Version effective date: 1 September 2022
The General Terms form a contract between you and Energage (“the Agreement”) for use of the Energage Platform. If there are Subscription Services purchased through a Service Order, that Service Order and its terms are also incorporated into the Agreement. This Agreement governs your use of Energage’s website, software, data, and/or other related applications or services including but not limited to translation, educational and support resources and experts, analytics, and individual and organizational-level feedback (together, herein after the “Services”).
As the Customer, you agree to this Agreement by signing a document that references this Agreement (and you expressly agree and consent to using electronic signatures to execute this Agreement or associated documents), or by using the Services, whichever occurs first. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
In this Agreement, a reference to:
- Energage, we, us, or our means Energage, LLC;
- the Customer, you, or your means the organization using the Services;
- Energage Platform means the cloud-based Software as a Service model through which Energage provides access to its suite of products and services;
- Subscription or Subscription Service means the licensing model in which the Customer pays a per User fee at regular intervals for access to and use of the Energage Platform;
- Service Order means the order form that outlines the specific Subscription Services purchased by the Customer;
- Amendment Service Order means the order form that outlines changes to the specific Subscription Services ordered by the Customer;
- User means any person or entity to whom you provide access to our Services, including any administrators or managers of your account, employees, survey invitees, or survey respondents;
- Survey means the web-based Customer employee survey(s) consisting of Energage’s standard survey questions and/or additional questions requested by Customer;
- Subscription Term means the length of time set forth on a Service Order in which access to the Energage Subscription Service is provided to you;
- Recurring Service means a service that is delivered to you on a recurring basis;
- One-time Service means a service that is delivered to you on a one-off basis, such as a workshop or consultation;
- Customer Data means Customer’s proprietary data and information that Customer provides to Energage so that Energage may, as part of the Services, conduct an assessment (e.g., demographic and corporate information necessary to distribute a survey to participants, such as email address, name, or corporate location). For the avoidance of doubt, Customer Data does not include either Aggregate Data or Raw Data;
- Raw Data means the confidential and anonymous responses received by Energage from Customer and Customer’s employees in connection with surveys administered by Energage pursuant to this Agreement;
- Aggregate Data means de-identified and anonymized sets of data derived from the data of multiple sources for the purpose of research and analytics. Aggregate Data does not include Personal Information or other information that could reasonably identify or relate to a natural person.
- Personal Information means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
- Employer Recognition Program means a collection of awards and other recognition based on various eligibility criteria determined by Energage, including but not limited to, geography, industry, employee count, and employee demographics and based on Customer’s most recent Workplace Survey completed within 12 months of the recognition eligibility deadline. An example would be the Top Workplaces Program.
1.1 ENERGAGE SERVICES
We will provide you with access to, and use of, the Energage Services.
You may order additional Subscription Services at any time by contacting Energage and requesting a Service Order. Any additional Services will be provided through a Subscription, and they will be delivered and invoiced in accordance with these General Terms and any additional terms detailed on the Service Order. If you already have a current Subscription, the additional Services will be invoiced at the prorated amount at the time those Services are added to the Subscription, and any Subscription renewal will include the additional Subscription Services at the annual rate.
Access to, and use of, the Services ordered by you will be terminated at the end of your Subscription Term.
1.2 CHANGES TO SERVICES
We continually change and improve our Services. Energage may alter the Services at any time. We will provide you with reasonable advance notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality and you have a Subscription, you may terminate your Subscription under Section 8.4.
1.3 CUSTOMER THIRD PARTY SERVICES
If you use any Customer third-party service together with the Services, such as BambooHR, Namely, Slack, and Workday, you acknowledge that the Customer third-party service may access or use the Customer Data. Energage will not be responsible for any act or omission of the Customer third party, including such third party’s use of Customer Data. Energage does not warrant or support any such Customer third-party service, and you should contact that third party for any issues arising from your use of the Customer third-party service.
