EEInteractive (EEI), A Division of Energy Enhancement Marketing LLC
BY ACCESSING, USING, OR RECEIVING THE SERVICES, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREED TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH EEM, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF COMPANY. IF YOU AGREE ON BEHALF OF COMPANY TO THIS AGREEMENT, THE TERMS “YOU” OR “YOUR” OR “COMPANY” SHALL REFER TO SUCH COMPANY. IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE COMPANY OR YOURSELF, OR IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THESE SERVICES.
WE MAY AT OUR SOLE DISCRETION MODIFY THIS AGREEMENT, WHICH MAY INCLUDE ADDING OR DELETING PORTIONS OF THIS AGREEMENT, AT ANY TIME. IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT FOR CHANGES PRIOR TO USE OF THE SERVICES, AND IN ANY EVENT YOUR CONTINUED ACCESS, USE, OR RECEIPT OF THE SERVICES FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT, YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF ANY CHANGES. WE WILL ATTEMPT TO NOTIFY YOU OF ANY MATERIAL CHANGES BY UPDATING THE DATE AT THE TOP OF THIS AGREEMENT AND BY ATTEMPTING TO CONTACT YOU USING CONTACT INFORMATION YOU PROVIDE TO US, IF ANY.
CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE TERMS AND CONDITIONS, AND NOT THIS AGREEMENT.
1. ORDERS.
The Services to be provided by EEM under this Agreement will be set forth in one or more Order Forms executed by Company and EEM. An “Order Form” means an order, which may be electronic, signed by both Company and EEM identifying the Services ordered, the costs associated with such Services, the period of time Company will have access to the ordered Service(s) (the “Access Term”), the schedule of payments for the performance of such Services, data syncing and/or import preferences, limits on Authorized Users, and any unique additional terms.
2. SERVICES.
2.1.
Subject to the terms and conditions contained in this Agreement, EEM hereby grants you a non-exclusive, non-transferable, non-sublicensable right to: (i) access, use, and allow its employees and independent contractors (collectively, “Authorized Users”) to access and use the Software Services during the Access Term identified in the applicable Order Form; and (ii) use any documentation provided therewith during the Access Term for Company’s internal business purposes in connection with Company’s use of the Software Services. On or as soon as reasonably practicable after the Effective Date (as defined below), EEM will provide to you passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow you, including your Authorized Users, if applicable, to access the Software Services. Company will be solely responsible for all acts or omissions of its Authorized Users with respect to this Agreement and the acts and omissions of Company’s Authorized Users will be deemed to be those of Company. Company will also be responsible for all acts or omissions through or using the Access Protocols, including through any connections, passwords, or usernames provided to it. You shall notify EEM immediately of any unauthorized use of your Access Protocols or any other known or suspected breach of security. EEM has no obligation to provide limited technical support services as part of the Software Services.
2.2.
You shall provide all assistance, technical information, and decisions to EEM, as reasonably required by EEM in sufficient time to facilitate the execution of Development Services in accordance with any estimated delivery dates or milestones. You agree to work closely with, and shall provide regular information and feedback to EEM so EEM can effectively perform Development Services and Marketing Services. You will have sole responsibility for and will ensure the accuracy, completeness, and correctness of all information provided to EEM, including login information and passwords to access social media, analytics, hosting, domains, and other third-party accounts necessary for EEM to perform Development Services and Marketing Services. You represent and warrant that there are no agreements or arrangements, written or oral, by which you are bound that would be breached upon execution or performance of this Agreement by either party, that would restrict, interfere, or conflict with the either party’s obligations under this Agreement or that would diminish either party’s rights granted under this Agreement.
2.3.
