Last Updated: September 29, 2016
TERMS AND CONDITIONS OF USE
THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LEGAL INFORMATION
- SERVICE. PlotWatt, Inc. (“PlotWatt”) provides an energy monitoring service that assists its users in reducing their utility bills by providing customized recommendations based upon utility usage analysis from data collected directly from utilities and third party service providers (the “Service”). This Agreement covers the provision of such Service at one or more client locations subscribed for during the registration process for the Service (the “Client Locations”), which Client Locations may be amended from time to time by mutual agreement of the parties. In order to use the Service, Client must provide login credentials for the utility or utilities that provide service to the Client Locations, which credentials will be used by PlotWatt or its agents and contractors to obtain data associated with your accounts at such utilities. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) to use the Service.
- TERM. Each Client Location will receive Services on a month to month basis commencing upon final set-up of the Service at such Client Location. This Agreement shall automatically renew for subsequent monthly terms unless either party provides written cancellation notice to the other of its intent not to renew this Agreement with respect to a Client Location or multiple Client Locations prior to the date on which the monthly term for that Client Location or those Client Locations is set to renew. This Agreement shall remain in effect until no Client Locations are receiving Services hereunder. Service shall commence at a Client Location in a reasonable time after (i) payment of the first Monthly Fee for such Client Location is received by PlotWatt OR an initial free trial for such Client Location is approved by PlotWatt AND (ii) PlotWatt and its service providers have accessed and processed electronic utility data from the utilities for the Client Location using utility login and password information provided to PlotWatt from Client.
- TERMINATION: Either party may terminate this Agreement in its entirety or with respect to any Client Location at any time by giving written notice of its intent to terminate to the other party. In addition, PlotWatt may terminate this Agreement in its entirety or with respect to any Client Location, at any time for any or no reason upon giving prior written notice to Client. Sections 6, 7, 8, the last sentence of Section 9, and Sections 10, 12, 13, 14, and 15 of this Agreement, along with any accrued and outstanding payment obligation of Client and any other provision necessary to enforce the rights of any party hereto or otherwise intended to survive this Agreement’s expiration or termination, shall survive the expiration or termination of this Agreement.
- MONTHLY SERVICE FEE: Client shall pay a monthly service fee to PlotWatt for each Client Location (the “Monthly Fee”) which Monthly Fee shall entitle Client to use the Service at such Client Location. PlotWatt may offer a number of service plans, including special promotional plans or service plans with differing conditions and limitations. The Monthly Fee for the service plan you are signing up for will be disclosed to you at the time you sign-up for the Service. PlotWatt reserves the right to modify, terminate or otherwise amend our offered service plans at any time. PlotWatt reserves the right to change the Monthly Fee at any time upon 30 days written notice to you. The Monthly Fee may be waived for some period of time under a free trial, but such free trial may not last longer than 30 days. PlotWatt reserves the right, in its absolute discretion, to determine your free trial eligibility. PlotWatt reserves the right to adjust pricing for the Service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion.
- PAYMENT TERMS. The Monthly Fee for each Client Location shall be paid in advance. PlotWatt will bill the Monthly Fee to the Payment Method prior to the beginning of each monthly term under this Agreement. All Monthly Fees must be paid by ACH initiated by PlotWatt or by automatic recurring credit card payment, and Client shall deliver to PlotWatt such paperwork as is reasonably required to allow PlotWatt to withdraw funds from Client’s bank via ACH or to authorize PlotWatt to perform automatic recurring billing to Client’s credit card. All payments shall be in U.S. dollars in immediately available funds and shall be non-refundable once paid, and any failure to pay an undisputed amount within seven (7) days shall constitute a breach of this Agreement.
- LIMITED LICENSE; RESTRICTIONS ON USE: The Service provided by PlotWatt utilizes certain proprietary software, including in the monitoring of Client’s electricity usage. Subject to the terms of this Agreement, during the term of this Agreement, PlotWatt grants to Client a limited, non-exclusive, nontransferable right to access and use the Service, including the software included or embedded therein, solely in the manner provided by PlotWatt. Client shall not, and shall not permit or encourage any of its affiliates, employees, independent contractors, agents or other representatives (collectively, “Representatives”) or other third party, to do any of the following without PlotWatt’s express written permission: (A) Use the Service or any component other than for energy monitoring purposes as contemplated by this Agreement; (B) Rent, distribute, license, sublicense, lease, assign or transfer the Service or any component thereof or otherwise use or demonstrate the Service to any third party or permit any third party to have access to the Service by means of a time sharing, remote computing services, networking, batch processing or service bureau arrangement; (C) Derive or attempt to derive the source code, source files, or any component or structure of all or any portion of the Service (including any software included therein) by reverse engineering, disassembly, decompilation, or any other means; (D) Copy the look and feel of the Service or any component thereof (including the software or graphical user interface) for use with any competitive product, whether used internally or made available to third parties; or (E) Use, reproduce or display any trademark, trade name, brand, logo, design, slogan, product name or internet domain name of PlotWatt without PlotWatt’s prior written consent. Client shall not take any action not permitted by the scope of the license granted hereunder.
