These Terms of Service (“Agreement”) is entered into between Realpage Utility Management Inc. (“dba SimpleBills”) and/or one of its subsidiaries (“Company”) and the tenant(s) of any residential property (“Residence”) who elect to use the utility management service (“Service”). Tenants may be individually or collectively referred to as “Customer(s)”. Company acts as an authorized party on Customer’s behalf and payee to the utility provider for the utility account holder (“Account Holder”), which can either be a Property under the Standard Model or an individual Customer under the Optional Model.
Company may have an agreement with the property management of the community in which Customer resides (“Property”) applicable to Customer’s use of Company’s Services under this Agreement. The type of Service provided by Company and accompanying requirements or obligations assumed by the parties will vary depending on whether a Customer subscribes to the “Standard Model” (defined as the collection and payment of certain utility fees on behalf of the Property as Account Holder ) or the “Optional Model” (defined as the collection and payment of certain utility fees on behalf of the tenant as Account Holder).
This Agreement will be effective upon the submission of a complete and accurate application by Customer on Company’s website (“Application”). Upon Company’s acceptance of Customer’s Application, which registers Customer in Company’s system and recorded by Company (the “Effective Date”), Customer will become eligible to receive the Services. This date may differ from the dates on the Application where Company assumes utility billing and other responsibilities set forth below (“Start Date”) and the date Company will no longer provide a service except to fulfill responsibilities defined herein (“End Date”). Property will have the authority to make limited changes to Customer’s account, which will include changing the Start Date, End Date, Customer contact information and utility bill division.
Customer agrees to adhere to and abide by any additional policies posted on Company’s Internet site. Company may revise this Agreement at any time by providing Customer with 30 calendar days’ written notice or by posting any changes on Company’s website.
In consideration of the mutual promises, covenants and conditions contained herein, the parties agree as follows:
The Term of this Agreement will commence upon the Effective Date and will continue to the End Date as described above. This Agreement will not renew for consecutive subsequent renewal periods unless agreed upon in writing by Company and Customer in accordance with the terms set forth in this Agreement (initial term and subsequent renewal terms are referred to herein as “Term”).
2. Service Requirements
In Texas de-regulated markets, either Company or Property will be the Account Holder for electricity.
Customer must meet the following minimum requirements to use Service: (a) valid email address, (b) internet access and (c) a current and valid accepted payment method (“Payment Method on File”) as described in Section 14, and be 18 years of age or older.
3. Account Access
Company will provide Customer with one user name and password combination to access their account on Company’s website. If Customer shares their account access to any third party, Customer agrees to be responsible for: (a) assuring that any person accessing the account agrees to and complies with these Terms of Service; and (b) any acts or omissions of that third party.
4. Payment Obligations of Customer
At least once per month, Company will invoice Customer (“Bill Date”). Customer will pay Company the full amounts that Company invoices to Customer. Under the Optional Model, if Customer fails to make any payments due under this Agreement within the amount of days stated on the bill when due, (“Due Date”), then Company may, under its sole discretion, immediately cancel this Agreement, and Company will have no further obligations under this Agreement, including, but not limited to, payment of any utility bills received from a utility provider on behalf of Customer. Failure of Company to exercise this option at any time will not constitute a waiver of Company’s right to do so. If Customer pays by any method other than a Company-registered payment method, the payment must be received by the Company or postmarked by the Due Date. Any portion of the invoice not paid by the Due Date will accrue a late fee on the outstanding balance, as further described under Section 21.
5. Final Billing Procedure
With regard to calculation of Tenant’s final bill under the Standard Model, should Property require Company to estimate a final utility bill, Company will provide an estimated final bill to Customer based on Customer usage from previous months of utility service, historical data and weather factors. Customer agrees to pay Company this final estimated bill before the End Date of the Term. Customer can contact Company at the email identified on Company’s website to true-up the final estimated bill with the final actual bill. If the estimated final bill is higher than the actual bill, Company will obtain the Customer’s current address and issue a refund check to Customer mailed to that address. If the estimated final bill is less than the actual bill, Company will make arrangements for Customer to cover any shortfall between the estimated final bill and actual bill amounts. Any balance left unpaid by Customer as a result of this true-up process may be sent to an outside collections agency. If Property does not require an estimated final utility invoice, Customer agrees to pay the final invoice, which will consist of all utility charges received for the final month of utility service, and may be received by Customer after the End Date of the Term.
6. Designated Bill Payor
Company acts as the designated bill payor for each utility provider servicing Customer and by Customers agreeing to this Agreement, Company will receive Customer’s utility bills and pay the utility providers.
