As set forth in the Order Form for Subscription Services (the "Order Form"), Intelometry, Inc. ("Intelometry") and the entity identified in the Order Form("Customer") agree that Intelometry shall make available to Customer the services identified in the Order Form ("Services"), subject to this Agreement ("Agreement"). Services may include, but are not limited to, retail energy market and tariff related data supplied by Intelometry or any affiliate of Intelometry ("Information").
- License to Use the Information.
- Customer acknowledges and agrees that "Information" may be comprised of retail energy market and tariff related data: (i) obtained from third parties and resold by Intelometry in unaltered composition; and/or (ii) generated by Intelometry. Intelometry grants to Customer a non-exclusive, non-transferable license ("License") to use the Information for Customer's internal business purposes, subject to the limitations contained in this Agreement; provided, however, that in no event shall Customer resell any or all of the Information to any third party other than in connection with a Value Add Product ("Permitted Use"). A "Value Add Product" is analysis, report or other output generated through the use of the Information and contains, as a material part thereof, content other than the Information. Only employees of Customers ("Authorized Users") are authorized to use the Information in accordance with the Permitted Use. No other use right with respect to the Information is granted to Customer other than the Permitted Use. As between Customer and Intelometry, Intelometry retains all right, title and interest in and to the Information, in any form, and Customer obtains only the right to use the Information in accordance with the Permitted Use.
- Each License is for a term specified in the Order. The Service: (i) is available only for the Authorized Users; and (ii) may not be shared with other persons or entities, either internally or externally. An Authorized User is authorized by Customer to access the Services during the term of this Agreement and according to its terms and that contained in the applicable Order, either online or after the Information has been downloaded in accordance with the terms of this Agreement.
- Restrictions on Use.
- Customer shall not provide the Information to anyone other than the Authorized Users, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others). Nor shall Customer use or permit the use of Information to prepare any comparison to other information databases that is or will be provided to third parties.
- Customer will not use any of the Information to engage in any unfair or deceptive practices. Customer will use the Information only in compliance with all applicable local, state, federal and international laws, rules, regulations and ordinances.
- Upon expiration or termination of a License with respect to particular Information, Customer shall, upon the request of Intelometry, immediately delete or destroy all originals and copies of the Information, as applicable, and upon request, provide Intelometry with certification thereof.
- Intelometry reserves the right to monitor Customer's use of the Services and Information to ensure compliance with this Agreement and prevent fraudulent use. Such monitoring of use may include, but will not necessarily be limited to, determining whether or not the Services are accessed under the account from multiple computers or a disproportionate number of users. Customer may not make available a user name and password to a party that is not an Authorized User.
- Customer will pay Intelometry in accordance with the Order Form via a valid credit card or ACH payment.
- Customer will pay any applicable taxes relating to this Agreement, other than taxes based on Intelometry income and franchise related taxes.
- Notwithstanding anything to the contrary in this Agreement or the Order, all subscriptions will be automatically renewed using the credit card or ACH payment information on file. Customer is responsible for updating credit card and ACH payment information when necessary. Declined credit cards will not relieve Customer of obligations under this Agreement.
- Though Intelometry and its affiliates use extensive procedures to keep its database current and to promote data accuracy, Customer acknowledges that the Information may contain a degree of error.
- ALL SERVICES AND INFORMATION ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, INTELOMETRY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INTELOMETRY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. INTELOMETRY WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, INTELOMETRY CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING OR DELIVERING SERVICES OR INFORMATION.
- Copyrights and Other Proprietary Rights.
- All Information is proprietary to Intelometry and its affiliates and may include copyrighted works, trade secrets, or other materials created by Intelometry or its affiliates at great effort and expense. Customer will not disclose, contest the validity of Intelometry or its affiliates' ownership of, or impair the value of, the Information in any way. Customer will reproduce Intelometry or its affiliate's copyright and proprietary rights legend on all copies of the Information.
- Customer will not use any trademark, service mark or trade name of Intelometry or any of Intelometry affiliated companies or publish any press releases regarding this Agreement or any Order. Customer shall not disclose the negotiated pricing or terms of this Agreement, or any Order, to any third party.
- Customer shall implement and maintain security measures with respect to the Information in Customer's possession that effectively restrict access to Information only to Authorized Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those Customer employs to safeguard its most confidential information. Customer shall supply Intelometry with a description of such security measures at Intelometry request. In the event of an actual or suspected breach of such security measures, Customer shall notify Intelometry within 24 hours.
- In the event of material breach of Sections 1, 2 or 5, the non-breaching party may immediately terminate, or Intelometry may suspend Services under, the applicable Orders without prior notice. In the event of material breach of any other part of this Agreement by Customer or Intelometry, the non-breaching party may terminate this Agreement or particular Orders if such breach is not cured within thirty (30) days of written notice of breach.
- The provisions set forth in Sections 2, 3, 4, 5, 6.2, 7 and 8 will survive the termination of this Agreement.
- Intelometry may, at any time upon written notice to Customer, terminate the Services for any reason; provided, however, that in the event Intelometry terminates the Services pursuant to this Section 6.3, Intelometry shall refund to Customer all prepaid, but unused, amounts for such terminated Services.
- Limitation of Liability.
THE MAXIMUM LIABILITY OF INTELOMETRY TO CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT AND ANY ORDER FORM, AND CUSTOMER'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL INTELOMETRY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF INTELOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Choice of Law; Disputes.
- This Agreement is governed by and construed in accordance with the laws of the State of Texas, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located in Cook County, Illinois.
- Customer will pay all costs and expenses, including reasonable attorneys' fees, that Intelometry incurs in any action to enforce Customer's obligations under this Agreement.
- In no event shall any terms or conditions included on any form of Customer purchase order apply to the relationship between Intelometry and Customer hereunder, unless such terms are expressly agreed to by the parties in writing. Any amendments of or waivers relating to this Agreement or any Order Form must be in writing signed by both parties.
- Third parties (including affiliates of Intelometry) that provide information, software or services to Intelometry or its affiliates for use in providing the Services are intended third party beneficiaries of Sections 4 and 7.
- This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; provided, however, that Intelometry may assign the Agreement to an affiliate or in connection with a merger or consolidation involving Intelometry (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of Intelometry assets (so long as the assignment is to the acquirer of such assets).
- Cancellations & Renewals.
Other than as provided in Section 6.3 above, all Intelometry subscriptions are non-refundable and Customer is not entitled any refunds or prorations for cancellation, partial-month usage, or non-usage of the Service.
All subscriptions automatically renew at the end of each term. Such automatic renewal applies to both annual and month-to-month subscriptions. Customer must cancel the Service before the monthly or annual renewal date in order to avoid automatic billing of subscription fees for the renewal term. Cancellations must be in writing, sent to email@example.com.