You shall comply with all the terms, conditions, obligations, and restrictions in this Agreement at all times. You shall at all times conduct its activities under this Agreement in full compliance with all laws, rules, and regulations, including those with respect to marketing, social media, advertising, privacy, and data, in each case that are applicable to the use of Our Technology (as defined below) by you, including, without limitation, the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the Federal Communications Commission’s rules issued thereunder, including 47 C.F.R. § 64.1200 (collectively, the “TCPA” ), the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 et seq., and the Federal Trade Commission’s Telemarketing Sales Rule issued thereunder, 16 C.F.R. §§ 310.1 et seq. (collectively, the “TSR”), federal and state laws relating to invasion of privacy or do-not-call registries (“DNC Laws”), federal and state campaign finance laws (including required disclaimer, disclosure, or “Paid for by” laws, such as the California Text Message DISCLOSE Act, or AB 201), and any analogous or similar foreign, local, municipal, or state laws and regulations or All Applicable Privacy Laws and Regulations (“Applicable Law”) and any terms of use and other terms, guidelines, and policies (including advertising policies) on all media channels and other social media or internet platforms used in performing under this Agreement, including those in connection with Third-Party Services (as defined below).
2.4.
All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials (“Development Materials”) that are delivered to you under this Agreement and prepared by or on behalf of EEM in the course of performing the Services (collectively, the “Deliverables”) are licensed to you by EEM on a non-exclusive, revocable basis solely in connection with your use of the Services in the form and manner provided by EEM and shall be made available for use and access solely by you, which license is conditioned on your compliance with this agreement. EEM retains ownership over all Deliverables.
2.5.
All rights not expressly granted by EEM are reserved. No implied licenses are granted by the terms of this Agreement and no license rights with respect to any Deliverables or any EEM Intellectual Property Rights shall be created by implication or estoppel.
2.6.
Company is solely responsible for reviewing the Services, including any available documentation and features, to determine whether the Services satisfy Client’s requirements, business needs, and legal obligations. For the avoidance of doubt, Company is responsible for its use of the Services, including making appropriate use of the Services to ensure a level of security appropriate to the risk with respect to the information processed (including Content), securing its Access Protocols, protecting the security of Content when in transit to and from the Services, and taking appropriate steps to securely encrypt and/or backup any Content Made Available.
3. RESTRICTIONS.
3.1.
You shall not, nor will you authorize or assist any third party, including Authorized Users, to, directly or indirectly:
(i) use, copy, modify, download, or transfer the Services, Our Technology or any component of the foregoing, in whole or in part, except as expressly provided in this Agreement;
(ii) reverse engineer, disassemble, decompile, or translate any software components of the Services or Our Technology, attempt to derive the source code of any software components of the Services or Our Technology, create any derivative work from any software components of the Services or Our Technology;
(iii) rent, lease, loan, resell for profit, or distribute the Services, Our Technology, or any part thereof;
(iv) remove or alter any proprietary notice or legend regarding EEM’s proprietary rights in the Services or Our Technology;
(v) export the Services or Our Technology outside the United States of America;
(vi) interfere with or disrupt the integrity or performance of the Services, Our Technology, or the data contained therein;
(vii) attempt to gain unauthorized access to the Services, Our Technology, or its related systems or networks; or
(viii) upload, transfer, or otherwise transmit “sensitive personal data” or such similar term as defined under All Applicable Privacy Laws and Regulations, including, without limitation, race or ethnicity, precise geolocation, health data, or trade union membership information.
If EEM becomes aware that such sensitive information has been transferred or is otherwise processed by EEM’s Services, EEM may immediately delete or otherwise cease processing of such information.
Additionally, you may not use the Services or Our Technology:
(a) except in accordance with Applicable Laws;
(b) for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Company specific permission to contact them in such a manner;
(c) to display, transmit, or otherwise provide access to any unlawful, infringing, libelous, obscene, or harassing content of any kind;
(d) to defraud any third party or to Services or any of Our Technology to contact any emergency services, to annoy or harass any person or entity in any manner that otherwise violates any federal, state, or local law, regulation, or ordinance.
3.2.
