Flat Bill Terms and Conditions

theSimple, Inc.

Simple Flat Bill Terms and Agreement

1. Introduction to Agreement, Website, Services

These terms of service (“Terms”) constitute a binding, enforceable contract between you (“you,” or “Customer”) and theSimple, Inc., (“us,” “we,” “theSimple,” or “Simple”), and it’s parent company EcoFactor, Inc., and govern your access to and use of the Services provided by theSimple (“Services”) - including, for the sake of clarity, use of www.thesimple.com and all associated sub-domains, access to your account via this website or any other website used for delivery of Service, mobile and tablet applications, mail, emails and SMS messages, social media sites, and any portal offered by theSimple. By engaging, accessing, browsing, registering for or using any of the Services, you acknowledge that you have read, understood, accepted and agreed to abide by these Terms, including any additional agreements referenced in these Terms such as our Privacy Policy, for use of the Services. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features.

2. Eligibility

You may use the Services only if you have the legal capacity to form a binding contract with theSimple, meaning you are 18 years of age or older. theSimple also requires that you have an existing Utility Account that is verified by the documentation required by theSimple for creation of an Account. You acknowledge that each Offer is specific to the Utility Account and service address associated with the Utility Account at the time of the creation of the Offer. If during the Agreement period, you change Utility Account or physical address, the Agreement is no longer valid. A new Agreement, with a new Offer, must be created for the new Utility Account and new associated physical address. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home wiring, home Wi-Fi network, and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier. If you do not maintain your Equipment, your ISP services, and your Carrier services in proper working order to allow for the performance of the Services, theSimple reserves the right to suspend or cancel your Account. These Terms will remain in full force and effect so long as you continue to access the Services. If at any time you do not agree to the Terms, your sole remedy is to stop use of the Services, as specified by the Termination policy in Section 5.

3. theSimple Services

If you enroll in Services offered by theSimple, theSimple will provide you Services which include the following:

●      A Simple Flat Bill amount, to be paid in 12 equal monthly installments, and to be altered based only on the Billing policies listed below in Section 4.

●      A Simple smart thermostat, which is the obligation of the user to install. Use of the Simple smart thermostat is governed by the End User License Agreements (“EULA”) and Privacy policies associated with the device and found at www.thesimple.com/legal.

●      Alerts and outbound communications that may advise you of information including, but not limited to, impending payment of the Simple Flat Bill, confirmed payment of the Simple Flat Bill, non-payment of your Simple Flat Bill, your energy consumption information, potential infringement on theSimple’s Excessive Use clause, changes to technology managed as part of the Simple Flat Bill, opportunities for additional savings, and opportunities for additional products and services.

●      Simple’s energy management technology, applied to the Simple smart thermostat and potentially additional connected devices, that makes adjustments to the heating and cooling settings of your thermostat for the purposes of achieving energy efficiency, and participating in potential demand management programs, including those that may be offered by the relevant Utility or wholesale market/ISO/RTO. The Simple thermostat learns from your building thermodynamics, the weather, and your preferences to create specific optimizations tailored to you. You are always in control of your heating and cooling settings and can adjust your thermostat or other connected technology if you are uncomfortable with any change made by the Services. Included in the changes made to your thermostat are Community Energy Hours.  Community Energy Hours are specific changes to your thermostat that will occur on weekdays during any time of year, but which generally happen in the late spring or summer. Community Energy Hours typically last a maximum of 4 hours. During these hours, your thermostat can be changed by up to 4 degrees. If you’re uncomfortable, you can always change the thermostat to your preferred setting. There are normally between 10 and 20 Community Energy Hour periods per year.

