Last updated and effective as of: August 1, 2019
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY
SUBJECT TO THE DOCUMENT (“ORDER FORM”) PURSUANT TO WHICH YOU HAVE LICENSED ONLINE SOFTWARE AND TECHNOLOGY SERVICES (“SERVICES”) FROM INTECH ENERGY, INC., (“INTECH,” “WE” or “US”) THE TERMS AND CONDITIONS SET FORTH BELOW (THE “TERMS”) GOVERN YOUR USE OF THE SERVICES MADE AVAILABLE THROUGH THE WEBSITE LOCATED AT [www.energy360.net, energy360saves.com] (THE “SITE”) AND THE SITE. THE ORDER FORM AND THESE TERMS (COLLECTIVELY, THIS “AGREEMENT”) ARE A LEGAL CONTRACT BETWEEN YOU AND INTECH AND GOVERN YOUR ACCESS TO, AND USE OF, THE SERVICES AND THE SITE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, THE SERVICES OR ANY INFORMATION CONTAINED ON THIS SITE. YOUR USE OF THIS SITE AND/OR THE SERVICES WILL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. INTECH MAY MAKE CHANGES TO THE CONTENT AND THE SERVICES OFFERED ON THIS SITE AT ANY TIME.
YOU REPRESENT, ACKNOWLEDGE, AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE OR THAT YOU HAVE YOUR PARENT OR LEGAL GUARDIAN’S PERMISSION TO AGREE TO THESE TERMS. IF YOU ARE REGISTERING ON BEHALF OF A COMPANY, OR OTHER LEGAL ENTITY, THEN YOU REPRESENT, ACKNOWLEDGE AND AGREE THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE ALL AUTHORITY NECESSARY TO BIND THE COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT ORGANIZATION.
- Licenses and Restrictions.
- License. Subject to the terms of this Agreement, InTech grants You a non-exclusive, non-transferable, non-sublicensable licence, during the Term, to access and use the Services and Site. You have no right to resell use of the Services to third parties. Except as expressly set out in this Agreement, all rights (including all intellectual property rights) in and to the Services and Site are, and will at all times remain, vested in InTech and its licensors.
- Authorized Users. Your use of the Services includes use by the following (known collectively as the “Authorized Users”); (i) the Your employees; (ii) any contractors or other staff who are working for You; and (iii) any other person working with, or on behalf, of You; provided that: (a) such Authorized User is accessing and using the Services exclusively on Your behalf; and (b) You will at all times be responsible for the actions and omissions of each Authorized User as if such actions and omissions were Your own.
- Restrictions. Only Authorized Users are permitted to access and use the Services and InTech reserves the right to audit such use. You will be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, You or any of Your Authorized Users in order to access or use the Services (an “ID”). You accept that You will be solely responsible for all access and use of the Services that occur under Your ID and will promptly notify InTech upon becoming aware of any unauthorized access to or use of the Services. You will provide all reasonable assistance to InTech to bring an end to such unauthorized access or use. You will not and will not permit any third party to: (i) access or use the Services (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service) or; (ii) copy, modify, adapt or create derivative works from any applications or functionalities made available as part of the Services or attempt to discover or gain access to the source code for such software or reverse engineer, modify, decrypt, extract, disassemble or decompile such software except to the extent that You are permitted to do so under applicable law in circumstances under which InTech is not lawfully entitled to restrict, prevent or limit the same; or (iii) attempt to interfere with the proper working of the Services and, in particular, must not attempt to circumvent security, license control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Services, software, website, computer system or other device used in connection with the provision of the Services; or (iv) cause or permit any robot or any automated process to act upon or interact with the Services; or (v) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of the Services.
- Content. As between the parties, You will remain the owner of all rights (including all intellectual property rights) in all data, information or material provided or made available by You to InTech through access to or use of the Services and will exclude Statistics (“Content”). You grant InTech a perpetual, irrevocable, non-exclusive, worldwide and royalty-free license, to use, reproduce, distribute, publish and publicly display the Content and the right to modify, adapt, translate, create derivative works from and/or incorporate the same into other works in any form, media or technology (whether now known or later developed), solely for the purpose of providing the Services and performing its obligations under this Agreement. This license includes the right for InTech to assign and/or sub-license the same to any of its affiliates or sub-license to licensors, but only to the extent required by InTech to provide the Services and perform its obligations under this Agreement. The term Statistics means any anonymous data, and expressly excluding personally identifiable data, that InTech derives through its website and performance of the Services. For the avoidance of doubt, InTech may use Statistics for the modification, enhancement, and improvement of the Services, and may use Statistics for the marketing or promotion of InTech, the Services or any future product or service offering, provided any such use of Statistics cannot reasonably be identified as Your aggregate information alone.
