TERMS OF SERVICE

HVAC LIFECYCLE CARE

Please carefully review these Terms of Service (collectively, these “Terms of Service” and, sometimes, this “Agreement”), which are provided and updated from time to time by Service Provider (“Company,” “us,” “we” and the like). Your subscription to any of our Services (as defined below) is governed by these Terms of Service, as indicated in your formal written proposal (the “Proposal”).

Company offers a suite of software, energy benchmarking, HVAC equipment repair and replacement and asset tagging services that empowers owners and managers of real estate to track, analyze and improve building efficiency by providing actionable information that helps manage energy usage and prevent and expedite repair and replacement of HVAC equipment (collectively, the “Services”). In light of the fact that we provide our Services in rapidly and constantly evolving markets, we must and hereby do reserve the right, at any time and in our sole discretion, to update and change any or all of these Terms of Service, subject to certain specific terms and conditions set forth in your Proposal (e.g., your contractual terms, pricing, etc.). If any revision we make constitutes a material change to the Agreement, we will notify you; provided, however, that what constitutes a “material change” will be determined by Company in its sole and absolute discretion, which we shall exercise in good faith and using common sense and reasonable judgment. You are responsible for regularly reviewing the most current version of the Terms of Service, which are available at this site. Your continued use of any of the Services after any changes have been made to the Terms of Service shall constitute your consent to be bound by such changes. If you object to any of these Terms of Service, or any changes hereto, whether material or otherwise, your sole and exclusive remedy shall be to terminate your subscription to the Services according to the terms herein.

 1. KEY TERMS

“Cellular Data Modem Hardware” means devices that enable the Thermostat Hardware to connect to the internet via cellular data service through a 3rd-party service provider if included as part of the Installation.

“Confidential Information” means all information disclosed by one party to the other party that is identified in writing as “confidential” or “proprietary” (or, in the case of oral disclosures is summarized in writing and delivered to the receiving party within 30 days or would be reasonably considered proprietary or confidential).

“Customer Data” means the customer-specific data available to the Customer through the Service.

“Initial Term” means the period commencing on the Effective Date and ending on the last day of the Service Period. 

“Installation” means the proper placement and activation of Thermostat Hardware and, if applicable, Cellular Data Modem Hardware in Customer locations.

"Service" means the online, cloud-based business application including content and associated offline components, made available by Company to Customer, as well as reports, HVAC monitoring, and proactive maintenance calls.

“Service Period” means the period beginning on the date of installation and activation of the Service for each individual Customer Site and continuing for the period set forth on the Order Form.

“Site” means each of the Customer’s individual locations for which the Company’s Hardware and Services will be installed.

“Territory” means the United States.

“Thermostat Hardware” means a WiFi-enabled HVAC controls device used to adjust the temperature according to a series of programmed set-points.  Thermostat may include remote temperature sensors if applicable.

“Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied with user identifications and passwords by Customer (or by Company at Customer’s request).

 2. SERVICES

2.1    Subject to the terms and conditions of this Agreement and payment of all applicable fees and charges set forth in this Agreement, Company grants Customer a non-exclusive, non-transferable, revocable, limited right and license during the Term to use the Service for Customer’s internal, in-house business use only within the Territory and elsewhere as authorized by Company. Company reserves all rights in the Service not expressly granted herein. 

2.2    Company reserves the right to perform maintenance of the Service as needed and, except in the event of emergency maintenance, will provide reasonable notice to Customer of any unavailability and the reasons therefore.  Except for Company-provisioned cellular data modems used exclusively for Service (if applicable), Customer acknowledges that Company shall not be responsible for providing internet access or any equipment or services necessary to utilize internet access, including any WiFi equipment, local area network, internet connection operations & equipment, and security at each Site. 

2.3    A user account is required to access the Service, which may be used only by Authorized Users.  Each User must have a personal, non-transferable password to use his/her respective user account.  User accounts shall not be “shared” or used by more than one User.

