Energage General Terms
Version effective date: 8 June 2021
Thank you for your interest in Energage. It is important that you understand your rights and responsibilities. Please read our General Terms carefully.
In this Agreement, a reference to:
- Energage, we, us or our means the relevant Energage entity indicated in clause 13.2;
- the Customer, you or your means the entity or person indicated in the relevant section of the Service Order;
- Users means any person or entity to whom you provide access to our Services, including any administrators or managers of your account or survey respondents;
- Customer Data means any content or data that you or your Users submit or transfer to Energage using the Services (including personal data or survey responses);
- Research and Development means work carried out by Energage, or Energage’s service provider’s on behalf of Energage, to improve the Services including work in respect of benchmarking, text analytics, linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality;
- Reports means any reports, analysis, or other output generated using Energage Services.
- Service Order means the contract that outlines the specific services used by Customer.
- 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.
These General Terms and the Service Order(s) (together, the Agreement) form a contract between you and Energage. This Agreement governs your subscription to, and 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 Service or 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.
1.1 ENERGAGE SERVICES
During the Term, we will provide you with access to, and use of, the Services ordered by you as described in the Service Order. Access to, and use of, the Services ordered by you will be terminated at the end of your subscription term. You may order additional services at any time during the Term by contacting Energage and by us agreeing to such. Upon agreement such services will be considered Services hereafter. We will invoice you for any additional Services you order after the start of the Term at the time those Services are ordered.
1.2 CHANGES TO SERVICES
We continually change and improve our Services. Energage may alter the Services at any time without prior notice. We will endeavor to provide you with prior 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, you may terminate your Subscription under clause 8.4.
1.4 THIRD PARTY SERVICES
If you use any third-party service with the Services (for example, BambooHR, Namely, Slack or Workday integrations or a web browser), you acknowledge that third party service may access or use the Customer Data. Energage will not be responsible for any act or omission of the third party, including such third party’s use of Customer Data. Energage does not warrant or support any such third-party service, and you should contact that third party for any issues arising from your use of the third-party service.
2 Fees and Payments
2.1 FEES FOR SERVICES
Energage Services are billed on a subscription basis (Subscription) and you will be billed in advance on a recurring, periodic basis (called a Billing Cycle). The Billing Cycle for your Subscription is outlined in the Service Order.
You agree to pay Energage any fees for each Service you purchase, whether you use the Services or not, or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Order. 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 Services at any time. Except where you exceed the User limit indicated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
If your use of the Services during a Billing Cycle exceeds the User limit indicated in the Service Order, we may charge you for the additional Users on a pro rata basis for the remainder of that Billing Cycle.
2.3 AUTOMATIC RENEWAL
Your Subscription for any Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of that Service by notifying us at firstname.lastname@example.org at least 30 days prior to the end of the current Subscription Term for that Service. Subscriptions that are not canceled at least 30 days prior to the end of the Subscription Term will be invoiced to you automatically with the appropriate fees and payment terms specified in the Service Order.
To avoid doubt, automatic renewal does not guarantee that the price for Services paid during the previous Subscription Term will remain the same for the next Subscription Term.
Notice of automatic renewal will be provided at least 60 days prior to the end of each Subscription term.
2.4 PAYMENT METHODS
You authorize us to charge for fees using the payment method indicated in the 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. If Energage is required to initiate legal action due to non-payment of fees, Customer shall bear all costs resulting from the collection of such fees. 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.
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.
3.4 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 you, including the degree of confidentiality and anonymity (as determined in collaboration with you) 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 your Users with a Confidentiality Notice for each survey you conduct. You acknowledge and agree that by conducting any survey using the Services:
(a) your right to possess Customer Data is subject to the terms of any relevant Confidentiality Notice provided to your Users by Energage; and
(b) Energage’s ability to show or transfer the Customer Data to you is subject to the terms of any relevant Confidentiality Notice provided to your Users by Energage.
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 this Section 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.
5 Intellectual Property
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 INTELLECTUAL PROPERTY RIGHTS
You retain all ownership and Intellectual Property Rights to Customer Data. Energage does not claim ownership over any Customer Data. This Agreement does not grant us any licenses or rights to Customer Data except for the licenses granted in clauses 5.3 and 5.4 below, or as otherwise required for us to provide the Services to you or your Users.
5.3 LICENSE FOR THE SERVICES
For the Term of this Agreement, you grant Energage a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, 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.
5.4 LICENSE FOR RESEARCH AND DEVELOPMENT
You grant Energage a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Customer Data for the purposes of Research and Development and creating de-identified aggregated data (“Data Sets”). Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot be used directly or indirectly to identify Users.
We use Data Sets to compile and score participating companies in Employer Recognition Programs, including providing aggregated results to a company with the summary or more detailed results reports. Customer also explicitly grants us the right to utilize the Customer Data to develop information that does not identify Customer employees (“De-identified Information”) and to use and disclose such De-identified Information to third parties for research and analytics purposes and other lawful business purposes including, without limitation, benchmarking purposes. We will not retain, use, sell or otherwise disclose any personally identifiable information for any purpose other than to provide the Services.
5.5 CUSTOMER 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 without any obligation to you.
5.7 CUSTOMER LISTS
Energage or an Energage Partner may identify you (by 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 name and logo) as an Energage customer in promotional materials or during promotional events.
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 Data (other than Customer 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 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 during the Term.
5.9 PLATFORM SUB-PROCESSORS
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 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 directly 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 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 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) 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 sign the Service Order or first use the Services (whichever is earlier), and continues until your Subscription ends or otherwise terminates, or if this Agreement is terminated (the “Term“).
8.2 TERMINATION WITHOUT CAUSE
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 before 30 days prior to the end of a Subscription Term.
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 overdue.
8.4 TERMINATION FOR MATERIAL DECREASE IN FUNCTIONALITY
If we make a change to the 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, 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, 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 the Service Order, if 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 before the end of your Subscription Term. 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, 3.4, 4, 5.3, 5.4, 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; or
(d) our use of the Data Sets as permitted under this Agreement.
10.2 BY ENERGAGE
Energage will indemnify, defend, and hold you harmless 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 this Agreement 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 current version 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 NORTH AMERICAN CUSTOMERS
If your principal place of business is in North America (as determined by your address in the Service Order):
(a) the Energage party to this Agreement is Energage LLC. of 397 Eagleview Blvd. Ste 200, Exton, PA 19341 United States;
(b) this Agreement is governed by the laws of Delaware, United States of America; and
(c) 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 ACTIONS BY ENERGAGE GROUP ENTITIES
The Energage entity which is party to this Agreement is determined in accordance with clause 13 of this Agreement. Any Energage entity which carries out its obligations under this Agreement must comply with the terms of this Agreement.
14.3 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.
14.4 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, or general internet disturbance) that was beyond the party’s reasonable control (except for payment of any money owed).
14.5 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.
14.7 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 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.
14.11 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.
– End Terms –