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Terms of Service

EnergSoft, Inc. Terms of Service

EnergSoft Terms of Service

Effective: March 28, 2018


Thanks for using EnergSoft! These terms of service ("Terms") cover your use and access to our services, client software and websites ("Services"). Our Privacy Policy explains how we collect and use your information while our Acceptable Use Policy outlines your responsibilities when using our Services. By using our Services, you agree to be bound by these Terms, our Privacy Policy and Acceptable Use Policy. If you are using our Services for an organization, you agree to these Terms on behalf of that organization.


Your Stuff & Your Permissions

When you use our Services, you provide us with things like your files, energy storage data, content, messages, contacts and so on ("Your Stuff"). Your Stuff is yours. These Terms do not give us any rights to Your Stuff except for the limited rights that enable us to offer the Services.

We need your permission to do things like hosting Your Stuff, backing it up, and sharing it when you ask us to. Our Services also provide you with features like plots, charts, previews, Excel exports, commenting, easy sorting, editing, sharing and searching. These and other features may require our systems to access, store and scan Your Stuff. You permit us to do those things, and this permission extends to our affiliates and trusted third parties we work with.


Sharing Your Stuff

Our Services let you share Your Stuff with others, so please think carefully about what you share.


Your Responsibilities

You are responsible for your conduct. Your Stuff and you must comply with our Acceptable Use Policy. Content in the Services may be protected by others' intellectual property rights. Please don't copy, upload, download or share content unless you have the right to do so.

We may review your conduct and content for compliance with these Terms and our Acceptable Use Policy. With that said, we have no obligation to do so. We are not responsible for the content people post and share via the Services.

Help us keep you informed and Your Stuff protected. Safeguard your password to the Services and keep your account information current. Don't share your account credentials or give others access to your account.

You may use our Services only as permitted by applicable law, including export control laws and regulations. Finally, our Services are not intended for and may not be used by people under the age of 13. By using our Services, you are representing to us that you are over 13.


Software

Some of our Services allow you to download client software ("Software") which may update automatically. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we will make that license available to you, and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.


Beta Services

We sometimes release products and features that we are still testing and evaluating. Those Services have been marked beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as EnergSoft's other services, so please keep that in mind.


Our Stuff

The Services are protected by copyright, trademark, and the other US and foreign laws. These Terms do not grant you any right, title or interest in the Services, others' content in the Services, EnergSoft trademarks, logos and other brand features. We welcome feedback but note that we may use comments or suggestions without any obligation to you.


Copyright

We respect the intellectual property of others and ask that you do too. We respond to notices of alleged copyright infringement if they comply with the law, and such notices should be reported using our Copyright Policy. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:

Copyright Agent EnergSoft, Inc.


Paid Accounts

Billing. You can increase your storage space, your trial expired or add paid features to your account (turning your account into a "Paid Account"). We will automatically bill you from the date you convert to a Paid Account and on each periodic renewal until cancellation. If you are on an annual plan, we will send you a notice email reminding you that your plan is about to renew within a reasonable period before the renewal date. You are responsible for all applicable taxes, and we will charge tax when required to do so. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph does not override these laws.

No Refunds. You may cancel your EnergSoft Paid Account at any time. Refunds are only issued if required by law. For example, users living in the European Union have the right to cancel their Paid Account subscriptions within 14 days of signing up for, upgrading to or renewing a Paid Account.

Downgrades. Your Paid Account will remain in effect until it is cancelled or terminated under these Terms. If you do not pay for your Paid Account on time, we reserve the right to suspend it or reduce your storage to free space levels.

Changes. We may change the fees in effect but will give you notice of these changes via a message to the email address associated with your account.


EnergSoft Teams

Email address. If you sign up for an EnergSoft account with an email address provisioned by your organization, your organization may be able to block your use of EnergSoft until you transition to an account on an EnergSoft team (e.g., EnergSoft Business plans or EnergSoft Education) or you associate your EnergSoft account with a personal email address.