●      Changes to your Utility tariff based upon the available tariffs and Suppliers in your geography, and based upon theSimple’s analysis of your usage and the billing impacts of a change to the tariffs applied to your Utility Account. You authorize the Simple to conduct this analysis in good faith and, as well, to solicit electric and/or natural gas prices from Suppliers on your behalf as your agent. NOTE THAT BY PARTICIPATING IN THE SIMPLE FLAT BILL, YOU AGREE THAT THESIMPLE CAN SIGN UTILITY OR SUPPLIER AGREEMENTS ON YOUR BEHALF WITH THE SIGNATURE “[CUSTOMER FIRST NAME CUSTOMER LAST NAME] BY THESIMPLE, INC (LOA)”. YOU AUTHORIZE THESIMPLE TO ACT AS YOUR AGENT WITH THE POWER TO INITIATE SERVICE AND ENROLL YOU WITH A NEW UTILITY TARIFF, OR A SUPPLIER, AT ANY TIME THAT THESIMPLE BELIEVES, IN GOOD FAITH, THAT A NEW UTILITY TARIFF OR SUPPLIER’S CHARGE WILL CREATE COST SAVINGS ON AN ANNUALIZED BASIS IN THE SUPPLY OF YOUR POWER. FURTHER, YOU AUTHORIZE THESIMPLE TO SIGN AGREEMENTS WITH THE SUPPLIER, UTILITY, WHOLESALE MARKET, STATE AGENCY, OR RTO/ISO FOR SERVICES INCLUDING DEMAND RESPONSE, DEMAND MANAGEMENT, ANCILLARY SERVICES OR OTHER DISTRIBUTION OR TRANSMISSION GRID RELATED SERVICES. You agree that this enrollment in new tariffs, with new suppliers, or in transmission or distribution grid management-related programs may result in theSimple receiving compensation but in no case, other than those cases referenced in section 4 below, shall such a change result in an increase to the Simple Flat Bill agreed to by the Customer.

THESIMPLE DOES NOT SUPPLY, TRANSMIT OR DISTRIBUTE ELECTRICITY OR NATURAL GAS AND THE SIMPLE FLAT BILL IS IN NOT ENDORSED BY ANY UTILITY OR SUPPLIER.

By agreeing to these terms, you agree that theSimple is acting only as an intermediary and is not party to your dealings with the Utility or Supplier, including with regard to electric or natural gas delivery, payments, notices, and the proper and timely delivery of goods and services by your Utility or Supplier. theSimple assumes no responsibility and will have no liability of any kind whatsoever with respect to your dealings with your Utility or Supplier.  theSimple in no way endorses, recommends, and/or bears any responsibility or liability for any products, services, statements, made by your Utility or Supplier. Statements and opinions of your Utility or Supplier are not representative of the statements or opinions of theSimple.

theSimple is not responsible for the accuracy of your Utility Statement. Any discrepancies or disputes in your Utility Statement must be addressed directly between you and your Utility or Supplier. You understand and agree that theSimple is under no obligation to provide any Utility Statement to you through the Services, and if such Utility Statement is provided, it may be delayed or prevented by a variety of factors. theSimple will use commercially reasonable efforts to provide Statements in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any Statement. You also agree that theSimple will not be liable for any delays, failure to deliver, or misdirected delivery of any Statement; for any errors in the content of a Statement; or for any actions taken or not taken by your or any third party in reliance on a Statement.

theSimple assumes no responsibility, and will not be liable, for your failure to take any action or inaction with respect to your Utility Account(s) or your failure to receive any information with respect to any Utility Account(s). You agree to hold theSimple harmless should your Utility fail to deliver your Utility Statement(s).

You are responsible for ensuring timely payment of all Utility Statements.

YOU ARE RESPONSIBLE FOR ENSURING TIMELY PAYMENT OF ALL UTILITY STATEMENTS. IF YOU DO NOT PAY THE SIMPLE FLAT BILL CHARGED ON A MONTHLY BASIS, THEN THESIMPLE IS UNDER NO OBLIGATION TO PAY YOUR UTILITY OR SUPPLIER AS AN INTERMEDIARY. AS A POLICY, THESIMPLE PAYS YOUR UTILITY OR SUPPLIER ONLY AFTER RECEIVING PAYMENT OF THE MONTHLY SIMPLE FLAT BILL BY THE CUSTOMER.

