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Online Account Access Agreement
Subject to the terms and conditions below, Constellation Energy Resources, LLC or one of its affiliates ("us," "we" or “our”) grants you a revocable and non-transferable license to access this website (the “Site”) solely for your use in accordance with this Online Account Access Agreement (the “Agreement”). You represent and warrant that you are authorized to bind your business to the terms contained herein. You understand that this Site is for commercial customers only, not residential customers. You further agree that any use of the Site by you or others who have been granted access by you (collectively, “Authorized Users”) will be deemed to be fully authorized by you, that you are responsible for the actions of Authorized Users and that the obligations and limitations that apply to you hereunder also apply to your Authorized Users. This Site is specifically intended for our commercial customers only and any brokers or other third party consultants are directed to use the Indirect Portal accessible from indirect.newenergy.com. We are relying upon your agreement to the terms contained herein in continuing to provide you access to the Site. We will also refer to you and to us as a “party” or “parties.”
You shall take reasonable steps to maintain the security of communications between you and the Site, including, but not limited to, taking reasonable steps: to maintain confidentiality of passwords created by you (“Login Information”), to maintain physical security of equipment and facilities, to exercise appropriate oversight and supervision of your personnel, to evaluate your security safeguards periodically, to install and maintain appropriate firewalls and other technical measures where appropriate, and to guard against the intentional or unintentional corruption or loss of data in your control. Such steps shall include, but not be limited to, the following:
- In connection with your access to the Site, you will create or have created Login Information consisting of a password and user name. Each password and user name shall be unique and shall be non-transferable. You shall log into the Site using the Login Information you create. We shall be entitled to assume, unless notified by you otherwise, that a user presenting your Login Information is in fact you. Another member of your business may not use your Login Information. You shall notify us immediately if you become aware of any unauthorized use of any Login Information.
- You shall promptly report to us any loss of the Login Information or any unauthorized access, or reasonable suspicion of unauthorized access, to the Site using your Login Information. Upon receiving such information from you, we shall disable the Login Information and you will be able to create new and secure Login Information. You shall promptly report to us any material system, equipment, or software malfunction, error, breakage or breach that involves the security of data that you detect or that you believe is imminent or is likely to have occurred. Each party shall reasonably cooperate with the other in efforts to reduce the effects of any such malfunction, error, breakage or breach, to mitigate damage and restore lost code or data.
You agree that any actions taken (or deemed taken) using your Login Information will be attributed to and will be binding and enforceable against you and that you are wholly responsible for any losses arising from misuse of the Login Information. You represent and warrant that you or your employer is a commercial or industrial user of electricity and/or gas and is a customer or is interested in being a customer of ours. You agree that you shall not use any information obtained from this Site to benefit competitors of ours or of our affiliates.
Your use is subject to the following restrictions:
- You may not provide any third party access in any way to the Site. The foregoing does not preclude you from using your account information for your own internal purposes.
- You agree that you will not use the Site in any manner that could damage, disable, overburden, or impair any of our servers, or the network(s) connected to any of our servers or interfere with any other party's use and enjoyment of the Site.
- You agree not to attempt to gain unauthorized access to the Site, other accounts, computer systems or networks connected to the Site, through hacking, password mining or any other means. You also agree that you will not obtain or attempt to obtain any materials or information through any means not made directly available through the Site.
- You may not engage in systematic retrieval of data from this Site to create or compile, directly or indirectly, in whole or in part, a collection, database, or directory. You agree that you will not use any robot, spider, other automatic device, or manual process to monitor or copy our Site or the content contained herein. You may not engage in the practices of "screen scraping," "database scraping," or any other practice or activity the purpose of which is to obtain lists of users, portions of a database, or other lists or information from this Site.
- You agree that you will not use any device, software or routine to bypass any code which may be included to prevent you from breaching the obligations in this paragraph or to interfere or attempt to interfere with the proper working of the Site.
- You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our or our host’s infrastructure.