7. Utility Payment
Customer may be obligated under Customer’s residential lease agreement to be responsible to pay for all utility bills. Account Holder has delegated authority to Company to pay the utility bills and to collect utility payments from Customer.
8. Responsible Party
The utilities are either in the Account Holder’s name or, if Company has a bill-paying relationship with an electric utility in Texas de-regulated areas, in Company’s name. Customer is responsible for abiding both with Customer’s prior agreements with Property and the terms of this Agreement.
9. Responsibility for Termination
The Account Holder is responsible for the termination of all utility services at the Residence. If electricity services in Texas de-regulated areas are in the name of the Company, then Company is responsible for the termination of the electricity service at the Residence. Under the Optional Model Under the Optional Model, Company will terminate electricity service on the first business day following the final day of Customer’s Term. Should Customers at the same residence have different end dates, Company will use the last end date of any Customer as the final day of the term.
10. Cost of Service
The cost of Service will be determined by the Payment Method on File and the Customer’s geographic location: (a) In Texas de-regulated areas, (i) if the Customer elects ACH as the Payment Method on File, Company will pass along to Customer the rates charged by each utility service provider on Customer’s account without additional charge or fee, and (ii) if the Customer elects use of a credit card or debit card as the Payment Method on File, Company will pass along to Customer the rates charged by each utility service provider on Customer’s account for a monthly fee identified on the Application’s registration page; or (b) In all other areas, depending on Customer’s geographic location and Company’s agreements with Property, Company will pass along to Customer the exact invoice amounts charged by each utility service provider on Customer’s account for the monthly fee identified on the Application’s registration page. The cost of Service will also include fees charged for additional services (such as, Customer bill-splitting per residence, analytics and comparisons of utility charges, bill notifications and reminders of payment, customer service/call center support, general utility management and help center information), penalties and any costs of recovery for delinquent payments, as specified in this Agreement.
11. Authorized Utility Providers
If utilities are set up by Account Holder, Customer must use the utility provider providing services to Account Holder. Under the Optional Model: all customers living in Texas deregulated areas must register with Company for electric service. Company has a preferred electric provider that must be used. Customer will designate which services are desired during the initial sign-up period. Such services will fall under the terms of this Agreement. Company has the right to refuse any utility provider.
12. Electricity Service
The following two paragraphs will apply only to Customer’s using the Texas De-regulated Model under the Optional Model.
(a) Customer appoints Company to serve as Customer’s agent and attorney-in-fact (with the full power and ability to act on behalf of Customer) during the Term of this Agreement for all purposes relating to Customer’s relationship with Company’s preferred electric provider, including, but not limited to (i) the taking of any action expressly authorized or contemplated by this Agreement, (ii) the receipt, on behalf of Customer, of any bills, notices, disclosures or other communications from Company’s preferred electric provider, and (iii) the taking of any other action reasonably necessary and related to Company’s preferred electric provider providing electric utility service to Customer. Company’s preferred electric provider will be entitled to rely upon this appointment of Company as agent and attorney-in-fact, and Customer agrees to be bound by all actions taken by Company in connection with the provision of electric utility service to Customer by Company’s preferred electric provider.
(b) Customer agrees to use electricity service through Company’s preferred electric provider. Company will register for the electricity service and retain the account in its name, as agent and attorney-in-fact of Customer. Company will obtain a unique Company-only electricity rate which will only be available to Customers using Company’s service. Should Customer decide to terminate Company’s service as provided herein, Company will have the right to cause the disconnection of Customer’s electricity meter upon three (3) calendar days advance written notice following termination of this Agreement. If such a day is not a business day, then the following business day will be used for all such purposes. Company will automatically cause the disconnection of Customer’s electricity meter on the first business day following the final day of Customer’s term unless Company is provided advance written notice not to do so.
13. Termination of Electric Service
This paragraph will apply only to Customers using the Texas De-regulated Model. Company will have the right to cause the disconnection of the electricity meter of any Customer who is in default under the terms of this Agreement.
