Last Modified on: 06/07/2018
Thank you for selecting the Services offered by ANB Systems, Inc., and/or its subsidiaries and affiliates (“ANB Systems,” “Company”, “we” or “us”). Review these Terms of Service (“Agreement”) thoroughly. This Agreement is a legal agreement between you (“Authorized User”) and ANB Systems. By accepting electronically (for example, clicking “I Agree” or “I Accept”), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.
- “Aggregated Statistics” means data and information related to Authorized User’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” includes both Free User and Subscriber.
- “Customer Data” means information, data, and other content, in any form or medium, which is submitted, posted, or otherwise transmitted by the Authorized User through the Services.
- “Documentation” means Company’s user manuals, handbooks, and guides relating to the Services provided by Company to Authorized User either electronically or in hard copy form and end-user documentation relating to the Services available at www.anbsystems.com.
- “Free User” means an Authorized User who is not a Subscriber.
- “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to the Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes any information, data, or other content derived from Company’s monitoring of Authorized User’s access to or use of the Services, but does not include Subscriber’s Data.
- “Services” mean the following.
- eTRACK, the ERP for energy efficiency, is a highly customizable cloud-based platform for renewable energy business processes and demand-side management programs, to track energy efficiency.
- ReD, a suite for operations and data management, has modules for pricing, deal capturing, load forecasting, and settlements, ReD reduces the complexity of operations in the office and generate reports on every aspect for comprehensive analysis.
- eTRM is a repository of Technical Reference Manuals designed to effectively capture, manage, and track the complete set of demand side management and energy efficiency measures prescribed in state and regional Technical Reference Manuals.
- ePLAN is a robust tool for evaluating cost effectiveness of energy efficiency and demand side management programs during planning, implementation, and evaluation phases.
- “Subscriber” means an Authorized User, other than a Free User, who pays the fees specified in Section 5.
- “Third-Party Products” means any third-party products provided with or incorporated into the Services.
2. Access and Use..
- Provision of Access. Subject to and conditioned on Subscriber’s payment of Fees and compliance with all other terms and conditions of this Agreement, Company hereby grants Subscriber a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Subscriber in accordance with the terms and conditions herein.
Subject to Free User’s compliance with all the terms and conditions of this Agreement, Company hereby grants the Free User a non-exclusive, non-transferable right to access and use the Services. Such use is limited to Free User’s personal and non-commercial use.
Company shall provide to Authorized User the necessary passwords and network links or connections to allow the Authorized User to access the Services.
- Documentation License. Subject to the terms and conditions contained in this Agreement, Company hereby grants to Authorized User a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation solely in connection with his/her use of the Services. However, in the case of a Free User, the right shall be limited to personal and non-commercial use.
- Use Restrictions. Authorized User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Authorized User shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights.Company reserves all rights not expressly granted to Authorized User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Authorized User or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend any Authorized User’s access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Company; (C) Authorized User is using the Provider IP for fraudulent or illegal activities; (D) Company’s provision of the Services to Authorized User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Authorized User to access the Services. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Authorized User may incur as a result of a Service Suspension.
Company shall use commercially reasonable efforts to resume providing access to the Services to the Subscriber as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Authorized User’s use of the Services and collect and compile Aggregated Statistics. As between Company and Authorized User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Authorized User acknowledges that Company may compile Aggregated Statistics based on Authorized User Data input into the Services. Authorized User agrees that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
3. Authorized User’s Responsibilities.
- General. Authorized User is responsible and liable for all uses of the Services and Documentation resulting directly or indirectly from access provided by Company, whether such access or use is permitted by or in violation of this Agreement.
- Third-Party Products. Company may from time to time incorporate Third-Party Products into Services and make them available to Authorized User. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions. If Authorized User does not agree to abide by the applicable terms for any such Third-Party Products, then Authorized User should not install or use the Services.
4. Service Levels and Support.
- Subscriber.Subject to the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to make the Services available to the Subscriber in accordance with the service levels set out in Addendum 1. The access rights granted hereunder entitles Subscriber to the support services described in Addendum 1.
- Free User. The Company does not represent that the Services will be available at any given time. The Company shall not be responsible to the Free User for any remedy for either failure of Services or failure to remedy errors in Services. This Agreement does not entitle Free User to any support for the Services.
5. Fees and Payment.
- Fees. Subscriber shall pay Company the fees (“Fees”) as set forth in Addendum 1 without offset or deduction. If Subscriber fails to make any payment when due, without limiting Company’s other rights and remedies, Company may suspend Subscriber’s access to any portion or all of the Services until such amounts are paid in full.
- Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Company’s income.
