DMARK Terms of Use

Website Terms of Use

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‍Updated: Sept 3rd, 2025

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Introduction

Please read these Terms of Use (“Terms”) carefully before using our website and any online services provided by DMARK LLC, D/B/A DMARK Energy Solutions or one of its family of companies (“DMARK”, “we”, or “us” or “our”) that post a link to these Terms (the “Website”). Note that these Terms DO NOT apply to our online platforms for DMARK’s customers or sellers. By visiting or otherwise using the Website in any manner, you agree to the posted Terms and any applicable Additional Terms (defined below), to be bound by them, and that you have read and understood them. You also acknowledge, agree and consent to our data practices as described in our Privacy Policy.

These Terms affect your legal rights, responsibilities and obligations and govern your use of the Website, and are legally binding. If you do not wish to be bound by these Terms and any Additional Terms, do not use the Website.

IMPORTANT: These Terms of Use include a class action waiver and resolution of disputes by arbitration instead of in court. See Section 7 below for more information.

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Additional Terms

In some instances, additional or different terms, posted on the Website, apply to your use of certain parts of the Website (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

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Updates to these Terms and Additional Terms

We may prospectively change these Terms and Additional Terms by posting new or changed terms on the Website as more fully explained in Section 10 below.

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1. OWNERSHIP AND YOUR RIGHTS TO USE THE WEBSITE AND CONTENT

A. Ownership. The Website, all of its content (“Content”), and software ( including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights in any of the foregoing (collectively, “DMARK IP”), are owned or controlled by DMARK, our licensors, and certain other third parties. All right, title, and interest in and to the DMARK IP is the property of DMARK, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property rights and unfair competition rights and laws to the fullest extent possible. DMARK owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website.

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B. Your Rights to Use the Website and Content. Your right to use the DMARK IP is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the DMARK IP shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Website and the content is personal to you, you may not assign nor transfer your right, and any attempt to do so is void. You may, for your personal, lawful use only: (i) access and use any Website features or functionality expressly provided by DMARK on or through the Website for use by users, subject to these Terms (including, without limitation, functionality to create and/or post Submissions (as defined below), if provided) and any applicable Additional Terms and (ii) display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you. If you are accessing or using the Website in your individual capacity as a consumer, the rights granted to you herein are for your non-commercial use only. If you are accessing or using the Website in your capacity as a sole proprietor or on behalf of a business, the rights granted to you herein are for your or your organization’s internal business purposes only, respectively.

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C. Rights of Others. In using the Website, you must respect the intellectual property rights of DMARK and others. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability. If you believe that your work has been infringed via the Website, see Section 5 below.

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D. Reservation of all Rights Not Granted. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Website, Content and other DMARK IP. No other right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY DMARK AND ITS LICENSORS AND OTHER THIRD PARTIES. Any unauthorized use of any Content or the Website for any purpose is prohibited.

E. Third-Party Services. We are not responsible for third parties or their content, advertisement(s), apps or sites (“Third-Party Services”). For instance, portions of the Website may be integrated into or linked to third-party sites, platforms and apps that we do not control. Similarly, we may make third-party ads and other Third-party Services, which we also may not control, available to you on or via our Website. This may include the ability to register or sign in to our Website using third-party tools, and to post content on Third-party Services using their plug-ins made available on our Website. Use caution when dealing with third parties and consult their terms of use and privacy policies. We take no responsibility for Third-Party Services.

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2. CONTENT YOU SUBMIT

If we provide an opportunity for you to publish content, you must only post such content if you own all the rights to such content. Some aspects of the Website may allow you to send comments, remarks, suggestions, ideas, graphics, photographs, questions, complaints or other information posted or communicated to DMARK through the Website (together, “Submissions”). You understand that by submitting any information to DMARK through our Website, you grant DMARK a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, sublicense to others, modify, translate, prepare derivative works of, publicly display, and publicly perform the Submissions, including to use them for any commercial or other purpose whatsoever without approval from or compensation to you or any other person. DMARK will not be required to treat any Submissions as confidential.