2 Fees and Payments (Applicable to Subscription Services Only)
2.1 FEES FOR SUBSCRIPTION SERVICES
Energage Subscription Services are invoiced annually beginning on the Contract Start Date and every 12 months thereafter. The Subscription includes use of the Services by a specified number of Users as stated in the Service Order.
Energage One-Time Services are billed on the Contract Start Date.
You agree to pay Energage any fees for Subscription Services you purchase or use, in accordance with the pricing and payment terms presented to you for those Subscription Services in the Service Order, whether you use the Subscription Services or not. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.
2.2 PRICE CHANGES AND USER INCREASES
Energage may change its fees for Subscription Services at any time. Except where you exceed the number of Users stated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
Energage reserves the right to calculate the total number of Users periodically and if the number of Users exceeds your current Subscription, Energage may invoice you for the additional Users on a pro-rated basis for the remaining period left in your Subscription Term.
2.3 AUTOMATIC RENEWAL
Your Subscription for any Recurring Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of the Services by notifying us at firstname.lastname@example.org at least 30 days prior to the end of the current Subscription Term for the Services. Auto-renewing Subscriptions that are not canceled at least 30 days prior to the end of the Subscription Term will be invoiced to you automatically at a price not greater than 10% above the previous Subscription Term price for the successive Subscription Term, with the payment terms specified in the original Service Order.
Notice of automatic renewal will be provided at least 60 days prior to the end of each Subscription Term.
Automatic renewal does not apply to One-Time Services.
2.4 PAYMENT METHODS
You authorize us to charge fees using the payment method indicated in a Service Order. Unless otherwise agreed, payments for invoices are due 30 days after the invoice date. If you elect to pay by credit card, debit card, or any other billing method that supports automatic recurring payments, we will initially attempt to charge you using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. You agree to keep your billing and billing contact information current and accurate.
Overdue payments may incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue, from the date that the relevant payment was due until that payment has been received. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Energage in collecting such overdue amounts, except where:
(a) the overdue amounts are due to Energage’s billing inaccuracies; or
(b) you have sought to resolve a dispute using the dispute resolution process in clause 13.1 and that process is still active.
Unless stated otherwise in the Service Order, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Energage, you are responsible for all other taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest. If Energage is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.
3 Data Protection
In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC).
If requested, we will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.
Under no circumstances will any entity in the Energage Group be deemed a data controller with respect to Customer Data under any relevant law or regulation.
Energage will store and process Customer Data in a manner consistent with industry security standards. Energage has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data. Please see Energage Trust and Security information (located here: https://www.energage.com/trust/) for more information about security, data protection and data processing.
3.3 DISASTER RECOVERY
Energage will retain backup copies of Customer Data made in the ordinary course of business by Energage, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Energage will retain these backups for a period determined by us from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data may be irretrievably deleted from backups.
4.1 CONFIDENTIAL INFORMATION DEFINITION
In this Agreement, Confidential Information means any information disclosed by a party (the “Discloser”) to the other party (the “Recipient”) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:
(a) is or becomes public through no fault of the Recipient;
(b) the Recipient already lawfully knew;
(c) was rightfully given to the Recipient by a third party free of any confidentiality duties or obligations; or
(d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information as demonstrated by documentary evidence.
4.2 CONFIDENTIALITY OBLIGATIONS
The Recipient must:
(a) protect the Discloser’s Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information;
(b) not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
(c) only use the Discloser’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement; and
(d) ensure that its affiliates, employees, directors, contractors, agents, and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement.
4.3 COMPELLED DISCLOSURE
The Recipient may disclose the Discloser’s Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:
(a) uses commercially reasonable efforts to notify the Discloser in writing;
(b) gives the Discloser the opportunity to challenge the requirement to disclose; and
(c) cooperates with the Discloser if the Discloser seeks an appropriate protective order.
4.4 NON-DISCLOSURE AGREEMENTS
The provisions of Section 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.
