Terms and Conditions *
Ecogy Solar, LLC (“Ecogy Energy”) provides the Econode energy monitor for analysis of commercial electrical use. Econode is composed of (1) hardware (“Hardware”) and software embedded in the Hardware (“Software”), (together, “Product”), and (2) an Econode user account and applications and services made available to you through mobile devices and/or our website (the “Site”) (collectively, the “Service”). Together the Product and Service are called “Econode.”
These Terms & Conditions govern your subscription to Econode and the Site (“Subscription”) and constitute the agreement between you and Ecogy Energy. 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.
THIS IS A LEGAL AGREEMENT. BY PURCHASING A SUBSCRIPTION TO ECONODE 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. Every time you visit the Site, the Terms & Conditions in force at that time will apply between you and Ecogy Energy. If you have any questions regarding these Terms & Conditions, you can contact Ecogy Energy as provided herein.
Although our Site is accessible worldwide, Econode is designed and tested only for use in the United States. If you choose to install and use Econode outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. To the extent permissible by law, Ecogy Energy accepts no responsibility or liability for any damage or loss caused by your installation and use of Econode.
(a) Hardware Limited Warranty. Ecogy Energy warrants that the hardware will be free from defects in materials and workmanship for a period of one (1) year from the date of delivery following the original retail purchase (the “Hardware Warranty Period”). If the hardware fails to conform to this Hardware Limited Warranty during the Hardware Warranty Period, Ecogy Energy will, at its sole discretion, either (a) repair or replace any defective hardware or component; or (b) accept the return of the hardware and refund the money actually paid by the original purchaser for the hardware. Repair or replacement may be made with a new or refurbished product or components, at Ecogy Energy’s sole discretion. If the Hardware or a component incorporated within the Hardware is no longer available, Ecogy Energy may, at Ecogy Energy’s sole discretion, replace the applicable component or Hardware with a similar product of similar or greater function. This is your sole and exclusive remedy for breach of this Hardware Limited Warranty. Any Hardware that has either been repaired or replaced under this Hardware Limited Warranty will be covered by the terms of this Hardware Limited Warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired
Hardware or replacement Hardware, or (b) the remaining Hardware Warranty Period.
(b) Hardware Warranty Conditions. Before making a claim under this Hardware Limited Warranty, you must (a) notify Ecogy Energy in writing at email@example.com during the Hardware Warranty Period and provide a description of the failure, and (b) comply with Ecogy Energy’s return shipping instructions. Ecogy Energy will have no warranty obligations with respect to returned Hardware or component of such Hardware if it determines, in its reasonable discretion after examination of the returned Hardware or component of such Hardware, that the Hardware is an Ineligible Hardware (as defined below). Ecogy Energy will bear all costs of return shipping to the subscriber and will reimburse any shipping costs incurred by the subscriber, except with respect to any Ineligible Hardware, for which subscriber will bear all shipping costs.
(c) Hardware Warranty Exclusions. This Hardware Limited Warranty does not cover the following (collectively “Ineligible Hardware”): Hardware that has been subject to: (a) modifications, alterations, tampering, or improper maintenance or repairs; (b) handling, storage, installation, testing, or use not in accordance with the instructions provided by Ecogy Energy; (c) abuse or misuse of the Hardware or component of such Hardware; (d) breakdowns, fluctuations, or interruptions in electric power; or (e) acts of God, including, but not limited to, lightning, flood, tornado, earthquake, or hurricane. Unauthorized use of the Hardware or component of such Hardware or the Software can impair the Hardware’s performance and may invalidate this Hardware Limited Warranty.
“Software”, as defined above, refers to the software running on the Hardware. It does not refer to the mobile client application or the web application.
(a) License. Subject to these Terms & Conditions and provided that you are not in breach of these Terms and Conditions and your subscription is in good standing, Ecogy Energy grants to you as the subscriber a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Software, in executable object code form only, solely on the Hardware and solely for use in conjunction with the Product as provided for in these Terms and Conditions by and between you and Ecogy Energy.