14. Payment Options
As a minimum requirement for using Service, Customer must leave an accepted Payment Method on File with Company. Acceptable Payment Methods on File include the following: credit card, debit card, or bank account. Customer is not required to pay using Payment Method on File, but can pay with any of the following methods: check, money order, credit/debit card, recurring or one-time bank bill-payment, or bank draft. Customer may exchange Payment Method on File at any time, but Customer agrees that Payment Methods on File will not be removed unless immediately replaced by a different Payment Method on File. If Customer elects to pay by check, Company will retain the account information contained on the check until this Agreement is terminated, and Customer authorizes Company to withdraw payment in the event Customer does not provide payment. If Customer elects to use an optional recurring automatic payment, Customer authorizes Company to automatically withdraw payment from its credit/debit card or bank account on or about the sixth (6th) calendar day following the Bill Date each month for the amount of the Customer’s invoice. In the event Company does not receive payment from Customer by Customer’s Due Date, Company will withdraw payment from Payment Method on File. By agreeing to these Terms of Service, Customer expressly authorizes Company to charge Customer’s Payment Method on File for any unpaid Individual Balance until this agreement expires or is terminated, and any unpaid Group Balance (as defined in Section 15), unless Company and Property have a separate agreement in place to handle in a separate manner. The previous statement is explicitly intended to include but is not limited to balances that have been invoiced after Customer has begun the process of cancelling Service. All payments are non-refundable, except deposits as described herein. Please note that to revoke your authorization of your payment method and cancel any scheduled draft to your account, Customer must contact Company at the number and/or email located on Company’s website to request revocation at least 3 business days prior to a scheduled draft. Changes received by Company after this period may be delayed until the following Bill Day. In addition, Customer agrees to replace their Method of Payment on File with another form of payment. For single payments made online, to revoke your authorization of your payment method or cancel this payment, Customer must contact Company at the number and/or email located on Company’s website within 24 hours of initiating the payment.
15. Utility Bill Division
Under the Optional Model, Customers have the opportunity to divide utility bills between the Customers living in the same Residence (each Customer tenant will be referred to as a “Roommate(s)”). All bills for a single Residence will be added together (the “Group Balance”) for the Residence and assessed against all Customers at the Residence. Customer will be primarily responsible for and pay to Company each month its proportional share of the Group Balance. All bills for the Residence will be pro-rated and divided on a per-Customer, per-day basis. The pro-ration calculation will be determined by adding up the number of days each Customer is present in the Residence for the usage dates of each utility bill. The total days for each Customer will be divided by the total days of all Customers occupying the Residence to determine the schedule of days each Customer occupies the Residence. This portion will be multiplied by the total bill amount to itemize the cost attributable to each Customer in the Residence. Although Company will hold each Customer primarily liable for his or her portion of the Group Balance, if one or more Customers at the Residence do not pay their share of the Group Balance, the other Customers at the Residence will be held liable to pay the remaining amount of the unpaid Group Balance.
Company will electronically invoice each Roommate each month based on the percentage of utility charges each Customer owes within the Residence. All official notifications under this Agreement will sent by Company to the e-mail addresses submitted by Customer and placed on file with Company. Customer assumed the responsibility to update Company if their e-mail address needs to be changed within Company’s system. Customer consents to receipt of electronic notifications and bills from Company. E-mail notice will be effective upon sending. In the event Customer does not receive a regularly scheduled e-mail, Customer assumes the responsibility to notify Company. Customer’s sole method to access the utility billing information is through Company’s Internet site. Company will send all utility invoices each month after it receives the electricity bill for a given Residence. Any utility bills not received by Company in time to be sent to Customer will be held by Company until the following month’s receipt of the electricity bill. If there is no electricity bill, billing will occur on a regular basis as determined by Company.
17. Direct Utility Payment
Customer will NOT pay the utility company directly unless consented to in writing by Company. Notwithstanding the foregoing, Customer agrees to pay Company for the amount invoiced, even if Customer has paid a utility company directly without Company’s prior written approval.
This paragraph will only apply to Customers using the Texas De-regulated and Optional Models. Should a Residence signing up for Service be a single-payor residence, Customer agrees to pay a deposit of no less than $150.00, due immediately upon executing this Agreement. Customer agrees to allow Company to deduct the funds directly from Customer’s Payment Method on File. The deposit will be refunded to Customer within thirty (30) calendar days after the termination of this Agreement if Customer is not in default under this Agreement. Company will have the right to use deposit monies for its business purposes subject only to the obligation to refund deposit to Customer if Customer is not in default at the termination of this Agreement. Company may also charge a deposit of no less than $150.00 per Residence, regardless of the number of Customers, in response to circumstances associated with certain geographical areas.
19. Event of Default
A failure to comply with one or more of the terms and conditions of this Agreement on the part of one or more of the Customers at the Residence will constitute an event of default and Company will be afforded the remedies under this Agreement and all rights under law.
Customer agrees to allow Company to share any account or payment information with (i) other Customers at the Residence (ii) the parents of any Customer at the Residence (if under a student housing model and the parents are listed as guarantors) and (ii) the Property and other bill-paying parties upon request. Company will not share credit/debit card numbers, automatic bank draft account information, and birth dates with any party except as provided herein. Notwithstanding the preceding sentence, if Company is required to send an account to an outside debt collections agency, Company will provide any information necessary to employ such a service.
