Ecosuite, Inc. (“Provider”) provides an open extensible ecosystem for the management of diverse enterprise scale DER portfolios. It leverages open-source foundations and AI combined with industry wide collaboration tools to increase deployment and operational efficiencies for all involved. Ecosuite is composed of a user account and applications and services made available to you through mobile devices and/or our website (the “Site”) (collectively, the “Service”). The Service is “Ecosuite.” These Terms & Conditions constitute the agreement between you and Provider (the “Ecosuite Subscription Agreement” or the “Agreement”) and govern your subscription to Ecosuite (the “Subscription”). These Terms & Conditions give you specific legal rights, and you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms & Conditions will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms & Conditions may not apply to you.  You and Provider are each a “Party” and together the “Parties” to this Ecosuite Subscription Agreement.

THIS IS A LEGAL AGREEMENT. BY PURCHASING A SUBSCRIPTION TO ECOSUITE OR USING THE SITE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS & CONDITIONS ON BEHALF OF YOURSELF AND/OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO ENTER INTO THIS AGREEMENT. 

We reserve the right to change these Terms & Conditions at any time, so please review the Terms & Conditions each time visiting the Site. If we make a material update, we may provide you with notice prior to the update taking effect by posting a notice on our website or by contacting you using the email address you provided. Every time you visit the Site, the Terms & Conditions in force at that time will apply between you and Provider. If you have any questions regarding these Terms & Conditions, you can contact Provider as provided herein.

1. Service

(a) Account. To use the Service, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Service does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account.

(b) Access and Use of the Service. Subject to these Terms & Conditions, Provider grants you a non-exclusive, right (without the right to sublicense) to access and use the Service in connection with controlling and monitoring the Product. The Service includes materials that may be provided by Provider or by third party licensors which are displayed or performed on the Service, including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations.

(c) Ownership and Intellectual Property

(i) Provider Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in Ecosuite are owned by Provider or our licensors. Your possession, access, and use of the Product, Software, and Service do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Provider and its licensors reserve all rights not granted in these Terms & Conditions.

(ii) Feedback. You may choose to, or Provider may invite you to submit comments, suggestions, or ideas about the Product or Service, including how to improve Ecosuite (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Provider under any fiduciary or other obligation. Provider may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Provider does not waive any rights to use similar or related ideas previously known to Provider, developed by its employees, or obtained from other sources. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to access, display, or otherwise use your Feedback (including all related intellectual property rights) solely in connection with Ecosuite.

(iii) “Customer Data” means electronic data and information submitted by or for Customer to Provider Services or via API integration, or other submission method, excluding Content and Non- Provider Applications. For clarity, Customer Data shall not include (i) the statistical usage data derived from the operation of the Provider Services, including data regarding web applications utilized in connection with the Provider Services, configurations, log data, and the performance results for the Provider Services or (ii) any data, information, or other materials submitted by Customer and/or a Customer Security Holder to Provider.

(iv) “User-Generated Content” means any content featured, displayed, communicated, or transmitted through Provider Services, including, without limitation, text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are created or uploaded by Customer, Users, Customer Service Providers, or Customer Security Holders.

(v)License by Customer to Provider.  You grant to Provider and its affiliates the free, non-exclusive, worldwide right to use, host, store, reproduce, modify, transmit, publish, display, distribute, and create derivative works (including, but not limited to, those resulting from translations, adaptations, or other changes Provider makes so that Customer’s content works better with Provider Services) of the Customer Data and User-Generated Content, without attribution, for the purposes of operating, providing, supporting, improving, or developing Provider Services, including developing additional functionality or services. Customer agrees that Provider may use Customer Data to compile, use, and disclose anonymous, aggregated usage statistics, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer’s Users (the “Derived Usage Data”). Provider shall own all right, title, and interest in all of the Derived Usage Data and all resulting Provider products or services incorporating the Derived Usage Data. Customer digitally controls Provider’s rights with respect to use of “Customer Data”, Customer acknowledges this and accepts the responsibility of setting these digital controls appropriately to satisfy their needs and expectations, before any such authorized usage of “Customer Data” occurs, Provider will notify Customer of such authorized compliant usage. If Customer chooses to use a Non-Provider Application with a Service, Customer grants Provider permission to allow the Non-provider Application and its provider to access Customer Data and information about Customer’s usage of the Non-Provider Application as appropriate for the interoperation of that Non-Provider Application with the Service.

(vi) Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Product and Service. You agree that you (and not Provider) are responsible for ensuring that you comply with any applicable laws when you use the Product and Service. 

(d) Certain Restrictions. The rights granted to you in these Terms & Conditions are subject to the following restrictions:

(i) you agree not to license, sell, rent, lease, distribute, host, or otherwise commercially exploit the Service; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service that is not open source;

(iii) you agree not to access the Service in order to build a similar or competitive service;

(iv) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means unless that part is open source;

(v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Service or the Software;

(vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Service or violate the regulations, policies, or procedures of such networks;

(vii) you agree not to access (or attempt to access) any of the Service by means other than through the interfaces that are provided by Provider; and

(viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Service. Any future release, update, or other addition to functionality of the Service shall be subject to these Terms & Conditions.

(e) Security. Provider uses industry best practices to ensure the integrity and security of your personal information. However, Provider cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.

(f) Modification. Provider reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Provider will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.