Without limitation to any other provision of this Agreement, you agree that you will only use, and permit others to use, the Services and Our Technology in a manner that is consistent with the terms of this Agreement and Applicable Law. For the avoidance of doubt, with respect to any messaging capabilities of the Services or Our Technology, you may only use the Services or Our Technology to initiate or cause to be initiated messages if the subscriber or customary user of the telephone number to be contacted has been given proper notice and provided consents as is necessary under required by Applicable Law for the type of message sent and has not revoked such consent. You agree to promptly honor any request by a message recipient to not be contacted or any other revocation of consent to be contacted via any particular manner, for any particular purpose or at any particular times. To the extent any message constitutes an advertisement or serves a marketing purpose, and to the extent required by Applicable Law, you agree to obtain and review the applicable federal and state do-not-call registries as frequently as required by Applicable Law and shall not initiate messages to any telephone number appearing on any such registry. You shall be solely responsible for any and all messages sent through the use of Our Technology and EEM shall have no liability for any such messages.
3.3.
You shall not take any action to mask, spoof, or alter caller identification information in violation of any applicable federal or state law, including, without limitation, the TSR, the FCC’s Truth in Caller ID Rules, 47 C.F.R. §§ 1601 et seq., and analogous state laws and regulations.
3.4.
You acknowledge the Services and Our Technology do not have the capability to automatically send messages, and you agree that it shall not alter, modify, reconfigure, or reverse engineer the Services or Our Technology or use the Services, Our Technology, or any third-party code, files, script, or program to automatically send messages or in any manner that violates the terms of this Agreement or Applicable Law.
3.5.
You acknowledge and agree to comply with our Acceptable Use Policy.
3.6.
You agree to, and shall cause all Authorized Users to agree to, all terms of service, terms or use, privacy policy, or similar obligations, terms, restrictions, and policies, relating to the use of the Services (collectively, “Company Policies”). Company Policies shall be consistent with and at least as restrictive and protective of EEM as the terms of this Agreement and the Privacy Policy provide. Company shall submit a copy of any Company Policy to EEM for approval prior to its adoption and agrees to provide any updates or modifications to any such Company Policies to EEM prior to adoption for prior approval.
4. CONTENT AND INFORMATION.
4.1. Types of Content.
You acknowledge that all files, materials, data, text, information, audio, video, images, or other content (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not EEM, are entirely responsible for all Content that you or any Authorized Users, upload, post, e-mail, transmit, or otherwise make available (“Make Available” or its corollary form) through the Services.
4.2. Storage.
Unless expressly agreed to by EEM in writing, EEM has no obligation to store any Content that you Make Available. EEM has no responsibility or liability for the deletion or accuracy of any your Content you Make Available; the failure to store, transmit, or receive transmission of your Content you Make Available; or the security, privacy, storage, or transmission of other communications originating with or involving use of Services. You agree that EEM retains the right to create reasonable limits on EEM’s use and storage of your Content you Make Available, such as limits on file size, storage space, processing capacity, and similar limits described on the applicable Order Form and as otherwise determined by EEM in its sole discretion.