These Terms do not alter any liability or obligations that currently exist between you and your Utility. You agree that your relationship with your Utility is governed solely by the agreement(s) with your Utility.

4. Billing, Payment and Excessive Use

To enroll in the Service, you agree to provide required Utility Account Information and Utility Account Credentials to theSimple. theSimple will use this information to establish the Simple Flat Bill, an offer to which you have agreed to use the Services. To continue to process the Simple Flat Bill, theSimple is authorized to require Utility Account Credentials for ongoing access to your Utility Account Information. If you do not have Utility Account Credentials, it is at theSimple’s discretion as to how to acquire required Utility Account Information, including monthly bill amount, to support the Simple Flat Bill’s ongoing analysis.

By signing up for the Simple Flat Bill, you are agreeing to monthly recurring payments that will be charged by theSimple using an agreed upon Payment Method and Payment Account. You understand that this authorization of monthly payments will remain in effect until you cancel this Agreement with theSimple. Simple may additionally charge, at its discretion, an initial fee for purchase of Simple thermostat hardware required for participation in Simple Flat Bill. If customer purchase of such hardware is required, terms of such purchase will be clearly presented to the customer in advance of the customer’s Flat Bill agreement.

You agree to receive the notice required by 12 C.F.R. § 1005.10(d)(2). If a customer violates the Simple Flat Bill Excessive Use policy, theSimple reserves the right to remove a customer form the Simple Flat Bill at our own discretion.

In the case of a transaction being rejected for non-sufficient funds or declined credit you understand that theSimple may at its discretion attempt to process the charge additional times within thirty (30) days. theSimple is not responsible for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) charged to you by your financial institution from your failure to maintain a balance in the Payment Account or have available credit in the Payment Method that is sufficient to process payment to theSimple. theSimple reserves the right to charge you for any overdraft fees, over-the-limit fees, or insufficient fund charges (including finance charges, late fees, or similar charges) assessed to theSImple that result from your failure to maintain a balance or credit in the Payment Account that is sufficient to process your payment.

You acknowledge that the origination of payment transactions to the Payment Account must comply with the provisions of U.S. law. You will not dispute theSimple’s recurring billing with your financial institution, bank or credit card company so long as the transaction corresponds to the terms indicated in these Terms.

Transaction fees may apply for debit card, credit card and ACH bank debit payments.

You acknowledge and agree that by accepting these recurring payment terms and conditions, you consent to receive a copy of your payment authorization for recurring monthly payments in electronic form only instead of receiving a paper copy. This consent applies only to recurring payment authorizations as to which we are required to provide you with a written copy under applicable law.

We cannot process your online recurring payment authorization unless you are willing to receive, in electronic form only, a copy of the recurring payment terms that we are required to provide to you in writing under applicable law. Once you have accepted the recurring payment terms, you cannot withdraw your consent to receive your copy of the recurring payment terms in electronic form. However, you will still be able to cancel your recurring payment authorization.

If you wish to obtain a paper copy of your recurring payment authorization, you may do so by printing the Terms yourself or by calling us at 650-716-4760 to request a paper copy. We may charge you a reasonable service charge for the delivery of a paper copy of the Terms so long as we disclose our then current service charge to you at the time of your request for a paper copy.

Responsibility for Payment

theSimple makes no guarantees, warranties or representations regarding when payments will reach your Utility. You agree that any payment timelines are estimates and that theSimple cannot be held responsible for any fees, penalties, or late payment interest charged to you by your Utility or any third party as a result of a delay in payment.

theSimple will use all reasonable efforts to properly complete payment to your Utility. theSimple will pay any fees, penalties, or late payment interest charged to you by your Utility, if theSimple, in its sole discretion, determines these fees, penalties or interest were caused solely by theSimple.

theSimple is not responsible for failure to complete payment due to: Force Majeure events or other circumstances beyond our control; incorrect information provided by the Customer with respect to Utility Credentials, Utility Account, Payment Account, Payment Method or Personal information or Payment; insufficient funds in the Payment Account; failure in any communication link provided by payment processing center, Utility, or Customer; Utility mishandling or delaying of payment processing.