- Services. The Services are primarily to collect power usage, process and report energy analytics, and control energy loads in buildings. InTech reserves the right to make enhancements or other modifications to the Services from time to time, without materially detracting from their overall functionality.
- Suspension of Services. InTech may temporarily suspend (in whole or part) access to the Services: (i) for the purpose of performing maintenance and/or of updating the Services (whether on a scheduled or unscheduled basis); (ii) due to a security threat or prejudicial use of the Services (perceived or actual); (iii) to comply with any applicable law or the requirement of any internet or, if applicable, telecommunication networks service provider upon whom InTech relies for the provision of the Services; or (iv) to address, remedy or prevent any breach of this Agreement by You, provided always that InTech will use its reasonable endeavours to inform You by email (or where not possible, verbally by telephone with a confirmatory email) of any such interruption as soon as reasonably practicable beforehand (except in the case of emergency or where prevented by applicable law or regulations); and to minimize any period of interruption and restore the Services as soon as reasonably possible, except where the cause of suspension arises from Your breach and You have failed to take the necessary steps to remedy the breach.
- Use of Marks. You grant to InTech a royalty free, non-exclusive worldwide license, to use, display and publish any of Your trademarks or logos as necessary for InTech to provide the Services. Any use of such trademarks by InTech must comply with any reasonable usage guidelines which InTech receives written notice of from You from time to time. InTech acknowledges and agrees that, as between InTech and You, You are the sole owner of all rights in Your trademarks, and any goodwill arising from InTech’ use of such trademarks will inure solely to the benefit of You.
- Third Party Content. Certain information and other content appearing in the Services may be the material of third party licensors and suppliers to InTech (“Third Party Content”). Third Party Content does not include Your Content. The Third Party Content is, in each case, the copyrighted and/or trademarked work of the creator/licensor. You agree to only display the Third Party Content on Your computer or other display device solely for Your personal use or internal business use. You acknowledge and agree that under these terms alone You have no right to download, cache, reproduce, modify, display, edit, alter or enhance any of the Third Party Content in any manner unless You have permission from the owner of the Third Party Content.
- Confidential Information.
- Generally. “Confidential Information” will mean confidential or other non-public proprietary information that is disclosed by either party to the other under this Agreement, including without limitation, software code and designs, hardware, product specifications and documentation, financial data, business, marketing and product plans, or technology, and information whether disclosed verbally or visually that is of a nature or disclosed in a context that a reasonable person would understand to be confidential or proprietary, and any information (which includes, without limitation, Your or an Authorized User’s name, address, phone number, email, incidents created, notes created, contact history, or communication history).
- Obligations of Confidentiality. Each party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other party to any third party and to use the Confidential Information of the other party for no purpose other than the purposes expressly permitted by this Agreement. Each party will only permit access to the other party’s Confidential Information to those of its or its affiliates’ employees, contractors and advisors having a need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained in this Agreement or are otherwise bound legally to a duty of confidentiality. Each party will maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information of the other party with at least the same degree of care as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care.
- Exclusions from Obligations. A party’s obligations of confidentiality under this Agreement will not apply to information which such party can document or show by other admissible evidence (i) is in the public domain or known in the industry without the breach of any agreement or fiduciary duty or the violation of any law, (ii) was known to the party prior to the time of disclosure without the breach of any agreement or fiduciary duty or the violation of any law, (iii) is proven by contemporaneous records to be independently developed by the party prior to receiving such Confidential Information. Further, Confidential Information does not include Statistics.
- Legally Required Disclosure. In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party then such party will provide the other party written notice of any such requirement promptly after learning of any such requirement, and take commercially reasonable measures, at the expense of the party whose Confidential Information it is, to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding. Nothing in this section will waive the continuing obligation of confidentiality to any such information disclosed.
- Injunctive Relief. Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of this Agreement will cause the other party irreparable damage for which remedies at law may be inadequate. Accordingly, the non-breaching party will have the right to seek an immediate injunction in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to the non-breaching party.
- Return of Confidential Information. Upon written request by either party hereto, the other party will promptly return all documents and other tangible materials representing the requesting party’s Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or for records created in the ordinary course of business that are kept by a party for contract compliance and enforcement purposes subject to continuing confidentiality.
- Authorized Users. You are responsible for maintaining the confidentiality of Your password(s), registration data and for any and all activity that occurs under Your password(s). You agree to notify InTech immediately of any unauthorized use of Your password(s) or any other breach of security relating to the Site and the Services. You will not, directly or indirectly, by any means attempt to or access any data of another InTech customer if You are not an authorized user under the applicable account and You will be liable to InTech for any of Your Authorized Users that engage in any such act.
