Kilowatt Krush Terms of Use
Last updated Jan. 30, 2019
THESE TERMS OF USE (“TERMS OF USE”) GOVERN YOUR ACCESS TO AND USE OF THE KILOWATT KRUSH MOBILE APPLICATION (“KILOWATT KRUSH”), PROVIDED BY DUKE ENERGY CORPORATION AND ITS AFFILIATES (COLLECTIVELY, “DUKE ENERGY”). PLEASE REVIEW THESE TERMS OF USE CAREFULLY. BY DOWNLOADING KILOWATT KRUSH OR ACCEPTING THESE TERMS OF USE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS OF USE. IF YOU ARE UNDER THE AGE OF EIGHTEEN YEARS OLD (OR SUCH OTHER AGE OF MAJORITY IN YOUR STATE), THEN YOUR PARENT OR LEGAL GUARDIAN MUST ACCEPT THESE TERMS OF USE. YOUR USE OF KILOWATT KRUSH IS THE RESPONSIBILITY OF YOUR PARENT OR LEGAL GUARDIAN AND MAY AFFECT THEIR LEGAL RIGHTS AND OBLIGATIONS.
IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT DOWNLOAD OR USE KILOWATT KRUSH.
In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator's decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator's award may be entered in any court having jurisdiction thereof. A single arbitrator with the American Arbitration Association ("AAA") will conduct the arbitration, and the award may not exceed the relief allowed by applicable law. The arbitration will be conducted in the county of your residence or another mutually agreed location. The AAA's Consumer Arbitration Rules will apply. If AAA will not apply those rules, then AAA's Commercial Arbitration Rules will apply. The AAA's rules and a form that can be used to initiate arbitration proceedings are available at http://www.adr.org. You and Duke Energy agree that if for any reason AAA will not conduct or becomes unavailable to conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of AAA as a forum is not integral to the Arbitration Agreement.
The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of this Arbitration Agreement (including “gateway” issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory and any defense to arbitration), and these Terms of Use, except that a court will resolve any question regarding the validity or enforceability of the class action waiver set forth in Section B of this Arbitration Agreement. The term "Dispute" and the requirement to arbitrate will be broadly interpreted.
B. Arbitration Class Action Waiver. You and Duke Energy agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, consolidated, or private attorney general basis. A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and may only award such relief as is necessary to provide relief to a party to the arbitration proceeding. If a court deems any portion of this Section B invalid or unenforceable, then Sections A and C of this Arbitration Agreement will be null and void.
C. Fees and Costs in Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Duke Energy will reimburse you for those fees up to $7,500, unless the arbitrator determines the claims are frivolous. Likewise, Duke Energy will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS FROM THE EARLIER OF: (1) THE DATE YOU ACCEPT THESE TERMS OF USE, OR (2) THE DATE YOU FIRST SIGNED AN AGREEMENT WITH DUKE ENERGY THAT CONTAINED AN ARBITRATION PROVISION. The opt-out notice must be postmarked no later than the applicable deadline and emailed to: kilowattkrush@duke-energy.com. The opt-out notice must state that you do not agree to this Arbitration Agreement and must include the name, address, phone number and email address associated with your account with us. This procedure is the only way you can opt out of this Arbitration Agreement, and failure to comply strictly with this procedure and the applicable deadline automatically will render the opt-out notice null and void. If you opt out of the arbitration provision, all other parts of this Arbitration Agreement will continue to apply.
E. Non-Arbitration Class Action and Jury Waiver. You and Duke Energy agree that if for any reason a Dispute proceeds in court rather than arbitration: (1) you and Duke Energy waive any right to a jury trial; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Duke Energy may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
You must install any and all patches, updates, or upgrades to Kilowatt Krush made available by Duke Energy within a reasonable period as a condition of your continued use of Kilowatt Krush. Duke Energy may update Kilowatt Krush remotely without notifying you, and you hereby consent to Duke Energy applying such patches, updates, and upgrades. Duke Energy may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of Kilowatt Krush at any time. You acknowledge that your use of Kilowatt Krush does not confer on you any interest, monetary or otherwise, in any aspect or feature of Kilowatt Krush. Duke Energy does not have any maintenance or support obligations with respect to Kilowatt Krush.
YOU ACKNOWLEDGE, BY YOUR USE OF KILOWATT KRUSH, THAT YOUR USE OF KILOWATT KRUSH, INCLUDING ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH KILOWATT KRUSH, IS AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF KILOWATT KRUSH. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF USE.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
Some jurisdictions do not allow the certain limitations on damages, so the limitations and exclusions above may not apply to you. If this section is held to be unenforceable, then liability will be limited to the fullest extent permitted by applicable law. If you are dissatisfied with any portion of Kilowatt Krush or with any of the Terms of Use contained herein, your sole and exclusive remedy is to discontinue using Kilowatt Krush.