Excessive Use

The Simple Flat Bill amount quoted to the customer is a 12-month agreement of 12 equal payments, billed and paid annually or monthly, designed to offer the Customer a decrease in energy payments relative to the previous year’s energy payments. If the customer exceeds our Excessive Use limit, defined as greater than 30% increase in monthly energy bill amount (electric and/or gas, depending upon the Utility Accounts linked to the Account) for one month relative to that same month during the previous year, theSimple reserves the right to remove the customer from the Simple Flat Bill and terminate the agreement at any point during the remaining period of the 12-month agreement. theSimple reserves the right to offer an altered Simple Flat Bill amount to the customer in lieu of cancelling the agreement. theSimple is under no obligation to make such a revised Simple Flat Bill offer, and the details of such an offer are at the full discretion of theSimple.

Rate Increases

theSimple is not a Utility or Supplier, and thus does not control the terms or tariffs comprising the pricing cost of electricity or gas provided by the Utility or Supplier. While Simple will continually conduct analysis to find Utility or Supplier tariffs which our analysis suggests will benefit the Customer, theSimple reserves the right to pass through any increases in the cost of electricity or gas to the Customer. The increase to the Simple Flat Bill amount will be proportional to the increase of the underlying Utility or Supplier tariff, and will be reported to the Customer via formal communication by one or more of the following: this page, a website, web apps, mobile apps, outbound email, outbound SMS. In de-regulated markets, Simple is responsible for ensuring the maintenance of the existing Supplier relationship, or establishment of a new Supplier relationship, for any Simple Flat Bill customer whose Supplier contract relationship ends during their Simple Flat Bill agreement term.

Billing Cycle

After agreeing to the Offer made by theSimple, Customer will be shipped a Simple thermostat, and will have 30 days to install the thermostat. After confirmation of thermostat installation, the Simple Flat Bill billing cycle will begin based upon the Customer’s existing Utility billing cycle. Each Customer will be informed of her specific billing cycle dates. In no case shall a billing cycle be established prior to installation of the Simple thermostat.

If the Customer does not install the Simple thermostat as a required step in initiating the Simple Flat Bill, Simple reserves the right to charge the Customer the retail price of the thermostat after 30 days. Current retail price of the thermostat can be found on www.thesimple.com.

If a Customer installs the Simple thermostat more than 30 days after the Offer, theSimple reserves the right to update the Offer based upon the most up-to-date information.

5. Term and Termination

These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. Subject to other applicable laws and regulations, your participation in the Simple Flat Bill will continue automatically for successive 12-month periods until you withdraw. Before the end of each 12-month period, theSimple will notify you of the new monthly Simple Flat Bill amount for the next 12-month period. At the end of each 12-month period, you may notify theSimple of your decision to withdraw from this plan, in which case you will not be required to pay any additional charges in connection with the plan. Unless notified of your decision to withdraw from this plan, theSimple will continue to bill you on this plan, commencing a new 12-month period, but at the newly defined monthly Simple Flat Bill amount.

At any time, theSimple may (a) suspend or terminate your rights to access or use the Services, or (b) terminate these Terms with respect to you if theSimple in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If theSimple makes such determination, in its sole discretion, your Account and your right to use the Services will automatically terminate. Reasons for termination by theSimple include, but are not limited to, (a) breach of this agreement; (b) resale of theSimple’s Services; (c) use of theSimple’s Services for any illegal purpose; (d) providing incorrect Personal Information, Payment Account, Payment Method Upon, Utility Account Information, or Utility Account Credentials and failing to remedy this incorrect statement; (e) failure to pay your Simple Flat Bill amount.