Using EnergSoft as Teams. If you join an EnergSoft as a team, you must use it in compliance with your organization's terms and policies. Please note that EnergSoft team accounts are subject to your organization's control. Your administrators may be able to access, disclose, restrict, or remove information in or from your EnergSoft team account. They may also be able to restrict or terminate your access to an EnergSoft team account. If you convert an existing EnergSoft account into part of an EnergSoft team, your administrators may prevent you from later disassociating your account from the EnergSoft team.



Acceptable Use Policy

EnergSoft is used by hundreds of people, and we're proud of the trust placed in us. In exchange, we trust you to use our services responsibly.

You agree not to misuse the EnergSoft services ("Services") or help anyone else to do so. For example, you must not even try to do any of the following in connection with the Services:

  • probe, scan, or test the vulnerability of any system or network;
  • breach or otherwise circumvent any security or authentication measures;
  • access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven't been invited to;
  • interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
  • access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk);
  • send unsolicited communications, promotions or advertisements, or spam;
  • send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
  • promote or advertise products or services other than your own without appropriate authorization;
  • abuse referrals or promotions to get more storage space than deserved;
  • circumvent storage space limits;
  • sell the Services unless specifically authorized to do so;
  • publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence;
  • advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual preference, disability, or impairment;
  • violate the law in any way, including storing, publishing or sharing material that's fraudulent, defamatory, or misleading; or
  • violate the privacy or infringe the rights of others.

Find out more

Disputes and Discontinuation

Termination

  

You are free to stop using our Services at any time. We reserve the right to suspend or terminate your access to the Services with notice to you if:

(a) you are in breach of these Terms,

(b) you are using the Services in a manner that would cause a real risk of harm or loss to other users or us, or

(c) you do not have a Paid Account and haven't accessed our Services for 12 consecutive months.

We will provide you with reasonable notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export Your Stuff from our Services. If after such notice you fail to take the steps we ask of you, we will terminate or suspend your access to the Services.

We will not provide notice before termination where:

(a) you are in material breach of these Terms,

(b) doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or

(c) we're prohibited from doing so by law.

Discontinuation of Services

  

We may decide to discontinue the Services in response to unforeseen circumstances beyond EnergSoft's control or to comply with a legal requirement. If we do so, we will give you reasonable prior notice so that you can export Your Stuff from our systems. If we discontinue Services in this way before the end of any fixed or minimum term you have paid us for, we will refund the portion of the fees you have pre-paid but haven't received Services for.

Services "AS IS"

We strive to provide great Services, but there are certain things that we cannot guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, ENERGSOFT AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS." WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some places do not allow the disclaimers in this paragraph, so they may not apply to you.

Limitation of Liability

WE DON'T EXCLUDE OR LIMIT OUR LIABILITY TO YOU WHERE IT WOULD BE ILLEGAL TO DO SO—THIS INCLUDES ANY LIABILITY FOR ENERGSOFT'S OR ITS AFFILIATES' FRAUD OR FRAUDULENT MISREPRESENTATION IN PROVIDING THE SERVICES. IN COUNTRIES WHERE THE FOLLOWING TYPES OF EXCLUSIONS AREN'T ALLOWED, WE are RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL OR the BREACH OF OUR CONTRACT WITH YOU. THIS PARAGRAPH DOESN'T AFFECT CONSUMER RIGHTS THAT CAN'T BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.

IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, ENERGSOFT, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL NOT BE LIABLE FOR:

i. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR

ii. ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.

THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT ENERGSOFT OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE, ENERGSOFT, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY. ENERGSOFT AND ITS AFFILIATES AREN'T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.

OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $20 USD OR 100% OF ANY AMOUNT YOU'VE PAID UNDER YOUR CURRENT SERVICE PLAN WITH ENERGSOFT.

Resolving Disputes

 Let's Try To Sort Things Out First. We want to address your concerns without needing a formal legal case. Before filing a claim against EnergSoft, you agree to try to resolve the dispute informally by contacting sales@EnergSoft.com

We will try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or EnergSoft may bring a formal proceeding.
  
