Last Revised: [September 14], 2021
The website (“Site”) is operated by [Franklin Energy Services, LLC] (collectively, “Company,” “we,” “our,” or “us”). The Site provides an education program focused on teaching energy and water conservation skills. We provide certain services through the Site, including but not limited to, a program where students can view content, participate in assignments, view virtual field trips, take surveys, and earn stars and badges, while providing a program where teachers can follow a student’s progress and assign homework and projects (collectively, the “Services”).
MANDATORY ARBITRATION NOTICE AND CLASS ACTION AND JURY TRIAL WAIVER. These Terms contain a mandatory (binding) arbitration provision and class action and jury trial waiver clauses. Except for certain types of disputes described in the arbitration section below or where prohibited by applicable law, you agree that disputes between you and us regarding your use of the Site or Services will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. For more details, see below.
We may make changes to the content available on the Site at any time. We can change, update, add, or remove provisions of these Terms at any time by posting the updated Terms on the Site. We will make commercially reasonable efforts to notify you of any material changes to these Terms however we are not obligated to. You waive any right you may have to receive specific notice of such changes to these Terms with the exception that we will not amend the arbitration provision without giving you notice and an opportunity to opt out of such provision. By using the Site after we have updated the Terms, you are agreeing to the then-current Terms. You are responsible for regularly reviewing these Terms.
In addition to these Terms, your use of certain Services may be governed by additional agreements.
Accessing the Site
We reserve the right to withdraw or amend this Site, and any Services or Materials (defined below) we provide on the Site, in our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Site is unavailable at any time or for any period. From time to time, in our sole discretion and without notice, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Site.
- Ensuring that all persons who access the Site through your internet connection are aware of these Terms and comply with them.
To access the Site or some of the resources it offers, you may be asked to provide certain registration details or other information such as a user number. It is a condition of your use of the Site that all the information you provide on the Site is correct, current, and complete, and that you have the authority to provide such information to us.
If you choose, or are provided with, a user number or ID, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it using your user number, ID, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user number, ID, or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any account, whether chosen by you or provided by us, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of these Terms.
Our Rights and Your Use of the Site
Unless otherwise specified in these Terms, all information and screens appearing on this Site are the sole property of Company or our subsidiaries and affiliates, and other parties. We provide content through the Site that is copyrighted and/or trademarked work of Company or our third-party licensors and suppliers (collectively, the “Materials”). Materials may include documents, services, software, site design, text, graphics, logos, video, images, icons, and other content, as well as the arrangement thereof.
Subject to these Terms, we hereby grant you a limited, personal, non-exclusive and non-transferable license to use, view, print, display and download the Materials for the sole purpose of viewing them on a stand-alone personal computer or mobile device and to use this Site solely for your personal use. Except for the foregoing license and as otherwise required or limited by applicable law, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner or for any purpose that would constitute infringement of our, our licensors’, or the Site’s other user’s intellectual property rights. All rights not expressly granted herein are reserved.
If you breach any of these Terms, the above license will terminate automatically, and you must immediately destroy any downloaded or printed Materials.
Your Communications to the Site
By forwarding any content or communications to us through the Site or by other electronic means, you thereby grant us a perpetual, royalty-free, world-wide, irrevocable, non‑exclusive license to use, reproduce, modify, adapt, publish, translate, create derivative works from, redistribute, and display such content and communications in any form for the purposes of providing the Services and any purpose tangentially related to the Services. No compensation will be paid to you with respect to our or our sublicensees’ use of your communications. By providing or submitting content, you represent and warrant that you own or otherwise control all of the rights to your submitted content and communications as described in this section including, without limitation, all the rights necessary for you to submit the content and communications and grant the license above.