- OWNERSHIP OF THE SERVICE: Nothing in this Agreement shall be construed to convey any ownership or proprietary right, title or interest to Client or any third party in the Service, or any portion or copy thereof. As between the parties hereto, all intellectual property and proprietary rights in the Service shall remain the sole and exclusive property of PlotWatt. In addition, any intellectual property, invention, addition, modification or improvement used or useful in or related to the Service and arising out of Client’s or its Representative’s use of the Service (a “Service Improvement”) shall be and remain the sole property of PlotWatt, and Client hereby covenants and agrees that it will assign and will cause its Representatives to assign, and upon the authorship, development or creation of any such Service Improvement, whether separately or jointly in connection with others, expressly and automatically assigns, all right, title and interest to any such Service Improvement to PlotWatt. Client agrees to execute such further instruments and take such further action as PlotWatt may reasonably request to affect PlotWatt’s ownership of any such Service Improvement.
- CLIENT OPERATING PROCEDURES: In order for the Service to function as intended, Client and PlotWatt agree that Client shall be required to bear certain mutually agreed responsibilities, including the following:
- Client shall be solely responsible (including for the security thereof) for all Client data and files that may be created by or used by Client in connection with the Service, including as provided by PlotWatt. PlotWatt makes no warranty and shall have no liability with respect to such files or data,
- In connection with the Service, PlotWatt may occasionally make recommendations or suggest changes to Client, including suggesting that Client change the thermostat setting at one or more Client Locations. Client acknowledges and agrees that Client shall not be required to adopt any such recommendations and that Client shall only adopt or implement any such recommendations to the extent it has the requisite authority to do so. PlotWatt makes no warranty and shall have no liability with respect to such recommendations or suggestions,
- For each Client Location, prior to commencement of the Service at such Client Location, Client shall provide to PlotWatt direct electronic access to the electricity and other utility bills for such Client Location including electronic access to utility bills and energy usage information for each of the twelve (12) months previous to when the Service shall commence at such Client Location. Client authorizes PlotWatt to share such access with its third party contractors for purposes of providing the Service. During the term of this Agreement, Client shall also provide PlotWatt with direct electronic access to Client’s utility bills and energy usage information on an ongoing basis. Client’s inability to provide direct electronic access to such information will result in delays or termination of the Service at a particular Client Location. Client is responsible for ensuring electronic access by PlotWatt and its third party service providers (including, Urjanet, Inc., and UtilityAPI) to the utility information and energy usage information for each Client Location and shall ensure that if the login or passwords used for such access change that PlotWatt is provided with updated information. PlotWatt shall not be liable for any delays, interruptions or failures in providing the Service caused by interruptions in electronic access to utility data or energy usage information. PlotWatt does not guarantee that the Service will be available at any particular Client Location. The quality and frequency of data available from Client’s utilities will affect the availability of Services and the frequency of updates provided to Client in connection with such Services and may vary from Client Location to Client Location because of variations in utility information available. Client acknowledges and agrees that PlotWatt (and certain of its third party service providers) may access and use any utility-related data available from Client’s utility providers to allow PlotWatt and its third party service providers to create analytics and provide the Services hereunder. Such data may include data associated with Client’s login credentials for a utility at locations other than the Client Locations.
Client hereby indemnifies and holds harmless PlotWatt and its Representatives from and against any losses, liabilities, costs or expenses arising out of or related to Client’s failure to fulfill its responsibilities set forth in this Section 9.