4.3. License.
EEM does not claim ownership of your Content you Make Available. However, when you Make Available your Content, you represent that you have all rights, permissions, and consents (including from Authorized Users) necessary to collect, process, transmit, use, store, and destroy your Content you Make Available as contemplated herein. You further agree that in relation to any information (including personal information) that Company transfers to EEM under the Agreement, which EEM processes on your behalf, or which you Make Available to EEM, you are solely responsible for (a) the accuracy, quality, and legality of such information, (b) complying with all necessary and lawfulness requirements under Applicable Privacy Laws and Regulations, including providing such notices and disclosures to customers and individuals (and, as applicable, obtaining all approvals, authorizations and Consents from customers) as are sufficient in scope to enable EEM (and its vendors) to process such information from Company to perform the Services under the Agreement, (c) ensuring any processing or other instructions you provide EEM to access, use, or otherwise, process such information comply with all Applicable Laws, including All Applicable Privacy Laws and Regulations. Upon request from EEM, you shall provide to EEM written evidence of such Consents and other notices or disclosures related to the collection, use, or other processing of such information or Content transferred to EEM, processed by EEM on your behalf or to which you Make Available. If any Consent is revoked or if you become aware that you cannot comply with your responsibilities under All Applicable Privacy Laws and Regulations, you shall immediately notify EEM and EEM may, upon notice to you, immediately cease any access, use, or other processing. used in this Section, “Consent” means, the individual’s voluntary and willful acceptance of the collection, use, storage, transfer, processing, or disclosure of their information in compliance with All Applicable Privacy Laws and Regulations. For the avoidance of doubt, “All Applicable Privacy Laws and Regulations” means any laws governing data privacy and security, including laws that could require certain disclosures, notices, or Consent for the collection, use, storage, transfer, disclosure, or processing of personal information. Company grants EEM a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, your Content (in whole or in part) for the purposes of operating and providing Services to Company. For information on how EEM collects, processes, and uses personal data, please visit EEM’s privacy policy at [LINK], which may be updated from time to time in EEM’s sole discretion. . You acknowledge the practices described in EEM’s privacy policy, including as updated from time to time.. EEM and EEM Parties will not be liable for any damages, claims, injury, costs and expenses arising from or related to the Company’s customers Consent (or failure to obtain proper Consent) or any violation by Company of All Applicable Privacy Laws and Regulations.
5. TECHNOLOGY.
You understand and acknowledge that the software, code, proprietary methods, systems, and other content and technology used to provide the Services, including Deliverables and other Development Materials (“Our Technology”) are: (a) copyrighted by EEM and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by EEM or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in this Agreement grants Company any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Services, according to this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license to Our Technology, and we reserve all rights not expressly granted herein. Certain of the names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks, or logos (“Marks”) of EEM or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with EEM or those other entities.
6. FEES.
You shall pay to EEM, without offset or deduction, certain fees, which may include setup fees and access fees, in such amounts as may be set forth in an Order Form. Such fees are subject to increase at EEM’s sole discretion, provided, EEM notifies you in writing, and provided further that such increases will not occur more than once every twelve (12) months. We shall have the right to automatically charge the credit card listed in the Order Form on the date that each payment is due, as indicated on the Order Form. You agree that Your account will be subject to this automatic billing feature unless otherwise agreed to by the parties in writing. EEM uses Authorized.net, Card Connector, and Payrix as the third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services), which payment processors may be updated from time to time by EEM in its sole discretion (“Payment Processors”). By agreeing to EEM’s automatic billing feature, you consent to the practices set forth in, and agrees to be bound by, the privacy policies of Payment Processors used by EEM, and hereby consents and authorize EEM and the Payment Processors to share any information and payment instructions you provide with third-party service providers to the extent required to complete Your transactions. Fees are non-refundable. EEM is not liable or responsible for any failure by a Payment Processor to charge the correct amount to Company’s credit card (except to the extent EEM provided the Payment Processor with an incorrect charge amount) and/or to any Authorized User, and you acknowledge and agree it will dispute any such charges directly with Payment Processor and/or the applicable Authorized User.
7. COMPANY WARRANTIES.
You represent and warrant to EEM that (a) Company is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Applicable Law of its jurisdiction of incorporation, organization, or chartering, (b) You have the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder, (c) the execution of this Agreement by Company’s representative whose signature hereto has been duly authorized by all necessary organizational action of Company, and (d) when executed and delivered by you, this Agreement will constitute the legal, valid, and binding obligation of Company, enforceable against Company in accordance with its terms. Without limitation to the generality of any of the foregoing, you represent and warrant (a) you are solely responsible your use of the Services and Our Technology, (b) that your collection, storage, transfer, use, and licensing of the your Content you Make Available and use of the Services and Our Technology is in compliance with all Applicable Laws in all relevant U.S. and foreign jurisdictions (including, without limitation, the DMCA, TCPA, TSR, and DNC Laws), Company’s privacy policies, and the requirements of any contract or codes of conduct that Company is a party to or is subject to, including any Company Policy, (c) you have and will have all necessary authority, consents, disclosures, permits, licenses, and authorizations to receive, use, disclose, and license the Content you Make Available, including in connection with the use of the Services or Our Technology, (d) you will be solely responsible for the processing instructions provided to EEM and for notifying EEM immediately of any revocation of any Consent to process information, and (e) you are solely responsible for and you have and will have all necessary authority, consents, disclosures, permits, licenses, and authorizations to send communications to any third parties contacted via the Services or Our Technology, and such communications will comply with all Applicable Laws, including content obligations and opt out requirements.