- Feedback. You may, during the Term, provide InTech with oral feedback and/or written feedback related to Your use of the Services, Site, Application, or Content, including, but not limited to, a report of any errors which You may discover in the foregoing or any related documentation. User Content is expressly excluded from Feedback. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to InTech concerning the Services, Site, Application, or Content and any information reported automatically through the Services to InTech (“Feedback”) will be the property of InTech. You agree to assign, and hereby assign, all rights, title and interest worldwide in the Feedback, and the related intellectual property rights, to InTech and agree to assist InTech, at InTech’ expense, in perfecting and enforcing such rights.
- Links to Third Party Sites. The Site may contain hyperlinks to web sites that are not controlled by InTech. You acknowledge and agree that InTech is not responsible for and does not endorse or accept any responsibility over the content or use of these web sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these web sites. You further understand that such third party sites and Third Party Services are governed by separate agreements accompanying such portions of the Services and You agree to be bound by the terms and conditions of such agreements. Your dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such other entity. You agree that InTech will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities through the Services.
- Your Obligations.
- Use of Services. You agree that You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on You. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, rights of privacy or publicity or any other harm resulting from Your Content. You represent and warrant that: (i) You own all of Your Content and any Feedback posted on or through the Services or otherwise have the right to grant the licenses to InTech set forth in this Agreement, and (ii) the posting of Your Content on or through the Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any of Your Content. InTech will have no obligation to pay You any fees or royalties for Feedback.
- Unauthorized Activities. Unauthorized use of the Services or Third Party Content may violate certain laws and regulations. You agree to defend, indemnify and hold InTech and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) that InTech or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party based on Your Content and/or Your use of the Services or Third Party Content or the use by any person, using Your user name and/or password, that violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third party. InTech may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at InTech’s discretion, InTech will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site, the Services or on the Internet.
- Proprietary Rights. Neither this Agreement nor any provision herein transfers ownership or any license not expressly granted, from InTech to You of any InTech intellectual property right of any kind whatsoever including, but not limited to, any Services or the Site, and all right, title and interest in and to the foregoing and InTech’s legally protectable methods, processes, systems, operations, network or customer support methodology or technology, or any other technology of any kind whatsoever and all intellectual property rights therein will remain solely with InTech.
- Term and Termination
- Term. This Agreement will commence on the Effective Date specified in the Order Form. Unless specified otherwise in the Order Form or terminated earlier as provided herein, the initial term (“Initial Term”) will be one (1) year and will automatically renew for additional one (1) year periods (each, a “Renewal Period,” and collectively with the Initial Term, the “Term”) per the Renewal Period pricing in the Order Form, or if not stated in the Order Form, at the then-current price for the Services, unless terminated by either party upon written notice of non-renewal at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Period.
- Generally. Either party may at any time immediately terminate this Agreement: (a) in the event the other party has materially breached this Agreement and, if curable, has not cured such breach within 30 days after receiving written notice thereof by the non-breaching party. If a breach is not curable, the non-breaching party can terminate this Agreement immediately; or (b) in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the other party; or in the event of the appointment, with or without the other party’s consent, of an assignee for the benefit of creditors, or of a receiver; or if the other party admits in writing its inability to pay its debts when due.
- Special Conditions. InTech may at any time immediately terminate this Agreement and Your access to the Services, or suspend or restrict Your access to the Services, in whole or in part, if InTech determines in its sole and exclusive judgment that terminating Your access to the Services is advisable for security reasons, to protect InTech from liability, or for the continued normal and efficient operation of the Services. InTech will use its best efforts to notify You prior to any such suspension, restriction or termination, but will have no liability to You for failure to provide such notice.
- Effect of Termination. Immediately upon expiration or termination of this Agreement, Your rights to use the Services will terminate and each party will have thirty (30) days to return or destroy all Confidential Information it holds that belongs to the other party. For a period of fifteen (15) days after expiration or termination of the Agreement, You may request a download of the Your Content after which InTech will have no obligation to retain or preserve such Content and may destroy it as part of its confidentiality obligation as provided herein. You will remain liable for all amounts due, and all such sums will become immediately due and payable upon termination or expiration of this Agreement. Any other provisions which by their nature should survive termination or expiration of this Agreement, will so survive.
- Disclaimer of Warranties.
