Last Updated: July, 2013.
The following terms and conditions (these “Terms”) govern each user’s (“you” or “your”) access to, and use of, the websites (“Sites”) and services (the “Services”) that are provided by Pulse Energy Inc., or its subsidiaries and affiliates (“Pulse”, “we”, “us” or “our”) which include resources, information and feedback about your energy use and efficiency.
Pulse provides Services directly to users or it may work with utility providers, public institutions, or other partners (“Partners” and each, a “Partner”) to deliver services to users through partnered websites or platforms (“Partner Sites”). These Partner Sites are governed by these Terms, any terms and conditions of the Partner, and both Pulse’s and the Partner’s privacy policies.
Where our Partner is a utility provider that provides online or offline utility-specific services to you, all utility-specific services, including any collection, use and disclosure of your information in the provision of the utility-specific services, is governed by that utility’s own terms of service (and not these Terms). These utility-specific services are being provided to you by the utility provider and not by Pulse.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING, BROWSING, OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ANY OF THE RELATED POLICIES OR GUIDELINES, INCLUDING ANY SUBSEQUENT CHANGES OR MODIFICATIONS TO THEM.
- LICENSE GRANT & PROPRIETARY RIGHTS
You acknowledge and agree that the Services, including the software (the “Software”), code, proprietary methods and systems that we use to provide you with the Services, contain proprietary and confidential information that is protected by applicable intellectual property and other laws and treaties.Pulse hereby grants to you a personal, non-exclusive, non-transferable and non-sublicensable license (the “License Grant”) to use the Services to view, use download and print materials, information and content made available or displayed on the Sites or Partner Sites, as applicable, for your personal, informational and non-commercial use solely in accordance with these Terms.You agree not to (or allow any third party to): (a) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or decompile the Software, or otherwise make it available in human readable form; (b) download, save, sell, rent, distribute or otherwise commercially exploit any part of the Software (however, you are free to download, save and distribute data that is generated using the Software (the “Customer Data”)); (c) use any third party software to extract Customer Data from the Services; (d) remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Software; (e) use the Services to build a similar or competitive product or service or attempt to obtain unauthorized access to the Services, or (f) disclose any confidential information about the Services, or provide access to the Services, to a third party that provides or is developing a competitive product or service to the Services.You also agree not to remove, obscure, or alter Pulse’s, any Partner’s or any third party’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services.
The Sites and Partner Sites may display names, logos, and other materials that constitute trademarks, tradenames, service marks or logos (“Marks”) of Pulse, Partners or other entities. You are not authorized to use any Marks. Ownership of all Marks and any associated goodwill remains the property of Pulse, Partners or those other entities, as applicable.
- USER CONTENT
Depending on the Services, you may have the ability to submit, email or otherwise publish on the Sites, Partner Sites or the Services certain information, text or materials (your “User Content”). You are solely responsible for all your User Content. You retain ownership and any intellectual property rights in any copyrighted materials that are contained in your User Content. You hereby grant Pulse, and any applicable Partner, a non-exclusive, royalty-free, fully paid, fully sublicensable, worldwide license, under any and all of your copyright and other intellectual property rights related to your User Content, to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content. You agree that any of your User Content or any derivative works thereof may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our customers, us or our Partners. You represent and warrant that your User Content will not:
- Violate any applicable law, statute, ordinance or regulation;
- Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Be or contain material that is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Violate the privacy, publicity, or other rights of third parties;
- Be false or inaccurate or becomes false or inaccurate at any time;
- Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
- Contain any viruses, trojan horses, worms, time bombs, trapdoors, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Advocate or encourage any illegal activity; or
- Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
This list of above prohibitions is not complete or exclusive. Though Pulse takes no responsibility and assumes no liability for any User Content, it reserves the right in its sole discretion to terminate your access to the Sites, Partner Sites and Services, terminate your ability to post User Content or refuse, delete, modify, edit or remove any User Content; with or without cause and with or without notice, for any reason or no reason, or for any action that Pulse determines is inappropriate or disruptive to the Sites, Partner Sites or Services, as applicable. As a provider of interactive services, Pulse is only a forum and is not liable for any statements, representations, or any User Content provided by its users on any Site or Partner Site.
- USER PASSWORD AND ACCOUNT INFORMATION
You may become a registered user of the Sites, Partner Sites or Services as a customer, customer of a Partner or an employee of a Partner utility, using the Sites, Partner Sites or Services in your capacity as an employee (a “Registered User”). If you become a Registered User, as part of the registration process for the Services you will be required to provide current, accurate identification and other information in order to use the Services. You are responsible for maintaining the confidentiality of your account password, and you are responsible for all activities that occur under your account or accounts. You shall immediately notify Pulse of any unauthorized use of your password or account(s). You agree that Pulse will not be liable for any loss or damage arising from any failure to provide Pulse with accurate information or any failure of yours to keep passwords or account(s) secure.
You may either browse the Sites or Partner Sites, as applicable, as a visitor (a “Visitor) or you may become a Registered User. Registered User have access to more parts and features of the Sites or Partner Sites than Visitors. Visitors do not have to provide us with any information, but if a Visitor does provide any information, it must be true, accurate, current and complete information. Visitors agree not to attempt to access Registered User areas of the Sites. In order to become a Registered User, you must complete the registration process provided on the Sites or Partner Sites, as applicable, which will ask you for certain account information, including a password, which you have the responsibility to protect and not disclose. Any unauthorized use of your account will be your responsibility, as we will assume that any account activity is yours. We reserve the right, in our sole discretion, to cancel suspected compromised, unconfirmed or inactive accounts. We will be in no way liable for any damages that arise out of any unauthorized use of or access to your account.