If you, for any reason, desire to terminate this Agreement before the end of the 12-month agreement, you will be required to pay the difference between the Simple Flat Bill amount paid to that date and the amount paid by theSimple to your Utility or Supplier to date, if the cumulative Simple Flat Bill amount is less than the cumulative amount paid by theSimple to the Utility. If the cumulative Simple Flat Bill amount is more than the cumulative amount paid by theSimple to the Utility, Simple will refund you the difference between these two amounts. Additionally, you will be required to purchase the Simple thermostat sent to you at the price posted on the Simple thermostat retail website (www.thesimple.com/buy) less an amount calculated by multiplying the price posted on the Simple thermostat retail website by the number of completed months you have been a Simple Flat Bill customer, divided by 12.

6. Utility or Supplier Account

You authorize theSimple to retrieve and use, on your behalf as your agent, your Utility Account Information that is maintained online, or through paper billing, by your Utility. By submitting your Utility Account Information, you certify and confirm that you are entitled to disclose this Utility Account Information and that you are an authorized user of your Utility Account. theSimple makes no effort to review your Utility Account Information for accuracy.

To allow theSimple to retrieve and use your Utility Account Information, you understand that you must provide theSimple with your Utility Account Credentials or provide other Utility Account Information as required by theSimple. You acknowledge that theSimple may use the Services of third parties (“Linked Services”) to retrieve your Utility Account Information. You acknowledge that theSimple may need to periodically change or update your Utility Account Information and Utility Account Credentials in order to use the Services. You agree to allow theSimple to make such changes to your Utility Account(s) on your behalf and as your agent including, but not limited to, changes to your login information, your email address, and your account security questions. You represent, warrant, acknowledge, and agree that you are solely responsible for the accuracy of your Utility Account Credentials.

You acknowledge that theSimple may also need to modify or update your Utility Statement delivery preferences in order to provide the Simple Flat Bill, which could include modifying your e-billing or auto payment preferences.

You agree to notify theSimple of any changes to your Utility Account Information or Utility Account Credentials. By providing theSimple with your Utility Account Credentials, you certify that you or another member of your household or small business owns the Utility Account(s) associated with your home or business.

You acknowledge and agree that when theSimple is accessing and retrieving your Utility Account Information from third-party sites, theSimple is acting as your agent, and not as the agent for or on behalf of the third-party.

You authorize theSimple to receive Utility or Supplier Notices on your behalf, where permitted, and you understand and agree that we may not pass along any or all of these Notices to you. You agree that theSimple shall not be liable for any delays, failure to deliver, or misdirected delivery of any Utility or Supplier Account Notices. You authorize theSimple, directly or through third parties, to make any inquiries we consider necessary to verify your identity. This may include asking you for further information, requiring you to take steps to confirm ownership of your email address or financial instruments, and verifying your information against third party databases or through other sources. If you cannot verify your identity, theSimple reserves the right to deny you use of the Services.

7. Fees and Promotions

You understand and agree that payments facilitated by theSimple may incur a Fee. This Fee will be included as part of your Simple Flat Bill. The Fee may vary, depending upon factors, including but not limited to your Utility, the Payment Method, and promotions run by theSimple. The Fee is subject to change at any time and will be disclosed to you prior to payment submission. From time to time, and in its sole discretion, theSimple may choose to offer discounts, rebates, or other promotions.

