Terms of Service | Sagewell, Inc.

Sagewell Inc.

Terms of Service Agreement

THE FOLLOWING DESCRIBES THE TERMS ON WHICH Sagewell Inc. OFFERS
YOU ACCESS TO OUR SERVICES:

Welcome to Sagewell Inc. Sagewell provides its services to you
subject to the terms of service set forth in this Terms of Service
Agreement (the "Agreement"). A statement of our privacy
policy may be found at http://www.sagewell.com/privacypolicy .

We may amend the Agreement at any time or times by posting the
amended terms on our web site. All amended terms shall automatically
be effective 30 days after they are initially posted on our web site.
This Agreement is effective for all users of our services.

1. Services

We provide our users with a variety of resources to facilitate
energy efficiency, energy efficiency analysis and research regarding efficiency and quality in buildings. .

You agree to comply with all applicable domestic and international
laws, statutes, ordinances and regulations regarding your use of our
services and acceptable Public Information (as defined in Section 3
("Your Information")). You also agree to comply with all
applicable laws regarding the transmission of technical data exported
from the United States or the country in which you reside.

2. Membership

2.1 Eligibility. Our web site and other services are
available to individuals and companies. Our web site and other services are not
available to temporarily or indefinitely suspended users. If you have
been suspended due to a violation of the terms stated herein, please
do not use our web site and other services.

We have the right to suspend or terminate your use of our web site
or other services and refuse any and all current or future use of all
or any portion of our web site or other services.

2.2 Password and Security. When you complete our
registration process you will receive an email message that will
enable you to access our services. You are responsible for
maintaining the confidentiality of your password, and are fully
responsible for all activities that occur through the use of your
password. You agree to immediately notify us of any unauthorized use
of your password or any other breach of security. You agree that
Sagewell Inc. cannot and will not be liable for any loss or damage
arising from your failure to comply with this Section 2.2.

2.3 Fees. Access to our web sites and use of features
within our web sites is free to end users, or we may charge a fee
depending on the level of access you require. Sagewell Inc.'s
services may be sold or licensed to third party institutions to
support our operational expenses.

3. Your Information

3.1 Definition. "Your Information" is defined as
any information or other material you provide to us (directly or
indirectly) in the registration process or through the use of our
services, in any public message area or through e-mail. You are
solely responsible for Your Information, and we act as a passive
conduit for your online distribution and publication of your Public
Information (as defined below).

Any of Your Information that, through the use of our services or
otherwise, you submit or make available for inclusion on publicly
accessible areas of our web site is referred to as "Public
Information"; any other portion of Your Information shall be
referred to as "Private Information.""Publicly
accessible" areas of our web site are those areas that are
available either to some or all of our members (i.e., not restricted
to your viewing only) or to the general public.

3.2 Restrictions. In consideration of your use of our
services, you agree that Your Information:(a) shall not be
fraudulent; (b) shall not infringe any third party's copyright,
patent, trademark, trade secret or other proprietary rights or rights
of publicity or privacy; (c) shall not violate any law, statute,
ordinance or regulation; (d) shall not be defamatory, trade libelous,
unlawfully threatening or unlawfully harassing; (e) shall not be
obscene or contain, pornography, child pornography, or photographs of
unclothed person(s); (f) shall not contain any viruses, Trojan
horses, worms, time bombs, cancelbots, easter eggs or other computer
programming routines that may damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information; (g) shall not create liability for us or cause us to
lose (in whole or in part) the services of our ISPs or other
suppliers; (h) shall not link directly or indirectly to any materials
to which you do not have a right to link to or include.

In addition, you agree that you will provide us with your valid,
current e-mail address, both at the time of your registration with us
and from time to time as your e-mail address changes.

You agree that your account profile, uploaded content, or any
other portions of the website reserved solely for member use may not
be used for commercial activity, sales of goods or services, or
promotion of a company, good, or service.

Without limiting our other remedies, Sagewell may suspend or
terminate your ability to use our services if we suspect that you are
not in compliance with this Section.

3.3 License. We do not claim ownership of Your Information.
We will use Your Information only in accordance with our privacy
policy. However, to enable us to use your Public Information and to
ensure we do not violate any rights you may have in your Public
Information, you agree to grant Sagewell a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free, sublicensable (through multiple
tiers) right to exercise the copyright, publicity, and database
rights (but no other rights) you have in your Public Information, in
any media now known or not currently known, with respect to your
Public Information.

3.4 Restriction on Use of Your Information. Except as
otherwise provided in our privacy policy statement, we will not sell,
rent or otherwise disclose any personally identifiable information
about you (including your e-mail address) to any third party.

3.5 Consent to Disclosure. You acknowledge and agree that
Sagewell may disclose Your Information if required to do so by law or
in the good faith belief that such disclosure is reasonably necessary
to:(a) comply with a current judicial proceeding, a court order or
legal process served on our web site, (b) enforce this Statement or
the Terms of Service Agreement, (c) respond to claims that Your
Information violates the rights of third parties; or (d) protect the
rights, property or personal safety of Sagewell, its users and the
public.