2.4    Customer is responsible for any and all activities that occur under Customer’s User accounts, including without limitation any loss or damage which results from their misuse.  IDs and passwords for the Company’s Service shall be reasonably protected and safeguarded by the Customer to prevent unauthorized use of credentials.  Customer shall: (a) notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Company immediately and stop immediately any copying or distribution of any content contained in, or accessible through, the Service that is known or suspected by Customer or its Users; (c) ensure that use of the Service shall at all times comply with all applicable laws, regulations, and conventions.

2.5    Where the Customer reports a failure in the Service or any Thermostat or Cellular Data Modem Hardware and upon investigation by Company, such failure: (a) is not capable of being replicated by Company; (b) arose in Company’s reasonable opinion because of the Customer’s (or its employees’ or agents’) misuse, negligence or willful misconduct or; or (c) relates to computer equipment or software that does not form part of the Service, the Company reserves the right to charge for the work undertaken in investigating the failure at its then standard rates.  

2.6    The Customer warrants that it has sought all necessary permissions and is legally entitled to allow Company to monitor each User and process the personal data.

3. TERM AND TERMINATION

3.1    This Agreement shall commence on the Effective Date and shall remain in effect through the Initial Term unless earlier terminated as set forth below.  This Agreement shall renew automatically for successive one-year periods at the Service fees in effect at the time of each such renewal until terminated upon one party giving the other at least 60 days written notice prior to the expiry of the renewal period then in effect (collectively, the Initial Term and all renewal periods shall be the "Term").

3.2    Either party may terminate this Agreement upon notice to the other party if the other party materially breaches this Agreement and such breach is not remedied within 30 days of such notice (10 days for non-payment).

3.3    Either party may terminate this Agreement immediately upon notice if the other party becomes subject to any proceeding under any statute of any governing authority relating to insolvency or the rights to creditors which is not dismissed within sixty (60) days, or the equivalent occurs in any jurisdiction.

3.4    Upon termination of this Agreement for any reason, all amounts due under this Agreement (whether or not accrued at the date of termination) shall become immediately due and payable, all licenses shall immediately terminate and each party shall promptly return (or, if requested by the other party, destroy) all Confidential Information of the other party in its possession.

3.5    Upon termination, Company may immediately terminate Customer’s access to the Service, Cellular Data Modem Hardware and cellular data service provisioned through a 3rd-party service provider and paid for by the Company, and at any time thereafter delete the Customer Data and/or any related data.

3.6    Sections 1, 2.4, 2.6, 5, 6, 7, 8, 9 and 10 shall survive termination of this Agreement in accordance with their terms.

4. DELIVERY AND PAYMENT

4.1    Customer shall pay the fees set forth in the Statement of Service. 

4.2    Except as expressly provided in this Agreement, all fees paid or due are non-refundable and non-cancellable.   Payments which are not received by Company when due shall bear interest on the outstanding amount at the lower of the maximum rate permitted by law or 1% per month commencing on the date payment was due, and Customer shall reimburse Company for all costs of collection of such amounts. 

4.3    Customer pays recurring fees quarterly and will be due on the Effective Date or an alternate date agreed-upon and defined in the Order Form.  Payments for subsequent quarters will be due on the corresponding quarterly anniversary of the initial subscription due date. All sites regardless of installation timing will receive a full 3 years of service.

4.4    All fees and expenses are payable in United States Dollars and Customer shall be responsible for paying all applicable sales, use, excise, withholding, import or export, value added or similar tax or duty, and any other tax not based on the income received by Company hereunder.

4.5   Set-Up Fees

Set-up fees include the following one-time costs:

A.    Hardware:

i. Thermostat.   Company will provide phone support to assist HVAC service tech to ensure the proper installation process is followed.  Company will provide a checklist and training materials to assist the installation of the Company’s thermostats.

ii.    Water Sensor. Company will provide phone support to assist HVAC service tech to ensure the proper installation process is followed. 

B.    Training on using Virtual Energy Manager software application.

4.5.1    C-Wires and Proprietary Thermostats

Company thermostats require a c-wire from the HVAC unit to power them. The vast majority of sites have c-wires in place. If no c-wire is in place, the Customer can have a c-wire added by working with and paying a 3rd party HVAC service tech.