By using the Site and/or the Services, you consent to receiving electronic communications, including electronic notices, from us. These electronic communications may include notices about information concerning or related to the Site and/or Materials. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
By accessing or using the Site, you agree that:
- Your use of the Site is subject to and governed by these Terms;
- You will use the Site solely for its Services offered in the normal course of business;
- You will always act in accordance with the law, custom, and in good faith;
- You will comply with and be bound by these Terms as they appear on the Site each time you access and use the Site;
- Each use of the Site by you indicates and confirms your agreement to be bound by these Terms; and
- These Terms are a legally binding agreement between you and us that will be enforceable against you.
You further agree to not use the Site in any way that:
- Changes or alters the Site or content or Services that may appear on the Site;
- Impairs in any way the integrity or operation of the Site;
- Is in any way unlawful or prohibited, or that is harmful or destructive to anyone or their property;
- Transmits any advertisements, solicitations, schemes, spam, flooding, or other unsolicited email and commercial communications;
- Transmits any harmful or disabling computer codes or viruses;
- Harvests email addresses from the Site;
- Interferes with our network services;
- Attempts to gain unauthorized access to our network services;
- Suggests an express or implied affiliation or relationship with us without our express written permission;
- Impairs or limits our ability to operate the Site or any other person’s ability to access and use the Site;
- Unlawfully impersonates or otherwise misrepresents your affiliation with any person or entity;
- Transmits or uploads violent, obscene, sexually explicit, discriminatory, hateful, threatening, abusive, defamatory, offensive, harassing, or otherwise objectionable content or images;
- Dilutes or depreciates our or any of our affiliates’ name and reputation;
- Transmits or uploads content or images that infringe upon any third party’s intellectual property rights or right to privacy; or
- Unlawfully transmits or uploads any confidential, proprietary or trade secret information.
This list of prohibited activities provides examples and is not complete or exclusive. We reserve the right to terminate access to your account and your ability to use this Site (or the Materials) with or without cause and with or without notice, for any reason or no reason, or for any action that we determine is inappropriate or disruptive to this Site or to any other user of this Site and/or Materials. We may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at our discretion, we will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
The Site may contain open-text fields for assignment questions, and/or other interactive features (collectively, “Interactive Services”) that allow users to submit or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Content”) on or through the Site.
All User Content must comply with the Content Standards set out in these Terms.
Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Site, you grant us and our affiliates and our service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material.
You represent and warrant that:
- You own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and our service providers, and each of their and our respective licensees, successors, and assigns.
- All of your User Content does and will comply with these Terms.
You understand and acknowledge that you are responsible for any User Content you submit or contribute, and you, not Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Site.
Monitoring, Enforcement, and Termination
We have the right to:
- Remove or refuse to post any User Content for any or no reason in our sole discretion.
- Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such User Content violates the Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Site or the public, or could create liability for us.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
- Terminate or suspend your access to all or part of the Site for any reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Site. YOU WAIVE AND HOLD HARMLESS COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
However, we cannot review all material before it is posted on the Site and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to all User Content and use of Interactive Services. User Content must in its entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Content must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote, or assist any unlawful act.
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Reliance on Information Posted
The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site, or by anyone who may be informed of any of its contents.
This Site includes content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Third-Party Website Links
Linking to the Site and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
You may use these features solely as they are provided by us and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Site other than the homepage.
- Otherwise take any action with respect to the materials on this Site that is inconsistent with any other provision of these Terms.
The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any links at any time without notice in our discretion.
Federal and State Laws
The Site is operated from the United States and is intended for U.S. residents only. The Site is not approved for distribution outside of the U.S. and non-U.S. residents should not rely or act upon the information contained within. When using the Site, on the Site, or when using any content provided by us, you must obey all applicable U.S. federal, state and local laws.
Disclaimer of Warranties
Your use of this Site is at your own risk. The Materials have not been verified or authenticated in whole or in part by us, and they may include inaccuracies or typographical or other errors. We do not warrant the accuracy or timeliness of the Materials contained on this Site. We have no liability for any errors or omissions in the Materials, whether provided by us, our licensors or suppliers or other users.