4. Use of Services

4.1 Control. You, and not Sagewell, are entirely
responsible for all of your Public Information that you upload, post,
e-mail, transmit or otherwise make available via the web site and our
services. We do not control your Public Information or the public
information of other users and do not guarantee the accuracy,
integrity or quality of your Information or the information of other
users. You understand that by using our web site and services, you
may be exposed to information that is offensive, indecent or
objectionable. You agree that under no circumstances will Sagewell be
liable in any way for any information, including, but not limited to,
for any errors or omissions in Your Information or the information of
other users, or for any loss or damage of any kind incurred as a
result of the use of Your Information or information of other users
posted, e-mailed, transmitted or otherwise made available in
connection with our web site and services.

4.2 Grounds for Removal, Sanction and/or Suspension.
Notwithstanding any other provision of this Agreement, the following
types of actions are cause for immediate repeal and/or suspension of
your account:

(a) The use of our web site and services to:

(i) harm another person in any way;

(ii) impersonate any person (including Sagewell staff and other
members), or falsely state or otherwise misrepresent your affiliation
with any person, through the use of similar e-mail addresses,
nicknames or any other method or device;

(iii) disguise the origin of any Public Information that is
transmitted to any third party;

(iv) "stalk" or otherwise harass another;

(v) advertise merchandise, auctions, services or commercial web
sites, including offers to trade or charitable solicitations; or

(vi) collect or store personal data about other users;

(b) Posting any Public Information or other material:

(i) that is unlawful, harmful, threatening, abusive, harassing,
tortious, defamatory, vulgar, obscene, profane, libelous, invasive of
another's privacy (including the posting of private e-mails or
contact information about another individual), hateful, or racially,
ethically or otherwise objectionable, including any Public
Information or other material that may be considered hate speech;

(ii) that is obscene, pornographic or adult in nature;

(iii) that you do not have a right to make available under any law
or under contractual or fiduciary relationships;

(iv) that infringes any patent, trademark, trade secret, copyright
or other proprietary rights of any party; or

(v) that is unsolicited or unauthorized advertising, promotional
materials, or any other form of solicitation (including, but not
limited to, "spam," "junk mail," and "chain
letters");

(d) Refusing to follow Sagewell staff instruction or direction; or

(e) Violation (intentional or unintentional) of this Agreement, or
of any applicable local, state, national or international law, and
any regulations having the force of law.

Also, your posting of other inappropriate actions, Public
Information or other materials may also warrant removal and/or
suspension from our web site. Sagewell reserves the right to remove
any post or other material without warning or further notice.

For purposes of this Agreement, "posting" includes
uploading, posting, e-mailing, transmitting or otherwise making
available. Without limiting the foregoing, Sagewell and its designees
shall have the right to remove any Public Information or other
material that violates this Agreement or is otherwise objectionable.

4.3 Interference with Services. You agree that you will
not:

(a) upload, post, e-mail, or otherwise transmit any computer
routines, files or programs designed to interrupt, destroy or limit
the functionality of any computer software or hardware or
telecommunications equipment;

(b) interfere with or disrupt our web site or services or networks
connected to our web site or through the use of our services, or
disobey any requirements, procedures, policies or regulations of
networks connected to our web site or through the use of our
services, or otherwise interfere with our web site operations or
services in any way, including through the use of JavaScript, SQL, or
other coding;

(d) copy, reproduce, alter, modify, or publicly display any
information displayed on our web site (except for Your Information),
or create derivative works from our web site (other than from Your
Information), to the extent that such action(s) would constitute
copyright infringement or otherwise violate the intellectual property
rights of Sagewell or any other third party, except with the prior
written consent or the consent of Sagewell or the appropriate third
party.

4.4 General Practices Regarding Use of Services. You
acknowledge and agree that we may establish general practices and
limits concerning the use of our web site and services. You agree
that we have no responsibility or liability for the storage or the
deletion of, or the failure to store or delete, any of Your
Information. You acknowledge that we reserve the right to log off
users who are inactive for an extended period of time. In addition,
you acknowledge that we reserve the right to change these general
practices and limits at any time, in our sole discretion, with or
without notice.

5. Communications

5.1 Our Communications. You understand and agree that we
may send you certain communications, such as Sagewell announcements,
newsletters, service announcements and other administrative messages,
and that these communications are considered part of your membership
in Sagewell. Your ability to opt out of these communications, if any,
will be governed by our privacy policy (http://www.sagewell.com/privacypolicy)

5.2 Use of Pop-up Windows. Sagewell will not launch pop-up
windows to advertise third-party products or services.

5.3 Other Users. We do not control the information provided
by other users which is made available through our system. You may
find other users' information to be offensive, harmful, inaccurate or
deceptive. Please use caution and common sense when using our web
site.