- You may not reproduce, publish, transmit, distribute, display, modify, create derivative work from, sell, participate in the sale of, or exploit in any way, in whole or in part, any of the content of the Site or any related software. You shall not make any enhancements, improvements or modifications; sublicense; copy; record; reproduce; reverse engineer; reverse compile; recompile; decompile; modify; create derivative works from; or disassemble our software, data or materials, except and only to the extent that such activity is permitted by applicable law notwithstanding this limitation. The foregoing does not preclude you from obtaining and printing your account information and related terms and conditions.
- You may not offer any part of the Site for sale or distribute it over any other medium, including, but not limited to a computer network or hyperlink framing on the Internet.
- You may not use the Site for any illegal or unlawful purpose or in any manner inconsistent with applicable law or this Agreement.
- You shall comply with such reasonable policies, procedures and instructions as may be established by us from time to time concerning access to and use of the Site upon receipt of notice of such policies, procedures or instructions.
- In order to access, view, and retain electronic records of the transactions made on this Site, you must have:
- an up to date Internet browser that we support (IE7 or higher, Firefox, Chrome, Safari, Opera);
- sufficient electronic storage capacity on your computer's hard drive or other data storage unit;
- an e-mail account with an Internet service provider and e-mail software;
- a personal computer (for PCs: Pentium 120 Mhz or higher; for Macintosh, Power Mac 9500, Power PC 604 processor 120-MHz Base or higher), operating system and telecommunications connections to the Internet capable of receiving, accessing, displaying, and either printing or storing records received from us in electronic form via a plain html-formatted e-mail or by access to our website using one of the browsers specified above; and
- software that enables you to view files in the Portable Document Format ("PDF").
You agree to indemnify us and hold us harmless for any liability, cost, or claim arising out of or related to your failure to abide by this Agreement, including reasonable attorney’s fees and costs.
This Site is protected by copyright, trade secret, patent, trademark, trade dress, and other intellectual property rights. Our logo, and other trademarks, service marks, logos, and service names (collectively, the “Marks”) are owned or licensed by us. The entire Site, and all object and source code, text, graphics, templates, and all scripts within the Site and the design, layout and contents of this Site will be designated “Copyright © 2013 Constellation Energy Resources, LLC. All rights reserved.”
We shall have the right at our option to provide a proprietary legend and/or mark on the Site and the content; said legend or mark may at our option be included at the beginning and/or end of each page, screen or set of data or in digital form within a field associated with one or more items. You shall not obscure such legend or mark; and you may copy such items only on condition that the legend and mark, if any, is reproduced intact with each item.
You will keep confidential and refrain from disclosing any and all technical information, know-how, and inventions disclosed by us in relation to your access to this Site, except when, after, and to the extent that the information, know-how, and inventions are generally known to the public. You acknowledge and agree that, due to the unique nature of the Site, there can be no adequate remedy at law for any breach or threatened breach of the provisions of this Agreement, that any such breach or threatened breach will result in irreparable harm to us, and therefore, that, upon any such breach or threat thereof, we shall be entitled to seek injunctions and other appropriate equitable relief in addition to whatever additional remedies we may have at law.
THE INFORMATION PROVIDED IN THIS SITE IS PROVIDED ON AN "AS IS" BASIS FOR INFORMATIONAL PURPOSES ONLY AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE DATA POSTED ON THE SITE, WHETHER CAUSED BY US OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SITE. YOU ACKNOWLEDGE AND AGREE THAT ALL OF THE DATA DISPLAYED ON THIS SITE IS FOR YOUR REFERENCE ONLY AND WILL NEVER SUPERSEDE ANY FORMAL COMMUNICATIONS SENT BY US INCLUDING ACCOUNT STATEMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
IF YOU ARE DISSATISFIED WITH THIS SITE, OR ANY INFORMATION CONTAINED IN THE SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE. NOTWITHSTANDING THE FOREGOING, OUR LIABILITY TO YOU SHALL BE LIMITED IN ALL INSTANCES TO $100. YOU FURTHER AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST US ARISING OUT OF OR RELATING TO THE USE OF THIS SITE. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may apply to certain users but only to the extent specifically required by the laws of such states/jurisdictions.
