These Terms of Service and the Schedules attached hereto constitute an agreement (collectively, the “Agreement”) between ENACT Systems Inc., a Delaware Corporation (“Provider”) with its principal office at 2600 Camino Ramon Suite 300B, San Ramon, CA 94583 and each User of Provider’s Service Platform. These Terms of Service were last updated on December 31, 2017
1.1. “Access” means to connect to the Service either directly or indirectly through any network including the internet.
1.2. “Authorized Representative” shall mean any person who acts on behalf of User, and may bind or make agreements on behalf of User. Any person who accesses the Service, is listed as a contact person in connection with the User’s account, or accepts these Terms of Service shall be deemed an authorized representative of User.
1.3. “Content” means any data, information or material submitted by User for use of Service or for processing through Service.
1.4. “Documentation” means all documentation, technical manuals, functional manuals, operator and user guides and manuals, flow diagrams, file descriptions and other written information describing the functions, operational characteristics and specifications of the Service or other technology, or explaining how to install, use, maintain or support the Service or other technology.
1.5. “Effective Date” means the date of commencement of the Service as listed in Customer’s account.
1.6. “Materials” means written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another user of the Service, or any other third party.
1.8. “Provider” refers to ENACT Systems Inc. (“ENACT”).
1.9. “Server Environment” is defined as any server system, licensed from Provider or any other entity, that consists of one or more server software processes, operating independently or otherwise, including but not limited to ASP.NET, Java servers, Citrix servers, report servers, web servers, database servers, terminal servers, mail servers, application servers or transaction servers, facilitated by an internet, intranet, extranet, client/server network, wide-area network, or any other multi-user network.
1.10. “Sign-up” means the process of selection of a suitable subscription plan by User, if applicable, and subscribing to the Service/first use of the Service.
1.11. “Software as a Service’ (SAAS)” means and refers to the use of Service and related Services offered to User by Provider to use the Service while it is installed on a Server Environment which is hosted by or on behalf of Provider.
1.12. “Term” means the period of time (starting from the Effective Date) in which Customer pays, or is obligated to pay, to Provider the User Fees to use the Software as a Service.
1.13. “Use” means to load, execute, employ, utilize, store, or display the Service.
1.14. “User” means any Customer or other person, entity or organization that obtains or may obtain the right of use of Service in accordance with this Agreement.
1.15. “User Fees” means the subscription fees or per-use transaction, third-party service, and analogous fee(s) payable by User pursuant to Section 7 of this Agreement.
2. ENACT Services
2.1. Service. Provider will provide to User the use of ENACT’S software as a service platform for certain business processes automation for distributed energy businesses (“Service”) to be used via the Internet. The Service runs on computers in a data center used by Provider. Provider is entitled to produce the service as it deems best and to use third party licensors and subcontractors. Provider has the right to change the working methods, hardware, data communication links, software, or other system components used in the production of the services, or to change third party licensors or subcontractors.
2.2. Right of Use. The User is hereby granted the non-exclusive and non-transferrable right to access this Service via a browser and an internet connection and use it for User's own business purposes and for User's commercial or freelance business activities only. The User is responsible for the required internet or other telecommunication connection between the User and the data center and also for the required hardware and software (e.g., PC, network connection, browser). Granting the use or provisioning the Service to any third parties by User is prohibited. Provider does not render its Services to consumers, but to business users only for their commercial or freelance activities.
2.3. Availability. The Service is provided “as-is” and “as available.” Unless otherwise specified, the Service is available for use on a 24/7 basis excluding temporary maintenance, updating or repair breaks. This does not include unavailability or failures of the Service due to force majeure (e.g. strikes, upheavals, natural disasters, epidemics). Provider does not assume any liability due to such breaks.
2.4. Set-Up. User must perform the initial set-up of the Service himself/itself (e.g., individual settings or data imports). Provider is not obliged to modify the Service or to do reprogramming work based on the User’s requests. Due to the nature of the Service, customization and change management services are not provided.