- Risk. Your use of this Site and/or the Services is at Your own risk. Neither the User Content, the Services or Third Party Content nor Submissions have been verified or authenticated in whole or in part by InTech, and they may include inaccuracies or typographical or other errors. InTech does not warrant the accuracy or timeliness of the User Content, Submissions or the Third Party Content contained on this Site. InTech has no liability for any errors or omissions in the User Content, Submissions and/or the Third Party Content, whether provided by InTech or our licensors.
- Disclaimer. INTECH, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, ANY MATERIALS, SUBMISSIONS, USER CONTENT, USER SITES, OR THIRD PARTY CONTENT, RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE AND/OR THE RESULTS OBTAINED FROM THE USE OF THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS, SUBMISSIONS, USER SITES, AND THE THIRD PARTY CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, MATERIALS, SUBMISSIONS, USER CONTENT, THIRD PARTY CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. INTECH DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. INTECH DOES NOT GUARANTEE ANY UPTIME OR AVAILABILITY OF THE SERVICES.
- Limitation of Liability. INTECH SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY OF THE MATERIALS, CONTENT, OR THIRD PARTY CONTENT TO OR FROM THE SITE OR THE SERVICES. EXCEPT FOR A BREACH IN THE OBLIGATIONS OF CONFIDENTIALITY OR THE LICENSE GRANTS HEREIN, OR FOR ANY PAYMENT TO A THIRD PARTY UNDER AN INDEMNITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF THE POSSIBILITY OF SUCH DAMAGE WAS KNOWN. IN NO EVENT WILL INTECH BE LIABLE IN THE AGGREGATE FOR MORE THAN THE FEES PAID BY YOU TO INTECH IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM.
- Allocation of Risk. THE PROVISIONS OF SECTIONS 12 AND 13 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- Local Laws; Export Control. Services and/or Third Party Content may not be appropriate or available for use outside of the United States of America. If You use this Site or the Services outside the United States of America, You are responsible for following applicable local laws and regulations, including any applicable export controls laws.
- Contract Interpretation. Both parties to this Agreement have negotiated the provisions of this Agreement and have had access to counsel. Notwithstanding any rules of contract interpretation, both parties will be considered the “drafting party” and no provision of this Agreement will be construed against a party by reason of being the “drafting party”. In the event of any conflict between the terms of this Agreement and any exhibit or attachment hereto, the terms of the exhibit or attachment will prevail.
- Governing Law. This Agreement will be interpreted in accordance with the laws of the State of California, (excluding conflict of laws rules) as applied to agreements entered into and to be performed entirely within the State of California between California residents, without giving effect to any conflict of law principles that would require the application of the laws of a different jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the California state courts in Alameda County, or if there is federal jurisdiction, the United States District Court for the Northern District of California, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional or equitable relief, including pre-judgment attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party.
- Force Majeure. Neither party will be liable to the other for any breach of this Agreement which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include but not be limited to, any act of god, fire, casualty, flood, war, labor disputes, governmental action, failure of public services, interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing but, for the avoidance of doubt, shall not include shortage or lack of available funds, provided it promptly notifies the other party of such circumstances. If performance has been interfered with, hindered, delayed or prevented for a period in excess of ninety (90) days, the party whose performance is not affected may terminate this Agreement immediately by written notice to the other party.
- Publicity. Either party may disclose the existence of this Agreement including, without limitation, disclosure deemed reasonably necessary to comply with the disclosure obligations of public companies. You agree that InTech may refer to its relationship with You in InTech marketing materials, including its Web site and in discussions with prospective customers.
- Assignment. You shall not assign this Agreement without the prior written consent of InTech, which consent shall not be unreasonably withheld or delayed; provided that either party may assign this Agreement in the event of a merger, acquisition, or reorganization relating to all or substantially all of such party’s assets. Any other attempt to assign this Agreement without prior consent shall be void.
- Independent Contractor. Pursuant to this Agreement, InTech and You intend to enter into an arm’s-length commercial relationship. Nothing in this Agreement shall be construed to create a partnership, agency, joint venture, or employer-employee relationship as between You and InTech, or as between either party and the employees of the other party. Except as expressly set forth herein neither party nor its employees shall be entitled to enter into any contract, agreement, arrangement, or association on behalf of the other party. Each Party shall comply with all state and federal laws which relate to the employment of its employees and of conduct of its business.
- Severability. If a court of competent jurisdiction shall hold any provisions of this Agreement invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement.
- Waiver. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed to be a waiver of such provisions or of its right thereafter to enforce such provision and each and every provision thereafter.
- Invalid Provisions. If any of the provisions of this Agreement are held to be invalid, illegal, or unenforceable, the provisions shall remain in effect to the extent allowed by law and the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby.