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Terms of Use

EnerNOC | Utility Software Terms and Conditions

EnerNOC's Terms of Use

General
Welcome to our website. EnerNOC, Inc. owns, controls and maintains this site for your information and education and as a service to the internet community. Any information contained or referenced in this website is suitable only as an introduction to our company. For specific information please contact us directly.

Through your access to and use of this website, you accept, without limitation or qualification, the terms and conditions set forth below. Please review the following terms and conditions concerning your use of our website. By accessing and using any information and/or materials from our website, you agree to be bound by these terms and conditions. We reserve the right to change these terms and conditions from time to time at our sole discretion. If you do not agree with these terms and conditions, do not use our website. In the case of any violation of these terms and conditions, we reserve the right to seek all remedies available by law and in equity for such violations. These terms and conditions apply to all visits to our website.

Limited License

All contents on our website are, to the extent possible, protected by copyright or are otherwise proprietary. You may view and copy materials on the public portions of our website solely for non-commercial, personal and informational use. Any copy of this material or information you copy shall retain all copyright and other proprietary notices in the same form and manner as on the original. No other use of the information is authorized. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise, any license or right under any patent, trademark or copyright of any third party or ours.

Disclaimers

Although we have attempted to provide accurate information on our website, we assume no responsibility for the accuracy of the information. In particular, we may not update our website on a daily or other regular basis. As such, the information and materials contained on our website may be out of date or include omissions or other errors. We may change the information provided on our website at any time without notice and we will not be liable in any way for possible consequences of such changes.

All information provided on our website is provided "AS IS" without warranty of any kind. We disclaim all warranties, express or implied, including those of merchantability and fitness for a particular purpose. Furthermore, we shall not be liable in any manner whatsoever for direct, indirect, incidental, consequential or punitive damages resulting from the use of, or inability to use, the information on our website or any information provided through linked websites. In addition, we shall not be liable in any way for possible errors or omissions in the content of our website.

We make no representation or warranty, express or implied, that any use of the information contained in our website will not infringe on any patent, copyright or trademark.

This website is also not intended to be used in making any decision relating to an investment in the securities of EnerNOC, Inc. Investors or prospective investors are urged to review and carefully consider the investment materials that we provide in connection with any offering of securities, and all information contained on this website is qualified in its entirety by reference to such investment materials, including the risk factors contained in those investment materials.

You are solely responsible for the messages, notes, text, information, and other content that you upload, publish or display (hereinafter, "post") on or through this website (collectively the "User Content"). You may not post, transmit, or share User Content on this website that you did not create or that you do not have permission to post. You understand and agree that the Company may, but is not obligated to, review this website and may delete or remove (without notice) any website content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of EnerNOC, Inc. violates these Terms of Use or which might be offensive, illegal, or that might violate the rights, harm or threaten the safety of users or others.

Any communication or material you transmit to our website by electronic mail or otherwise, or user content that you post to our website, including any data, feedback, questions, comments, suggestions, or the like, is and will be treated as non-confidential and non-proprietary. Unless specifically agreed to by us in writing, we shall have no obligation of any kind with respect to such information, and shall be free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in such information, including, without limitation, responses to questionnaires or through postings to this website without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving this website. Furthermore, by posting any User Content on our website, submitting any communication, material or User Content to us, or in responding to questionnaires, you grant us a perpetual, non-exclusive, royalty-free irrevocable license and right to display, use, reproduce, modify, disclose or distribute such information in any media, software or technology of any kind now existing or developed in the future.

We do not accept unsolicited materials or ideas for use, and are not responsible for the similarity of any of its content or product offerings to materials or ideas transmitted to us. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against EnerNOC, Inc. and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the idea you sent. The sender of any communications to this site shall be responsible for the content and information contained therein, including its truthfulness and accuracy.

This website contains third party information. Such information is, wherever reasonably possible, marked with the name of the source. Such third party information does not necessarily represent our views and we take no responsibility whatsoever for such third party information, nor do we adopt or endorse any such information.

You agree to indemnify, defend and hold harmless EnerNOC, Inc., its subsidiaries, affiliates, directors, officers, employees, agents and assigns of same, from and against any and all loss, costs, expenses (including reasonable attorneys' fees and expenses), claims, damages and liabilities related to, or associated with, your use of this website and any violation of these terms and conditions by you.