THESE TERMS OF USE (“TERMS OF USE”) GOVERN YOUR ACCESS TO AND USE OF THE KILOWATT KRUSH MOBILE APPLICATION (“KILOWATT KRUSH”), PROVIDED BY DUKE ENERGY CORPORATION AND ITS AFFILIATES (COLLECTIVELY, “DUKE ENERGY”). PLEASE REVIEW THESE TERMS OF USE CAREFULLY. BY DOWNLOADING KILOWATT KRUSH OR ACCEPTING THESE TERMS OF USE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS OF USE. IF YOU ARE UNDER THE AGE OF EIGHTEEN YEARS OLD (OR SUCH OTHER AGE OF MAJORITY IN YOUR STATE), THEN YOUR PARENT OR LEGAL GUARDIAN MUST ACCEPT THESE TERMS OF USE. YOUR USE OF KILOWATT KRUSH IS THE RESPONSIBILITY OF YOUR PARENT OR LEGAL GUARDIAN AND MAY AFFECT THEIR LEGAL RIGHTS AND OBLIGATIONS.
IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT DOWNLOAD OR USE KILOWATT KRUSH.
Arbitration Agreement and Class Action Waiver
A. Mandatory Arbitration. YOU AND DUKE ENERGY AGREE TO SUBMIT ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO YOUR USE OF KILOWATT KRUSH (EACH, A “DISPUTE”) TO BINDING ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT (TITLE 9 OF THE UNITED STATES CODE), WHICH SHALL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT (“ARBITRATION AGREEMENT”). YOU AND DUKE ENERGY WAIVE THE RIGHT TO A TRIAL BY JURY AND ANY RIGHT TO HAVE A DISPUTE HEARD IN COURT.In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator's decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator's award may be entered in any court having jurisdiction thereof. A single arbitrator with the American Arbitration Association ("AAA") will conduct the arbitration, and the award may not exceed the relief allowed by applicable law. The arbitration will be conducted in the county of your residence or another mutually agreed location. The AAA's Consumer Arbitration Rules will apply. If AAA will not apply those rules, then AAA's Commercial Arbitration Rules will apply. The AAA's rules and a form that can be used to initiate arbitration proceedings are available at http://www.adr.org. You and Duke Energy agree that if for any reason AAA will not conduct or becomes unavailable to conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of AAA as a forum is not integral to the Arbitration Agreement.
The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of this Arbitration Agreement (including “gateway” issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory and any defense to arbitration), and these Terms of Use, except that a court will resolve any question regarding the validity or enforceability of the class action waiver set forth in Section B of this Arbitration Agreement. The term "Dispute" and the requirement to arbitrate will be broadly interpreted.
B. Arbitration Class Action Waiver. You and Duke Energy agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, consolidated, or private attorney general basis. A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and may only award such relief as is necessary to provide relief to a party to the arbitration proceeding. If a court deems any portion of this Section B invalid or unenforceable, then Sections A and C of this Arbitration Agreement will be null and void.
C. Fees and Costs in Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Duke Energy will reimburse you for those fees up to $7,500, unless the arbitrator determines the claims are frivolous. Likewise, Duke Energy will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS FROM THE EARLIER OF: (1) THE DATE YOU ACCEPT THESE TERMS OF USE, OR (2) THE DATE YOU FIRST SIGNED AN AGREEMENT WITH DUKE ENERGY THAT CONTAINED AN ARBITRATION PROVISION. The opt-out notice must be postmarked no later than the applicable deadline and emailed to: kilowattkrush@duke-energy.com. The opt-out notice must state that you do not agree to this Arbitration Agreement and must include the name, address, phone number and email address associated with your account with us. This procedure is the only way you can opt out of this Arbitration Agreement, and failure to comply strictly with this procedure and the applicable deadline automatically will render the opt-out notice null and void. If you opt out of the arbitration provision, all other parts of this Arbitration Agreement will continue to apply.
E. Non-Arbitration Class Action and Jury Waiver. You and Duke Energy agree that if for any reason a Dispute proceeds in court rather than arbitration: (1) you and Duke Energy waive any right to a jury trial; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Duke Energy may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
Modifications
Duke Energy reserves the right to update or modify these Terms of Use at any time without prior notice to you. Your continued access to or use of Kilowatt Krush will constitute Your acceptance of any modifications and updates made by Duke Energy. For this reason, we recommend that you review these Terms of Use whenever you use Kilowatt Krush.License Grant
Duke Energy grants you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to install and use one copy of Kilowatt Krush on a device for your personal entertainment use (the “License”). The rights that Duke Energy grants you under the License are subject to these Terms of Use, and you may only make use of the License if you comply with all applicable terms. Duke Energy may suspend or terminate the License at any time and for any reason, with or without notice to you.License Conditions
You may not do any of the following with respect to Kilowatt Krush or any portion thereof: (a) use it commercially or for a promotional purpose; (b) use it on more than one device at a time; (c) copy, reproduce, distribute, display, or use it in a way that is not expressly authorized in these Terms of Use; (d) sell, rent, lease, license, distribute, or otherwise transfer it; (e) reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble it or make derivative works based on it; (f) remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it; (g) use it to infringe or violate the rights of any third party, including but not limited to any intellectual property, publicity, or privacy rights; (h) use, export, or re-export it in violation of any applicable law or regulation; or (i) behave in a manner which is detrimental to the enjoyment of Kilowatt Krush by other users as intended by Duke Energy, in Duke Energy’s sole judgment.You must install any and all patches, updates, or upgrades to Kilowatt Krush made available by Duke Energy within a reasonable period as a condition of your continued use of Kilowatt Krush. Duke Energy may update Kilowatt Krush remotely without notifying you, and you hereby consent to Duke Energy applying such patches, updates, and upgrades. Duke Energy may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of Kilowatt Krush at any time. You acknowledge that your use of Kilowatt Krush does not confer on you any interest, monetary or otherwise, in any aspect or feature of Kilowatt Krush. Duke Energy does not have any maintenance or support obligations with respect to Kilowatt Krush.