8. DISCLAIMER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, OUR TECHNOLOGY, THIRD-PARTY SERVICES (defined below), AND ALL EEM CONTENT (collectively, “Services Offerings”) ARE PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. ALL RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH YOU. EEM EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON INTERFERENCE, AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DATA ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF OR ACCESS TO THE SERVICES OFFERINGS WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE EEM CONTENT OR OTHER SERVICES. INFORMATION THROUGH THE SERVICES MAY NOT BE CURRENT AT THE MOMENT THAT YOU OR YOUR AUTHORIZED USERS ACCESS, USES, OR RECEIVES THE SERVICES AND MAY CONTAIN ERRORS.
9. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EEM PARTIES BE LIABLE TO YOU, AUTHORIZED USERS, OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, LOSS OF GOODWILL, LOST PROFITS, OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF EEM HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE. IN NO EVENT WILL EEM’S LIABILITY FOR ANY DAMAGES TO YOU, AUTHORIZED USERS, AND/OR ANY THIRD PARTY EVER EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID UNDER SECTION 6 DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT, OR OMISSION GIVING RISE TO SUCH LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10. INDEMNITY.
To the maximum extent permitted by law, you agree to indemnify and hold EEM, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “EEM Parties”) harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your Content; (b) you or Authorized Users’ use of, or inability to use, Services Offerings; (c) you or Authorized Users’ breach or violation of this Agreement or our Acceptable Use Policy or any other EEM policies provided to you related to the Services and Our Technology; (d) your violation of any rights of another party, including any Authorized Users; (e) your violation of any Applicable Laws (which includes, without limitation, the DMCA, TCPA, TSR, DNC Laws, and analogous state laws) or any other legal obligation applicable to you or Authorized Users; (f) Third-Party Services; (g) a communication that is sent by you or Authorized Users in violation of Applicable Laws (including the TCPA, TSR, or analogous state laws), including without the Consent required under Applicable Law; (h) the access, use, or processing of information transferred to EEM, which EEM processes on behalf of Company, or which Company Makes Available to EEM, including failure to obtain appropriate Consents or provide appropriate disclosures (i) the Company Policies, including any breach or enforcement thereof; (j) any public disclosure of, or unauthorized processing of, information, Content or Confidential Information, that occurs, directly or indirectly, as a result of an act or omission by you or Authorized Users, and/or (k) claims by Authorized Users with respect to the Services or transactions between you and any Authorized Users. EEM reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with EEM in asserting any available defenses.
11. INTERACTIONS WITH THIRD PARTIES.
11.1. Third-Party Services.
Content and services provided by third parties (“Third-Party Services”) may be made available to you through the Services. Because we do not control such Third-Party Services, you agree that we are not responsible for any such Third-Party Services. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such Third-Party Services, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users and other third parties or violation of any Third-Party Services, including any websites, products, or services accessible by hyperlink or otherwise from the Services. It is your responsibility to review the privacy policies and terms of use of any Third-Party Services. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO EEM IN CONNECTION WITH ANY THIRD-PARTY SERVICES, INCLUDING WEBSITES, CONTENT, GUIDES, MATERIALS, PRODUCTS, TECHNOLOGIES, OR PRACTICES OF ANY THIRD PARTY.
11.2. Authorized Users.
Company is solely responsible for its interactions with Authorized Users. Company agrees that EEM will not be responsible for any liability incurred as the result of such interactions.