Hyperlinks

Our website may contain hyperlinks to websites owned and/or controlled by other parties. Access to any other website is at your own risk and will result in you leaving EnerNOC's website. Where we provide a hyperlink to a third party's website, we do so because we believe that such website contains or may contain material which is relevant to that on our website. EnerNOC has not reviewed all of these third party sites and does not control and is not responsible for the accuracy or reliability of any information accessible from these websites. In certain instances, a hyperlink may connect you to a third-party's website containing views contrary to those expressed on our website or otherwise held by EnerNOC.

Trademarks

Our trademarks include: EnerNOC, GET MORE FROM ENERGY, ENERBLOG, CARBONTRAK, POWERTRAK, POWERTALK, CAPACITY ON DEMAND, CELERITY ENERGY, CLEAN GREEN CALIFORNIA, ONE CLICK CURTAILMENT, EnerNOC PLC PREDICTOR SERVICE, ENODE, FLUX, ENERGY FOR EDUCATION, ONTARIO LIGHTS THE WAY, SOUTH RIVER ENERGY RISK REPORT CARD, THE CLEANEST KWH IS THE ONE NEVER USED, and THE GREENEST KILOWATT-HOUR IS THE ONE NEVER USED. Other trademarks, servicemarks and trade names appearing in this website are the property of their holders.

Forward-Looking Statements

The information on this website contains forward-looking statements about our business and prospects, such as statements concerning our ability to market, commercialize, and achieve market acceptance for our demand response and other energy management solutions. Such statements are based on management's current expectations and are subject to a number of risks, factors and uncertainties that may cause actual results, events and performance to differ materially from those referred to in the forward-looking statements. These risks include, but are not limited to, changes in the available demand response capacity provided by EnerNOC's programs, loss of a significant customer, technological developments that reduce peak demand or increase power supplies and actions of customers and competitors. Consequently, no forward-looking statement can be guaranteed, and actual results may vary materially.

Utility Software Terms and Conditions

Last Updated: May, 2015.

THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS THAT WILL GOVERN OUR AND YOUR RIGHTS, RESPONSIBILITIES, AND OBLIGATIONS WITH RESPECT TO THE PROVISION OF THE SOLUTIONS. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN. THIS AGREEMENT IS EFFECTIVE ON THE DATE OF YOUR ACCEPTANCE (“EFFECTIVE DATE”).

AS USED IN THIS AGREEMENT, “YOU” OR “YOUR” SHALL MEAN THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACCEPTING THIS AGREEMENT, AND YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND SUCH COMPANY OR ENTITY TO THE TERMS AND CONDITIONS CONTAINED HEREIN. “WE,” “US” OR “OUR” SHALL MEAN ENERNOC, INC.

1. Solutions.  We will provide You with the solutions identified on your order form (“Solutions”), which Solutions are further described in the version of Our Solutions guide that is available at http://www.enernoc.com/solutions/enterprise-solutions/pricing-and-packages as of the Effective Date (“Solutions Guide”), for those of Your facility addresses that We and You mutually agree upon by written or electronic confirmation following the Effective Date (each a “Site Address”).

a. Our Obligations.  We will (i) make the Solutions available to You in accordance with this Agreement; (ii) provide Our standard support for the Solutions as set forth in the Solutions Guide at no additional charge, and/or upgraded support if purchased; and (iii) use commercially reasonable efforts to make the software applications and/or platforms that we make accessible over the internet as part of the Solutions available twenty-four (24) hours a day, seven (7) days a week, except for (a) planned downtime (of which We shall give at least eight (8) hours electronic notice and which We shall schedule to the extent practical during the weekend hours between 6:00 P.M. Friday and 3:00 A.M. Monday Eastern Time); and (b) any unavailability caused by circumstances beyond Our reasonable control, including for example, an event of force majeure.

b.  Your Obligations.  You will (i) be responsible for Your Representatives’ (as defined below) compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of any Customer Data (as defined below) or information You submit in furtherance of the Solutions; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Solutions, and (iv) use the Solutions only in accordance with the terms of this Agreement and applicable laws and government regulations.