- PROPER PURPOSES
You agree to use the Services only for purposes that are legal, proper and in accordance with these Terms and any applicable policies or guidelines.
- STORAGE AND TRANSMISSION OF CUSTOMER DATA
We shall use commercially reasonable efforts to ensure that Customer Data will be safeguarded when stored on Pulse’s network or servers and/or transmitted over the internet, including the use of industry-recognized best practices and technologies for data security and integrity.
- You acknowledge that your use of the Services will involve transmission over various network communications facilities or other electronic means that may not be owned or operated by Pulse. Therefore, you agree that Pulse is not responsible for any Customer Data that is lost, altered, intercepted or stored without authorization during the transmission across networks not owned or operated by Pulse.
- RELIANCE ON CUSTOMER DATA
You acknowledge that the input of data into the Services, and its accuracy and adequacy, are your responsibility. Any use of or reliance by you on the Customer Data that you generate using the Services is your sole responsibility, and your hereby agree to indemnify and hold Pulse and our directors, officers, employees, consultants and agents harmless from any claims or losses arising from, or related to, your use of the Customer Data.
- LICENSE TO ANONYMIZED CUSTOMER DATA
Every customer that uses the Services to generate energy data is part of a large scale and important benchmarking study. We use this data, in anonymous form, to make useful comparisons among various types and sizes of buildings and to increase the value of the Services and its accuracy for all users. Therefore, you hereby agree that the Services can record, reproduce, transmit and use your Customer Data for benchmarking and other purposes, as long as the Customer Data is no longer identifiable to you or specific buildings. This right will survive the expiration, termination or cessation of your use of the Sites, Partner Sites or Services.
We value your ideas, comments, criticisms, suggested improvements and any other feedback you may give us about the Sites, the Partner Sites or the Services (“Feedback”). We try to be responsive to Feedback, and you agree we may use the Feedback to change or modify the Sites, Partner Sites or Services and that you will not be owed any compensation in connection with any of our products or services that incorporates your Feedback. You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. The rights you give us with regard to Feedback applies to Feedback received through any medium, including the Sites, Partner Sites, email or otherwise.
- MINIMUM SYSTEM REQUIREMENTS
In order to use the Services, you must have the required internet access, equipment and browser software that supports a data security protocol compatible with the protocol used by Pulse, as may be amended from time to time. You acknowledge that Pulse is not responsible for notifying you of any upgrades, fixes or enhancements to any such third party software.
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Pulse may have no control over such sites and resources and you acknowledge and agree that Pulse is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Pulse shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
- MODIFICATIONS TO PULSE
The Services are a product that is constantly evolving. As such, any part of the Services may be modified or discontinued at any time in Pulse’s sole discretion with or without notice, and you agree that Pulse will not be liable to you as a result such modification or discontinuance.
- TERM AND TERMINATION
You may discontinue your use of the Services at any time. You agree that Pulse may at any time and for any reason, including a period of account inactivity, terminate your access to the Services, terminate these Terms, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to the Services, your account or any files or other content contained in your account. Sections 7 (Reliance on Customer Data), 8 (License to Anonymized Customer Data), 14 (Indemnity), 16 (Disclaimer of Warranties), 17 (Limitation of Liability), and 18 (Notice) and 19 (Miscellaneous) will survive the expiration or termination of these Terms.
You agree to hold harmless and indemnify Pulse and its officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Pulse and Partners”) from and against any third party claim arising from or in any way related to your use of the Pulse Service or your violation of these Terms. In such a case, Pulse will provide you with written notice of such claim, suit or action.
You hereby release Pulse and Partners from claims, demands any and all losses, damages, rights, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Sites, Partner Sites or the Services.
- DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT:
- YOUR USE OF THE SITE, PARTNER SITE, AND SERVICES IS AT YOUR SOLE RISK AND THIS USE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- WE DO NOT WARRANT THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE CUSTOMER DATA WILL BE ACCURATE OR RELIABLE, AND (iv) ALL ERRORS IN THE SERVICES WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PULSE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE PULSE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
- LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITES, THE PARTNER SITES AND SERVICES, AS APPLICABLE, IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU EXPRESSLY AGREE THAT WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PULSE SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iii) ANY OTHER MATTER RELATING TO THE PULSE SERVICES. PULSE’S MAXIMUM LIABILITY ARISING OUT OF OR IN THE CONNECTION WITH THESE TERMS AND ANY USE OF PULSE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, WILL IN NO CASE EXCEED $50.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 16 AND 17 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND PULSE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You agree that Pulse may provide you with notices, including those regarding changes to these Terms, by email or postings on the Sites.
Applicable Laws. You are responsible for compliance with all applicable laws.
Entire Agreement. These Terms (including any policies, guidelines or amendments that may be presented to you from time to time) constitute the entire agreement between you and Pulse and govern your use of the Services. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other affiliate services, third-party content or third-party software.Injunctive Relief. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder.Choice of Law and Forum. These Terms are governed by the laws of the Province of British Columbia, Canada without regard to its conflict of law provisions. You and agree to submit to the exclusive jurisdiction of the courts located within the City of Vancouver, Province of British Columbia, Canada to resolve all disputes.Waiver and Severability of Terms. The failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section headings in these Terms are for convenience only and have no legal or contractual effect.