2.5. Support. Provider will provide support based on the Service Level selected by Customer. Provider provides support services to remedy technical problems that are related to the usage of the Service. This support does not include the following: general know-
how transfer, trainings, configuration and implementation or User-specific documentation and software modifications. Support is only provided via e-mail and telephone [the service portal or the online forum]. Provider support services are available on business days, Monday to Friday between 8 a.m. and 5 p.m. Pacific Standard Time. Public holidays in the United States are excluded. Requests that are received outside of these support times are deemed received by Provider on the next business day.
2.6.1. Provider has the right to change the Service (including respective system requirements) to adjust it to technical or economic market changes or for justified cause. Such justified cause includes, but is not limited to, cases where modifications are required due to a) a necessary adjustment to new legal requirements, b) changes of the technical conditions, c) the necessity to protect and secure the system, d) changes by a third-party licensor or hardware or software manufacturer to its products or license terms, or e) service advancements.
2.6.2. Provider has the right to change the technical architecture and functionality. Provider has the right to discontinue the Service or feature thereof for a justified reason and if the overall performance of the Service is not materially affected. Provider may change or terminate the Service or component thereof by notifying the User reasonably in advance.
2.6.3. In case a change in the Service requires that a User’s data be transferred to a new software or hardware environment, Provider shall inform User of the change one (1) month in advance. Otherwise, Provider shall notify User of changes whenever reasonably possible and only if the change affects the Service. Provider is not liable for any alterations to User’s facilities (including hardware, equipment or software) or costs associated thereto, as a result of these changes.
3. Additional Services.
Provider may on its own or through its affiliates or any third party provide additional support and consulting services as required as per the terms and costs mutually agreed upon between the Provider and User from time to time.
5.Data and Data Protection.
5.1.Backup Copies. The User is responsible to take backup copies of its data, files and documents saved by using the Service and for verifying their functionality.
5.2.Access, Use and Legal Mandates. Unless it receives User’s prior written consent, Provider: (i) will not access or use User Data other than as necessary to facilitate the Service; and (ii) will not give any third-party access to User Data. Notwithstanding the foregoing, Provider may disclose User Data as required by applicable law or by proper legal or governmental authority. Provider will give User prompt notice of any such legal or governmental demand and reasonably cooperate with User in any effort to seek a protective order or otherwise to contest such required disclosure, at User’s expense.
5.3.User’s Rights. User possesses and retains all right, title, and interest in and to User Data, and Provider’s use and possession thereof is solely as User’s agent. Notwithstanding the foregoing, ENACT shall have the right to use User Data for ongoing operation and maintenance of its Services, and to use aggregated and anonymized User Data.
5.4.Retention & Deletion. Provider may retain all User Data while User maintains a fully paid subscription or other access to the Service. Provider may destroy or otherwise dispose of any User Data in its possession upon User’s termination of this Agreement or its subscription or access to Service or Provider’s termination of this Agreement.
6.The Service contains copyrighted material, trade secrets and other proprietary material. User may not
6.1.sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service;
6.2.interfere with or disrupt the integrity or performance of the Service;
6.3.attempt to gain unauthorized access to the Service or its related systems or networks;
6.4.merge the Service with any other software or documentation;
6.5.reverse engineer, decompile, disassemble, or otherwise attempt to discover the Service or service API’s or related software;
6.6.develop, change or modify the Service or related software or copy the Service or related software;
6.7.remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the IP Rights and/or Provider’s rights and ownership thereof;
6.8.use, or authorize or permit the use of, the Service except as expressly permitted herein; or
6.9.use this Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party.
7. Fees and Payment.
7.1.Recurring subscription fees are as agreed to by Customer upon selection of its Service Level Package, or the use and selection of additional services and support options (whether by Provider or third parties through Provider), and must be paid by approved electronic fund transfer mechanism. Subscription fees are billed in advance and are processed on a recurring 30-day calendar cycle. Additional services and support options, and per-use fees are billed at the beginning of the next monthly billing period and will be processed for payment with the approved electronic fund transfer mechanism.
