ENRG Terms of Service Agreement
1. Introduction
This SaaS Agreement sets out the general terms and conditions under which ENRG agrees to provide, and Customer and End User agree to receive and use, the Services. By accessing or using the Services, Customer and End User acknowledge that they have read, understand, and agree to be bound by this SaaS Agreement, ENRG's Privacy Notice, End User Conduct & Content Policy and the Supplemental Terms. Those who do not agree with this Agreement must not access or use the Services.
1.1 Authority. The individual agreeing to this Agreement represents to ENRG that they have the authority to bind Customer and any Affiliates to this Agreement.
1.2 Age Requirement. The Services must not be used by anyone under the age of eighteen (18) or the age of majority of the jurisdiction they reside in. Customer is responsible for ensuring that all End Users are at least eighteen years old or the age of majority where the End Users reside, and that the Services will not be integrated with any of Customer's products, services, or websites that are directed towards or likely to be accessed by someone under the age of eighteen. If an End User is under eighteen, End User must have their parent or legal guardian's permission to use the Services.
1.3 Relationship Between Customer and End User. The administrator of Customer's Account can modify or re-assign roles of End Users and otherwise exercise the rights granted to the Customer pursuant to this Agreement. If a Customer elects to replace the administrator of its Customer Account, such administrator must agree to take any actions reasonably necessary to facilitate such transfer of authority.
2. Use and Access to the Services
2.1 Access and Use of the Services. ENRG grants Customer a non-transferable, non-exclusive, revocable right to access and use the Services pursuant to the terms and conditions of this Agreement and the Documentation. Only one (1) individual may access or use an End User Account during the Subscription Term.
2.2 Customer and End User Responsibilities. Customer is responsible, on behalf of itself and its End Users, for obtaining, maintaining, and securing any Equipment used to access the Services; complying with the terms of ENRG's End User Conduct and Content Policy and the Supplemental Terms; giving all notices to, and obtaining any rights, permissions or consents from its End Users necessary for Customer's lawful use of the Services; responding to and resolving any dispute between Customer and an End User related to Customer Data; and complying with all applicable laws and regulations.
2.3 General Restrictions. Unless otherwise expressly permitted, Customer and End User must not reproduce, duplicate, copy, sell, resell, sublicense or exploit ENRG Technology for any commercial purpose without ENRG's prior written approval; reverse engineer, decompile, or disassemble ENRG Technology; modify, translate or create derivative works; use ENRG Technology to train any machine learning or artificial intelligence system; use ENRG Technology for competitive or benchmarking purposes; or remove or obscure any proprietary notices contained in ENRG Technology.
2.4 Login Credentials. Customer and End User are responsible for all login credentials, including usernames and passwords, and ENRG shall not be liable for any damages that may occur due to failure to maintain the confidentiality of login credentials. End Users are not permitted to share login credentials to the Services.
2.5 Export Compliance. Customer and End User may not remove or export from the United States or allow the export or re-export of the Services in violation of any restrictions, laws or regulations of the United States. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list.
2.6 Support and Maintenance. The Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, but ENRG shall use reasonable efforts to provide advance written notice of any scheduled service disruption.
2.7 Modifications. Customer acknowledges that ENRG may modify the features and capabilities of the Services during the Subscription Term, and shall provide reasonable notice of any deprecation of features which ENRG determines to be material.
2.8 Excessive Use. ENRG reserves the right to suspend access to the Services if Customer exceeds usage limits as stated in the Documentation or otherwise exhibits Excessive Use. The Parties agree to collaborate in good faith to resolve cases of Excessive Use within ten (10) days from the time ENRG provides notice.
3. Confidentiality
3.1 Protection of Confidential Information. The Receiving Party agrees to protect the confidentiality of Confidential Information using at least the same degree of care as it uses with its own Confidential Information, but in no event less than a reasonable degree of care, and not to disclose to any third person any such Confidential Information without the express prior written consent of the Disclosing Party.
3.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent legally required in connection with any legal or regulatory proceeding; provided that, when permitted by law, the Receiving Party will provide advance notice to the Disclosing Party.
3.3 Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore the Disclosing Party may be entitled to appropriate equitable relief.