4.5.2    Proprietary Thermostats

In rare cases, a Customer’s HVAC unit uses a proprietary wiring technology to the thermostat and the Company thermostats are not compatible. If this occurs, the Customer can make the HVAC unit compatible with the Company’s service by working with and paying a 3rd party HVAC service tech to replace the controller board of the HVAC unit.

4.5.3    Subscription Fees

Subscription fees include the following recurring services:

A.    Secure access for selected Customer employees to the Company’s Virtual Energy Manager software application and web portal for automated HVAC management at each site, which provides

1)    a centralized console to view and control multi-day schedules and set-points;

2)    monitoring, alerts, & alarms;

3)    site-specific trending analytics reflecting thermostat usage and HVAC RTU performance; and

4)    standard reports (daily or weekly).

B.    On-Demand Customer Support

C.    HVAC Proactive Monitoring service

D.    Energy Savings Measurement & Verification

 As a condition to receipt of the Services, and as a requirement for the Company to measure and verify energy savings, Customer will supply 12 months of historical electric and gas bills plus ongoing utility bills for each Site under contract to Company.  Customer will provide historical utility bills within 90 days of contract signing, and for subsequent utility bills, Customer will provide 3 months of bills on a quarterly basis.  Customer can either scan bills and send via email, provide password access to Customer’s online billing information provided by the local utility (if it is available), or provide password access to Customer’s service bureau for centralized bill administration. 

4.5.4    Internet Connectivity

Customer will provide Company access to Customer’s WiFi network for enabling internet connectivity for the service.

4.5.5    Payment Information

Customer pays for the set-up fee and a special one-year annual subscription at the time of contract signing. 

4.5.6    Hardware

Thermostats include a one year warranty (as specified in the terms and conditions), beginning on the date the hardware is installed by a Company technician or an authorized partner at the Customer location.  Repair of hardware under warranty is done at no additional charge to the Customer.  Repair or replacement of hardware that is out of warranty will be charged at the prevailing prices at the time of service.

Company will have no obligation to de-install or collect Thermostats at the end of the subscription term.  If Company agrees (in its sole discretion) to de-install the Thermostat, Customer shall pay Company’s standard de-installation charges then in effect.

4.5.7    Site Closures

The Company understands that the Customer may close certain sites under contract and possibly open new ones not under contract over the course of a contract. If a site closes, the subscription for that site can be transferred to a new site at no additional charge. When the new site is selected, the Customer will be charged for a site survey, the new equipment and installation at cost (i.e. the Upfront Pricing Plan Set Up Costs). The Customer is responsible for continuing to pay recurring fees for closed sites regardless of whether the subscription has been transferred or not.

4.5.8    Taxes

Taxes the Company is required to collect are represented as Sales Tax or included in prices.  Prices exclude any taxes the Company is not required to collect.

5. WARRANTIES, REMEDIES, LIMITATIONS OF LIABILITY, AND INDEMNIFICATIONS

5.1    Company warrants to Customer that the Service will be performed in a professional and workmanlike manner.  As Customer’s exclusive remedy for breach of the foregoing warranty, Company shall, at its option, repair or replace the nonconforming elements of the Service.   Company shall have no obligation hereunder if the Thermostat Hardware, Cellular Data Modem Hardware, 3rd-party cellular data network or software used in the Service is modified, altered, merged or subjected to misuse, neglect, accident or improper use by Customer or any third party.

5.2    EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY, ITS SUPPLIERS AND VENDORS EXCLUDE ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  COMPANY AND ITS SUPPLIERS AND VENDORS SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICE, THERMOSTAT HARDWARE, CELLULAR DATA MODEM HARDWARE OR CELLULAR SERVICE PROVISIONED THROUGH A 3RD-PARTY SERVICE PROVIDER WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE.  NOR DOES COMPANY (OR ITS VENDORS OR SUPPLIERS) MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED.

