ENMETRIC TERMS OF SERVICE FOR ONLINE PLUG LOAD MANAGER SERVICES
Thank you for selecting the Services offered by Enmetric and/or its subsidiaries and affiliates (referred to as "Enmetric", "we", "our", or "us"). Review these Terms of Service ("Agreement") thoroughly. This Agreement is a legal agreement between you and Enmetric. By accepting electronically (for example, clicking "I Agree"), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.
A. GENERAL TERMS
This Agreement describes the terms governing your use of the Enmetric online services provided to you on this website, including content, updates and new releases, (collectively, the "Services"). It includes by reference:
- Enmetric Privacy Statement provided to you in the Services available on the website or provided to you otherwise.
- Additional Terms and Conditions, which may include those from third parties.
- Any terms provided separately to you for the Services, including product or program terms, ordering, activation, payment terms, etc.
2. YOUR RIGHTS TO USE THE SERVICES
2.1 The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by Enmetric. Enmetric reserves all other rights in the Services. Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement, Enmetric grants to you a personal, limited, nonexclusive, nontransferable right and license to use the Services.
2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:
- Provide access to or give any part of the Services to any third party.
- Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
- Make the Services available on any file-sharing or application hosting service.
3. PAYMENT. For Services offered on a payment or subscription basis, the following terms apply, unless Enmetric or its third party affiliate notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:
a. Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.
b. You must pay with one of the following:
1. A valid credit card acceptable to Enmetric;
2. A valid debit card acceptable to Enmetric;
3. Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
4. By another payment option Enmetric provides to you in writing.
c. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Services.
d. If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
e. Enmetric will automatically renew your monthly, quarterly, or annual Services at the then-current rates, unless the Services are cancelled or terminated under this Agreement.
f. Additional cancellation or renewal terms may be provided to you on the website for the Services.
4. USE WITH YOUR MOBILE DEVICE
Use of these Services may be available through a compatible mobile device, Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.
ENMETRIC MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:
(i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION;
(ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND
(iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.
5. YOUR PERSONAL INFORMATION. You can view Enmetric's Privacy Statement provided with the Services and on the website for the Services. You agree to the applicable Enmetric Privacy Statement, and any changes published by Enmetric. You agree that Enmetric may use and maintain your data according to the Enmetric Privacy Statement, as part of the Services. You give Enmetric permission to combine information you enter or upload for the Services with that of other users of the Services and/or other Enmetric services. For example, this means that Enmetric may use your and other users' non-identifiable, aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users.
6.1 You are responsible for your content. You are responsible for all materials ("Content") uploaded, posted or stored through your use of the Services. You grant Enmetric a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services. Archive your Content frequently. You are responsible for any lost or unrecoverable Content. You must provide all required and appropriate warnings, information and disclosures. Enmetric is not responsible for the Content or data you submit through the Services.
You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
6.2 Community forums. The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public. Enmetric does not support and is not responsible for the content in these community forums. Please use respect when you interact with other users. Do not reveal information that you do not want to make public. Users may post hypertext links to content of third parties for which Enmetric is not responsible.
6.3 Enmetric may freely use feedback you provide. You agree that Enmetric may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Enmetric a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to Enmetric in any way.
6.4 Enmetric may monitor your Content. Enmetric may, but has no obligation to, monitor content on the Services. We may disclose any information necessary to satisfy our legal obligations, protect Enmetric or its customers, or operate the Services properly. Enmetric, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
7. ADDITIONAL TERMS
7.1 We may tell you about other Enmetric services. You may be offered other services, products, or promotions by Enmetric ("Enmetric Services"). Additional terms and conditions and fees may apply. You grant Enmetric permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. You also grant Enmetric permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
7.2 Communications. Enmetric may be required by law to send you communications about the Services or Third Party Products. You agree that Enmetric may send these communications to you via email or by posting them on our websites
7.3 You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact Enmetric if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates.