(b) Restrictions. You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third party, (b) copy or use the Software for any purpose
other than as permitted in Section 2(a), (c) use any portion of the Software on any device or computer other than the Hardware, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or (e) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or unencrypt any part of the Software or communication protocols used by the Software and Service (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Ecogy Energy and provide Ecogy Energy an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Ecogy Energy for each such release.
(c) Automatic Software Updates. Ecogy Energy may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to these automatic Updates. If you do not want such Updates, your sole remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Software and you agree to promptly install any Updates provided. Your continued use of the Product is your agreement to the terms of this Section 2.
(d) Ownership. The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Ecogy Energy and its licensors. Ecogy Energy and its licensors reserve all rights in and to the Software not expressly granted to you herein. The Software (and all copies thereof) is licensed to you, not sold to you, under this Section 2. There are no implied licenses herein. All suggestions or feedback provided by you to Ecogy Energy with respect to the Software shall be Ecogy Energy’s property. Ecogy Energy 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 Ecogy Energy does not waive any rights to use similar or related ideas previously known to Ecogy Energy, developed by its employees, or obtained from other sources.
(e) Term and Termination. The license granted hereunder is effective on the date you first purchase and pay for a subscription to Econode and shall continue for as long as you are not in breach of these Terms and Conditions and your subscription is in good standing. Ecogy Energy may terminate the license at any time if you fail to comply with any term(s) hereof and upon the expiration of your subscription to Econode. Upon such termination or expiration, as applicable, the license granted hereunder will terminate and you must stop all use of the Software.
(f) Limitations of Software. Ecogy Energy does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Product or Software or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Ecogy Energy’s control or knowledge.
(g) Confidentiality. The Software is confidential information of Ecogy Energy. You shall use your best efforts to preserve and protect the confidentiality of the Software at all times.
(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, Ecogy Energy 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 Ecogy Energy 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) Ecogy Energy Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in Econode are owned by Ecogy Energy 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. Ecogy Energy and its licensors reserve all rights not granted in these Terms & Conditions.
(ii) Feedback. You may choose to, or Ecogy Energy may invite you to submit comments, suggestions, or ideas about the Product or Service, including how to improve Econode (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Ecogy Energy under any fiduciary or other obligation. Ecogy Energy 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 Ecogy Energy does not waive any rights to use similar or related ideas previously known to Ecogy Energy, developed by its employees, or obtained from other sources. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your Feedback (including all related intellectual property rights) solely in connection Econode.
(iii) Customer Data. All data generated from Econode relating to your electrical use is yours (“Customer Data”). Customer grants to Ecogy Energy a perpetual, irrevocable, fully- paid up license during the term of the agreement between you and Ecogy Energy to use, reproduce, distribute and display the Customer Data solely for the purpose of fulfilling its obligations under this agreement. You further acknowledge that Ecogy Energy may disclose identifying information about you, including without limitation name, address, and other contact information, to the manufacturers of the Ecogy Energy-provided products or any equipment containing the products. You acknowledge and agree that Ecogy Energy may use such Customer Data in additional aggregated data, performance indexing services and other services provided that any such Customer Data is anonymized.
(iv) 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 Ecogy Energy) 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; (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; (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 interface that is provided by Ecogy Energy; 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. Ecogy Energy uses industry best practices to ensure the integrity and security of your personal information. However, Ecogy Energy 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. Ecogy Energy reserves the right, at any time, to modify, suspend, or discontinue the Service or any part thereof with or without notice. You agree that Ecogy Energy 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 Ecogy Energy’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 Ecogy Energy 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 ECONODE 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. Ecogy Energy does not offer any specific uptime guarantee for the Service.
(iv) System Requirements. The Service will not be accessible without: (i) a working Wi- Fi network in your business that is positioned and configured to communicate reliably with the Product; (ii) an Account; (iv) always-on broadband Internet access in your business; and (v) other system elements that may be specified by Ecogy Energy. 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. Ecogy Energy does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Product or Service or any feature thereof. Actual energy savings and monetary benefits vary with factors beyond Ecogy Energy’ control or knowledge. From time to time, Ecogy Energy may use the Service to provide you with information that is unique to you and your energy usage and suggests an opportunity to save money on energy bills 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 household. You acknowledge that these recommendations are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Ecogy Energy if your savings 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 Ecogy Energy’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 Ecogy Energy. You acknowledge that Ecogy Energy uses third party service providers to enable some aspects of the Service – such as, for example, data storage, synchronization, and communication.