You may not assign, transfer or sublicense your rights pursuant to this Agreement. Each of our affiliates is an intended third party beneficiary of this Agreement and may enforce its rights against you.
You do not have the right to use our name or any like reference of us in press releases and marketing materials referring to this Site without our prior written approval.
Our performance is subject to existing laws and legal process and nothing contained in this Agreement is in derogation of our right to comply with law enforcement requests or requirements relating to the use of this Site or information provided to or gathered by us with respect to such use.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
You acknowledge and agree that we may terminate or suspend the license to access this Site at any time and for any reason. In the event of termination, you shall immediately destroy any code or data which you may have retained in electronic or hard copy. The provisions concerning the limitation on liability, indemnification, intellectual property, confidentiality and choice of law shall survive the termination of this Agreement for any reason.
The Site can be accessed from all 50 states, as well as from other countries around the world. As each of these jurisdictions has laws and regulations that may differ, by accessing this Site you agree that the statutes and laws of the State of New York, without regard to conflicts of laws principles thereof, will apply to all matters relating to use of this Site (whether grounded in tort, contract, law or equity), except to the extent that such laws are preempted by federal intellectual property law. Any litigation arising between the parties hereto shall be brought only in the state or federal courts having subject matter jurisdiction in New York, New York. You hereby irrevocably and unconditionally consent to the jurisdiction of any such court and hereby irrevocably and unconditionally waive any defense of an inconvenient forum to the maintenance of any action or proceeding in any such court, any objection to venue with respect to any such action or proceeding, and any right of jurisdiction on account of the place of residence or domicile of any party thereto. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
No failure by any party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy hereunder shall constitute a waiver. No waiver of any breach shall affect or alter this Agreement, but each and every provision and term of this Agreement shall continue in full force and effect with respect to any other existing or subsequent breach.
This Agreement constitutes the entire agreement between you and us with respect to this Site and supersedes any prior agreement of any type between you and us with respect to this Site. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved by us.
We may update, revise, supplement, modify or amend this Agreement at any time. Any updates, revisions, supplements, modifications or amendments shall be effective immediately upon posting on the Site. You agree that you will be bound by this Agreement, however and whenever it is updated, revised, supplemented, modified, or amended, whether you have actual or constructive notice thereof, and whether you have used or continue to use the Site after the implementation of such updates, revisions, supplements, modifications or amendments. You are responsible for regularly reviewing these terms and conditions.
NYMEX Viewing and Usage Agreement
THE TERMS OF AGREEMENT SET FORTH BELOW ARE THE TERMS UNDER WHICH NEW YORK MERCANTILE EXCHANGE, INC. ("NYMEX") PERMITS ACCESS TO VIEWING, ON THE WEBSITE OF CONSTELLATION ENERGY AND AFFILIATES ("HOST"), NYMEX MARKET DATA AS DEFINED BELOW. IF YOU, AS VIEWER, AGREE TO THE TERMS SET FORTH BELOW, AND INDICATE YOUR AGREEMENT IN THE MANNER REQUIRED BELOW, YOU WILL BE GIVEN ACCESS TO VIEWING NYMEX MARKET DATA ON THE WEBSITE OF HOST. IF YOU DO NOT INDICATE YOUR AGREEMENT BELOW, YOU WILL NOT BE GIVEN ACCESS ON THIS WEBSITE TO NYMEX MARKET DATA. THIS PAGE MAY BE PRINTED SO THAT YOU CAN RETAIN A HARD COPY OF IT. 1. For purposes of this Agreement, the term "NYMEX Market Data" means information and data pertaining to futures contracts and options contracts of NYMEX and Commodity Exchange, Inc. ("COMEX"), whether traded in the respective, open outcry exchanges operated by NYMEX and COMEX or traded electronically, that includes, without limitation, opening and closing range prices, high-low prices, settlement prices, bid and ask prices, last sales prices, price limits, requests for quotations, estimated and actual contract volume data, text messages pertaining to market activity, contract