8. DISCLAIMER OF WARRANTIES
8.1 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENMETRIC, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY,"SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. ENMETRIC AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION.
8.2 ENMETRIC, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
9. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF ENMETRIC, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, ENMETRIC, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET ENMETRIC REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF ENMETRIC AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF ENMETRIC, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.
You agree to indemnify and hold Enmetric and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). Enmetric reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Enmetric in the defense of any Claims.
10. CHANGES. We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.
11. TERMINATION. Enmetric may immediately, in its sole discretion and without notice terminate this Agreement or suspend the Services if you fail to comply with this Agreement or if you no longer agree to receive electronic communications. Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect Enmetric's rights to any payments due to it. Enmetric may terminate a free account at any time. Sections 2.2, 3 through 15 will survive and remain in effect even if the Agreement is terminated.
12. EXPORT RESTRICTIONS. You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.
13. GOVERNING LAW. California state law governs this Agreement without regard to its conflicts of laws provisions.
14. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND ENMETRIC ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to Enmetric Inc., Arbitration will be conducted by an arbiter of Enmetric’s choice. Payment of all filing, administration and arbitrator fees and costs will be governed by the arbiter’s rules, but if you are unable to pay any of them, Enmetric will pay them for you. In addition, Enmetric will reimburse all such fees and costs for claims totaling less than $35,000 unless the arbitrator determines the claims are frivolous. Likewise, Enmetric will not seek its attorneys' fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 14 shall survive expiration, termination or rescission of this Agreement.
15. GENERAL. This Agreement, including the Additional Terms below, is the entire agreement between you and Enmetric and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of Enmetric. However, Enmetric may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by Enmetric or (c) a successor by merger. Any assignment in violation of this Section shall be void.
B. ADDITIONAL TERMS AND CONDITIONS FOR THE USE OF ENMETRIC’S PLUG LOAD MANAGER SERVICES
Your use of the Services provided by Enmetric are subject to the General Terms of Service above including these Additional Terms and Conditions which govern your use of the Services indicated below. These Additional Terms and Conditions shall prevail over any conflict or inconsistency with the General Terms of Service above.
By clicking "ACCEPT", “LOG IN”, “SIGN IN” or otherwise using the Services, User indicates that it has read and understood, and assents to be bound by, the terms of this Agreement. If the person clicking on the "ACCEPT", “LOG IN”, “SIGN IN” or otherwise using the Services is an individual working for User ("Agent"), such person is agreeing to the terms and conditions of this Agreement on behalf of User and certifies that he/she is an Agent of User and has all necessary authority to act on your behalf, including to bind User to the terms and conditions of this Agreement.
If User does not agree to the terms of the Agreement, User is not granted any rights to use the Services. If User is not willing to be bound by these terms and conditions, User should not click the "ACCEPT", “LOG IN”, or “SIGN IN” buttons, and may not access or otherwise use the Services.
1. SUBSCRIPTION. The Services are licensed on a monthly or yearly subscription basis, as selected by User or its agent.
1.1. Termination by User. User may notify Enmetric to cancel the subscription prior to the beginning of each Renewal Term. Your rights to use the Services may be terminated by Enmetric immediately and without notice if Enmetric is unable to debit your or its agent's Card in accordance with this Agreement.
1.2. Transfer of Agreement. The agreement can be transferred to another person or entity only if such license has not been activated. Once validated, and a company is created, the Services will not work by another entity. Even if you stop using the Services, Enmetric has fulfilled your subscription term.
1.3. Trial Versions and Beta Features. You may be offered a trial version of the Services provided by Enmetric and/or its affiliates or trial versions for products or services through independent third parties. If you registered for a trial use of the Services or any third party trial services ("Trial Period"), you must decide to purchase a Services subscription within the Trial Period in order to retain any Content that you have entered through your use of the Services, created within your data file, posted or uploaded during the Trial Period. If you do not purchase a subscription to the Services by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Services during the trial period, if you decide not to purchase a subscription to the Services, you will not be able to access or retrieve any of the data you added or created with the Services during the trial. Additionally, any tax payment and filing obligations accrued during the free trial period which have not been executed by Enmetric will become your responsibility.