8. Responsibilities of the Customer and Rights of theSimple

  1. Customer Responsibilities: To use the Services and certain Products, you must register for a customer account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services will not violate any U.S. or other applicable law or regulation.  You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (preferably passwords that use a combination of upper and lower-case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify theSimple of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. theSimple is not liable for any loss or damage arising from your failure to comply with the above requirements. The individual who creates an Account is the “Owner” of that Account and is the Owner of the Services associated with that Account. Individuals who are authorized to access an Owner’s Services are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products (for example, an Authorized User can change contact information or update preferred communications method). Authorized Users may also have the ability to view information (including personal information) and content across all of an Owner’s Services, for example, an Authorized User may be able to receive mobile alerts. Authorized Users are responsible for their own actions in connection with the Services, but Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products,  If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Services set out above. As a result, if you are an Owner, you should authorize only those individuals that you trust to access your Account and Services.
  2. theSimple Rights: If we have reason to believe you have broken these Terms, theSimple may take action to protect ourselves, related third parties, or you, from fees, costs, expenses, fines, penalties and other liabilities. We may close, suspend or limit your access to your Account and Services. We may update inaccurate information provided or refuse to provide you Services in the future. We may suspend, limit, or close your access to Account or Services or take legal action against you, as described in this Agreement. If we suspend, limit or close your account for any reason, we will provide you with notice of our actions and opportunity to remedy the underlying breach of contract to restore Account access, if appropriate and in our sole discretion.

9. Your Privacy

Electronic (including wired and wireless) communications through the Services may not be encrypted. You acknowledge that there is a risk that data, including email, electronic and wireless communications and personal data, may be accessed by unauthorized third parties when communicated between you and theSimple or between you and other parties.

theSimple will provide you with a copy of our customer privacy notice at the time we enter into an agreement to provide any Service to you, and as otherwise required by law. You can view the most current version of our Privacy Policy by going to www.thesimple.com/legal, searching for "privacy," and selecting the appropriate link.

To the extent that theSimple is expressly required to do so by applicable law, we will provide notice to you of a breach of the security of certain personally identifiable information about you.

10. Compliance with Applicable Laws

In addition to the Eligibility Requirements detailed in Section 2, you agree and accept the Terms of this agreement and will remain in compliance with all applicable local, state/provincial, national, and international laws, rules, and regulations.

11. Intellectual Property of theSimple

Service information, documents, and materials on our Web sites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All Web sites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively "marks") of theSimple and its affiliates are and shall remain the exclusive property of theSimple. Nothing in this Agreement shall grant you the right or license to use any of the marks.

12. Linked Sites and Linked Services

Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation their services, websites, equipment, infrastructure or content. theSimple is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure or content, whether or not they constitute components of the Services. theSimple shall not be bound by any undertaking, representation or warranty made by an agent or employee of theSimple or of our underlying third-party providers and suppliers in connection with the installation, maintenance or provision of the Services, if that undertaking, representation or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Service(s), including without limitation that of content providers (whether or not accessible directly from the Service). theSimple is not responsible for any services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service), and we shall have no liability with respect to such services, equipment, infrastructure and content. We do not endorse or warrant any third-party products, services or content that are distributed or advertised over the Services.

13. Confidentiality and Notices

You agree that by entering into these Terms, you have provided us with your email address and other contact information, and you agree to receive required notices electronically, to your email address, or through phone, text, or other means of outreach. It is your responsibility to update or change this contact information as appropriate. Email messages may be provided in HTML, or other format, with links to appropriate pages on our Website or sites provided by third-party services.

14. Limitation of Liabilities

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL THESIMPLE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF THESIMPLE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND THESIMPLE’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO THE ABOVE, ARISING FROM OR RELATED TO THE SERVICES OR THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE FEES ACTUALLY PAID BY YOU TO THESIMPLE OR THESIMPLE’S AUTHORIZED RESELLER FOR THE SERVICES AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY).

THESIMPLE DISCLAIMS ALL LIABILITY OF ANY KIND OF THESIMPLE’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL THESIMPLE BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED REGARDING USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.

YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 14 SHALL APPLY EVEN IF THESIMPLE IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THESIMPLE OR GROSS NEGLIGENCE OF THEISMPLE IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.

