Platform Terms & Conditions

Last updated: April 24, 2024

Platform Terms & Conditions

These Terms of Use (the “Terms”) are applicable to your use of the software platform and associated services provided to you by Texture Corporation (together with its affiliates, “Texture,” “we,” or “us”).

Please read these Terms carefully. By clicking “Accept”, “I Agree”, or a similar checkbox or button referencing these Terms, or by continuing to use the Platform or Services (as defined below), you indicate your acceptance of these Terms. If you do not agree, please do not proceed with, or promptly discontinue, your use of the Platform and Services.

IMPORTANT: THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION IN SECTION 9 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THIS MEANS THAT YOU AND TEXTURE ARE EACH GIVING UP RIGHTS TO SUE EACH OTHER IN COURT, A TRIAL BY JURY, OR IN CLASS ACTIONS OF ANY KIND.

WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS: WHILE THERE ARE IMPORTANT POINTS THROUGHOUT THESE TERMS, PLEASE NOTE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS ON TEXTURE’S LIABILITY ARE EXPLAINED IN SECTIONS 10 AND 11.

SUBSCRIPTION SERVICES: TEXTURE WILL PROVIDE THE PLATFORM AND/OR SERVICES TO YOU IN ACCORDANCE WITH THESE TERMS WITHOUT ANY CHARGE UNTIL YOUR USAGE LEVEL REACHES THE THRESHOLD DEFINED IN SECTION 5. UPON REACHING THE USAGE THRESHOLD DEFINED IN SECTION 5 YOU WILL PROMPTLY PERFORM THE ACTIONS LISTED IN SECTION 5 TO PURCHASE SERVICES, FAILING WHICH WE MAY SUSPEND OR TERMINATE YOUR ACCESS TO THE PLATFORM AND SERVICES.

1. General Provisions

1.1 Definitions

“Content” means descriptions, information, and materials (including page headers, images, text, illustrations, formats, logos, hashtags, designs, icons, photographs, software programs, audio clips or downloads, video clips, and written and other materials) that are made available to you through, or in connection with, the Platform or the Services.
“De-identified Data” means information that (a) does not identify a specific natural person, (b) does not identify, by network internet protocol address, raw hardware serial number, or raw MAC address, a specific computing device associated with or used by a person, (c) does not identify you, and (d) is not reasonably linkable to a specific natural person due to technical, legal, or other controls.
“Intellectual Property Rights” means any and all intellectual property rights, including registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, utility models, rights in designs, copyrights, moral rights, topography rights, database rights, trade secrets, trademarks, service marks, trade names, domain name rights, know-how, rights of confidence, or other intellectual property rights, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world.
“Platform” means the website made available to you by Texture (currently located at www.texturehq.com or any successor website), all sub-domains including any sections of the website that are access-restricted or behind a “pay-wall” (“Site”), mobile versions or renderings of the Site, and any associated mobile application, if any (“App”).
“Pricing Page” means the webpage currently located at www.texturehq.com/pricing, or a successor webpage, as may be updated by Texture from time to time.
“Services” mean all services offered by Texture through the Platform, including, without limitation, the ability to connect to, read and analyze data from, as well as monitor and respond to events from, users’ energy assets (such as batteries, thermostats, electric vehicle chargers, solar chargers, etc.) to enable control and optimization of energy consumption.
“Third-Party Materials” means any third-party software, products, materials, or content that is made available to you by Texture, including through the Platform.
“Your Information” means any:
1. Information, data, material or other content that you upload or transmit to the Platform, or otherwise provide to us, in connection with creation of your Platform account, and
2. Information related to you (including the location at which you are using the Services), any devices you connect to the Platform, and your operation and use of the Platform and Services, that is collected by us in course of providing the Platform and Services to you.

1.2 Updates to these Terms

Texture may update these Terms at any time by providing reasonable prior notice to you and asking you to re-confirm your acceptance using any suitable means. Texture may notify you of the updated Terms by posting the revised Terms on the Site or the App, or by other reasonable means. The updated Terms will apply to your use of the Platform and Services after the date on which Texture posts or otherwise notifies you of those changes. By confirming your acceptance of the updated Terms, or by continuing to use or access the Platform or Services after we post or notify you of any change, you agree to abide by the updated Terms. The “Last Updated” legend at the end of these Terms indicates the date on which these Terms were last updated.

1.3 Other Terms

Your access to the Platform and Services may also be subject to the terms of other documents entered into by you and Texture, including an Order Form and Supplements, as applicable, including pursuant to Section 5.

2. User Consents

2.1 Your Information

You understand and acknowledge that we may collect, store, and use Your Information in connection with your use of the Platform and Services, for operational management of the Platform, to make improvements, or as reasonably necessary to comply with applicable law. You are solely responsible for providing any required notices, obtaining any required consents, and otherwise fulfilling any legal obligations applicable to any information relating to individuals that is contained within Your Information.

You hereby grant Texture a perpetual, irrevocable, worldwide, fully paid-up, royalty-free, sublicensable, and transferable license and right to use, copy, display, modify, and distribute Your Information as needed for operation of the Platform and the Services, or to make improvements. Any alterations, changes, modifications, enhancements, additions, restructuring, or deletions made to, or derivatives of, Your Information will be the sole and exclusive property of Texture, together with all Intellectual Property Rights.

