These Small Box Energy, Inc. (“Company”, “we”, “us”, or “SBE”) Terms and Conditions govern the use by the Customer of any services along with any provided equipment (“the Services”) ordered by Customer from the Company and set-forth in one or more Statement of Work.
Master Hosted Services Agreement: A Master Hosted Service Agreement (“Agreement”) is signed by the customer and identifies the terms of the agreement between the Company and the Customer.
Statement of Work: A Statement of Work (“SOW”) is a form signed by the Customer that identifies the type and quantity of Services and Equipment being ordered and the associated fees. The Order Form includes a link to these Terms and Conditions. An Order Form is effective only when signed by the Customer and either signed or provisioned by SBE.
Software: Shall mean individually and collectively, the chameleon™ System and chameleon-cloud software programs (in object code) licensed by Customer hereunder that are either accessed via the Services or installed at the Customer’s site and which are set forth in the Statement of Work(s), including future modifications and documentation.
Services: Shall mean services and equipment provided by the Company for the Customer under the Managed Services Agreement and the SOW for the number of Locations listed on the SOW.
Hardware: Shall mean the equipment listed on the SOW and/or as listed on each Site Survey per location. Customer shall not have and shall not acquire under the terms of this Agreement or otherwise any ownership or other property interests in the equipment.
License: Company agrees to provide Services including a limited license to Software per the monthly managed services fee stated in the SOW.
Implementation: Initially, SBE will train and provision the chameleon System and chameleon-cloud software programs for use by the Customer.
Training and Support: Company agrees to provide training for Customer’s employees in the usage of Software and Services, including scalability, planning, energy strategy and best practices. Company agrees to provide support to Customer via phone at Company’s toll-free number or via e-mail at email@example.com.
Confidentiality; Proprietary Rights: Each Party agrees to keep confidential such information that would reasonably be considered confidential, including, Customer’s and Company’s employees, products reports, pricing and analysis prepared by Company and provided to Customer under this Agreement. It is the express intent of this Section that neither Party disclose to any third party any information it learns concerning the business of the other Party in the performance of Services hereunder. Customer, grants to Company a non-exclusive, worldwide, fully-paid license to use the Customer trademarks, logo and name and applicable data for the purposes of performing the Services, publishing reasonable publicity and sales materials or in such a way that individual users are non-identifiable. Customer will maintain appropriate property insurance protecting the Equipment against the loss, theft or destruction of, or damage to, the Hardware. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Customer Obligations: Customer must provide proper access to locations, appropriate employees, all utility bills during the Term of this Agreement including three months prior to installation, in & outbound internet connectivity (“Connectivity”) at the time of installation or installation may be delayed resulting in additional fees. If Customer does not provide Connectivity at the time of installation, Company shall bill Customer $25.00 per month per location until such time as Connectivity is established. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent
Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of Arizona without application of applicable conflicts of laws. The exclusive venue for any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, in a location mutually agreeable to the Parties. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Managed Services Agreement and Support: Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide Customer the Services as outlined in the signed SOW. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Company shall provide support in accordance with Company’s standard practice.
Payment of Fees: Customer will pay Company the then applicable fees described in the Managed Hosted Services Agreement for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the SOW or requires the payment of additional fees (per the terms of the Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed the Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
Hardware Warranty: During the Term of the Agreement the Company shall, at its sole and absolute discretion, repair or replace, free of charge, any Hardware that proves to be defective upon inspection by the Company. If during the inspection of the Hardware it’s determined that the failure of the Hardware is due to abuse, neglect, or power surges, the Customer shall be responsible for repair costs associated with bringing the Hardware back to specifications and replacement of parts.Any implied warranties, including implied warranties of merchantability and fitness for a particular purpose, are limited in duration to the length of this limited warranty. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. In no event will SBE be liable for incidental, consequential or other damages resulting from the breach of any express or implied warranty, including, among other things, damage to property, damage based on inconvenience or on loss of use of the product, and, to the extent permitted by law, damages for personal injury. Some states do not allow the exclusion of limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights, which vary state to state.
Indemnification: Company shall defend, indemnify and hold Customer harmless from loss & expense incurred in connection with any third party demands alleging that the Services infringe or misappropriate any third party’s patent, trademark, copyright or trade secret rights. Customer shall defend, indemnify and hold Company harmless from loss & expense incurred in connection with any third party demands from the usage of the system, and from infringement or misappropriate any third party’s patent, trademark, copyright or trade secret rights.