15. Indemnification

YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THESIMPLE AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF (i) YOUR USE OF THE SERVICE; (ii) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; AND (iii) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.

16. Dispute Resolution and Arbitration

  1. Purpose. If you have a Dispute (as defined below) with theSimple that cannot be resolved through an informal dispute resolution process, you or theSimple may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
  2. Definitions. As used in this Provision, the term "Dispute" means any dispute, claim or controversy between you and theSimple regarding any aspect of your relationship with theSimple that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in paragraph I.

"Dispute" is to be given the broadest possible meaning that will be enforced. As used in this Provision, "theSimple" means theSimple, Inc., its officers, directors, employees and agents, and all entities using the brand name "theSimple", including, its employees, authorized agents, and its parents, subsidiaries and affiliated companies. As used in this Provision, the term "Arbitration Provision" means all the terms of this Section 16.

  1. RIGHT TO OPT OUT. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY THESIMPLE IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY MAIL TO THESIMPLE, 1450 VETERANS BLVD, SUITE 100,  REDWOOD CITY, CA 94063 ATTN: LEGAL DEPARTMENT/ ARBITRATION. YOUR WRITTEN NOTIFICATION TO THESIMPLE MUST INCLUDE YOUR NAME, ADDRESS AND THESIMPLE ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH THESIMPLE THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH THESIMPLE OR THE DELIVERY OF SERVICES TO YOU BY THESIMPLE. IF YOU HAVE PREVIOUSLY NOTIFIED THESIMPLE OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
  2. Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or theSimple elect to resolve your Dispute with theSimple through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may select from the following arbitration organizations, which will apply the appropriate rules for consumer claims to arbitrate the Dispute:
  3. American Arbitration Association ("AAA"), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879, www.adr.org
  4. National Arbitration Forum ("NAF"), P.O. Box 50191, Minneapolis, MN 55405-0191, 1-800-474-2371, www.arbitration-forum.com
  5. Arbitration Procedures. Because the service provided to you by theSimple concerns interstate commerce, the Federal Arbitration Act ("FAA"), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from theSimple may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration, however, shall not be applicable under this Arbitration Provision. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, this Arbitration Provision shall govern. If the arbitration organization that you select will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with theSimple. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint a service that will enforce the Provision as written. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. A single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement. If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right that exists under the FAA.

Restrictions:

  1. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
  2. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
  3. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH THESIMPLE UNLESS THE STATUTE UNDER WHICH THEY ARE ASSERTING A CLAIM PROVIDES OTHERWISE.
  4. Location of Arbitration. The arbitration will take place at a location, convenient to you, in the area where you receive the service from us.
  5. Payment of Arbitration Fees and Costs. THESIMPLE WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR'S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN THESIMPLE'S FAVOR, YOU SHALL REIMBURSE THESIMPLE FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE THESIMPLE FOR ANY OF THE FEES AND COSTS ADVANCED BY THESIMPLE. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, THESIMPLE WILL PAY ALL FEES AND COSTS WHICH IT IS REQUIRED BY LAW TO PAY.
  6. Severability. If any clause within this Arbitration Provision (other than the class action waiver clause identified in paragraph I) is found to be illegal or unenforceable, that clause will be severed from the Arbitration Provision, and the remainder of the Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and a court will decide the dispute. In the event that this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and theSimple have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
  7. Exclusions from Arbitration. YOU AND THESIMPLE AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY THESIMPLE THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY'S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
  8. Continuation. This Arbitration Provision shall survive the termination of your service with theSimple. SPECIAL NOTE REGARDING ARBITRATION FOR CALIFORNIA CUSTOMERS: IF YOU ARE A CUSTOMER IN CALIFORNIA, THESIMPLE WILL NOT SEEK TO ENFORCE THE ARBITRATION PROVISION ABOVE UNLESS WE HAVE NOTIFIED YOU OTHERWISE.