11.3. Accessing Third-Party Services.
Portions of the Services may permit you to connect to and access your accounts with Third-Party Services and to retrieve data and content stored with such Third-Party Services. You authorize us to access such Third-Party Services on Your behalf and you represent and warrant that you have all rights, permissions, and consents to grant such authorization. Any and all data or content accessed or retrieved from a Third-Party Service is deemed to be your Content for purposes of this Agreement. Any personal information obtained from Third-Party Services will be collected, processed, and used in accordance with EEM’s Privacy Policy.
11.4. Third-Party Commitments.
EEM will invoice Company for Third-Party Services purchased by EEM on Company’s behalf or for the purposes of providing Services. EEM will use commercially reasonable efforts to obtain Company’s authorization before making any substantial commitments or substantial expenditures on Company’s behalf, and EEM is authorized to act on Company’s behalf as an agent for a disclosed principal for the purpose of entering into agreements to purchase such Third-Party Services, including, without limitation, securing advertising space or time, software, services, materials or information in connection with performing Services pursuant to this Agreement. Company understands that EEM will not be required to finance Company’s advertising and marketing efforts. As such, EEM will not be required to advance money or go out-of-pocket on Company’s behalf in connection with the Services performed for Company. If EEM incurs any costs on Company’s behalf, Company agrees that, notwithstanding anything in the Agreement to the contrary, any payment that EEM must make on Company’s behalf to the applicable third party must be collected from Company no later than a reasonable time prior to the date on which EEM must commit to making such payment on Company’s behalf – even if such required payment date is prior to the date that any such payments would be due under the payment terms set forth on the Order Form. If EEM does not receive payments by the appropriate date, EEM will have the right to not purchase or contract on Company’s behalf or to cancel any contracts previously entered into on Company’s behalf. In the event that EEM cancels any such contracts at Company’s request or due to Company’s non-payment of amounts previously approved for expenditure by Company, in writing, Company shall be responsible for any charges and fees incurred prior to, or as a result of, such cancellation.
12. NO DUTY TO CORRECT ERRORS.
Without limiting the provisions of Section 2, you acknowledge and agree that EEM has no obligation under this Agreement to correct any defects or errors in the Services furnished to you under this Agreement, regardless of whether EEM informs EEM of such defects or errors or EEM otherwise is, or becomes aware of, such defects or errors. To the extent EEM provides you with any updates or upgrades to the Services, such updates and upgrades shall be deemed to constitute part of the Services and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to use restrictions, ownership, and distribution of the Services.
13. TERM AND TERMINATION.
The Agreement shall commence on the date set forth in the applicable Order Form, or if no such date is set forth, the date you or an Authorized User first accepts this Agreement or first accesses the Services, whichever first occurs (the “Effective Date”), and shall continue until the expiration of all outstanding Access Term(s). The term of each Order Form shall commence on the effective date of such Order Form and continue for the Access Term specified on the Order Form. Thereafter, the Access Term will automatically renew for additional, consecutive periods of the same term, unless and until either party provides written notice to the other party of its intent not to renew the Order Form. We may suspend and/or terminate this Agreement or any Order Form immediately if you or any Authorized User breaches any term or condition herein, provided that we will use reasonable efforts to provide you with notice of such termination. Upon termination, all rights granted to you under this Agreement will immediately cease, you may not thereafter use the Services, and EEM may delete any information or content you or an Authorized User has provided to EEM through use of the Services. Without limiting the foregoing, Sections 2.7 and 3 through 18 will survive the expiration or termination of this Agreement.
14. CONFIDENTIAL INFORMATION.
14.1. Confidential Information.
“Confidential Information” means all proprietary, secret, or confidential information or data relating to either party, their respective affiliates, operations, employees, products or services, clients, customers, or potential customers. Confidential Information shall include, but not be limited to, customer lists, pricing and financial information, computer access codes, instruction and/or procedural manuals, trade secrets, functional and technical specifications, designs, drawings, translations, analysis, research processes, computer programs, beta versions, algorithms, methods, ideas, “know how” and other technical information, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free without violation of its confidentiality obligations under this Agreement at the time it was obtained; (ii) learned from an independent third party free of any restriction and without breach of this agreement; (iii) publicly available through no wrongful act of, or breach of this Agreement by, the receiving party; or (iv) independently developed by the receiving party without reference to any Confidential Information of the other.