Further, you agree that Texture may collect, compile, analyze and otherwise use de-identified statistical data prepared using Your Information (including your use of the Platform and Services), as well as other data that qualifies as De-identified Data related to you for any business purpose (collectively, “Analytics”). Texture is not obligated to pay you for its use of Analytics, and Analytics are not subject to confidentiality or data deletion requirements.

2.2 Electronic Communication

You agree to receive electronic communication from Texture via text, email, and messages posted to the Platform. You agree that any such communication from Texture satisfies any legal requirement that such communication be in writing. You also agree that any communications or materials you provide to Texture (by posting to the Platform, email, or otherwise) will be treated as non-confidential and non-proprietary. Any notice you provide to Texture must be in accordance with Section 13.

3. Your Representations

You represent and acknowledge that:

You have the legal power and authority to agree to these Terms, are at the age of majority in your jurisdiction of residence, and have the legal capacity to enter into contracts;
If you are accessing and/or using the Platform or Services on behalf of another person or a business, you have the authority to agree to these Terms on behalf of such person or business;
You will only use the Platform and Services for their intended use, and in accordance with any provided documentation;
You will not access or use the Platform or Services in a manner that violates any applicable law;
You are not located in a country subject to a U.S. government embargo or designated as “terrorist supporting,” nor are you listed on any government list of prohibited or restricted parties;
You will not upload to the Platform any content or materials that are misleading, abusive, obscene, offensive, threatening, harassing, promote violence or illegal activities, or are otherwise inappropriate;
You will not upload content containing software viruses or any other computer code that may interrupt or destroy the functionality of any computer software or hardware;
You will not sell, rent, transfer, or provide third parties with your access to the Platform or Services, nor will you use any spiders, crawlers, or data mining tools to access any Content;
You will not modify, reverse-engineer, or decompile the Platform or Services;
You will not use the Platform or Services in a way that could damage or adversely affect the Platform or Texture servers, circumvent usage limits, or violate security measures;
You have the right to share any data you submit to the Platform, and you are responsible for complying with all applicable laws related to such data;
If you permit any of your customers, employees, contractors, or agents (“Authorized Users”) to access the Platform or Services, you will ensure those Authorized Users comply with these Terms and will be liable for their acts or omissions.

4. Access Credentials

4.1 Account Setup

To use the Platform and/or the Services, you may be required to create an account and associated access credentials. You are solely responsible for maintaining the confidentiality of your credentials, and for any activities that occur under them. You agree to notify Texture immediately of any unauthorized use of your credentials or security concerns. Texture may use additional security measures, such as multi-factor authentication. Texture reserves the right to revoke, suspend, or terminate your access at any time with or without cause.

4.2 Account Conditions

When registering, you will:

Provide true, accurate, current, and complete information, and
Maintain and promptly update such information.

We reserve the right to refuse to activate your account, or to suspend or terminate it if we suspect the information is untrue or incomplete, or if your account is involved in fraudulent or illegal activity, or otherwise poses a risk to the Platform.

5. Network Sizing

Typically, users begin at the “Starter” usage level. If your usage reaches the “Liftoff” level (as described on the Pricing Page), you must provide a payment method to pay the fees noted on the Pricing Page to continue using the Platform and Services. Texture will notify you when your usage reaches this level.

Normalized grid capacity is used to measure usage, at Texture’s sole discretion. Examples:

Device Class 1 (1kW each): thermostat, solar inverter, meter, pool pump
Device Class 2 (2kW each): Level 1 charger, heat pump, water heater
Device Class 3 (3kW each): Level 2 charger, EV, battery
Device Class 4 (20kW each): Level 3 charger

If your usage of the Platform reaches the “Scale” level, Texture will notify you. At that point, you must enter into an Order Form for custom pricing. If you fail to provide a payment method or enter into an Order Form upon notice, Texture may suspend or terminate your access.

6. Payments

If you are required to make any payments to Texture for use of the Platform or Services, payments are processed monthly in arrears (invoiced on the first day of each month). Upon reaching a paid tier (Liftoff, Growth, Scale), you commit to a 12-month term, which automatically renews unless you provide 30-day notice prior to expiration.

When upgrading to a paid tier, you will be prompted to enter payment information. You authorize Texture (or its agent) to automatically charge your payment method for:

The applicable subscription fees (one time and recurring),
All applicable taxes,
Any other charges incurred for professional services received under a separate agreement or SOW.

Past-due payments accrue interest at 1.5% per month or the maximum amount allowed by law, whichever is less. All payments are non-refundable, and you are responsible for all taxes except those on Texture’s income.

7. Term and Termination

These Terms become effective when you accept them and continue for the duration of your use of the Platform or Services. Texture may terminate your access at any time in its sole discretion. Texture may also change, restrict, or suspend access to the Platform, modify or remove Services, and add or remove functionality at any time without notice.