6. Intellectual Property Ownership.
- Provider IP. Authorized User acknowledges that, as between Authorized User and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
- Customer Data. Authorized User acknowledges that, as between Company and Authorized User, Authorized User owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data that is input by the Authorized User into the Service. Authorized User hereby grants to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Company to provide the Services to Authorized User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
- Feedback. If Authorized User sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Authorized User hereby assigns to Company all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
- Company warrants to the Subscriber that the Services will conform in all material respects to the service levels set forth in Addendum 1 when accessed and used in accordance with the Documentation. Company does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Addendum 1. The remedies set forth in Addendum 1 are Subscriber’s sole remedies and Company’s sole liability under the limited warranty set forth in this Section 7(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE PROVIDER IP IS PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a) TO SUBSCRIBER, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET AUTHORIZED USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Company Indemnification.
- Company shall indemnify, defend, and hold harmless Subscriber from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Subscriber resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s United States patents, copyrights, or trade secrets, provided that Subscriber promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Subscriber agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Subscriber to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Subscriber.
- This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; or (C) Third-Party Products.
- Subscriber Indemnification. Authorized User shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Services not made by Company, provided that Authorized User may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 8 SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL COMPANY’S LIABILITY UNDER THIS SECTION 8 EXCEED $100.
9. Limitations of Liability.
IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT, PRORATED FOR THREE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
10.Term and Termination.
- Effective Date. The effective date of this Agreement shall be the earlier of, the date on which the Subscriber accepts the Agreement or the fees paid by the Subscriber is realized by the Company.
- Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the last day of that calendar month or the first anniversary of the Effective Date based on whether Fees are charged monthly or annually (the “Initial Term”). This Agreement will automatically renew until the last day of each month provided the Subscriber pays the Fees specified in Section 5(a) (each a “Renewal Term” and together with the Initial Term, the “Term”).
- Termination. Company may terminate this Agreement, if Subscriber: (A) fails to pay the fees due under Section 5(a); or (B) breaches any of its obligations under Section 2(c); or files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Subscriber shall immediately discontinue use of the Provider IP and Subscriber shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Company that the Provider IP has been deleted or destroyed. No expiration or termination will affect Subscriber’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Subscriber to any refund.
- Survival. This Section 10(a)(v) and Sections 1, 5, 6, 7(b), 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
- Free User. Company may suspend, limit, or terminate the Free User’s access to Services for any reason at any time without notice. Company may terminate Free User’s access to Services due to his/her inactivity. Company may terminate without prior notice, Free User’s access to Services for breach of any of the obligations under this Agreement. Upon such termination, Company may, at its election, require the Free User to delete, destroy, or return all copies of the Provider IP and certify in writing to the Company that the Provider IP has been so deleted or destroyed. The Sections 1, 5, 6, 7, 8, 9, and 10 shall survive any termination of this Agreement.
- This Agreement, together with any other documents incorporated herein by reference and all related Addendums, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Addendums, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Addendums; (ii) second, the Addendums to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
- In no event shall Company be liable to Authorized User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- No waiver by the Company of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Company. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Company shall be entitled to modify this Agreement so as to effect their original intent as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- This Agreement is governed by and shall be construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Houston and County of Fort Bend, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Authorized User may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment or delegation in violation of this Section will be null and void.
- The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Authorized User shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Authorized User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
- Authorized User acknowledges and agrees that a breach or threatened breach by him/her of any obligations under this Agreement would cause the Company irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Company will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Services. The Subscriber will be granted access to the eTRM service through the URL etrm.anbetrack.com. The Subscriber will be provided an User Name and Password by the Company through the registration process on the website.
- Service Availability: The Company will use its best efforts to provide 24 hour daily availability of the Service. However, the Company makes no representation or warranty that 24 hour service will be available. The Subscriber agrees and acknowledges that the Service will, at times, be unavailable due to regularly scheduled maintenance, service upgrades, or other mechanical or electronic failures. The Company will not be responsible for any problems or technical malfunctions of any telephone or fiber network or lines, computer on-line systems, servers or providers, computer equipment, software, failure of any e-mail to be received by the Company on account of technical problems or traffic congestion on the Internet or at any website, or any combination thereof, including any injury or damage to your computer or peripherals related to downloading any materials from the Service.
- Fees: The subscription rate shall be $500 per year per Subscriber for access to the Services, payable in full in advance.
- Payment: Payment is due in advance for one full year. No refunds will be permitted.
- Remedies: In the event of support or other needs, the Authorized User may contact the Company by sending an email to eTRMsupport@anbsystems.com. Responses can be expected within 2 business days.