21. Failed Payment
Should payment fail due to incorrect information, lack of funds, expiration or for any other reason, Company will continue automatic withdrawal from Payment Method on File until Company determines the funds to be uncollectable. Customer agrees to transfer funds as necessary in order to pay any outstanding balance and all NSF or other fees Company may have incurred while attempting to collect payment. Customer will be in default if payment is not received by Company by the Due Date listed on Customer’s invoice. The remedies employed by Company are determined based on the type of Service:
1. Under the Standard Model, Company will update Property’s ledger with all delinquent Resident accounts and the Property will assume the status as payee for all outstanding balances. The Property will have to collect payment directly and Resident will be prohibited from paying Company directly. Notwithstanding the foregoing, Resident will still be liable to pay Company for other service-related fees, including storage fees and costs and expenses related to credit reporting, among others.
2. Under the Optional Model, Company will give e-mail all Roommates upon the occurrence of a payment default by any Roommate If payment has not been received by the tenth (10th) calendar day after Due Date, Company may, at its sole discretion, remove the defaulting Roommate from Service and continue to invoice the remaining Roommates the balanced owed by the defaulting Roommate. Any balance left unpaid by the defaulting Roommate may be sent to an outside collections agency.
22. Customer Removal
In the event a Roommate requests removal from the Service, the Property, or all Roommates in the applicable Residence, must agree in writing. If successfully removed, Company will recalculate the percentage owed by each remaining Roommate.
23. Procedure Following Removal of a Customer
Should a Roommate be removed from Service, Company will calculate a new percentage to be charged to the remaining roommates and will applied in the next month’s invoice. Each Roommate subscribing to the Services agrees to pay the revised Group Balance Upon removal from Service, a Roommate may only re-subscribe if, as determined by Company in its sole discretion, the Roommate completes additional financial requirements and payment of a non-refundable administrative fee of $50. This fee will be charged per Roommate per occurrence. Under the Texas De-regulated and Optional Model, should any Customer who is part of a single-tenant residence wish to resume Service after being terminated, that Customer will be charged a refundable $150.00 deposit. This will be effective immediately after Company issues a request to have electricity service terminated. Also, if any Payment Method on File by Customer is determined invalid for payment, Company may require a new Payment Method on File and that it be validated before resuming service.
Under the Optional Model Company may cancel this Agreement immediately upon default by Customer or otherwise on three (3) calendar days written notice to any Customer. Customer may terminate this Agreement at any time; provided, however, that every Customer at the Residence must agree in writing to such termination and pay any outstanding Group Balance and/or Individual Balance. Any deposits or fees charged by any utility company after discontinuing Service are solely the responsibility of Customer. Company will have no obligation to pay any further utility bills pursuant to this Agreement following receipt of written notice to terminate. Each Customer at the Residence is jointly and severally liable and fully responsible to pay Company an amount equal to any bills charged to and paid for by Company notwithstanding termination of this Agreement.
25. SimpleBills’ Credit Reporting Service
Should Customer elect to use the SimpleBills’ Credit Reporting Service, the following applies: Company will report utility payments made by Customer to the credit bureaus to assist Customer in establishing a credit history and/or a credit score, which can be accessed by Customer by contacting the credit bureaus. Failure to comply with payment obligations (e.g. inconsistent or discontinuing payments) under this Agreement will be reported to the credit bureaus as a negative payment. A failure is failure to pay 30 days past the Due Date or that is defaulted by Company. Customer payment within 30 days of the Due Date will be reported to the credit bureaus as positive payment, although late fees may still be assessed. Once payments have been reported by Company to the credit bureaus, the reporting of those payments cannot be changed or canceled, unless there is an error.
(a) Credit Reporting Service Fee. Company will charge the monthly Credit Reporting Fee identified on the Application’s registration page on a per Customer basis for ongoing utility payments. To verify past utility payments, Company can provide historical credit reporting based on the number of months Customer has utilized Company for past utility payments (up to 24 months of history with Company).
(b) Identity Verification. Customer agrees to allow Company or third party of Company to verify Customer’s identity using Customer’s personal information (e.g. birth date) maintained by Company to provide the Credit Reporting Service to Customer.
(c) Fraudulent Registration. Customer agrees to maintain one enrollment registration with Company. Customer agrees to not provide multiple registrations using alternate names, contact information or payment sources that Customer is not authorized to use.