TO THE FULLEST EXTENT PROVIDED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN OR ON THE SITE, THE INFORMATION AND SERVICES OFFERED ON OR THROUGH THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
TO THE FULLEST EXTENT ALLOWED BY LAW, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, CONTENT, OR OTHER POSTED MATERIALS ON THE SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
BY PROVIDING THE SERVICES ON THE SITE, WE DO NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. WE ARE ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE SITE AT ANY TIME, IN OUR SOLE DISCRETION WITHOUT NOTICE TO YOU.
Limitation of Liability
WE cannot guarantee the Site will be available 100% of the time Because public networks, such as the internet, occasionally experience disruptions. Although WE STRIVE to provide the most reliable webSite reasonably possible, interruptions and delays in accessing the Site are unavoidable and WE DISCLAIM any liability for damages resulting from such problems.
NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF COMPANY AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES AND THIRD-PARTY SERVICE PROVIDERS WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE SITE, THE MATERIALS, THE CONTENT OR SERVICES OBTAINED THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, FIFTY DOLLARS ($50).
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE SITE, OR ON ANY OTHER HYPERLINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA OR OTHERWISE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify, defend and hold harmless us and our affiliates, employees, agents, representatives and third-party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses that may arise from any of your acts through the use of the Site. Such acts may include but are not limited to: providing content to or communicating with us or our Affiliates, unauthorized use of material obtained through the Site, engaging in a prohibited activity, or any other action that breaches these Terms.
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent with the following information.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- Description of the copyrighted work that you claim has been infringed;
- The location on the Site of the material that you claim is infringing;
- Your address, telephone number and e-mail address;
- A statement that your claim of infringement is based on a good faith belief; and
- A statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on the Site can be reached as follows:
[Franklin Energy Services, LLC]
[10722 Arrow Rte. Suite 120, Rancho Cucamonga, CA 91730]
You acknowledge that we may be irreparably damaged if these Terms are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of these Terms by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of these Terms. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the state or Federal courts located in California. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER.
Except for the claims for injunctive relief by us as described above and to the extent allowed by law, you hereby agree that either you or we may require any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the Site, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis. However, both parties retain the right to seek relief in a small claims court (or a state court equivalent) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court. Additionally, if you are a California resident, you retain the right to obtain public injunctive relief from any court with proper jurisdiction.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.
You and we agree that your use of the Services involves interstate commerce, and that this arbitration agreement shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration agreement; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer-purpose transaction.
If any part of this arbitration provision is invalid, all other parts of it remain valid. However, if the class action limitation is invalid, then this arbitration provision is invalid in its entirety, provided that the remaining Terms shall remain in full force and effect. This arbitration provision will survive the termination of your use of the Site, the Services, and any other actions with us.
You may reject this arbitration provision within thirty (30) days of accepting the Terms by emailing us at [SmallBusinessSavings@franklinenergy.com] and including in the subject line “Rejection of Arbitration Provision.”
Severability. If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated.
Governing Law and Venue. These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms (including but not limited to if you opt out of the mandatory arbitration provision) shall be governed by the exclusive jurisdiction and venue of the state and Federal courts in California, except where the jurisdiction and venue are mandated by applicable Assignment. We may freely assign our obligations and rights under these Terms, including all Personal Information in our possession which we have collected during your use of the Site.
Headings. Condition and section headings are for convenience of reference only and shall not affect the interpretation of these Terms.
Typographical Errors. Information on the Site may contain technical inaccuracies or typographical errors. We attempt to make the Site’s postings as accurate as possible, but we do not warrant the content of the Site is accurate, complete, reliable, current, or error-free.
If you have any questions or comments about these Terms or this Site, please contact us by email at [SmallBusinessSavings@franklinenergy.com.]
You also may write to us at:
[Franklin Energy Services, LLC]
[10722 Arrow Rte. Suite 120, Rancho Cucamonga, CA 91730]