- DISCLAIMER OF WARRANTY: OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 9, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, PLOTWATT SPECIFICALLY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICE, OR THE AVAILABILITY OF THE SERVICE AT ANY PARTICULAR CLIENT LOCATION, OR THAT SUCH SERVICE WILL BE UNINTERRUPTED AND ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT IS SOLELY RESPONSIBLE FOR ANY HARM OR DAMAGES THAT MAY RESULT FROM CLIENT’S USE OF THE SERVICE ON OR IN CONNECTION WITH ANY CLIENT LOCATION OR ITS OR ANY THIRD PARTY’S OTHER PROPERTY, INCLUDING IN CONNECTION WITH ANY PUBLIC OR PRIVATE COMPUTER NETWORK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PLOTWATT OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND CLIENT MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
- SERVICE MAINTENANCE/UPDATES: PlotWatt is not obligated to provide updates, upgrades, modifications, supplements or revisions to the Service or any maintenance or technical support in connection with the Service. Client acknowledges that PlotWatt is under no obligation to make any changes or modifications to the Service, whether suggested by Client, its Representatives or otherwise, and PlotWatt reserves the right, with or without prior notice to Client, to discontinue work on the Service or to revise or modify the Service so it provides different features, features in different combinations and/or different environment configurations. The discontinuation of the Service, or the revision or modification of the Service in a way that materially impairs the overall value of the Service to Client, shall constitute a material breach of this Agreement and Client shall have the right to terminate this Agreement in accordance with Section 1. From time to time, PlotWatt may offer additional services or features to Client on a trial or promotional basis, in PlotWatt’s sole discretion. Such services may include custom consulting or custom reports from PlotWatt energy analysts, bill audits or rate optimization services, operational insights, data analysis based on any data other than data obtained by PlotWatt via any energy monitor installed by PlotWatt, benchmarking services, various online dashboards or online dashboard modifications, equipment health status reports and failure diagnosis technical support. PlotWatt shall have no obligation to continue to offer any such services or features and may discontinue such services/features at any time or make such services/features available for a separate fee.
- LIMITATION OF LIABILITY: EXCEPT FOR ANY LIABILITY OF A PARTY ARISING PURSUANT TO SECTIONS 6,7,8,9, OR 13 OF THIS AGREEMENT, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, NEITHER PARTY SHALL BE LIABLE (A) FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY DIRECT DAMAGES OR OTHER AMOUNT IN EXCESS OF ONE THOUSAND DOLLARS ($1,000).
- INDEMNIFICATION: Each party shall defend, indemnify and hold harmless the other party and its Representatives from and against any and all third-party claims, and accompanying losses, liabilities, costs, or expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of, or in connection with, (A) any material breach of this Agreement by such indemnifying party or its Representatives or (B) the gross negligence or willful misconduct of such indemnifying party or its Representatives. An indemnified party hereunder shall promptly notify the indemnifying party in writing of any indemnifiable Claim; provided, however, that failure to give such prompt notice shall only relieve such indemnifying party of its indemnification obligations hereunder to the extent such failure materially and actually prejudices such party. An indemnified party shall reasonably cooperate, at the indemnifying party’s expense, in the indemnifying party’s defense of any such Claim; provided, however, that such cooperation shall not entail the indemnified party being required to consent to any settlement of such Claim without its prior written consent, which shall not be unreasonably withheld.
- DISPUTE RESOLUTION: Any dispute arising out of or relating to this Agreement (a “Dispute”) not otherwise resolved by the parties shall be arbitrated in accordance with the rules promulgated by the American Arbitration Association. The arbitrator shall not have the power to award any special, punitive, indirect, consequential or incidental damages to either party. Each party shall bear all of its expenses and one-half of the fees and expenses of the arbitrator. The decision of the arbitrator shall be final and binding and may be enforced in any court of competent jurisdiction. The procedure set forth in this section is the exclusive means for resolving any Dispute between the parties arising out of or relating to this Agreement and neither party may initiate or maintain any proceeding in any court or similar tribunal relating to any such Dispute; provided, that either party may seek temporary equitable relief from any court of competent jurisdiction to the extent reasonably necessary to protect its rights under this Agreement.
- ADDITIONAL TERMS: The parties agree that this Agreement represents the complete and exclusive statement of the agreement between the parties hereto and supersedes any prior agreement or license, oral or written, and any other communications relating to the subject matter of this Agreement. In the event there is more than one Agreement between Client and PlotWatt regarding a particular Client Location, the terms of the later Agreement shall govern. This Agreement may be amended, modified or supplemented only by written agreement of both of the parties hereto. The execution, interpretation and performance of this Agreement shall be governed by and construed in accordance with the internal laws and judicial decisions of the State of North Carolina, without giving effect to the principles of conflicts of law. Neither this Agreement nor any rights, licenses, remedies, obligations and liabilities granted hereunder to Client may be transferred or assigned (including in connection with a change of control of Client or otherwise by operation of law) to any other party without the express written consent of PlotWatt. PlotWatt may assign or transfer this Agreement without Client’s consent. Any attempted assignment or transfer in violation of this provision shall be void. If any term of this Agreement shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of this Agreement shall continue in full effect. The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision of this Agreement. All notices or other communications to a party which are required or permitted pursuant to this Agreement shall be in writing to the address set forth for such party on the first page of this Agreement. This Agreement does not grant any rights or remedies to any person or entity that is not a party to this Agreement. No person or entity is a third party beneficiary of this Agreement. It is expressly agreed that the parties hereto shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency. No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on any other party, without the prior written consent of such other party. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.