(d) Dispute Resolution. Customer may dispute an entry on their credit report provided by Company to the credit bureaus by notifying Company via email and providing their name and address, a description of the dispute and any additional information Company may reasonably request to determine whether the Customer possesses a valid and valid dispute, to be decided by Company in its sole discretion. If Company reasonably determines the information submitted to the credit bureaus was inaccurate Company will notify the credit bureaus and request them to delete or modify the information as appropriate.
(e) Cancellation. Customer may discontinue the Credit Reporting Service from Company at any time by emailing Company at the email located on Company’s website, but will not be eligible for a refund. If Customer utilizes the Credit Reporting Service for three months or less, Company will request that any credit reporting with the credit bureaus be removed.
(f) Credit Reporting Service Liability Limitation. Company is not responsible for how the credit bureaus may manage or use the information provided by Company, and Customer agrees to hold Company harmless against any such claims (subject to the Fair Credit Reporting Act). Customer assumes the responsibility to review the terms and conditions from the credit bureaus to understand how the Customer’s information is stored, managed, used, modified, disseminated and distributed The credit bureaus will obtain an ownership interest in the submitted data. Company will be held harmless and not be liable for any claims, charges, demands, damages or adverse impacts on Customer’s credit score or credit history made by the Credit Bureaus based on the Customer information submitted by Company.
26. Email Communications
As part of the Service provided by Company, Customer will receive email and other communications from Company, such as invoices, bill notifications, password recovery, and account updates, relating to Customer’s account. Company may use Customer’s email address to contact Customer for issues with Customer’s account, to advise Customer of any changes to Company’s website, and to send Customer messages about Company’s additional service promotions with Customer’s consent or as permitted by law. Customer may choose not to receive Company’s marketing emails by clicking on the unsubscribe link in the emails Customer receives from Company. Please note that even if Customer opts out, Company may continue sending Customer service-related information, which include bill notifications and reminders.
27. Disclaimer of Warranties
Company hereby warrants and represents to Customer the Services described herein will be provided and performed in a timely, competent and professional manner. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
28. Limitation of Liability
Company will not be liable for loss, injury or damage caused by delays, interruptions or causes beyond Company’s control. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW, OF THE POSSIBILITY THEREOF. THE AGGREGATE LIABILITY OF COMPANY FOR ANY MATTER RELATED TO OR ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON ONE OR MORE ACTIONS OR CLAIMS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO COMPANY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT DATE ON WHICH THE CLAIM IS BASED, OR, TO THE EXTENT CUSTOMER HAS BEEN PAYING FEES TO COMPANY FOR LESS THAN 12 MONTHS, THE AMOUNT OF FEES CUSTOMER IS EXPECTED TO PAY TO COMPANY OVER A 12-MONTH PERIOD.
29. Exclusive Remedy
Customer’s sole and exclusive remedy against Company for breach of the Service will be the reperformance of the Service to correct any deficiencies.
Customer will indemnify and hold Company, its affiliates and their respective directors, officers, employees and agents harmless against any damages, costs, fines, penalties and fees reasonably incurred (including attorneys’ fees) arising from any third party allegation relating to Customer’s (i) access to or use of the Services in a manner not contemplated or permitted under the terms of this Agreement; (ii) failure to comply with any laws applicable to the use of the Services; or (iii) Customer’s failure to abide by its agreements with Property .
31. Legal Costs
Customer agrees to pay Company’s costs and reasonable legal fees if Company is required to take legal action against Customer for any breach of Customer’s obligations under this Agreement, including any efforts to collect payment for Customer’s use of the Service.
A) Choice of Law; Venue
This Agreement is governed solely by the internal laws of the State of Texas, without reference to any conflicts of law principle that would require the application of the substantive laws of another jurisdiction. The parties consent to (and waive any objection to) the personal and exclusive jurisdiction of the federal and state courts in Dallas County, Texas.
B) Binding on Successors
This Agreement is binding upon the Parties and their respective heirs, executors, administrators, legal representative, successors and assigns.
Customer may not assign this Agreement to any other person, including but not limited to, sublessees without Company’s express prior written consent.
Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
E) Severability Clause
If any clause, sentence, paragraph, section or part of this Agreement is judged to be invalid, such judgment will not affect, impair or invalidate the remainder thereof.
Customer hereby represents that each and every Customer understands this Agreement and is signing it after having read it carefully.
G) Survival of Terms
Customer’s obligation to pay any outstanding balance pursuant to the terms of this Agreement, as well as, Sections 4, 5, 11, 14 through 32 will survive termination of this Agreement.