suspected unauthorized use of the Services or Content.
Any provisions of this Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreement to give effect to those provisions, survive termination.
For a period of thirty (30) days following termination for any reason, Company will provide Your Data to you in a reasonably approved format, upon request. If you desire any other assistance to transition to a new provider of similar services, Company may do so in its discretion after receipt of reasonable fees at Company’s standard hourly rates for the provision of such transition services.
When you engage with us via the Services, send emails to us, or otherwise communicate with us via electronic means, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on our website, or through notifications on any mobile and web applications. You acknowledge that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Your use of some features of our Services may include our communicating with you via SMS or other text messages mechanisms (“Messages“). Your participation in these features, including by entering your phone number into the Services, constitutes your prior express written consent to receive Messages from Sunder, either directly or through our service providers, or from our customers and business partners; provided, however, that Sunder is not responsible and carries no liability for text messages, emails, or other electronic notifications sent directly by our customers to such users.
You certify, warrant, and represent that the telephone number(s) that you provide to us are your contact numbers and that you are permitted to receive calls or Messages at such telephone numbers. You shall promptly alert us whenever you stop using a particular telephone number.
Your consent includes your express consent for us to send you promotional, marketing, informational, and administrative Messages. You can unsubscribe from further Messages by replying STOP. Further, you acknowledge that your mobile carrier’s standard charges and data rates may apply received by you.
The parties to this Agreement are independent contractors, and there is no actual or intended relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party is an agent of the other party, and neither party has the authority to bind the other party, or to incur any obligation on the other party’s behalf.
Other than as set out in this section, this Agreement is not intended to grant rights to anyone except you and Company, and in no event does the Agreement create any third-party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
Use of the Services may involve the processing of the personal information of various individuals, including employees, administrators, officers, vendors, contractors, end users, and others. We strive to comply with all applicable laws related to privacy protection, and you shall also comply with all such laws.
Defense and Indemnification
In addition to the other provisions of this Agreement, you shall defend Company, and Company’s employees, officers, directors, agents, subsidiaries, affiliates, representatives, successors, and assigns (collectively “Company Parties”) from any actual or threatened third-party claim arising out of or based upon (1) your and your Collaborators’ use of the Services, including without limitation any claim based on the inaccuracy, untimeliness, or incompleteness of any information, (2) your failure to comply with any of the provisions of applicable law, and (3) your material breach of any of the provisions of this Agreement. In addition, you shall indemnify, defend, and hold harmless the Company Parties from and against: (a) all damages, costs, and attorney fees finally awarded against the Company Parties in any proceeding under this section; (b) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by the Company Parties in connection with the defense of such proceeding (other than when you have accepted defense of such claim); and (c) if any proceeding arising under this section is settled, any amounts to any third party agreed to by you in settlement of any such claims. The Company Parties may control, in their sole discretion, the defense or settlement of any third-party claims.
Company shall indemnify and hold you harmless from any final judgment (except through confession of judgment) obtained by a third party due to Company’s actual (not alleged or perceived) infringement of a third-party’s intellectual property rights through Company’s Services.
Company is not liable for or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Company’s reasonable control.
Changes to this Agreement
At certain times, we may in our discretion need to make revisions to this Agreement. If we do, we will notify you by posting notices on the website or by emailing or otherwise notifying you, as appropriate in the circumstances. If you continue using the Services after the effective date of the changes, you will be deemed to have accepted the revisions. If you do not agree to the revisions, you may terminate this Agreement by notifying us via email at email@example.com. Any other changes to this Agreement must be in writing signed by both parties.
Governing Law and Jurisdiction
The Services are operated by Company from its offices in Utah in the United States. Utah law governs the validity, construction, and performance of this Agreement, without reference to choice of law principles. You expressly acknowledge that exclusive jurisdiction for any claim or dispute with Company, this Agreement, or relating in any way to your use of the Services resides in the federal and state courts located in Salt Lake County, State of Utah, and you do hereby submit to and consent to jurisdiction and venue in said courts. You waive any defense pertaining to jurisdiction and venue. In the event any provision hereof is held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement remain in full force and effect.
In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
This Agreement is a binding contract and constitutes the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; is intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
No waiver of any provision of this Agreement constitutes a waiver of any other provision, whether or not similar, nor does any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement does not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
Severability; Binding Effect
If any provision of this Agreement is invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement is not impaired. This Agreement is binding on and inures to the benefit of the parties and their permitted heirs, personal representatives, successors, and assigns.