Warranty of Use: Company warrants that it has the rights to the Software and that its Services hereunder will be performed by qualified individuals in a manner conforming to generally accepted industry standards. Except as expressly stated in the Agreement, Company for itself and any assignee, disclaims any and all other warranties, expressed or implied, including any warranty of merchantability or fitness for a particular purpose, and neither Company nor any assignee shall be liable for any consequential, incidental or punitive damages, or lost revenue or profits. The software and services are provided “as is,” without any representations or warranties or covenants as to usability, accuracy or completeness, and if customer relies on the equipment and data, it does so at its sole risk, cost and expense. Company does not warrant that the Software, equipment or Services will meet all of the Customer’s requirements. Company does not warrant Customer’s use of Software or Services will be uninterrupted, that the operation of the Software or the hosted Services will be error free, or that any defects in the Services will be corrected. Company is a provider of multiple energy management solutions comprised of a variety of manufactured parts and components. The Company believes that all information contained in the documentation sent directly to a customer is accurate without defects or misrepresentation. Company does not guarantee the accuracy or completeness in the documentation provided by the manufacturers. Products sold are warranted by Company only to customers for use in business, against defects in workmanship or materials under normal use. The warranty period is effective during the duration of the Term of the Agreement unless otherwise stated. Any part which is determined by Company to be defective in material or workmanship during the term of the agreement will be, as the exclusive remedy, repaired or replaced at the Company’s option.
Warranty Disclaimer: No warranty or affirmation of fact, express or implied, other than as set forth in the limited warranty statement above is made or authorized by the Company, The Company disclaims any liability for product defect claims that are due to product misuse, improper product selection or misapplication, does not express or imply a warranty that the products are merchantable or fit for a particular purpose. The Company will provide repair or replacement material at its option or as directed by the manufacturer, but there are no express warranties that extend beyond the description contained on the website or within other distributed documentation.
Limitation of Liability: Any liability for consequential and incidental damages is expressly disclaimed. Company’s liability in all events is limited to, and shall not exceed, the purchase price paid. The Company expressly limits its liabilities to any guarantees extended by the manufacturer, which guarantees seller will pass through to the customer.
Implied Warranties of Merchantability: The Company disclaims any implied warranties of merchantability. The products the Company offers are of a technical nature and proper training for their use is the responsibility of the customer. The Company is not responsible for misuse of the products and is not responsible for loss occurring because of misuse of the products or lack of proper training to operate the products. Terms of the Customer’s purchase order shall not supersede this disclaimer and no warranty, expressed or implied, other than stated herein, shall be effective unless contained in an agreement signed by an officer of the Company. In addition, the Company, shall not be liable for any consequential, contingent or incidental damages whatsoever.
Prompt Disposition: The Company will make a good faith effort for prompt correction or other adjustments with respect to any product, which proves to be defective within the Term of the Agreement.
No Warranties To Consumers: The Company makes no warranties to those defined as consumers in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act.
Force Majeure: Company shall not be liable for any delay in or impairment of performance resulting in whole or in part from Acts of God, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather conditions, or any other circumstances or cause beyond the control of, the Company in the conduct of its business.
Modification Of Terms: The Company’s acceptance of any Agreement is subject to the customer’s assent to all of the terms and conditions set forth in the Terms and Conditions. Acceptance of these terms and conditions shall be presumed from the customer’s receipt of goods and services. No addition or modification of terms and conditions shall be binding upon the Company unless agreed to by the Company writing and signed by an officer of the Company If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in these terms and conditions, the Company’s acknowledgment and acceptance of any order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by the Company of any of the terms and conditions contained within these terms and conditions.
Waiver, Choice Of Law And Venue: The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party. The laws of the State of Arizona, excluding conflict of law rules, shall govern all transactions and venue shall be in Maricopa County, State of Arizona.
No Third Party Benefit: The provisions stated above are for the sole benefit of the parties hereto, confer no rights, benefits or claims upon any person or entity, not a party hereto.
Trademarks, Copyrights, And Domain Names: The customer acknowledges that it has no right, title, or interest in the trade names, trademarks, copyrights, or domain names of the Company, and in the product names, and covenants that it will take no action to register or otherwise interfere with such rights of the Company. The customer agrees that it will not copy the products sold to the customer or their packaging, trade press, catalogs, or websites.
Restrictions And Responsibilities: Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
Export Controls And Related Regulations: The customer represents and warrants that it is not on, or associated with any organization on the United States Department of Commerce’s Bureau of Industry and Security’s Denied Persons List or Unverified List; or the United States Department of the Treasury’s Office of Foreign Assets Control lists, Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers-Kingpin, or Specially Designated Terrorists List; or the United States Department of State’s Designated Foreign Terrorist Organizations, Embargoed Countries list, or Debarred Persons List; or is subject to a denial order issued by the United States Department of Commerce. The customer shall comply with all relevant laws and regulations of governmental bodies or agencies, including but not limited to all applicable export control laws of the United States or other governing agencies and their successors.
Miscellaneous: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Arizona without regard to its conflict of laws and provisions.