4. Data Protection, Ownership, and Usage
4.1 Data Protection. ENRG shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of Customer Data in ENRG's possession, custody or control.
4.2 Ownership. As between the Parties, Customer owns all right, title, and interest in the Customer Data, subject to ENRG's rights under this Agreement. ENRG owns all right, title, and interest in and to ENRG Technology and Usage Data.
4.3 Data Use. Customer grants ENRG a worldwide, non-sublicensable, non-transferrable, non-exclusive right to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export and display the Customer Data to provide, develop, and improve the Services, to comply with applicable laws, to perform ENRG's obligations, and to prevent or address service, security, support and technical issues.
4.4 Sensitive Personal Data. Unless specifically agreed to in writing, Customer agrees not to use the Services to process, transmit, collect, or store any Sensitive Personal Data. Customer acknowledges that the Services are not PCI DSS compliant.
5. Feedback
By submitting any feedback or suggestions regarding the Services, Customer grants to ENRG an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose.
6. Fees and Payment
6.1 Calculation of Subscription Charges. Customer may purchase the Services either through ENRG's website or by executing an Order Form. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein.
6.2 Payment and Billing. Unless otherwise set forth, all Subscription Charges are due in full upon commencement of the Subscription Term. If Customer fails to pay its Fees within five (5) days of ENRG's notice that payment is delinquent, ENRG may suspend access to the Services.
6.3 Taxes. Unless otherwise stated in an Order Form, ENRG's charges do not include any Taxes. Customer is responsible for paying Taxes assessed in connection with Customer's Subscription Plan except those assessable against ENRG as measured by its net income.
6.4 Billing Disputes. If Customer believes that ENRG has billed Customer incorrectly, Customer must contact ENRG no later than thirty (30) days after the closing date on the first billing statement in which the error appeared.
6.5 Upgrades. Any incremental Subscription Charges associated with an upgrade will be charged in accordance with the Subscription Charges that exist during the applicable Subscription Term.
6.6 Downgrades. Customer may not downgrade its Subscription Plan or reduce the number of End User subscriptions during any Subscription Term. For a subsequent Subscription Term, Customer must provide ENRG with thirty (30) days written notice.
6.7 Payment Portals. If Customer mandates ENRG to use a vendor payment portal that charges ENRG a fee, Customer shall be invoiced for, and is obligated to pay, the cost of this fee.
7. Term and Termination
7.1 Term. ENRG shall provide the Services to Customer for the initial Subscription Term, which shall then be automatically renewed for the same duration as the previous Subscription Term.
7.2 Termination. Either Party may request termination at least thirty (30) days prior to the end of the then-current Subscription Term. Either Party may terminate this Agreement if the other Party fails to cure a material breach within thirty (30) days after written notice.
7.3 Data Export. ENRG will make all Customer Data available to the Customer for electronic retrieval for thirty (30) days upon termination. After such period, ENRG shall delete Customer Data in accordance with its data deletion policy.
7.4 Suspension and Other Remedial Action. ENRG reserves the right to take remedial action it deems necessary, including the immediate suspension or termination of a Customer Account or an End User Account, upon notice, should Customer or an End User fail to abide by ENRG's End User Conduct and Content Policy or where necessary to prevent disruption to the Services or harm to others.
8. Warranties and Disclaimer
8.1 ENRG Warranties. ENRG warrants that during the Subscription Term the Services will perform materially in accordance with the Documentation. ENRG's sole liability for any breach of this warranty will be to use commercially reasonable efforts to correct any reported material non-conformity.
8.2 Mutual Warranties. Each Party represents and warrants that this Agreement has been duly executed and constitutes a valid and binding agreement, that no third-party authorization is required, and that performance does not violate any other agreement.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ENRG DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. Indemnification
9.1 ENRG's Indemnification Obligations. ENRG will defend Customer Parties from and against any third party claim alleging that the Customer's use of the Services as contemplated under this Agreement violates the intellectual property rights of such third party, subject to the exclusions stated herein.
9.2 Customer's Indemnification Obligations. Customer will defend ENRG Parties from and against any third party claim arising from or related to Customer's or an End User's use of the Services in violation of applicable laws or this Agreement, and any Customer Data.