4. Commercial Terms
(a) Payment. By providing a credit card or other payment method accepted by Ecogy Energy, 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 cancelled. 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 Ecogy Energy account, you can do so at any time by logging into your account and editing your payment information.
(b) Availability and Pricing. Econode 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 Econode without prior notice. Prices for Econode are subject to change at any time, but changes will not affect any order for Econode you have already placed.
(c) Sales Tax. Depending on the order, Ecogy Energy calculates and charges sales tax in accordance with applicable laws.
(d) Shipping and Delivery. Prices for Econode do not include shipping costs. Our delivery charges and methods are as described on our Site from time to time.
(f) Order Information. By placing an order for Econode, you agree and understand that Ecogy Energy may store, share, process and use data collected from your order form or phone/fax/email order for the purposes of processing the order. Ecogy Energy works with other companies that help Ecogy Energy provide Econode to you, such as freight carriers and credit card processing companies, and Ecogy Energy may have to share certain information with these companies for this purpose.
6. Safety Warnings and Compliance with Laws.
(a) Do not try to open the Econode monitor, touch any internal parts, or try to repair it without first contacting Econode support. If you believe the monitor, CTs, or cables may have been damaged, do not try to use them. Please contact Econode support. Use the Econode monitor only in the United States or Canada. The Econode must be installed by a
locally licensed electrician. Do not expose the Econode monitor to direct sunlight or extremely low or high temperatures. No exposure to water. Relative Humidity < 90%; Elevation < 3000 meters; Temperature 0 - 50C.
(b) Compliance with Laws. Econode is not intended for use outside of the United States or Canada. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.
7. Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, ECONODE, EXPRESSLY INCLUDING THE HARDWARE, SOFTWARE, SERVICE AND SITE, IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ECOGY ENERGY 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. ECOGY ENERGY AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT ECONODE: (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 ECOGY ENERGY OR THOUGH ECONODE SHALL CREATE ANY WARRANTY. WHEN YOU INSTALL, SETUP OR USE ECONODE 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. Econode 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.
8. Indemnity. You agree to defend, indemnify and hold Ecogy Energy 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 Econode, (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. Ecogy Energy reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Ecogy Energy and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Ecogy Energy’ prior written consent. Ecogy Energy will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. 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) ECOGY ENERGY 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 ECONODE, EVEN IF ECOGY ENERGY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) ECOGY ENERGY’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO ECONODE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO ECOGY ENERGY FOR ECONODE 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. ECOGY ENERGY DISCLAIMS ALL LIABILITY OF ANY KIND OF ECOGY ENERGY’ LICENSORS AND SUPPLIERS.
10. Electronic Communications. You are communicating with Ecogy Energy electronically when you use our Site or send email to Ecogy Energy. 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 Ecogy Energy’ products and services unless you opt-out of such emails using the opt-out link in the emails.
11. Notifications. Ecogy Energy 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 Ecogy Energy account, hard copy, or posting of such notice on the Site. Ecogy Energy is not responsible for any automatic filtering you or your network provider may apply to email notifications.
12. 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.
13. 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.
14. Survivability. The obligations in Sections 1(c), 2(b), (d), (e), (g), 3(c), (d), and 5 through 17 will survive any expiration or termination of these Terms & Conditions.
15. 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.
16. Successors and Assigns. This Agreement is binding upon each parties’ respective successors and assigns.
17. Governing Law and Jurisdiction. These Terms & Conditions are governed by the laws of the Commonwealth of Massachusetts 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 Middlesex County, Commonwealth of Massachusetts for the purpose of litigating all such claims or disputes.
18. Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.
Ecogy Energy - 67 West Street, Suite 232, Brooklyn, NY 11222