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3. WEBSITE, CONTENT AND OTHER USE RESTRICTIONS

With respect to the Website (which includes content), you may not, and may not allow third parties, to:

Use the Website for any purpose that is unlawful or prohibited by these terms;
Delete or change any copyright, trademark, or other proprietary notices;
Attempt to obtain ownership or title to the Website, including the content;
Use, copy, distribute, republish, display, disclose, upload, post, or transmit the Website in any commercial manner;
Rent, lease, sell, sub-license, loan, translate, merge, adapt, assign or transfer the Website, or combine them with, or incorporate them into, any other programs or services;
Disassemble, decompile, reverse-engineer, copy in source or object code format, or create derivative works based on the Website;
Transfer, provide, export or re-export the Website in violations of an embargo, trade sanction, or other technology control or export laws and regulations; you also represent and warrant that you are not (i) located in a country subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties;
Use or launch any unauthorized technology or automated system to access the Website or extract content from the Website, including but not limited to spiders, robots, screen scrapers, or offline readers;
Attempt to disable, damage, overburden, impair or gain unauthorized access to the Website, DMARK’s network or any user accounts associated with the Website.

DMARK, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Website and/or Content (and any elements and features of them), in whole or in part, for any reason, in DMARK’s sole discretion, and without advance notice or liability.

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4. CREATING AN ACCOUNT

A. Some aspects of the Website may allow you to create a user account. If you register with us or create an account, you are solely responsible and liable for the security and confidentiality of your access credentials and for restricting access to your Device and for all activity under your account. Usernames and passwords must be personal and unique that do not violate the rights of any person or entity, and are not offensive. We may reject the use of any password, username, or email address for any reason in our sole discretion. You are solely responsible for your registration information and for updating and maintaining it. You will immediately notify us at the link in the “Contact DMARK” Section below of any unauthorized use of your account, password, or username, or any other breach of security, but will remain responsible for any unauthorized use thereafter. You will not sell, transfer, or assign your account or any account rights.

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B. Accounts may only be set up by an individual, or authorized representative of the individual that is the subject of the account. We do not review accounts for authenticity, and are not responsible for any unauthorized accounts that may appear on the Website. For any dispute as to account creation or authenticity, we shall have the sole right, but are not obligated, to resolve such dispute as we determine appropriate, without notice.

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4. ARBITRATION AND DISPUTE TERMS

A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Website or any other DMARK products or services, Content, or any other DMARK IP, Submissions, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in the Superior Courts of the District of Columbia or the U.S. District Court for the District of Columbia. Each party submits to personal jurisdiction and venue in Washington D.C. for any and all purposes. By using the Website, you hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the Terms or the subject matter thereof may not be enforced in or by such court. For avoidance of doubt, any IP Disputes or General Disputes (each defined below) shall each be considered a Dispute.

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B. Pre-Arbitration Notification. DMARK and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that DMARK need not do so in circumstances where its claims of intellectual property rights are concerned (“IP Disputes,” with all other Disputes referred to as “General Disputes”). The party making a claim – whether you or DMARK – shall send a letter to the other side briefly summarizing the claim and the request for relief. If DMARK is making a claim, the letter shall be sent, via email, to the email address listed in your DMARK account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section. If you are making a claim, the letter shall be sent to 2 Wisconsin Circle, 7th Floor, Chevy Chase, MD, 20815 (Attn: Legal Department), with cc by email to legal@dmarkenergy.com. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section. Either you or DMARK, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 6.D) before the expiration of this sixty (60)-day period.

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C. Arbitration of Claims. All actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to JAMS (www.jamsadr.com) for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in the District of Columbia, before a single arbitrator. If the matter in dispute is between DMARK and a consumer, the matter shall be submitted to JAMS in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. We may have the right to pay the JAMS fees if required for arbitration to be enforceable. If you are a consumer you have the right to an in-person hearing. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a Dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The parties may engage in the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Salt Lake County, Utah or, if sought by DMARK, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to courts in the District of Columbia having jurisdiction of such matters, or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.