2.  Use and Access; Deliverables.  

a.  Use and Access License.  During the Term (as defined below), We grant You a limited, revocable, non-transferrable (except as set forth herein) and non-exclusive right to use and access (including through remote means) the Solutions solely for Your internal business operations and subject to the terms of this Agreement. Without limiting the terms of this Agreement, You agree not to (i) decompile, disassemble, reverse engineer or otherwise attempt to perceive the source code relating to the Solutions; (ii) modify, copy or create any derivative works based on the Solutions; (iii) download, save, distribute or otherwise exploit any part of the Solutions, other than the downloading of Customer Data through the use of the export function of the Solutions; or (iv) assign, sublicense, sell, resell, lease or otherwise transfer, convey, or pledge as security or encumber, any right in the Solutions. Except as expressly permitted herein, You agree that You shall not receive any right, title or interest in or to the Solutions or any patent, copyright, trade secret, trademark or other intellectual property rights therein by implication or otherwise.

b.  Deliverables.  We acknowledge that You shall retain all rights, title and interest in and to the Deliverables (as defined below) and any of Your pre-existing patent, copyright, trade secret, trademark or other intellectual property rights. For purposes of this Agreement, “Deliverables” shall mean any reports that We make available to You through the use of the Solutions or as expressly set forth in this Agreement, but excluding general know-how, materials, tools and other intellectual property, including any software and any enhancements thereto, that are proprietary to Us, which are used or useable in connection with Our provision of the Solutions to other persons, firms and entities (“EnerNOC Materials”) and this Agreement shall not be construed in any manner as transferring any rights of ownership or license to EnerNOC Materials or any features or information therein, except as expressly set forth herein.

3.  Term.  The term of this Agreement shall commence on the Effective Date and continue until the last day of the month that is thirty-six (36) months from the Effective Date, unless earlier terminated in accordance with the terms herein (the “Initial Term”); provided that this Agreement shall renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, collectively the “Term”) unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as applicable.

4.  Confidentiality.  

a.  Non-Use and Non-Disclosure.  In performing its obligations under this Agreement, each party (“Receiving Party”) may receive Confidential Information (as defined below) of the other party (“Disclosing Party”). “Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Receiving Party, on behalf of itself and its employees, contractors and agents (collectively, “Representatives”), agrees not to, except as set forth in this Section, use or disclose Confidential Information during or after the Term without the prior written consent of the Disclosing Party. To protect Confidential Information, the Receiving Party agrees to: (i) limit dissemination of Confidential Information to only those Representatives having a “need to know”; (ii) advise each Representative who receives Confidential Information of the confidential nature of such information; and (iii) have appropriate agreements, policies and/or procedures in place with such Representatives sufficient to enable compliance with the confidentiality obligations contained herein. Notwithstanding the foregoing, You acknowledge that We may receive Your Confidential Information from the applicable independent system/grid operator and/or utility, through data collected through the Solutions or otherwise, which We may be use or disclose as necessary for the performance of this Agreement.

b.  Exclusions.  Notwithstanding the obligations in Section 4(a) above, Confidential Information shall not include any information that the Receiving Party can sufficiently show: (i) is publicly known at the time of its disclosure hereunder or becomes publicly known through no fault of the Receiving Party; (ii) is lawfully received by the Receiving Party from a third party who is not breaching any confidentiality obligations owed to the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reliance on any Confidential Information; or (iv) is required to be disclosed under applicable law or regulation or a court order, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate legal or equitable remedy to prevent or minimize such disclosure.