specifications, fast or late messages and, as determined by NYMEX, may include information respecting exchange-for-physical (EFP) or against actual (AA) transactions. With respect to the viewer's obligations under this Agreement, NYMEX Market Data also includes all information, data and materials that are derived from the foregoing and that convey information to viewer that is substantially equivalent to NYMEX Market Data. 2. Viewer acknowledges and agrees that NYMEX has exclusive and valuable property rights in and to NYMEX Market Data, that NYMEX Market Data constitutes valuable confidential information, trade secrets, and/or proprietary rights of NYMEX, not within the public domain, and that, but for this Agreement, the viewer would have no rights or access to NYMEX Market Data. 3. Viewer agrees that he or she may not use, disseminate, or copy any of the NYMEX Market Data other than as expressly permitted in this Agreement. Viewer may use NYMEX Market Data only for viewer's (a) trading, for viewer's own account or for the account of viewer's customers, of commodity futures contracts, options on commodity futures contracts, or similar instruments, or (b) evaluating, for viewer's own internal business decisions or advice to viewer's customers, the movements or trends in markets for commodity futures contracts, options on commodity futures contracts, or like instruments, subject to all of the limitations set forth below in this paragraph as to the telephonic disclosure to customers of a necessary and de minimis number of segments of NYMEX Market Data. Viewer also agrees that he or she will not communicate or otherwise furnish, or permit to be communicated or otherwise furnished, NYMEX Market Data, in any format, to any other person, except that viewer may, in the regular course of his or her business, occasionally furnish, to each of viewer's customers, in a quantity restricted to that necessary to enable viewer to conduct viewer's business, a de minimis number of segments of NYMEX Market Data. Such redissemination must be strictly limited to telephonic communications not entailing the use of computerized voice synthesization or any other technology and must be strictly related to the trading activity of viewer (a) on his or her own behalf or (b) on behalf of his or her customers. 4. Viewer covenants, represents and warrants that it is not engaged in the business of distributing NYMEX Market Data. Viewer agrees that it will not use or permit any other person to use NYMEX Market Data for any illegal purpose. Viewer agrees that it will not use NYMEX Market Data in any way to compete with NYMEX or Host, nor use NYMEX Market Data in any way so as to assist or allow a third party to compete with NYMEX or Host. 5. DISCLAIMER OF WARRANTIES. VIEWER AGREES THAT NEITHER NYMEX NOR COMEX MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO NYMEX MARKET DATA, OR THE TRANSMISSION, TIMELINESS, ACCURACY OR COMPLETENESS THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE. 6. Viewer agrees that neither NYMEX, nor any of its affiliates, nor COMEX, nor any of their respective members, directors, officers, employees or agents, guarantees the sequence, accuracy or completeness of NYMEX Market Data, nor shall any of them be liable to viewer, any other individual, or any entity for any delays, inaccuracies, errors or omissions in NYMEX Market Data, or in the transmission thereof, or for any other damages arising in connection with viewer's receipt or use of NYMEX Market Data.
NYMEX Terms and Conditions of Use
Use of the eSignal Services is solely for Visitors' personal use and prior to any execution of a security trade based upon the eSignal Services, Visitors are advised to consult with their broker or other financial representative to verify pricing information. Other provisions that the Visitor agrees to are as follows: (i) Neither Constellation Energy, eSignal, their affiliates nor any third-party licensor shall have any liability for the accuracy or completeness of the information or software furnished through the this Service, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages; (ii) Either Constellation Energy, eSignal, their affiliates or third-party licensors have exclusive proprietary rights in any information and software received; (iii) Visitor shall not use or permit anyone to use the information or software provided through the this Service for any unlawful or unauthorized purpose; (iv) Visitor is not authorized or permitted to furnish such information or software to any person or firm for reuse or retransmission without prior written approval of the source of such information or software;
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