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D. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, SUBMISSIONS, PRODUCT, WEBSITE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY DMARK PARTIES (DEFINED BELOW) (INCLUDING YOUR LICENSED SUBMISSIONS) OR A LICENSOR OF ANY DMARK PARTY.

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E. Governing Law. These Terms and any applicable Additional Terms, and any Disputes or any other claim brought by you against DMARK or by DMARK against you pursuant to this Section 6, or otherwise related to the Website or other DMARK products or services, Content, or any other DMARK IP, or Submissions will be governed by, construed, and resolved in accordance with, the laws of the District of Columbia, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 6 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and DMARK agree that we intend that this Section 7 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 6 can only be amended by mutual agreement. Either party may seek enforcement of this Section 6 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.

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F. Class Action Waiver. As permitted by applicable law, both you and DMARK waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the JAMS Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 6 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.

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G. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.

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H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 6.F.

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I. The provisions of this Section 6 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 6 shall remain in full force and effect notwithstanding any termination of your use of the Website or these Terms.

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5. PROCEDURE FOR ALLEGING COPYRIGHT AND TRADEMARK INFRINGEMENT.

We respect the intellectual property rights of others, and require that the people who use the Website, or the services or features made available on or through the Website, do the same.

If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:

Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

Copyright Agent: legal@dmarkenergy.com

It is often difficult to determine if your copyright has been infringed. DMARK may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and DMARK may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA. Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting DMARK’s other rights, DMARK may, in appropriate circumstances, terminate a repeat infringer’s access to the Website or any part thereof and any other platform or service owned or operated by DMARK.

DMCA Counter-Notification

If access on the Website to a work that you submitted to DMARK is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

a legend or subject line that says: “DMCA Counter-Notification”;
a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Service from which the material was removed or access to it disabled);
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
your full name, address, telephone number, email address, and the username of your Account;
a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the District of Utah), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
your electronic or physical signature.

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Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

Trademark Takedown

If you own a trademark (or represent such a trademark owner) and believe that your (or such owner’s) trademark in that work has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice that includes:

A legend or subject line that says: “Trademark Infringement Notice”;
Your full name, address, telephone number, and email address;
A description of the trademark or service mark that you claim has been infringed or, if multiple marks are covered by a single notification, a representative list of such works;
A description of where the alleged infringing material is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Website on which the material appears);
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
We will make commercially reasonable efforts to locate the allegedly infringing content and will assess your request under applicable law.

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6. ARBITRATION AND DISPUTE TERMS.

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A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Website or any other DMARK products or services, Content, or any other DMARK IP, Submissions, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in the Superior Courts of the District of Columbia or the U.S. District Court for the District of Columbia. Each party submits to personal jurisdiction and venue in Washington D.C. for any and all purposes. By using the Website, you hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that the Terms or the subject matter thereof may not be enforced in or by such court. For avoidance of doubt, any IP Disputes or General Disputes (each defined below) shall each be considered a Dispute.

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B. Pre-Arbitration Notification. DMARK and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that DMARK need not do so in circumstances where its claims of intellectual property rights are concerned (“IP Disputes,” with all other Disputes referred to as “General Disputes”). The party making a claim – whether you or DMARK – shall send a letter to the other side briefly summarizing the claim and the request for relief. If DMARK is making a claim, the letter shall be sent, via email, to the email address listed in your DMARK account, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section. If you are making a claim, the letter shall be sent to 2 Wisconsin Circle, 7th Floor, Chevy Chase, MD, 20815 (Attn: Legal Department), with cc by email to legal@dmarkenergy.com. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section. Either you or DMARK, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 6.D) before the expiration of this sixty (60)-day period.

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H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 6.F.

‍I. The provisions of this Section 6 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 6 shall remain in full force and effect notwithstanding any termination of your use of the Website or these Terms.

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7. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THE WEBSITE, OTHER DMARK PRODUCTS OR SERVICES, CONTENT, AND ANY OTHER DMARK IP, AND SUBMISSIONS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, DMARK and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “DMARK Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Website, other DMARK products or services, Content, and any other DMARK IP, or Submissions, except as set forth in Section 7.C, below.