Copyrights, Trademarks and other Intellectual Property
Unless otherwise noted, any and all copyrights, trademarks, trade dress and/or other intellectual property rights in Kilowatt Krush and its contents are owned, controlled or licensed by Duke Energy, one of its affiliates or by third parties who have licensed their materials to Duke Energy and are protected by U.S. and international copyright or other intellectual property laws and rights. Kilowatt Krush, including all content therein, is the exclusive property of Duke Energy or its licensors and is also protected by U.S. and international copyright laws. Duke Energy and its affiliates, suppliers and licensors expressly reserve all intellectual property rights in all text, programs, products, processes, technology, content and other materials which appear in Kilowatt Krush. Access to Kilowatt Krush does not confer and shall not be considered as conferring upon anyone any license under any of Duke Energy’s or any third party's intellectual property rights. The Duke Energy names and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Duke Energy Corporation or its affiliates. All other marks are the property of their respective companies. No trademark or service mark license is granted in connection with the materials contained on Kilowatt Krush. Access to Kilowatt Krush does not authorize anyone to use any name, logo or mark in any manner, except as may be expressly permitted herein.
Indemnification
You agree to defend, indemnify and hold harmless Duke Energy and its affiliates from and against any and all losses, claims, damages, liability, costs and expenses, including attorneys' fees, arising from or related to your use of Kilowatt Krush any breach by you of these Terms of Use. You agree to cooperate as fully as reasonably required in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will still be required to indemnify us for the attorneys’ fees and expenses in addition to any losses, claims, damages and liabilities incurred by us. You shall not in any event settle any matter without prior written consent of Duke Energy.
Termination
These Terms of Use are effective upon your acceptance and shall continue in effect until terminated by either you or Duke Energy. You may terminate these Terms of Use at any time by discontinuing use of Kilowatt Krush. Duke Energy also may terminate these Terms of Use at any time and may do so immediately without notice, and accordingly deny you access to Kilowatt Krush, if in Duke Energy’s sole discretion you fail to comply with any term or provision of these Terms of Use, or for any other reason. Upon any termination of these Terms of Use by either you or Duke Energy, you must promptly discontinue use of Kilowatt Krush and uninstall it from your device. The following sections shall survive any termination of these Terms of Use: “Arbitration Agreement and Class Action Waiver”, “Modifications”, “License Conditions”, “Copyrights, Trademarks and Other Intellectual Property,” “Indemnification,” “Termination,” “Warranty Disclaimer,” “Limitation of Liability,” “Privacy,” and “General.”
Warranty Disclaimer
KILOWATT KRUSH IS PROVIDED BY DUKE ENERGY ON AN “AS IS” AND “AS AVAILABLE” BASIS. DUKE ENERGY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF KILOWATT KRUSH OR THE INFORMATION OR CONTENT, INCLUDED ON KILOWATT KRUSH. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, DUKE ENERGY AND ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS, SUPPLIERS AND OTHER REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF ANY OF THEM (COLLECTIVELY, "DUKE ENERGY ENTITIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.YOU ACKNOWLEDGE, BY YOUR USE OF KILOWATT KRUSH, THAT YOUR USE OF KILOWATT KRUSH, INCLUDING ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH KILOWATT KRUSH, IS AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF KILOWATT KRUSH. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF USE.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL THE DUKE ENERGY ENTITIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE KILOWAWTT KRUSH, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, ACCURACY OF RESULTS, DEVICE FAILURE OR MALFUNCTION, LITIGATION OR THE LIKE, EVEN IF THE DUKE ENERGY ENTITIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE ARRANGEMENT BETWEEN DUKE ENERGY AND YOU. SUBJECT TO THE FOREGOING, IN NO EVENT WILL THE DUKE ENERGY ENTITIES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF KILOWATT KRUSH DURING THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE, OR $100, WHICHEVER AMOUNT IS GREATER.Some jurisdictions do not allow the certain limitations on damages, so the limitations and exclusions above may not apply to you. If this section is held to be unenforceable, then liability will be limited to the fullest extent permitted by applicable law. If you are dissatisfied with any portion of Kilowatt Krush or with any of the Terms of Use contained herein, your sole and exclusive remedy is to discontinue using Kilowatt Krush.
Privacy
Please review the Children’s Privacy section of our Digital Privacy Policy, which applies to personal information collected from or provided by you on Kilowatt Krush.