4.5 SURVEY RESPONDENT CONFIDENTIALITY
In this Agreement, Confidentiality Notice means: (i) the notice given to survey respondents at the time of answering a survey conducted by Energage, including the degree of confidentiality and anonymity that a survey respondent will have when answering survey questions, and/or (ii) the notice given to individual users of our feedback services.
To provide the Services to you, Energage must provide Users with a Confidentiality Notice for each survey conducted.
5 Ownership and Use of Data; and Intellectual Property Rights
5.1 INTELLECTUAL PROPERTY RIGHTS DEFINITION
In this Agreement, Intellectual Property Rights means any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trademarks, service marks, domain names, good will and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognized under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
5.2 CUSTOMER DATA
You retain all ownership and Intellectual Property Rights to Customer Data. Energage does not claim ownership over any Customer Data. Energage will use Customer Data solely to perform the Services and will ensure that any Personal Information included in Customer Data is properly maintained and protected in accordance with Section 3.
5.3 AGGREGATE DATA AND RAW DATA
As between Energage and Customer the Raw Data and Aggregate Data are and will remain the exclusive property of Energage.
(a) The Raw Data will not be provided to Customer by Energage to protect the confidentiality of Customer respondents. Customer may use Aggregate Data as described in Section 5.4.
(b) Using the Raw Data obtained from the survey results, we create de-identified and anonymized sets of data or Aggregate Data. Aggregate Data is used to provide survey results to a company with a summary or more detailed results reports. Aggregate Data may be made publicly available and may be used after termination of this Agreement provided that such Aggregate Data cannot be used directly or indirectly to identify Users or Customers. Energage will not retain, use, sell or otherwise disclose any Personal Information for any purpose other than to provide the Services contemplated by this Agreement.
(c) Aggregate Data is used to compile and score participating companies in Employer Recognition Programs. Aggregate Data is also used and disclosed to third party service providers for research and analytics purposes and other lawful business purposes including, without limitation, benchmarking, text analytics linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality
5.4 LICENSE FOR THE SERVICES
In this Agreement, Reports means any reports, analysis, or other Aggregate Data or output generated using Energage Services.
For the Term of this Agreement, you grant Energage a worldwide, royalty free license to use, reproduce, distribute, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorized to) export through the functionality of the Services for your internal purposes only (in each case subject to any Confidentiality Notices) unless otherwise agreed upon in writing by Energage.
5.5 CUSTOMER DATA AND RAW DATA REVIEW
You acknowledge that, in order to ensure compliance with legal obligations, Energage may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we reasonably believe violates the law or this Agreement. However, Energage otherwise has no obligations to monitor or review any content submitted to the Services by you or any other person.
5.6 CUSTOMER FEEDBACK
If you provide us with any feedback associated with the Services, Energage may use that feedback internally without any obligation to you.
5.7 CUSTOMER LISTS
Energage or an Energage Partner may identify you (by company name and logo) as related to an Employer Recognition Program. Energage or an Energage Partner may contact you as part of an Employer Recognition Program. Energage may identify you (by company name and logo only) as an Energage customer in promotional materials or during promotional events.
Should you provide Energage with a testimonial or case study, written permission will be required from your authorized representative prior to Energage publishing any such material.
5.8 ENERGAGE INTELLECTUAL PROPERTY RIGHTS
Energage owns all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all survey statements and questions, system-generated data (e.g., dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all Intellectual Property Rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our Intellectual Property Rights, including software, Services, or products. Without limiting the foregoing, nothing in this Agreement or from your use of the Services grants you:
(a) ownership in the Services or the content (including Reports) you access through the Services, and any De-Identified Information or Aggregate Data;
(b) any right to use any Energage trademarks or other Intellectual Property Rights contained in our brand identity;
(c) ownership to the Energage survey statements or other Intellectual Property Rights associated with the content of the Services, or any right to use Energage survey statements or other content of the Services other than in connection with your authorized use of the Services.