5.3    COMPANY, ITS VENDORS AND SUPPLIERS ENTIRE LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, OR IN TORT (INCLUDING NEGLIGENCE) FOR ALL CLAIMS RELATING TO THIS AGREEMENT AND ITS PERFORMANCE, SHALL BE LIMITED IN AGGREGATE TO THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. 

5.4    IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES.

5.5    Neither party’s liability for death or personal injury resulting from negligence or for fraud or fraudulent misrepresentation is excluded or limited.

5.6    Company shall indemnify Customer from and against any third party liabilities, losses, damages, claims, suits, and expenses, including reasonable legal expenses, of whatever kind and nature (“Losses”), imposed upon, incurred by or asserted against Customer relating to or arising out of any third party claim brought against the Customer alleging that the Service used as contemplated by this Agreement violates any proprietary rights of any third person.  Section 7.6 states Company’s entire obligations regarding infringement of a third party’s intellectual property rights with respect to the use of the Thermostat Hardware, Cellular Data Modem Hardware or the Service.

5.7    Customer shall indemnify Company, its Suppliers and Vendors from and against any and all Losses imposed upon, incurred by or asserted against Company relating to or arising out of: (a) Customer’s use of the Service and/or the Thermostat Hardware, Cellular Data Modem Hardware, or 3rd-party cellular data service; and (b) any claim alleging that Company’s use of the Customer Data violates the proprietary rights of, or has caused harm to, any third party (including, without limitation, any User).

5.8    “””””””””””””””””{The indemnity obligations set forth in this Section 7 are contingent upon (a) the indemnified party giving prompt written notice of any indemnified claim, (b) the indemnified party allowing the indemnifying party the sole control of the defense and related settlement negotiations for such claim; and (c) the indemnified party providing reasonable assistance and cooperating in the defense and settlement negotiations as requested by the indemnifying party and at the indemnifying party’s expense.

6. PROPERTY RIGHTS

6.1    Unless otherwise agreed in writing by the parties, all Thermostat and Cellular Data Modem Hardware provided by Company to Customer hereunder are purchased by Customer, and Customer shall be the sole and exclusive owner thereof.  Company shall have no obligation to de-install or remove any Thermostat or Cellular Data Modem Hardware from Customer’s Locations.

Customer shall remain the sole and exclusive owner of the Customer Data, and Company is and shall remain the sole and exclusive owner of the Service and all software and documentation provided or made available by Company.  Customer hereby grants to Company an irrevocable, perpetual, royalty-free, worldwide, assignable right and license to use, sublicense, reproduce, maintain, modify, display, create derivative works of, and otherwise fully exploit and commercialize the Customer Data; provided, however, that Company may not disclose to third parties the personally identifying information of the Users contained in the Customer Data except as may be provided in this Agreement or as required by law, regulation or government authority.

7. CONFIDENTIALITY AND DATA PROTECTION

7.1    By virtue of this Agreement, each party may have access to the Confidential Information of the other party. The parties expressly acknowledge that the Customer Data shall be governed by Section 5 and shall not constitute Confidential Information. Each party agrees to keep confidential all Confidential Information disclosed to it by the other party or a third party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). This Section 7 shall not apply to anything which: (i) is or becomes (through no improper action or inaction by the receiving party) generally available to the public, or (ii) was in its possession or known by it prior to receipt from the disclosing party, or (iii) was rightfully disclosed to it by a third party, or (iv) is required to be disclosed by a subpoena, request for documents, or other validly issued judicial or administrative process, provided that the party so required promptly notifies the other party of the receipt of process and permits the other party a reasonable opportunity to respond to such process; or (v) is necessary to be disclosed by a party in order to meet its obligations under this Agreement. If a party wishes to rely on one of these exclusions it shall give prompt written notice to the other party detailing the relevant information and the reason for disclosure.

8. MISCELLANEOUS

8.1    Neither party shall be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the party concerned.   The Service may be subject to limitations, unavailability, delays and other problems inherent in the use of the internet, 3rd-party cellular data networks, Customer’s WiFi networks, and electronic communications.  Company is not responsible for any delays, delivery failures, or any loss or damage resulting from the same. Notwithstanding the foregoing, nothing herein shall relieve Customer of its obligations to pay monies due and owing to Company hereunder.