(g) Agreed Usage and Limitations Of Service

(i) Intended Use of Service. The Service is intended to be accessed and used for non-time-critical information relating to the Product. While we aim for the Service to be highly reliable and available, it is not intended to be reliable or available 100% of the time. The Service is subject to sporadic interruptions and failures for a variety of reasons beyond Provider’s control, including Internet connectivity, Wi-Fi intermittency and availability, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Provider is not responsible for any damages allegedly caused by the failure or delay of the Service to reflect current status or notifications.

(ii) Reliability of Information. You acknowledge that the Service, including remote access and information, is not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive information in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. INFORMATION FROM ECOSUITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY – IT IS NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.

(iii) Temporary Suspension. The Service may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Provider does not offer any specific uptime guarantee for the Service. 

(iv) System Requirements. The Service will not be accessible without: (i) a working Internet connection configured to communicate reliably with the Product; (ii) an Account; (iv) other system elements that may be specified by Provider. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Service may not work as described when the requirements and compatibility have not been met.

(v) Energy Savings and other Benefits. Provider does not guarantee or promise any specific level of monetary benefit from the use of the Product or Service or any feature thereof. Actual monetary benefits vary with factors beyond Provider’s control or knowledge. From time to time, Provider may use the Service to provide you with information that is unique to you and your performance and may suggest opportunities to save and/or make money if you adopt suggestions or features of the Product or Service. We do this to highlight an opportunity based on our analysis and information about you and your organization. You acknowledge that these recommendations are not a guarantee of actual benefits, and you agree not to seek monetary or other remedies from Provider if your benefits differ.

(h) Limitations Of the Service Due to Third Parties.

(i) General. The Service relies on or interoperates with third party products. These third party products and services are beyond Provider’s control, but their operation may impact or be impacted by the use and reliability of the Service.

(ii) Third Party Service Providers Used By Ecosuite. You acknowledge that Provider uses third party service providers to enable some aspects of the Service – such as, for example, data storage, synchronization, and communication.

(iii) Equipment, ISP, and Carrier. You acknowledge that the availability of the Service is dependent on (i) your computer, mobile device, electric wiring, LAN connection, Wi-Fi network, Bluetooth connection, and other related equipment (“Customer Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Service. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier.

2. Commercial Terms

(a) Payment. By providing a credit card or other payment method accepted by Provider, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or canceled. You must resolve any problem we encounter in order to proceed with your order. In the event you want to change or update payment information associated with your Ecosuite account, you can do so at any time by logging into your account and editing your payment information or communicating with Providerdirectly. Provider will send a notification when payments are processed.

(b) Availability and Pricing. Ecosuite is subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering Ecosuite without prior notice. Prices for Ecosuite and its component modules and widgets are subject to change at any time, but changes will not affect any order for Ecosuite you have already placed.

(c) Sales Tax. Depending on the order, Ecosuite calculates and charges sales tax in accordance with applicable laws.

(d) Order Information. By placing an order for Ecosuite, you agree and understand that Provider may store, share, process and use data collected from your order form or phone/fax/email order for the purposes of processing the order. Providerworks with other companies that help Provider provide Ecosuite to you, such as credit card processing companies, and Provider may have to share certain information with these companies for this purpose.

3. Compliance with Laws.

You are responsible for complying with all applicable laws and regulations of the country for which the Product is used. We are not liable or responsible if you break any such law.

4. Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ECOSUITE, EXPRESSLY INCLUDING THE SOFTWARE, SERVICE AND SITE, IS PROVIDED “AS IS” AND “AS AVAILABLE” AND PROVIDER AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. PROVIDER AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT ECOSUITE: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR ELECTRICAL SYSTEM, BUSINESS NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE OR PRODUCE SPECIFIC RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ECOSUITE OR THOUGH ECOSUITE SHALL CREATE ANY WARRANTY. WHEN YOU INSTALL, SETUP OR USE ECOSUITE YOU MAY BE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS. Provider provides you information (“Product Information”) regarding the Products. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. 

5. Indemnity. You agree to defend, indemnify and hold Provider and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of Ecosuite, (ii) your violation of these Terms & Conditions, (iii) Feedback you provide; or (iv) your violation of any law or the rights of any third party. Provider reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Provider and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Provider’s prior written consent. Provider will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

6. Limitation of Liability. Nothing in these Terms & Conditions and in particular within this “Limitation of Liability” section shall attempt to exclude or limit liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO PROVIDER, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PROVIDER’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO ECOSUITE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO PROVIDER FOR ECOSUITE IN THE PRIOR SIX (6) MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PROVIDER DISCLAIMS ALL LIABILITY OF ANY KIND OF PROVIDER’s LICENSORS AND SUPPLIERS.

7. Electronic Communications. You are communicating with Provider electronically when you use our Site or send email to Provider. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order from our Site, we collect and store your email address. From that point forward, your email address is used to send you information about Ecosuite products and services unless you opt-out of such emails using the opt-out link in the emails.

8. Notifications. Provider may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Ecosuite account, hard copy, or posting of such notice on the Site. Provider is not responsible for any automatic filtering you or your network provider may apply to email notifications.

9. Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

10. Severability. If any part of these Terms & Conditions becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms & Conditions will remain in full force and effect.

11. Survivability. The obligations in Sections 1(c), (d), and 3 through 15 will survive any expiration or termination of these Terms & Conditions.

12. Waiver. Failure or delay by us to enforce any these Terms & Conditions will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.

13. Successors and Assigns. This Agreement is binding upon each Parties’ respective successors and assigns.

14. Governing Law and Jurisdiction. These Terms & Conditions are governed by the laws of the State of Delaware without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Delaware for the purpose of litigating all such claims or disputes.

15. Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.