5.9 ENERGAGE PLATFORM THIRD-PARTY SERVICES
You agree that Energage and the third-party service providers that are utilized by Energage to assist in providing the Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to your or your Users’ support requests.
Any third-party service providers utilized by Energage will only be given access to your account and Customer Data as is reasonably necessary to provide the Services and will be subject to: (i) confidentiality obligations which are substantially consistent with the standards described in this Agreement; and (ii) their agreement to comply with the data transfer, processing and protection restrictions applicable to personal information as set forth in this Agreement.
5.10 CUSTOMER-PROVIDED CONTENT
The Services may display content provided by others that is not owned by Energage. Such third-party content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for the content that you provide through the Services. As such, you must ensure that you have all the rights and permissions required to use that content in connection with the Services. Example content includes survey statement and questions not provided by Energage. Energage has no obligation to monitor or review any additional content submitted to the Services by you or a third party.
6 Account Management
6.1 ACCOUNT SECURITY AND ACCESS
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator or manager accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Energage is solely responsible for and is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to, or use of, your account, you should immediately notify Energage.
6.2 CUSTOMER SYSTEMS
You are responsible for maintaining and updating your operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.
6.3 CUSTOMER COMMUNICATIONS
Customer agrees during the term of this Agreement, to not opt out of Energage operational communications regarding account administration and support, Services administration and support, Services status, and Recognition Program administration.
7 Customer Obligations
7.1 LEGAL COMPLIANCE
You must use the Services in compliance with, and only as permitted by, applicable law. If your use of the Services requires you to comply with your industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject Energage to any industry-specific regulations (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act).
If the Services include the disclosure of survey respondent information pertaining to race, nationality, gender, or other protected category information, you agree to use this information only for lawful, non-discriminatory purposes in accordance with the advice of your counsel.
You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this Clause 7.1, and that your violation of this Clause 7.1 will constitute a breach of this Agreement.
7.2 UNACCEPTABLE USES
You are responsible for your conduct and the conduct of your Users. You must use commercially reasonable efforts to ensure that you and your Users do not:
(a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
(b) circumvent or attempt to circumvent any limitations that Energage imposes on your account (such as any User limits in the Service Order);
(c) probe, scan, or test the vulnerability of any Energage system or network, unless with prior written authorization of Energage;
(d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer, or otherwise attempt to reconstruct, identify, or discover any source code, algorithms, underlying ideas, or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;
(e) directly or indirectly identify a User contrary to the terms of any Confidentiality Notice or other privacy setting, or attempt to do so;
(f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
(g) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Energage will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Energage;
(h) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
(i) attempt to circumvent any license, timing or use restrictions that are built into the Services; or
(j) unless authorized in writing by Energage, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.
(k) use any automated script to submit any form or other database entry to or for the Services. Our Services may use robot exclusion methods, which include robots.txt files and HTML meta-tags that expressly allow and/or exclude specified automated programs from accessing certain portions of our Services. Much of the information ascertained during Services is updated on a real-time basis and is proprietary to Energage or is licensed to Energage, by third parties. You agree that if and to the extent prohibited in the then current robots.txt file or HTML meta-tags, you will not use any robot, spider, scraper, or other automated means to access the Services for any purpose, including but not limited to performing “offline” searches and mirroring, without our express written permission. Additionally, you agree that you will not: (i) take any action that is likely to impose an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with our Service offerings or any Energage activities; (iii) harvest email addresses for any purpose whatsoever, or (iv) bypass our robot exclusion methods or other measures we may use to prevent or restrict access to our Services.
(l) use the Energage survey statements or content (including reports) you access through the Services (other than Customer Data) within another tool or service not provided by Energage.
(a) use commercially reasonable efforts to ensure that your Users comply with this Agreement;
(b) obtain any consents required from each User to allow you and the administrators or managers of your account to engage in the activities contemplated by this Agreement, as required by applicable law;
(c) obtain any consents required from each User to allow Energage to provide the Services, as required by applicable law;
(d) not provide any person under the age of 16 with access to the Services, unless otherwise permitted by applicable law.