5.  Data.  

a.  Customer Data.  You retain all rights, title and interest in and to all Customer Data. You acknowledge that the input of data and its accuracy and adequacy is under Your exclusive control. Any use or reliance by You on the Customer Data is Your sole responsibility, and You shall hold harmless Us and Our subsidiaries and affiliates and Our and their respective officers, agents and employees from any claims by third parties arising from, or related to Your use of the Customer Data.

b.  Customer Input.  We shall have a royalty-free, worldwide, transferrable, sub-licensable, irrevocable perpetual license to use or incorporate into the Solutions any suggestions, enhancement requests, recommendations or other feedback You provide relating to the Solutions (“Customer Input”). You shall have no obligation to provide Customer Input.

c.  Data Protection and Security.  We shall use commercially reasonable efforts to safeguard Customer Data, including utilizing a reputable third party Internet Service Provider and hosting facility. However, You acknowledge that the Solutions will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Us. You further acknowledge and understand that Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, or other electronic means. You agree that We are not responsible for any Customer Data which is lost, altered, intercepted or stored without authorization during the transmission and storage of any data whatsoever across networks not owned and/or operated by Us.

d.  Aggregate Data Collection and Usage.  You acknowledge and agree that We: (i) may collect, process and aggregate any data used with, stored in, or related to the Solutions, including, without limitation, Customer Data and any end-user energy usage and demand data, and create aggregate data records by removing any personally identifiable information (“PII”) from the underlying data (following which removal of PII, such data shall be the “Aggregate Data”); (ii) owns such Aggregate Data and may use such Aggregate Data to improve the Solutions, develop new solutions, understand actual energy usage and demand trends and general industry trends, develop white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to Our business; and (iii) share Aggregate Data with third parties or publish any reports, white papers, or other summaries based on Aggregate Data.

6.  Logo Authorization.  In connection with this Agreement, You hereby consent to Our use of Your name and logo in Our promotional materials, including, but not limited to, Our website, presentations and other printed materials. We acknowledge that You are the owner of all right, title and interest in and to Your name and logo and shall not take any action that is inconsistent with such ownership.

7.  Indemnification.  

a.  Indemnification by Us.  We shall, at Our expense, defend, indemnify and hold You harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings ("Claims") made or brought against You by a third party alleging that the use of the Solutions as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided, however, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim without Your prior written consent, such consent not to be unreasonably withheld, unless it unconditionally releases You of all liability); and (c) provide to Us, at Our cost, all reasonable assistance. Notwithstanding the foregoing, We shall not be required to indemnify You in the event of: (w) modification of the Solutions by You or Your employees in conflict with Your obligations or a result of any prohibited activity as set forth herein; (x) use of the Solutions in a manner inconsistent with the terms this Agreement; (y) use of the Solutions in combination with any other product or service not provided by Us, or (z) use of the Solutions in a manner not otherwise contemplated in this Agreement. If You are enjoined from using the Solution or We reasonably believe Your use will be enjoined, We shall have the right, at Our sole option, to obtain for You the right to continue using the Solutions or to replace or modify the Solutions so that they are no longer infringing. If neither of the foregoing options is reasonably available to Us, then this Agreement may be terminated at Our option, and Our sole liability shall be to refund any pro-rata amount of the fees pre-paid by You for the Solutions not yet rendered or provided under this Agreement.

b.  Indemnification by You.  You agree to defend and indemnify, at Your own expense, any third party claim against Us and Our subsidiaries, affiliates, directors, officers, employees and agents that arise due to any claim that Customer Data infringes or misappropriates a third party’s intellectual property rights or violates applicable law. You will pay reasonable legal fees as incurred and such damages or costs as are finally awarded against Us or agreed to in settlement for such claim provided that We give You (i) prompt written notice of any such claim or threatened claim; (ii) sole control of the defense, negotiations and settlement of such claim (provided that You may not settle any claim against Us unless it unconditionally releases Us of all liability); and (iii) full cooperation in any defense or settlement of the claim at Your sole cost and expense.

8.  Limitation on Liability.  Except for breaches of confidentiality and claims involving the indemnification obligations contained herein, Our liability hereunder is limited to direct actual damages as the sole and exclusive remedy, and total damages under this Agreement shall not exceed $100,000. Except with respect to Your payment obligations and Your infringement of Our intellectual property rights, in no event shall either party, its officers, directors, partners, shareholders, employees or affiliates, or any contractor or subcontractor or its employees or affiliates, be liable to the other party for special, indirect, exemplary, punitive, incidental or consequential damages of any nature whatsoever connected with or resulting from the Solutions or from performance or non-performance of obligations under this Agreement, ncluding without limitation, damages or claims in the nature of lost revenue, income or profits, loss of use, or cost of capital, irrespective of whether such damages are reasonably foreseeable and irrespective of whether such claims are based upon negligence, strict liability contract, operation of law or otherwise.

