Drift Marketplace Terms of Use and Customer Subscription Agreement

Last updated: January 22, 2019

This Terms of Use and Customer Subscription Agreement ("Terms") apply to your access to and use of the websites (including online portals and dashboards) as well as products and services (collectively, our "Services") offered by Drift Marketplace, Inc. ("Drift," “our,” “us” or "we"). By clicking to indicate your acceptance of these Terms or otherwise accessing and using our Services, you agree to these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 19, do not access or use our website to order, receive, or purchase our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.

These Terms do not alter in any way the terms or conditions of any other agreement you may have with us or our subsidiaries or affiliates for products, services, or otherwise. We may make changes to these Terms from time to time. If we make changes, we will provide notice of such changes under one of the following methodologies: by sending an email notification, providing notice through our Services, or posting the amended Terms to our Services and updating the "Last Updated" date above. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.

If you have any questions about these Terms or our Services, please contact us at info@joindrift.com.

  1. Eligibility

    You must be at least 18 years of age to access or use our Services. By using the Services, you also represent and warrant that you (a) either own or live on the property where any Services will be provided, (b) have full power and authority to enter into these Terms and that in so doing, will not violate any other agreement to which you are a party, and (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services.

  2. Additional Terms

    In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products, services, or the jurisdiction of the property receiving Services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product, or services.

  3. User Accounts and Account Security

    You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account.

  4. Electronic Communications

    By creating a Drift account, you also consent to receive electronic communications from Drift (e.g., via email or by posting notices on our Services). These communications may include notices about your account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.

  5. Privacy

    Please refer to our Privacy Policy at https://joindrift.com/privacy-policy for information about how we collect, use and disclose information about you.

  6. Third Parties

    In order to supply certain of our Services, interaction with third parties on your behalf is required, in such instances, you designate Drift as your agent to (a) negotiate, enter, and administer agreements between you and such third parties, (b) initiate, manage, and maintain accounts on your behalf with such third parties and (c) perform any other actions as provided within these Terms or any additional terms.

  7. Custom Impact Plan

    When you sign up for the Custom Impact Plan monthly subscription, you create an agreement between you and Drift for the purchase and sale of Customer Impact Renewable Energy Credits (“CI RECs”). Subject to these Terms, Drift agrees to sell and deliver, and you agree to purchase from Drift and accept from Drift, the quantity of CI RECs identified in your online subscription as of [the effective date of your enrollment, and on a monthly-basis thereafter. The cost of each CI REC is based on type of renewable power generation, location, supply and other market factors, and may fluctuate on a month-to-month basis.

    If you make a one-time purchase through the Custom Impact Plan, Drift agrees to sell to you, and you agree to purchase, the quantity of CI RECs equal to the amount of impact you indicated.

    By selecting the Custom Impact Plan, you are supporting the development of clean energy resources in New York State and elsewhere. Drift purchases physical power and/or the associated REC (as defined below) directly from local zero-emissions renewable power generators, such as a hydro, wind or solar generation facilities. Drift may also purchase RECs generated by renewable power resources that participate in the wholesale commodity markets administered by the New York Independent System Operator (“NYISO”). A REC is defined as a certificate, credit, allowance, green tag, or other transferable indicia, howsoever entitled, created by an applicable program or certification authority indicating generation of a particular quantity of energy or product associated with the generation of a megawatt-hour from a renewable energy source by a renewable energy project. RECs are also known as Green tags, Renewable Energy Certificates, Tradable Renewable Certificates, and Clean Energy Credits. RECs are tradable, non- tangible energy commodities in the United States that represent proof that 1 megawatt-hour (MWh) of electricity was generated from an eligible renewable or clean energy resource and was fed into the shared system of power lines which transport energy.

  8. Billing & Payment
    1. Continuous Subscriptions Paid for by Credit, Debit, or Other Electronic Payment Methods. For customers who select a continuous monthly subscription, your obligation of payment begins as of the date of your confirmation of purchase via Drift’s online portal, and automatically renews on a monthly basis thereafter. You are responsible for paying the amount you selected until you cancel your continuous subscription. When you register for a CIP Subscription, you expressly acknowledge and agree that (a) Drift (or our third party payment processor) is authorized to charge you for your CIP Subscription (in addition to any applicable taxes and other charges) for as long as your CIP Subscription continues, and (b) your CIP Subscription is continuous until you cancel it or we suspend or stop providing Services or access to your account in accordance with these Terms.