9.3 Potential Infringement. If the Services are held to be infringing, ENRG may at its option and expense replace or modify the Services to be non-infringing, obtain a license for Customer to continue using the Services, or terminate this Agreement with a pro-rata refund of prepaid but unused Subscription Charges.
9.4 Indemnification Process. The Party seeking indemnification must provide prompt notice of the claim, provide all information and assistance reasonably requested, and cooperate fully in defending the claim.
10. Limitation of Liability
10.1 Exclusion of Consequential Damages. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES.
10.2 Limitation of Liability. ENRG'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
10.3 Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability, which means that some of the above limitations may not apply to Customer.
10.4 Enforceable Against ENRG. Any claims that Customer may have against ENRG shall only be enforceable against ENRG and not any officers, directors or Representatives.
10.5 The provisions of this Section 10 allocate the risk between the Parties and the Parties have relied on these limitations in determining whether to enter into this Agreement.
11. Use of Third Party Services
If Customer chooses to use the Services with a Third Party Service, Customer grants ENRG permission to allow the Third Party Service to access Customer Data for interoperation. ENRG does not warrant or support any Third Party Service, and Customer is solely responsible for reviewing and complying with such provider's terms of use. ENRG is not liable for any damage caused by Customer's access or use of, or reliance on, any Third Party Services.
12. Miscellaneous
12.1 Governing Law; Venue. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.
12.2 Arbitration. Any dispute arising out of this Agreement shall be resolved exclusively by binding arbitration before a single arbitrator with JAMS. The place of the arbitration will be Salt Lake City, Utah, unless otherwise agreed. Customer may opt out of the arbitration and class action waiver provisions by sending written notice to ENRG within thirty (30) days of the Effective Date.
12.3 Legal Notices. Legal notices must be sent via email, first class mail, airmail, or overnight courier. Legal notices to ENRG shall be sent to:
ENRGAttn: Legal Department
4852 S 1900 W
Roy, Utah 84067
Email: contact@enrg.pro
12.4 Publicity. ENRG shall have the right to use Customer's name and logo in a factual manner for marketing or promotional purposes.
12.5 Severability; No Waiver. If any provision of this Agreement is found to be invalid, it shall be limited to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect.
12.6 Assignment. Neither this Agreement nor any rights granted hereunder may be transferred or assigned by either Party without the other Party's prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of its assets.
12.7 Force Majeure. Neither Party shall be liable for delayed or inadequate performance to the extent caused by a Force Majeure Event.
12.8 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship.
12.9 Use by Affiliates. Customer may extend its rights to its Affiliates provided that Customer remains responsible for such Affiliate's use of the Services.
12.10 Trial Subscriptions and Beta Access. Trials and Beta Versions are made available on an "as is" basis without warranties of any kind, and participation is at Customer's own risk. ENRG shall have the right to terminate Trials or Beta Versions at any time.
12.11 Compliance and Conduct. All parties agree to comply with the US Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, and any equivalent anti-corruption requirements.
12.12 English Version Controls. In the event of any conflict between translations, the English version is authoritative and controls.
12.13 Entire Agreement. This Agreement contains the entire understanding between the Parties and supersedes any prior representations, warranties, understandings, and agreements.
12.14 Headings. Headings are provided for convenience only and will not be used to construe meaning or intent.
12.15 Survival. Sections 2.2, 2.3, 2.5, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 will survive any expiration or termination of this Agreement.
12.16 Changing this Agreement. ENRG reserves the right to update or modify this Agreement from time to time by posting an updated version on its website. By continuing to use the Services after the effective date of any update, Customer will be deemed to have accepted such update.
13. Definitions
Capitalized terms used in this Agreement — including "Account", "Affiliate", "Agreement", "Beta Version", "Confidential Information", "Customer", "Customer Data", "Documentation", "End User", "Equipment", "Excessive Use", "Fees", "Force Majeure Event", "Order Form", "Parties", "Process", "Professional Services", "Sensitive Personal Data", "Services", "Subscription Charges", "Subscription Plan", "Subscription Term", "Taxes", "Third Party Services", "Trial", and "Usage Data" — have the meanings given to them throughout this Agreement and in ENRG's Documentation available at enrg.pro.