From time to time, Enmetric may, at its sole discretion, include new and/or updated beta features ("Beta Features") in the Services for your use and which permit you to provide feedback (fees may apply). You understand and agree that your use of the Beta Features is voluntary and Enmetric is not obligated to provide you with any Beta Features. You understand that once you use the Beta Features, you may be unable to revert back to the earlier non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the earlier non-beta version. The Beta Features are provided on an "as is" basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from any connected device. You acknowledge and agree that all use of the Beta Features is at your sole risk.
2. PERMITTED DISCLOSURES AND USE OF DATA. You acknowledge and agree that in order to provide you with access to and use of the Services, Enmetric may provide your Access Information and Account Data to (i) your employee or agent who is identified in the Registration Data as the current system administrator for the your account (the "Current Administrator"), (ii) such other employee or agent who may be designated by you as a replacement administrator for the your account by following the procedures required by Enmetric to effectuate such replacement, and (iii) any other person identified as an authorized user of the Services in the set-up interview form or in any subsequent communication to Enmetric (collectively, "Information Recipients").
3. SERVICES USE, STORAGE AND ACCESS. Enmetric shall have the right, in its sole discretion and with reasonable notice posted on the Enmetric Online site and/or sent to you at the Current Administrator's email address provided in the Registration Data, to revise, update, or otherwise modify the Services and establish or change limits concerning use of the Services, temporarily or permanently, including but not limited to (i) the amount of storage space you have through the Services at any time, and (ii) the number of times (and the maximum duration for which) you may access the Services in a given period of time. Enmetric reserves the right to make any such changes effective immediately to maintain the security of the system or User Access Information or to comply with any laws or regulations, and to provide you with electronic or written notice within thirty (30) days after such change. You may reject changes by discontinuing use of the Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement to such changes. Enmetric will attempt to provide prior notice of scheduled maintenance but cannot guarantee that such notice will be provided. Enmetric reserves the right to use a third party to host the Services.
5. ONLINE DATA TRANSFER
5.1. You may have the option to transfer your data files from the Service in order to facilitate certain interoperability, data integration, and data access between the Service and certain supported ancillary services (the "Ancillary Services") you may sign up for and use in connection with the Service (the "Online Data Transfer"). Separate fees may apply. In order for you to select the Online Data Transfer option, you must (i) have registered select versions of the Service, (ii) have Internet access, and (iii) and may need to be an active subscriber to the Ancillary Services. If you select the Online Data Transfer option, a copy of all or part of your company data files may be transferred via the Internet to Enmetric's servers (the "Transferred Files"); where you grant Enmetric the right and license to (i) host and maintain the Transferred Files and (ii) use the Transferred Files to make the Ancillary Services available to you, (iii) reformat and manipulate the Transferred Files as reasonably necessary for the data to function with the Ancillary Services. Your original data files will remain in the Service. If you are signed-up for any Ancillary Services that support Online Data Transfer, you will then have the option to have the Transferred Files sent to any of those supported Ancillary Services (a "Data Transfer"). If you are no longer signed-up for an Ancillary Service, you will no longer be able to process Online Data Transfers to that Ancillary Service.
5.2. If you authorize an Online Data Transfer for a third party Ancillary Service, you authorize Enmetric to provide the Transferred Files to the third party provider of such Ancillary Service in order to provide the Ancillary Service to you. You agree and acknowledge that Enmetric has no control over any third party Ancillary Services. Your use of the Ancillary Service may be subject to additional terms and conditions. Enmetric does not have any liability whatsoever for any actions or inactions on the part of the Ancillary Services resulting in your inability to use the Online Data Transfer feature or otherwise use the Ancillary Services in connection with the Service.