    2. One-time Purchase Paid for by Credit, Debit, or Other Electronic Payment Methods. If you select the one-time purchase option, you will be responsible for paying Drift at the time of your online purchase. When you make a one-time purchase of a CIP Subscription, you expressly acknowledge and agree that Drift (or our third-party payment processor) is authorized to charge you for the CI REC quantity selected by you (in addition to any applicable taxes and other charges).

    3. Late Charges. In the event that a payment is not timely made, or the credit card or debit card issuer does not authorize the payment, Drift may impose a late payment charge equal to the greater of 1.5% per month or the maximum amount allowed by applicable law, of the amount overdue, which shall commence as of the date when payment was due and continue to accrue until the payment and all late charges are fully paid.

  9. CIP Subscription Cancellation Policy

    Unless otherwise provided in these Terms or in additional terms, you may cancel your CIS Subscription at any time by contacting us through the Support Request section of your Drift account dashboard or by calling 844-292-9295. While your subscription is active, charges (including any applicable taxes and other charges) will show up as “Order Processed” on your Drift account dashboard. Any order identified as “Order Processed” on your Drift account dashboard must be paid. You will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to any CIP order processed prior to the cancellation of your CIP Subscription. In the event you cancel your CIP Subscription, please note that we may still send you promotional communications about Drift, as permitted by Drift’s Privacy Policy, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein. Drift has rights to terminate these Terms and your use of the Services. These rights are in Section 21 of these Terms.

  10. Prohibited Conduct and Content when Using Drift’s Services

    The content, material and information provided with the Services is intended to be used for authorized purposes only, as detailed in these Terms, and any other use is specifically prohibited. You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct, while accessing or using our Services. You will not:

    • Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
    • Use or attempt to use another user’s account without authorization from that user and Drift;
    • Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
    • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
    • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
    • Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
    • Bypass or ignore instructions contained in our robots.txt file, accessible at https://joindrift.com/robots.txt, that controls automated access to portions of our Services; or
    • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

  11. Limited License; Copyright and Trademark

    Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the "Drift Content") are owned by or licensed to Drift and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, Drift and our licensors reserve all rights in and to our Services and the Drift Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and Drift Content for your own personal, commercial and industrial use in connection with your use of the Services, however, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or Drift Content; (b) copy, reproduce, distribute, publicly perform or publicly display Drift Content, except as expressly permitted by us or our licensors; (c) modify the Drift Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or Drift Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or Drift Content other than for their intended purposes. Any use of our Services or Drift Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

  12. Claims of Copyright Infringement

    Drift respects the rights of all copyright holders. If you believe that work has been copied in a way that constitutes copyright infringement, please provide the following information to the copyright contact listed below: (A) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (B) Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (C) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (D) Information reasonably sufficient to permit us to contact the complaining party; (E) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (F) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    Copyright contact information: Drift Marketplace, Inc., 815 1st Ave #325, Seattle, WA 98104, Attn: General Counsel; and info@joindrift.com..

  13. Feedback

    Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Drift, or our products or Services (collectively, "Feedback"), is non-confidential and will become the sole property of Drift. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

  14. Indemnification

    To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Drift, our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the "Drift Parties") from and against any loss, liability, claim, demand, damages, expenses or costs ("Claims") arising out of or related to (a) your access to or use of our Services; (b) your Feedback; (c) your violation of these Terms; or (d) your conduct in connection with our Services or the purchase, sale, provision, receipt or use of any of our Services. You agree to promptly notify the Drift Parties of any third-party Claims, cooperate with the Drift Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Drift Parties will have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Drift Parties.

  15. Disclaimers/Limitation of Warranties

    We do not control, endorse or take responsibility for any User Content or third-party content available on or linked to by our Services.

    Your use of our Services is at your sole risk. Drift makes no representations or warranties regarding our Services other than those expressly set forth in these Terms or in additional terms provided in writing by Drift. OUR SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. TO THE GREATEST EXTENT ALLOWED BY LAW, DRIFT DISCLAIMS ANY WARRANTY REGARDING THE SERVICES. IN ADDITION, DRIFT DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE DRIFT ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.

  16. Limitation of Liability

    To the greatest extent allowed by law, Drift specifically disclaims any liability for any damages arising out of or in any way connected with your access to or use of the Services. The Drift Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, incidental, or special damages or lost profits, even if the Drift Parties have been advised of the possibility of such damages.

    Unless otherwise provided in these Terms or in any additional terms, the total liability of the Drift Parties, for any claim arising out of or relating to these Terms, our Services, regardless of the form of the action, is limited to the single largest monthly invoice amount you paid to Drift in the twelve (12) months immediately prior to when the Claim arose. 