9.  Warranties and Warranty Limitations.  

a.  Warranties.  Each party warrants that it has the right to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all applicable laws. We warrant that (i) the Solutions shall perform materially and substantially in accordance with the descriptions set forth in this Agreement; and (ii) the functionality of the Solutions will not be materially and substantially decreased during the Term.

b.  Warranty Limitations.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SOLUTIONS ARE PROVIDED AS-IS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10.  Choice of Law.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to choice of law rules.

11.  Site Address Access License; Enablement.  If an EnerNOC site server that allows for Internet-based power metering, data collection, near real-time data communication, and Internet-based reporting and analytics (“ESS”) is required by Us for Your use and access to the Solutions, then You grant Us a license to access Your Site Addresses for purposes of installing ESS(s) and You shall provide Us with reasonable access to Your Site Addresses within twelve (12) days following execution by the parties of this Agreement. In the event that cellular connectivity is required but not feasible, You shall provide either a static or non-static, as applicable, Internet Protocol (IP) address and Local Area Network (LAN) access that allows for Internet-based communication of a Site Address’ energy consumption and/or any other required performance or building management system data. You agree to collaborate with Us in a timely manner in testing and enabling the installed ESS, the Solutions, and any other components of the EnerNOC system.

12.  Payments.  

a.  Enablement Fee.  No fee shall be paid by You in connection with Our provision of enablement; provided, however, that if enablement of more than one (1) metering point is required at a Site Address, You shall pay Us a one-time enablement fee based upon the number of additional metering points for the Site Address (the “Enablement Fee”).

b.  Solutions Fee.  Following any free trials offered by Us at Our discretion, You shall pay Us a quarterly Solutions fee in connection with Our provision of the Solutions (the “Solutions Fee”). The Solutions Fee shall be the amount indicated on Your online order form, as adjusted based upon the number of Site Addresses and the Solutions received at each Site Address.

c.  Payment Terms.  We may make available to You various payment processing methods to facilitate the purchase of the Solutions. You agree to abide by any relevant terms of service or other legal agreements, whether with Us or a third party, that govern Your use of a given payment processing method. You agree that We reserve the right to add or remove payment processing methods in Our sole discretion and without notice to You. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES. You agree that any payment information You provide to and through the Solutions platform will always be complete, accurate, correct and up to date. When making a purchase with a credit card, You authorize Us and/or Our service providers to charge Your credit card for all fees associated with Your purchase of the Solutions. You will be charged the specified quarterly fees in advance, per the quarterly billing cycle, and an invoice will be made available to You through the Solutions platform.

13.  Your Support Requirements.  You agree to provide or cause to be provided to Us contact, billing and energy usage data, and facility information concerning each Site Address (“Customer Data”) as is necessary to support the Solutions, including, but not limited to: (i) at least twelve (12) months of historical utility bills and supply contracts; (ii) any account/supply point data including, without limitation, account numbers, meter serial numbers, meter identifiers, and change of tenancy information; (iii) square footage, operating hours (including holiday schedules) and average occupancy for each Site Address; (iv) major heating ventilation and air conditioning equipment, lighting type used, and any other significant equipment for each Site Address; (v) a contact list for all key personnel; and (vi) a letter of authorization or such other form as may be necessary for Us to act on Your behalf and interface directly with Your utility companies. You (x) represent that You have the right to provide Customer Data to Us and will provide Customer Data to Us in compliance with applicable legal requirements; (y) authorize Us to use, copy, store, modify and display Customer Data for Your benefit and as expressly set forth in Section 5 of this Agreement; and (z) authorize Us to access Customer Data to provide quality assurance, perform software maintenance, and deliver customer service and technical support. During the Term and for thirty (30) days following expiration or termination of this Agreement, We will preserve and maintain Customer Data. Thereafter, We will have no obligation to preserve or return any Customer Data.