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B. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, DMARK PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

C. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (i) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY DMARK PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY DMARK PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (ii) DMARK PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY DMARK PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (iii) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST DMARK PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.

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8. LIMITATIONS OF OUR LIABILITY

A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY DMARK PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Website or any other DMARK products or services, Content, and any other DMARK IP, or Submissions, except to the extent not waivable under applicable law for direct damages for personal injury caused by a physical product manufactured, sold or provided by DMARK.

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B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if DMARK Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Website).

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C. AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DMARK PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE OR ANY OTHER DMARK PRODUCTS OR SERVICES, CONTENT, AND ANY OTHER DMARK IP, OR SUBMISSIONS AND YOUR RIGHTS UNDER THESE TERMS OR ANY ADDITIONAL TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID DMARK IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S).

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D. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (i) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY DMARK PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY DMARK PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (ii) DMARK PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY DMARK PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (iii) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST DMARK PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.

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9. UPDATES TO TERMS

It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Website (at least prior to each transaction or submission). EACH TIME YOU SIGN IN TO OR OTHERWISE ACCESS OR USE THE WEBSITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE WEBSITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE WEBSITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Website.

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10. GENERAL PROVISIONS

A. DMARK’s Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants DMARK a right of consent or approval, or permits DMARK to exercise a right in its “sole discretion,” DMARK may exercise that right in its sole and absolute discretion. No DMARK consent or approval may be deemed to have been granted by DMARK without being in writing and signed by an officer of DMARK.

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B. Indemnity. As permitted by applicable law, you agree to, and you hereby, defend (if requested by DMARK), indemnify, and hold DMARK Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any DMARK Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your Submissions; (ii) your use of the Website, Content, or other DMARK IP and your activities in connection with the Website, Content, or other DMARK IP; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Website, Content, or other DMARK IP or your activities in connection with the Website, Content, or other DMARK IP; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) DMARK Parties’ use of the information that you submit to us (including your Submissions) subject to our Privacy Policy (all of the foregoing, collectively and individually “Claims and Losses”). You will cooperate as fully required by DMARK Parties, in the defense of any Claim and Losses. Notwithstanding the foregoing, DMARK Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. DMARK Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a DMARK Party. This section is not intended to limit any causes of action against us that you may have but are not waivable under applicable law.

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C. Operation of the Website and Availability; International Issues. DMARK controls and operates the Website from the U.S.A., and makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.

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D. Export Controls. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S. law, you agree and warrant not to export or re-export the Software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.

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E. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.

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F. Investigations; Cooperation with Law Enforcement; Termination; Survival. As permitted by applicable law, DMARK reserves the right, without limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks; (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms; (iii) use any information obtained by DMARK in accordance with our Privacy Policy in connection with reviewing law enforcement databases or complying with applicable laws and use and/or disclose any information obtained by DMARK to comply with law enforcement requests or legal requirements in accordance our Privacy Policy; (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; (v) prosecute violators of these Terms and any applicable Additional Terms; and (vi) discontinue the Website, in whole or in part, or, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third-party. Any suspension or termination will not affect your obligations to DMARK under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Website, or upon notice from DMARK, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to DMARK in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

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G. Assignment. DMARK may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of DMARK.

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H. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Website and supersede any prior agreements, representations, warranties, assurances or discussion related to the Website. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or DMARK in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy; and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

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I. Notices; Questions; Customer Service. You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. All legal notices to us must be sent to: 2 Wisconsin Circle, 7th Floor, Chevy Chase, MD, 20815, Attention: Legal Department, with cc via email to legal@dmarkenergy.com. If you have a question regarding the Website, you may contact DMARK Customer Support at the link provided in the “Contact DMARK” Section below. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.

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12. CONTACT DMARK

If you have any questions about these Terms of Use, please contact DMARK by sending an email to legal@dmarkenergy.com.

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//End Terms of Use//

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