7.4 SUSPENSION OF USERS
If a User breaches this Agreement or uses the Services in a manner that Energage reasonably believes will cause Energage liability or disrupt others’ use of the Services, then Energage may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Energage may suspend or close the applicable User account.
7.5 DISQUALIFICATION & WITHDRAWAL
Any applicant to an Employer Recognition Program may be disqualified immediately and without notice upon a determination by Energage that any of the following events have occurred:
(a) Customer provided inaccurate or incomplete contact information;
(b) Customer provided inaccurate or incomplete information concerning Customer’s organization;
(c) Customer provided inaccurate or incomplete information concerning Customer’s employees, in particular, the number of employees in a region;
(d) Customer received fewer survey responses from eligible invitees than the required number of survey responses;
(e) Customer offered an incentive to employees for providing specific survey responses or for achieving a specific ranking or otherwise attempting to influence survey responses by an improper means;
(f) Customer engaged in measures to solicit biased, coerced, or false responses from employees;
(g) more than 5% of Customer’s employees agreed that they felt pressured to respond positively to the survey;
(h) suspicious statistical anomalies in Customer’s employee survey responses;
(i) any failure to comply with this Agreement;
(j) any other reason as may be determined appropriate in the sole discretion of Energage.
Should Customer be disqualified, Energage will automatically provide a high-level summary of the basis for disqualification within 30 days of disqualification. Under no circumstances will this explanation compromise the confidentiality of the survey responses or the proprietary methodologies of Energage.
8 Term and Termination
This Agreement begins on the date you first use the Services or sign the Service Order (whichever is earlier) and continues until you stop using the Services or your Subscription ends or otherwise terminates, or if this Agreement is terminated (whichever is earlier).
8.2 TERMINATION WITHOUT CAUSE
If this Agreement includes a Subscription, either party may terminate this Agreement to be effective at the end of the then current Subscription Term by providing the other party with written notice of termination at least 30 days prior to the end of a Subscription Term. No refunds will be provided.
Energage may terminate this Agreement for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If your Service Order states that your Subscription will not auto-renew, then your account will terminate at the end of your current Subscription Term with no further action required by you.
8.3 TERMINATION FOR CAUSE
Each party may suspend performance or terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Energage may terminate this Agreement if any payment owed by you to Energage is more than 30 days
8.4 TERMINATION FOR MATERIAL DECREASE IN FUNCTIONALITY
If we make a change to the Subscription Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Energage. Upon receiving notice of termination from you, Energage will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
8.5 CONSEQUENCES OF TERMINATION
If this Agreement is terminated:
(a) by you due to breach by Energage and you have a Subscription, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
(b) by Energage due to breach by you and you have a Subscription, we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date.
(c) In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.
(d) Energage reserves the right to collect outstanding fees, as stated in a Service Order, if Subscription Services are not used within one year of purchase.
8.6 DATA EXPORTS
A portion of Energage Services include functionality that enables you to export Customer Data in your account at any time during the Term. If the foregoing functionality is not operational, we may assist you to export any Customer Data that existed in your account at the time of termination, provided you make such request after you stop using the Services and before the end of your Subscription Term (if you have a Subscription). However, we do not guarantee that all Customer Data will be able to be exported and only Customer Data that is permitted to be transferred to you within the terms of any applicable Confidentiality Notice or other privacy setting will be transferred to you. Upon Customer’s written request, Energage will delete all Customer Data from its production environments.
The following clauses will survive the termination of this Agreement: 2, 3.3, 4, 5.3, 5.4, 5.8, 8, 10, 11, 13 and 14.