17. Disclaimer of Warranties

THE WARRANTY FOR THE SIMPLE SMART THERMOSTAT AND ASSOCIATED SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND EULA, RESPECTIVELY. THE SIMPLE FLAT BILL AND ASSOCIATED SERVICES ARE PROVIDED FOR YOUR CONVENIENCE AND ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THESIMPLE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT THE SERVICES WILL DELIVER SPECIFIC RESULTS OR MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER THESIMPLE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.

18. General

  1. Survivability and Waiver: These terms constitute the entire agreement between you and theSimple regarding the use of Services and Fees associated with Services. Any failure by theSimple to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. Section titles are for convenience only and have no legal or contractual effect. If any provision of these Terms, for any reason is held invalid, or unenforceable, the other provisions of these Terms shall remain valid, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent of the law.
  2. Changes to these Terms: theSimple reserves the right to make changes to these Terms. In such case, theSimple will post notice of changes to one or more of the following: this page, a website, web apps, mobile apps, outbound email, outbound SMS. If you do not agree with any changes to the Terms, you must cease use of the Services.
  3. Governing Law: These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions.

19. Definitions

“Account” means an account that a user creates on the Website, or through communication with a representative of theSimple, in order to register for the use of Services.

“Autopay” is the process by which theSimple receives relevant account information from the Customer and automatically deducts payment from the preferred method using this account information.

“Excessive Use” is defined as greater than 30% increase in monthly energy bill amount (electric and/or gas, depending upon the Utility Accounts linked to the Account) for one month relative to that same month during the previous year.

“Fee” is an amount due to theSimple for use of Services.

“Force Majeure” means circumstances beyond the reasonable control of theSimple, including without limitation, earthquakes flood, fire, civil unrest, acts of terror, strikes, acts of God, acts of government, or other labor problems, or Internet service provider failures or delays.

“Linked Services” are third-party services available through, or used by, theSimple website or Account.

“Linked Sites” is third-party websites available through theSimple website or Account.

“Offer” is the terms and pricing, including all Fees, provided by theSimple to the Customer for use of the Service, which must be accepted by the Customer before creating an active Account

“Payment Account” is the permitted account provided by the Customer from which your Simple Flat Bill will be deducted through your Payment Method.

“Payment Method” means a permitted payment method, as determined in the sole discretion of theSimple and including ACH, credit or debit cards, used to fund payment of Fees for the Services.

“Personal Information” means any personally identifiable information concerning a User, including but not limited to: name, address, billing/shipping information, utility service ID, phone number, bank account, and credit card or debit card information.

“Processing Date” is the date on which your Payment Method is debited or charged via the Autopay process.

“Services” means all products and services, and any other feature, technology or functionality offered to the Customer by theSimple.

“Simple Flat Bill” means the amount charged to you, on a monthly basis, for the use of Simple Services.

“Supplier” means any entity that offers electricity, natural gas, or both for sale in a state that offered retail choice for power.

“Utility” is the regulated electric or natural gas distribution company from which the Customer receives delivery of electricity or natural gas

“Utility Account” is the account or accounts you designate, which serves as a basis for the Simple Flat Bill, and which theSimple, as part of Services, commits to paying for the Customer once the Customer has paid theSimple the monthly charge for use of Services.

“Utility Account Information” is the Customer’s personal account information, Utility or Supplier usage information, Utility or Supplier bill amounts, Service Address, or any other information from the Customer’s Utility that may be necessary to provide Services.

“Utility Account Credentials” means the User’s Utility Account username, password, accountID, and/or any other required information that is used to access the Customer’s Utility Account.

“Utility or Supplier Account Notices” means any communications sent to the Customer from his or her Utility or Supplier regarding tariff or rate changes, commercial offers, disconnection, outages, past due bills, or other information.

“Utility Statement” is the bill or statement from the Customer’s electricity, natural gas, or any other related utility good or service.

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