    The limitations set forth in this section will not limit or exclude liability for personal injury, death or property damage caused by the Services or for the gross negligence, fraud or intentional, willful, malicious or reckless misconduct of Drift or the other Drift Parties.

  17. Release

    To the fullest extent permitted by applicable law, you release Drift and the other Drift Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

  18. Transfer and Processing Data

    By accessing or using our Services, you consent to the processing, transfer and storage of information about you in the United States, in accordance with Drift's Privacy Policy and other countries, where you may not have the same rights and protections as you do under local law.

  19. Dispute Resolution; Binding Arbitration

    Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Drift and limits the manner in which you can seek relief from us.

    Except for (a) small claims disputes in which you or Drift seek to bring an individual action in small claims court located in the county of your billing address, (b) disputes in which you or Drift seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, or (c) claims or disputes related solely to billing for the provision and delivery of Services, you and Drift waive your respective rights to a jury trial and to have any dispute arising out of or related to these Terms, the Services, or the provision, delivery or use of the Services resolved in court. Instead, except as excluded in the preceding sentences, all disputes will be resolved through confidential binding arbitration held in King County, Washington (or, alternatively, via telephone or video conference) in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

    You and Drift agree that any dispute arising out of or related to these Terms, the Services, or the provision, delivery or use of the Services is personal to you and Drift and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

    You and Drift agree that these Terms affect interstate commerce and that the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Drift agree that for any arbitration you initiate, you will pay the filing fee and Drift will pay the remaining JAMS fees and costs. For any arbitration initiated by Drift, Drift will pay all JAMS fees and costs. You and Drift agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

    Any claim arising out of or related to these Terms, the Services, or the provision, delivery or use of the Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Drift will not have the right to assert the claim. 

    You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 19 by emailing info@joindrift.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with this Section 19.

  20. Governing Law and Venue

    Unless otherwise provided for in additional terms, these Terms, the Services, or the provision, delivery or use of the Services will be governed by and construed and enforced in accordance with the laws of Washington, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County and Washington.

  21. Termination

    We reserve the right, without notice and in our sole discretion, to terminate your right to access our Services. In no event are we responsible for any loss or harm related to your inability to access or use our Services.

  22. Severability

    If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

  23. Force Majeure

    Drift will make commercially reasonable efforts to provide you with access to the Services you request, but Drift does not guarantee continuous access to the Services or a continuous provision of Services to you. Certain causes and events out of our control (as defined below, "Force Majeure Events") may result in interruptions to the Services. In the event that Drift is rendered unable, wholly or in part, to perform its obligations under these Terms due to events not reasonably anticipated or within our control, Drift will not be liable for any interruptions caused by a Force Majeure Event, and Drift is not and shall not be liable for damages caused by Force Majeure Events. Force Majeure Events include acts of God, fire, flood,, storm, terrorism, war, civil disturbance, acts of any governmental authority, accidents, strikes, labor disputes or problems, required maintenance work, inability to access the local distribution utility system, curtailment by your local distribution utility or Drift’s transportation capacity, the local distribution utility company’s appropriation of energy or power services or supplies, non-performance by the local distribution utility company (including, but not limited to, a facility outage on its energy or power distribution lines or electric facilities), or any other cause reasonably beyond Drift’s control. 

  24. Miscellaneous

    These Terms, including any additional terms as applicable, constitute the entire agreement between you and Drift relating to your access to and use of the Services. The failure of Drift to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

  25. Telephone Communication

    You agree that by accepting this Agreement and providing to Drift, your phone number, which can include a landline and or/mobile number, Drift, its affiliates and/or assigns may call and/or text you with autodialed and/or pre-recorded information.

  26. Assignment

    Customer may not assign its interests in and delegate its obligations under these Terms without the express written consent of Drift. Drift may sell, transfer, pledge, or assign the accounts, revenues, or proceeds hereof, in connection with any financing agreement or receivables purchase program and also may assign this Agreement to another entity reasonably deemed to be capable of fulfilling Drift’s obligations with written notice to Customer (which notice may be prior or after the assignment, and shall be in accordance with any applicable notice period required by law).

  27. Regulatory Changes

    This Agreement is subject to present and future legislation, orders, rules, regulations or decisions of a duly constituted governmental authority having jurisdiction over this Agreement or the services to be provided hereunder. If at some future date there is a change in any law, rule, regulation, tariff, acts of any governmental authority, or regulatory structure (“Regulatory Change”) which impacts any term, condition or provision of Services provided under these Terms, including, but not limited to price or environmental attributes, Drift shall have the right to modify this Agreement to reflect such Regulatory Change by providing 30 days’ written notice of such modification to the Customer.