7.2.Provider is entitled to revise the amount of the User Fees for the respective Term. Such revision in the User Fees shall from time to time. At the time of renewal of the agreement by User, such revisions will be reviewed, unless a contract in place that overrides such revisions.
7.3.Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
8.1.Materials. User recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) User does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for User’s use of the Service.
8.2.Intellectual Property in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant User any intellectual property rights in or to the Service or any of its components.
9.1.User’s Identity. User warrants: (i) that it has accurately identified itself through its account and will maintain the accuracy of such identification; (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older; and (iii) an Authorized Representative has consented to be bound by this Agreement.
9.2.User Data. User warrants that it owns, or otherwise has the legal right to use, the User Data, and has full rights to use, transmit and grant access or ownership rights in User Data to third parties, including Provider.
9.3.Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
9.4.Limited Express Warranties and Disclaimers.
220.127.116.11.Provider warrants that it will provide the Services in a professional and workmanlike manner, in accordance with the applicable industry standards.
18.104.22.168.The User must notify Provider in writing, within fourteen (14) days of Sign-up of its claim of any defect in the Service. If the Service is found defective by Provider, Provider’s sole obligation under this warranty is to remedy such defect in a manner consistent with Provider’s regular business practices.
22.214.171.124.PROVIDER DOES NOT WARRANT THAT: (A) THE OPERATION OF THE SERVICE OR HARDWARE OR NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE OR COMPLETELY SECURE; (B) THE SERVICE WILL BE FREE OF VIRUS, TROJANS OR OTHER SUCH HARMFUL OR MALICIOUS CONTENT; (C) THE SERVICE IS INCAPABLE OF BEING HIJACKED; (D) THE SERVICE WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS; OR (E) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SERVICE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. User acknowledges that there are risks inherent in Internet connectivity that could result in the loss of privacy and property or disclosure of Confidential Information.
126.96.36.199.The Services are provided on an “As-Is” and “As Available” basis. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY LAW, PROVIDER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES PROVIDED TO LICENSEE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10.Limitation of Liability
10.1.Provider shall not be responsible for any activity occurring in connection with User’s use of the Service, and User shall abide by all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications and the transmission of technical or personal data. User shall notify Provider immediately of any other known or suspected breach of security.
10.2.USER AGREES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS CAUSED DUE TO INHERENT NATURE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR TRANSFER OF SERVER ENVIRONMENT OR OTHER SOFTWARE OR NETWORK OR HARDWARE OR INFRASTRUCTURE ISSUES AND PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
10.3.PROVIDER DOES NOT OWN ANY CONTENT THAT YOU SUBMIT TO THE SERVICE. USER, NOT PROVIDER, SHALL HAVE SOLE LIABILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS, AND INTELLECTUAL PROPERTY OWNERSHIP OR RIGHT TO USE OF ANY DATA, INFORMATION OR MATERIAL, AND PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CONTENT AND/OR USE OF CONTENT BY USER.
10.4.IN NO EVENT WILL PROVIDER, ITS EMPLOYEES, CONTRACTORS, AGENTS OR DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR LOSS OF USE, DATA OR PROFITS, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, INCLUDING WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICE, OR ANY RESULTS OBTAINED FROM OR THROUGH THE SERVICE. PROVIDER WILL NOT BE LIABLE FOR ANY HARDWARE OR PLATFORM OR NETWORK-RELATED OR SERVER ENVIRONMENT PROBLEMS ATTRIBUTABLE TO THE SERVICE OR CHANGES TO HARDWARE OR PLATFORM OR NETWORK CONFIGURATION OR SERVER ENVIRONMENT THAT MAY AFFECT THE PERFORMANCE OF THE SERVICE AND FOR THE DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF LICENSED MATERIAL OR SERVICES UNDER THIS AGREEMENT.