Judicial forum for disputes. You and EnergSoft agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of Delaware, subject to the mandatory arbitration provisions below. 

Both you and EnergSoft consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, European Union member states) with laws that give consumers the right to bring disputes in their local courts, this paragraph does not affect those requirements.
IF YOU are A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
We Both Agree To Arbitrate. You and EnergSoft agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this "Mandatory Arbitration Provisions" section, including its enforceability, revocability, or validity.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by clicking here and submitting the opt-out form within 30 days of first registering your account. However, if you agreed to a previous version of these Terms that allowed you to opt out of arbitration, your previous choice to opt out or not opt out remains to bind.
Arbitration Procedures. 

The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco (CA), or any other location we agree to.
Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. EnergSoft will pay all arbitration fees for individual arbitration for claims less than $75,000. If you receive an arbitration award that is more favourable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. EnergSoft will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim be frivolous.
Exceptions to Agreement to Arbitrate. Either you or EnergSoft may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Delaware to resolve your complaint.
NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If this specific paragraph is held unenforceable, then the entirety of this "Mandatory Arbitration Provisions" section will be deemed void. software engineering software development company Terms of Service

Controlling Law

  

These Terms will be governed by Delaware law except for its conflicts of laws principles. However, some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer's country. This paragraph does not override those laws.


  

Entire Agreement

These Terms constitute the entire agreement between you and EnergSoft concerning the subject matter of these Terms and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third-party beneficiary rights.

Waiver, Severability & Assignment

EnergSoft's failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect, and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. EnergSoft may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Modifications

We may revise these Terms from time to time to better reflect:

(a) changes to the law,

(b) new regulatory requirements, or

(c) improvements or enhancements made to our Services.

If an update affects your use of the Services or your legal rights as a user of our Services, we will notify you before the update's effective date by sending an email to the email address associated with your account or via an in-product notification. These updated terms will be effective no less than 30 days from when we notify you.

If you do not agree with the updates we make, please cancel your account before they become effective. Where applicable, we will offer you a prorated refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.

Terms Of Service

Customer Obligations

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. 


1. Your Rights. As between EnergSoft and Customer, Customer retains all of its rights to any business information or other data that Customer submits to the Product (“Customer Data”) or ("Your Stuff").


2. Use of Customer Data. Customer grants EnergSoft a worldwide, non-exclusive, royalty-free right to use, copy, store, transmit, distribute, publicly perform and display, create derivative works of and modify any Customer Data in order to provide the Product to Customer and otherwise to operate, improve and maintain the Product.  .


3. Storage of Customer Data. EnergSoft does not provide an archiving service. EnergSoft agrees only that it will not intentionally delete Customer Data prior to termination or expiration of your Paid Subscription or Invoice Package. 


4.  Customer represents, warrants and agrees that: (i) Customer’s use of the Product will comply with all applicable local, state, federal and international laws and regulations, including those relating to privacy, data security, export control and electronic commutations (“Laws”); (ii) Customer has obtained all necessary rights, releases and permissions to provide and allow the processing, use and disclosure of Customer Data by EnergSoft under these Terms; (iii) neither the Customer Data nor its processing, use or disclosure will violate any Laws, third party rights (including intellectual property rights, rights of privacy or rights of publicity) or any applicable Customer privacy policy; and(iv) Customer will not use the Product in support of, or to further, any activities prohibited by any Laws (e.g., money laundering) or, even if not prohibited by law, for gambling, prostitution, alcohol, drug, pharmaceutical or healthcare businesses or services. 


Aggregate/Anonymous Data. In addition to its other rights above, EnergSoft may aggregate Customer Data with other data so that the results are non-personally identifiable to Customer and may collect anonymous technical and other data about Customer’s use of the Product (“Aggregated/Anonymous Data”). EnergSoft owns all Aggregate/Anonymous Data and may use Aggregate/Anonymous Data for its marketing, machine learning, reporting and other lawful business purposes. 


Other Data Collection and Handling. EnergSoft uses your account information  and certain other information about your use of the Product in accordance with our Privacy Policy.