14.  Payments to Utilities or Other Suppliers.  In no event shall We or Our affiliates, directors, employees and agents (collectively, the “Indemnified Parties”) be responsible or liable for payment of any utility bill of Yours or any amount You may owe to any utility or other supplier. To the fullest extent permitted by law, You shall defend and indemnify, at Your own expense, any third party claim against the Indemnified Parties, that arise due to any allegation that the Indemnified Parties are responsible for payment of any utility bill of Yours or a portion thereof, or any other amounts due by You to any utility or other supplier. In connection with the foregoing indemnification obligations, You shall pay reasonable legal fees as incurred and such damages or costs as are finally awarded against Us or agreed to in settlement for such claim.

15.  Miscellaneous.  You may not assign any of Your rights or delegate any of Your performance obligations hereunder without Our prior written consent; except that You may assign this Agreement to Your successor or any entity acquiring all or substantially all of Your assets by providing Us with written notice promptly following the acquisition date. This Agreement, including any addenda, exhibits and attachments, constitutes the entire agreement between Us and You with respect to Our provision of the Solutions for the Site Addresses, and may only be amended in writing signed by Us and You. If any of its provisions shall be held invalid or unenforceable, this Agreement shall be construed as if not containing those provisions and Our and Your rights and obligations shall be construed and enforced accordingly. This Agreement shall be binding upon the Us and You together with Our and Your respective successors and permitted assigns.

16.  Taxes.  Fees, costs, and expenses described in this Agreement do not include any sales, use, personal property, duty, levy, or similar governance charge, value added or good/services taxes. We may include applicable taxes as separate items on Your invoice, and You shall be responsible to pay and/or reimburse Us for all taxes (other than taxes based on Our income), unless You have provided Us with adequate evidence of exemption upon execution of this Agreement. If withholding of taxes is required by any government, You shall remit such taxes in accordance with applicable law, gross up the applicable payment amounts so that We receive the full amount of fees invoiced, and provide Us with applicable evidence of withholding.

17.  Force Majeure.  Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our or Your employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, or any telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met, if set forth in this Agreement, will be extended for a period of time equal to the time lost due to any delay so caused.

18.  Termination.  Either party may terminate this Agreement (i) in the event of the other party’s material breach, provided that the breaching party fails to cure the specific breach within thirty (30) days following date of written notice from the non-breaching party specifying the purported breach; or (ii) immediately upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party’s debts.

19.  Notices.  Any notices required or permitted to be given hereunder by either party to the other party shall be given in writing by: (i) personal delivery; (ii) bonded courier or nationally recognized overnight delivery company; or (iii) electronic mail. If notice is given by personal delivery, bonded courier or nationally recognized overnight delivery company, such notice shall be addressed to the parties as follows (or to such other addresses as the parties may request in writing by notice given pursuant to this Section): to Us at EnerNOC, Inc., Attn: Legal Department, One Marina Park Drive, Suite 400, Boston, MA 02210; and to You at the address that We have on file for You. If notice is sent by electronic mail, such notice shall be sent to Us at contractmanagement@enernoc.com; and/or to You at the email address that We have on file for You.

20.  Independent Contractor Status.  We shall provide the Solutions and perform our obligations under this Agreement as an “independent contractor” and not as an employee or agent of Yours. We are not authorized to assume or create any obligation or responsibility, express or implied, on Your behalf, or in Your name, or to bind You in any manner.

21.  Surviving Provisions.  The Sections titled “Use and Access License” (whereby the restrictions upon You being the only portion of such section to survive), “Confidentiality”, “Customer Input”, “Return of Customer Data”, “Indemnification”, “Limitation on Liability”, “Choice of Law”, “Payments”, “Taxes”, and “Notices” will survive any expiration or earlier termination of this Agreement.

22.  Insurance.  We will maintain the following insurance:

  • Commercial General Liability Insurance with limits of $1,000,000 per occurrence and $2,000,000 aggregate;
  • Automobile Liability Insurance with limits of $1,000,000 per occurrence combined single limit; and
  • Workers’ Compensation and Employers’ Liability Insurance with limits of not less than $500,000.

All insurance carriers will have an AM Best rating of A-VIII or better. At Your request, You will be listed as a certificate holder and additional insured on the Commercial General Liability policy. You will be notified in writing at least thirty (30) days prior to cancellation of any insurance policy.