If you terminate within the 12-month period, a two-month termination fee (equal to your monthly pricing tier) applies. Upon termination or account deactivation, any stored information (including Your Information) is deleted. You will no longer be able to view or retrieve it.

8. Ownership

Texture retains all right, title, and interest—including all Intellectual Property Rights—in and to:

The technology or materials used for or incorporated into the Platform,
All Content,
The Services, and any modifications, enhancements, or derivatives thereto.

You will not copy or reproduce any Content or use any Texture branding, logos, or marks without Texture’s written consent.

Any feedback you provide regarding the Platform, Content, Services, or our operations becomes our sole property, and you hereby assign all rights in such feedback to Texture.

9. Disputes and Governing Law

9.1 Governing Law

All disputes in connection with the Platform, Services, or these Terms shall be governed by the laws of the State of New York without regard to conflict of laws principles.

9.2 Dispute Resolution

You and Texture agree to provide written notice of disputes to the other party and attempt good-faith resolution. If unresolved after 30 days, either party may opt for individual, non-representative, binding arbitration in English administered by JAMS under JAMS Streamlined Arbitration Rules. The arbitrator may conduct hearings by teleconference or videoconference. In-person hearings (if any) will occur in New York County, New York. Each party bears its own costs.

9.3 Waiver of Right to Jury Trial and Class Action

YOU AND TEXTURE EXPRESSLY WAIVE THE RIGHT TO GO TO COURT, A JURY TRIAL, AND PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS. Texture may seek relief in court to protect its Intellectual Property Rights without waiving the right to arbitration.

10. No Warranties

THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOU USE THEM AT YOUR OWN RISK. TEXTURE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT.

TEXTURE DOES NOT GUARANTEE THAT THE PLATFORM, SERVICES, OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. TEXTURE MAKES NO WARRANTY REGARDING THE CONFIDENTIALITY OR SECURITY OF YOUR DATA, OR ANY THIRD-PARTY MATERIALS.

NOTHING ON THE PLATFORM SHOULD BE TREATED AS PROFESSIONAL FINANCIAL, TAX, OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR ANY CONSEQUENCES OF RELIANCE ON CONTENT OR TRANSACTIONS MADE THROUGH THE PLATFORM.

11. Liability Limitations

TO THE FULLEST EXTENT ALLOWABLE, TEXTURE IS NOT LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES—INCLUDING PERSONAL INJURY OR UNAUTHORIZED DISCLOSURE OF DATA—RESULTING FROM YOUR USE OR INABILITY TO USE THE PLATFORM OR SERVICES. TEXTURE’S MAXIMUM AGGREGATE LIABILITY WILL NOT EXCEED THE GREATER OF (I) $500 OR (II) THE FEES PAID BY YOU TO TEXTURE IN THE 12 MONTHS PRIOR TO YOUR INITIAL CLAIM.

California Residents: You waive California Civil Code § 1542 (or similar laws in your jurisdiction).

12. Your Indemnification

Except as prohibited by law, you agree to indemnify and hold harmless Texture and its affiliates, licensors, suppliers, and respective officers, directors, employees, consultants, and agents (the “Indemnified Parties”) from any claims, liabilities, damages, losses, or fees (including reasonable attorneys’ fees) arising from:

Data or information you submit to the Platform (including Your Information),
Your use of the Platform or Services,
Your violation of these Terms or applicable law,
Your violation of anyone’s rights.

13. Notices

You may provide notice by emailing legal@texturehq.com. Notice is deemed delivered upon electronic read receipt or confirmation from Texture.

14. Severability

If any part of these Terms is deemed illegal, invalid, or unenforceable, it will be considered removed, and the remainder of the Terms will remain in effect.

15. No Third-Party Beneficiaries

Nothing in these Terms is intended to create any third-party beneficiary rights.

16. Survivability

Provisions that logically continue beyond termination (including indemnification and liability limitations) shall survive.

17. Assignment

You may not assign your rights or obligations under these Terms without Texture’s prior written consent. These Terms are binding on and inure to the benefit of the parties and their successors or permitted assigns.

18. Publicity

Texture and you each grant to the other a non-exclusive, royalty-free license to use and display the other’s name, trademark, or logo in customer lists, advertisements, or other marketing materials, provided each party ceases such usage upon a written request from the other.

19. Apple iOS

If you use the App on an Apple device:

Apple is not a party to these Terms, but Apple and its subsidiaries are third-party beneficiaries;
Texture, not Apple, is responsible for addressing any claims you have relating to the App, including product liability, regulatory compliance, or consumer protection claims;
Apple has no obligation to furnish maintenance or support for the App;
If the App fails to conform to any warranty, you may notify Apple for a refund of the subscription fee. Apple has no other warranty obligation;
In the event of a third-party intellectual property claim against the App, Texture is responsible for investigation, defense, and discharge of such claim.

20. International Use

We make no representation that materials on the Platform or Services are appropriate or available outside the U.S. or E.U. Accessing them where they are illegal is prohibited. You are responsible for compliance with local laws if you access from outside these territories.

You will not export or re-export the Platform or Services to any prohibited entity or location under U.S. export laws.

Last Updated: April 24, 2024