Each party represents and warrants that:
(a) it has full power and authority to enter into this Agreement; and
(b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
10.1 BY CUSTOMER
You will indemnify, defend, and hold harmless Energage, its officers, Board of Directors, and its affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third-party claim regarding or in connection with:
(a) Customer Data (including claims of Intellectual Property Rights infringement);
(b) your use of the Services in breach of this Agreement; or
(c) your Users’ use of the Services in breach of this Agreement.
10.2 BY ENERGAGE
Energage will indemnify, defend, and hold harmless you, your officers, Board of Directors, and your affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party. However, in no event will Energage have any obligations or liability under this Section arising from:
(a) use of any Services in a modified form or in combination with materials not furnished or authorized by Energage;
(b) any content or data provided by you, your Users, or any third parties; or
(c) designs or specifications provided to Energage by Customer that caused such infringement claim.
10.3 POTENTIAL INFRINGEMENT
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:
(a) obtain the right for you, at our expense, to continue using the Services;
(b) provide a non-infringing functionally equivalent replacement; or
(c) modify the Services so that they no longer infringe.
If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.
10.4 INDEMNITY PROCEDURES
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that:
(a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
(b) the indemnified party may join in the defense with its own counsel at its own expense.
Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 10.1 and 10.2. The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.
11 Disclaimers and Limitations of Liability
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Energage provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data or other content associated with your account.
11.2 EXCLUSION OF LIABILITY
To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.
11.3 LIMITATION OF LIABILITY
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to Energage under this Agreement during the 12 months prior to the event giving rise to the liability or claim.
11.4 EXCEPTIONS TO LIMITATIONS
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation of liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s indemnification obligations under this Agreement.
12.1 AGREEMENT AMENDMENTS
Energage may amend the General Terms from time to time and the most current version will be posted on the Energage website. If an amendment is material, as determined in Energage’s reasonable discretion, we will notify the Customer Contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with at least 30 days’ notice of material amendments.
If an amendment has a material adverse impact on you and you do not agree to the amendment, you may terminate the Agreement by notifying email@example.com within 30 days of receiving notice of the amendment. Otherwise, you will have been deemed to have consented to the amendment.
12.2 OTHER AMENDMENTS
Any amendment to this Agreement that is not made to the General Terms displayed on our website, must be in writing, signed by you and Energage, and must expressly state that it is amending this Agreement.
13 Dispute Resolution, Governing Law, and Jurisdiction
13.1 DISPUTE RESOLUTION
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
(a) give the other party notice of the dispute and its nature;
(b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
(c) hold good faith negotiations with the other party to settle the disputed matter.
13.2 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Delaware, United States of America and each party submits to the exclusive jurisdiction of the courts of Delaware, United States of America, in relation to any proceedings connected with this Agreement.
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.
14 Other Terms
Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
14.2 ENTIRE AGREEMENT
This Agreement and related Service Orders (including any documents incorporated by reference to a URL), constitute the entire agreement between you and Energage and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
14.3 FORCE MAJEURE
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, pandemic, or general internet disturbance) that was beyond the party’s reasonable control.
14.4 INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.
14.6 NO WAIVER
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
All notices pertaining to the Agreement must be in writing and will be deemed given when:
(a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;
(b) received, if sent by mail without verification of receipt; or
(c) when verified by automated receipt or electronic logs if sent by email.
Notices to Energage must be sent to Energage LLC at 397 Eagleview Blvd. Ste 200, Exton, PA 19341 and marked to the attention of Legal Department, or by email to firstname.lastname@example.org. Notices to you may be sent to the email address associated with the Customer Contact details in the Service Order. You must keep the contact details associated with your account current and accurate by notifying email@example.com when your contact details change. You may grant approvals, permission, extensions, and consents by email.
To the extent any conflict exists between the documents that constitute this Agreement, the order of precedence will be Service Order then General Terms.
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
14.10 THIRD-PARTY BENEFICIARIES
There are no third-party beneficiaries to this Agreement. Your Users are not third-party beneficiaries to your rights under this Agreement.
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