14.2. Confidentiality Obligations.
Each party acknowledges that it may directly or indirectly disclose Confidential Information (as defined below) to the other party in the course of performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its Confidential Information. Each party may disclose such Confidential Information to its employees, agents, and advisors who require such knowledge to perform services under this Agreement and are bound by confidentiality obligations at least as restrictive as under this Agreement. Except as otherwise contemplated by this Agreement or except as required by applicable law, rule, or regulation, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party.
14.3. Feedback.
We will treat any feedback or suggestions you or an Authorized User provides to us as non-confidential and nonproprietary. In the absence of a written agreement with us to the contrary, you agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary.
15. COMMUNICATIONS.
The communications between you and EEM relating to the Services use electronic means. For contractual purposes, you (a) consent to receive communications from EEM in an electronic form, whether via e-mail, posting on the Services, or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. If you have any questions about the foregoing, please contact us via our Contact page.
16. FORCE MAJEURE.
EEM shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, or failures of its third-party hosting provider.
17. GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to its rules of conflict of laws. Any controversy, claim, or dispute (as applicable, a “Dispute”) arising under or related to this Agreement shall be finally resolved by arbitration in accordance with the then effective rules of the American Arbitration Association (“AAA”) and limited discovery shall be permitted. Upon notification by a party of its intention to arbitrate a Dispute (the “Notice Date”), each party shall select one arbitrator, and the two arbitrators so chosen shall select one arbitrator. Each of the arbitrators chosen shall be impartial and independent of the parties. If a party fails to select an arbitrator within twenty days after delivery of the Notice Date, or if the arbitrators chosen fail to select a third arbitrator within twenty days after being chosen, then any party may in writing request the judge of the United States District Court closest to Clark County, Nevada senior in term of service to appoint the arbitrator or arbitrators. Each arbitration hearing shall be held at a place in Clark County, Nevada acceptable to a majority of the arbitrators. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA to the extent such rules do not conflict with the terms hereof; however there is no requirement that the arbitration proceed through or under the auspices of the AAA. The decision of a majority of the arbitrators shall be reduced to writing and shall be binding on the parties. Judgment upon the award(s) rendered by a majority of the arbitrators may be entered and execution had in any court of competent jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement.
The charges and expenses of the arbitrators shall be shared equally by the parties. The arbitrators shall require the attorneys’ fees and expenses of the substantially prevailing party to be paid by the other party.
18. GENERAL PROVISIONS.
The parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this Agreement. You acknowledge that EEM will have the right to seek an injunction if necessary to prevent a breach of your obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that EEM prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, EEM will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. The failure of EEM to require Your performance of any provision in this Agreement shall not affect EEM’s full right to require such performance at any time thereafter; nor shall the waiver by EEM of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. You may not assign this Agreement without the prior written consent of EEM. This Agreement inures to the benefit of each party’s respective heirs, representatives, and permitted successors and assigns. Any attempted or purported assignment by you shall be null and void. Excepting any contractual agreement between the person or entity that purchased the right to access the Services and EEM, this Agreement is the complete and exclusive statement of the agreement between you and EEM, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
The Energy Enhancement System™ (EESystem™), along with its products and services—including those offered by Energy Enhancement Marketing LLC, EEInteractive, or any independently owned business providing EESystem products—is not intended for medical use, diagnosis, or treatment. It does not provide medical advice, nor does it diagnose, treat, cure, prevent, or mitigate any illness or medical condition. EESystem is not designed, manufactured, sold, or represented for the diagnosis, treatment, mitigation, or prevention of any disease, disorder, or abnormal physical state, nor for restoring, modifying, or correcting the body structure of human beings.
The information and statements provided are for educational purposes only and should not be considered a substitute for professional medical advice. If you have a serious medical condition or health concern, consult your physician.
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