8.2    Company may reference Customer’s status as a user of the Service on Company’ website, in marketing materials and in sales presentations. 

8.3    The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

8.4    The Customer may not assign or transfer any of its rights or obligations under this Agreement in whole or in part without Company’s prior written consent.  Company may freely assign, transfer and sub-contract this Agreement and any or all of its obligations herein.

8.5    This Agreement shall not be amended or modified except in a writing executed by the duly authorized representatives of Company and the Customer. 

8.6    If any provision of this Agreement is held to be invalid or unenforceable, the parties shall substitute an enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of this Agreement will remain in full force and effect. 

8.7    All notices which are required to be given under this Agreement shall be in writing and sent to the addresses of the parties set out on the Order Form or to such other address as a party may designate by notice to the other party and shall be effective (a) on the date of delivery if sent by recorded delivery; (b) on the business day (in the recipient’s country) following the date of transmission of a fax as evidenced by a successful transmission report; or (c) immediately if delivered personally to the relevant address.

8.8    This Agreement forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings, proposals, and negotiations between them. 

8.9    This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles.

8.10    The parties hereto are independent contractors and this Agreement does not create a joint venture or partnership, and neither party has the authority to bind the other party to any third party.

8.11    This Agreement may be executed in any number of counterparts, each of which, when taken together, shall be an original.

9. INTERNET CONNECTIVITY

9.1    For installations that utilize a Customer WiFi network to communicate between Thermostat Hardware and Company’s cloud-based Service: Customer shall provide and maintain a working WiFi network and internet connection at all times at each Site that meets the minimum requirements set forth in Company’s documentation; Customer shall provide Company access to utilize such WiFi and internet connection as reasonably requested by Company to support the communication of the Service at each of the Sites.

9.2    For installations that utilize cellular data modems to communicate between Thermostat Hardware and Company’s cloud-based Service, Service shall utilize a 3rd-party cellular data service between the Cellular Data Modem Hardware and Company’s cloud-based Service. The cellular data service will be provisioned by Company and paid for by Customer through cellular data service fees defined in the Order Form UNLESS Customer opts to use a cellular data service the Customer provisions.  If Customer opts to use a cellular data service they provision, Customer will define the 3rd party network in the Key Business Terms, the Order Form will not include fees for cellular data service, and Customer assumes responsibility for payment for and availability of the cellular data service. Cellular Data Modems installed by the Company will be used exclusively to transport Company’s Service unless the Company and the Customer explicitly agree to a different arrangement.

10. LIMITATIONS AND RESTRICTIONS

10.1    Except as expressly set forth herein, Customer shall not (nor shall it permit others to) (a) copy, market, license, sublicense, sell, resell, transfer, assign, reproduce, distribute or otherwise make available to any third party the Service, the Thermostat Hardware or the Cellular Data Modem Hardware (b) modify, adapt or make derivative works based upon the software used in the Service, the Thermostat Hardware or the Cellular Data Modem Hardware; (c) retransmit or link the Service (including “framing” or “mirroring” any content contained in, or accessible from the Service) to any other server, wireless or Internet-based device.  Customer shall ensure and be responsible for all of its users’ compliance with the terms of this Agreement.

10.2    To the extent that access to any software is provided to Customer by Company (including without limitation that held on the Thermostat Hardware), Customer agrees that it will use such software solely for Customer’s own internal processing operations under this Agreement, and that Customer will not directly or indirectly disassemble, reverse engineer, or decompile, modify, create derivative works based upon, or translate the Services, Thermostat Hardware, Cellular Data Modem Hardware, or any software included therein, or transfer or otherwise grant any rights in or access to such software (including associated intellectual property rights) in any form to any other party.  Customer shall promptly report to Company any actual or suspected violation of this Section 4.2 and shall take all further steps reasonably requested by Company to prevent or remedy any such violation.