Click Wrap Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE. 

BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

This agreement is between EnergyWatch LLC, a New York Limited Liability Company (EnergyWatch), and the customer agreeing to these terms (Customer).

1.    Software service.

This agreement provides Customer access to and usage of an Internet-based software service as specified on an order (Service).

2.    Use of Service.

a.   Customer Owned Data. All Customer utility data uploaded by EnergyWatch or provided by Customer to the Service remains the property of Customer, as between EnergyWatch and Customer (Customer Data). Customer grants EnergyWatch the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.

b.   Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

c.   Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify EnergyWatch promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.

d.   EnergyWatch Support. EnergyWatch must provide customer support for the Service under the terms of EnergyWatch’s Customer Service Level Agreement (SLA), which is located at www.energywatch-inc.com/support

e.   30-Day Trial Version. If Customer has been granted the right to a trial of the Services, Customer may access the Service for a 30-day time period (unless extended by EnergyWatch in writing). The Service is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period, unless Customer converts its account to a paid Service.

f.    Additional Services.  EnergyWatch may provide onboarding and implementation services as further set forth in an order.

3.    Warranty Disclaimer.

THE SERVICE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY.  ENERGYWATCH DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ENERGYWATCH TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, ENERGYWATCH DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

4.    Payment.

Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.  Overdue payments will bear interest from the due date at the rate of the lower of 1.5% per month or the maximum legal rate.

5.    Mutual Confidentiality.

a.   Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). EnergyWatch’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.

b.   Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c.   Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

6.    EnergyWatch Property.

a.   Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by EnergyWatch as part of the Service are the proprietary property of EnergyWatch and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with EnergyWatch. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. EnergyWatch reserves all rights unless expressly granted in this agreement.

b.   Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.

c.   Aggregated Data. During and after the term of this agreement, EnergyWatch may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.

7.    Term and Termination.

a.   Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).

b.   Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

c.   Return of Customer Data.

                 i.   Within 60 days after termination, upon request EnergyWatch will make the Service available for Customer to export Customer Data as provided in Section 2(a).

                ii.   After such 60-day period, EnergyWatch has no obligation to maintain the Customer Data and may destroy it.

d.   Return EnergyWatch Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay EnergyWatch for any unpaid amounts and destroy or return all property of EnergyWatch. Upon EnergyWatch’s request, Customer will confirm in writing its compliance with this destruction or return requirement.

e.   Suspension for Violations of Law. EnergyWatch may suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. EnergyWatch will make commercially reasonable efforts to attempt to contact Customer in advance.

f.    Suspension for Non-Payment. EnergyWatch may suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.

8.    Liability Limit.

a.   Exclusion of Indirect Damages. EnergyWatch is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

bTotal Limit on Liability. Except for EnergyWatch’s indemnity obligations, EnergyWatch’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.

9.    Indemnities.

a.   Defense of Third-Party Claims. EnergyWatch will defend or settle any third-party claim against Customer to the extent that such claim alleges that EnergyWatch technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies EnergyWatch of the claim in writing, cooperates with EnergyWatch in the defense, and allows EnergyWatch to solely control the defense or settlement of the claim.

                 i.   Costs. EnergyWatch will pay infringement claim defense costs it incurs in defending Customer, and EnergyWatch negotiated settlement amounts, and court-awarded damages.

                ii.   Process. If such a claim appears likely, then EnergyWatch may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If EnergyWatch determines that none of these are reasonably available, then EnergyWatch may terminate the Service and refund any prepaid and unused fees.

               iii.    Exclusions. EnergyWatch has no obligation for any claim arising from: EnergyWatch’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by EnergyWatch. This section contains Customer’s exclusive remedies and EnergyWatch’s sole liability for intellectual property infringement claims.

b.   By Customer. If a third party claims against EnergyWatch that any part of the Customer Data infringes or violates that party’s patent, copyright, or other right, Customer will defend EnergyWatch against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees arising from that claim, provided that EnergyWatch promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim. Customer will not consent to the entry of any judgement or enter into any settlement or compromise affecting EnergyWatch, to the extent that the judgement, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of EnergyWatch and/or otherwise involves more than the payment of money by Customer, without the prior written consent of EnergyWatch.

10. Governing Law and Forum.

This agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for New York County, New York, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its reasonable attorneys’ fees and costs from the other party.

11. Other Terms.

a.   Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it; however, this agreement may be modified through an online process provided by EnergyWatch.

b.   No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.

c.   Independent Contractors. The parties are independent contractors with respect to each other.

d.   Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

e.   Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

f.    No Additional Terms. EnergyWatch rejects additional or conflicting terms of a Customer’s form-purchasing document.

g.   Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

h.   Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

i.    Feedback. Customer is not obligated to provide EnergyWatch with any suggestions or feedback about the Service, but if Customer elects to do so, EnergyWatch owns such feedback, and may use and modify feedback for any purpose, including developing and improving the Service, without any liability, restriction or payment to Customer.

j.    Compliance. Customer must comply with all applicable laws in using the Service.

k.   No Third Party Beneficiaries.  Any obligations of EnergyWatch under this agreement run only to, and for the sole benefit of Customer, notwithstanding any rights to access or use the Service.  Except as otherwise mandated by applicable law, no person or entity will be considered a third party beneficiary of this agreement or otherwise entitled to receive of enforce any rights or remedies in relation to this agreement.