10.5.If applicable law limits the application of this Section 10, Provider’s liability shall be limited to the maximum extent permissible.
11.Term, Suspension & Termination.
11.1.Term. This Agreement will continue in effect so long as Customer pays, or is obligated to pay, to Provider the User Fees to use ENACT’s Service. Customer may cancel this Agreement with 30-day notice to Provider, however no refunds will be given in the event the Service is terminated prior to the end of the subscription term. This Agreement remains in effect at Provider’s sole discretion, subject to consent to use the Service by Provider, compliance with the terms of this Agreement, and, if applicable, payment of User Fee(s).
11.2.Suspension of Services; Termination by Provider. Provider may suspend the Services or terminate this Agreement for its convenience if: (i) Provider becomes aware of what it, in its sole discretion, deems a credible claim that the Services infringe upon the intellectual property rights of a third party; or (ii) required to do so by law. In each case, Provider will give User advance notice of pending suspension or termination under this Section of at least 30 days, unless Provider determines, in its reasonable commercial judgment, that a suspension on no or shorter notice is necessary to protect Provider, its customers, or others. Except in the event of a termination for breach, Provider may terminate this Agreement and cancel Customer’s use of the Service upon fifteen (15) days notice to Customer.
11.3.Termination for Breach. Provider may, at its option, terminate this Agreement for cause or suspend the Services if: (i) Provider reasonably believes that the Services are being used in violation of law or this Agreement; (ii) User’s use of the Services interferes with the normal operations of the System or other User’s use of the Services; (iii) there is an attack on the System or User’s server(s), User’s server is accessed or manipulated by a third party without its consent, or there is another event for which Provider reasonably believes a suspension of Services is necessary to protect Provider’s network or Provider’s other Users; (iv) User’s payment of any invoiced amount is overdue and fails to pay the overdue amount within ten (10) days of Provider’s written notice; (v) User breaches any obligation relating to Provider’s (or its suppliers’) intellectual property rights; or (vi) User materially fails to comply with any other provision of the Agreement and do not remedy that failure within thirty (30) days of User’s notice to You describing the failure in reasonable detail.
11.4.Effects of Termination. If CUSTOMER terminates the Agreement for convenience at any time prior to the end of the Term, CUSTOMER shall repay Enact for any term related discounts received and shall pay a penalty to Enact equal to one hundred (100%) of the amount CUSTOMER would have been obligated to pay Enact for the balance of the Term. Provider will not be liable to User for any claims or damages of any kind arising out of termination of this Agreement or suspension of Services in accordance with this Section 11. Upon termination of this Agreement, User will immediately cease use of the Services and will remain obligated to pay Provider any amounts owed that accrued prior to the effective termination of this Agreement. The following provisions will survive termination of this Agreement: (i) any obligation of User to pay for Service rendered before termination; (ii) Sections 5, 7, 8, 9 and 10 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
The Provider shall be under no liability to the User in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of any matter outside the reasonable control of the Provider including, but not limited to, Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), national emergency, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, any power interruptions or failures of or interruptions to any communications equipment, software or hardware.
Provider may send notices pursuant to this Agreement to User’s contact points listed in User’s account, and such notices will be deemed received three (3) days after they are sent. User may send notices pursuant to this Agreement to ENACT Systems Inc., 2600 Camino Ramon Suite 300B, San Ramon, CA 94583, and such notices will be deemed received three (3) days after they are sent.
The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may bind the other in any way.
15.Assignment and Successors.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
17.Governing Law and Consent to Jurisdiction.
In all respects this Agreement shall be governed by the substantive laws of the State of California without regard to conflict of law principles. Any claim or action brought by one of the parties hereto in connection with this Agreement shall be brought in the Federal or State court located in the County of Contra Costa, State of California, and the parties hereto irrevocably consent to the exclusive jurisdiction of such court.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.