The terms and conditions that form this Participation Agreement (the “Agreement”) apply to the Virtual CommissioningTM, VCxTM, Virtual Retro-CommissioningTM, Virtual Re-CommissioningTM, Virtual RCxTM, and Virtual Advisor and Commissioning (VACx)TM programs (individually and collective the “Program”) offered by Power TakeOff and their utility partners (also “us”, “our”, “ours”), as well as any of the related software access, reports, consultation, or other Services (collectively “Services”) related to presentation and review of utility and facility based information.
If you are using the program on behalf of a business or of an individual or individuals, the business or the individual(s) accepts the Agreement and you (1) acknowledge that you have the authority to bind the business or individual(s) and (2) agree to this Agreement on behalf of the business or individual(s).
Unless explicitly promising a “guarantee,” Power TakeOff does not guarantee or promise any specific level of energy savings or other monetary benefit from participation in the Program or the use of the products or Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Power TakeOff’s control or knowledge. From time to time, Power TakeOff may use the Services to provide you with information that is unique to you and your energy usage and suggests an opportunity to save money on energy bills if you adopt suggestions or features of the product or Services. We do this to highlight an opportunity based on our analysis and information about you and your premises. You acknowledge that these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Power TakeOff if your savings differ.
We shall use commercially reasonable efforts to ensure that Customer Data will be safeguarded when stored on Power TakeOff’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 Power TakeOff. Therefore, you agree that Power TakeOff 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 Power TakeOff.
Every customer that participates in the Program and or uses the Services 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 Program and Services and its accuracy for all users. Therefore, you hereby agree that the Program 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 participation in the Program.
We value your ideas, comments, criticisms, suggested improvements and any other feedback you may give us about the Program (“Feedback”). We try to be responsive to Feedback, and you agree we may use the Feedback to change or modify the Program 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 verbal, email or otherwise.
You agree to hold harmless and indemnify Power TakeOff and its officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Power TakeOff and Partners”) from and against any third party claim arising from or in any way related to your use of the Power TakeOff Service or your violation of these Terms. In such a case, Power TakeOff will provide you with written notice of such claim, suit or action.
You hereby release Power TakeOff 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 participation in the Program or use of the Services.
YOU EXPRESSLY AGREE THAT:
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO OFFER PARTICIPATION IN THE PROGRAM AND PROVIDE ACCESS TO THE 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) PARTICIPATION IN THE PROGRAM OR THE USE OR THE INABILITY TO USE THE POWER TAKEOFF SERVICES; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iii) ANY OTHER MATTER RELATING TO THE POWER TAKEOFF SERVICES. POWER TAKEOFF’S MAXIMUM LIABILITY ARISING OUT OF OR IN THE CONNECTION WITH THESE TERMS AND ANY USE OF POWER TAKEOFF, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, WILL IN NO CASE EXCEED $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND POWER TAKEOFF’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
These terms constitute the entire agreement between you and Power TakeOff regarding the participation in the Program and use of the Services. Any failure by Power TakeOff to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
If you have questions regarding the Program, contact a customer service representative by email at email@example.com or by phone at 1-800-303-9890. You can also contact us by mail by writing to the following address:
Attention: VCx Program
1750 30th St, #420
Boulder, CO 80301