6. Privacy

Sagewell undertakes regular internal privacy audits of our privacy
policies. Our current privacy policy statement is available at http://www.sagewell.com/privacypolicy. .

7. Links

We may provide, our members may provide, or third parties may
provide, links to other web sites or resources. Because we have no
control over such web sites or resources, you acknowledge and agree
that we are not responsible for the availability of such web sites or
resources, and do not endorse and are not responsible or liable for
any content, advertising, products, or other materials on or
available from such web sites or resources. You also acknowledge and
agree that Sagewell shall not be responsible or liable, directly or
indirectly, for any damage or loss caused or alleged to be caused by
or in connection with the use of or reliance on any such content,
goods or services available on or through any such web sites or
resource.

8. Dealings with Marketing Partners and Third Parties

Your correspondence or business dealings with, or participation in
promotions of, marketing partners or other third parties found on our
web site or through our services, including payment and delivery of
related goods or services, and any other terms, conditions,
warranties or representations associated with such dealings, are
solely between you and such marketing partner or other third party.
You agree that Sagewell shall not be responsible or liable for any
loss or damage of any sort incurred as the result of any such
dealings or as the result of the presence of such marketing partners
or other third parties on our web site or located through the use of
our services.

9. Indemnity

You agree to indemnify and hold us and (as applicable) our
officers, directors, shareholders, agents, employees, affiliates and
subsidiaries, harmless from any claim or demand, including reasonable
attorneys' fees, made by any third party due to or arising out of
your breach of this Agreement or the documents it incorporates by
reference, your use of our web site or services, Your Information,
your violation of any law or the rights of a third party.

10. Warranties; Liability

10.1 Disclaimer of Warranties. Your use of our web site and
services is at your sole risk. Our web site and services are provided
to you "as is" and on an "as available" basis.
Sagewell specifically disclaims all warranties and conditions of any
kind, whether express, implied or statutory, including but not
limited to the implied warranties of merchantability, fitness for a
particular purpose and non-infringement. In addition, no advice or
information (oral or written) obtained by you from Sagewell shall
create any warranty not specifically stated in this Agreement.

10.2 Limitation of Liability. You agree that in no event
shall Sagewell be liable 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 Sagewell has been advised of the
possibility of such damages), arising out of or in connection with
our web site, our services or this Agreement or the inability to use
our web site or our services (however arising, including negligence).
Our liability to you or any third parties in any circumstance is
limited to the greater of (a) the amount of fees, if any, you pay to
us in the twelve (12) months prior to the action giving rise to
liability, and (b) $100.

10.3 Exclusions. Some jurisdictions do not allow the
exclusion or limitation of certain warranties or of incidental or
consequential damages. Accordingly, some of the limitations in this
Section 10 may not apply to you.

11. Dispute Resolution

11.1 Process. The parties will attempt in good faith to
resolve through negotiation any dispute, claim or controversy arising
out of or relating to this Agreement including the documents it
incorporates by reference, your use of our web site or services, Your
Information, your violation of any law or the rights of a third
party. In the event that the dispute, claim or controversy is not
resolved by these negotiations, the matter will be submitted to
Judicial Arbitration and Mediation Services, Inc. (a.k.a. "JAMS"),
or its successor, for mediation pursuant to Section 11.3, and if the
matter is not resolved through mediation, then it shall be submitted
to JAMS, or its successor, for final and binding arbitration pursuant
to Section 11.4. Nonetheless, legal action taken by Sagewell to
collect any fees and/or recover damages for, or obtain an injunction
relating to, our web site operations, intellectual property or our
services, shall not be submitted to mediation or arbitration except
as otherwise agreed to in writing by Sagewell. In addition, either
you or Sagewell may seek any interim or preliminary relief from a
Court of competent jurisdiction in Boston, Massachusetts necessary to
protect the rights or property of you or Sagewell pending the
completion of arbitration.

11.2 Negotiation. Either party may initiate negotiations by
providing written notice in letter form to the other party, setting
forth the subject of the dispute and the relief requested. The
recipient of such notice will respond in writing within fifteen (15)
business days with a statement of its position on and recommended
solution to the dispute. If the dispute is not resolved by this
exchange of correspondence, then representatives of each party with
full settlement authority will meet in person or otherwise at a
mutually agreeable time and place within thirty (30) business days of
the date of the initial notice in order to exchange relevant
information and perspectives, and to attempt to resolve the dispute.

11.3 Mediation. Either party may commence mediation by
providing to JAMS and the other party a written request for
mediation, setting forth the subject of the dispute and the relief
requested. The parties will cooperate with JAMS and with one another
in selecting a mediator from JAMS' panel of neutrals, and in
scheduling the mediation proceedings. The parties agree that they
will participate in the mediation in good faith, and that they will
share equally in its costs. All offers, promises, conduct and
statements, whether oral or written, made in the course of the
mediation by any of the parties, their agents, employees, experts and
attorneys, and by the mediator or any JAMS employees, are
confidential, privileged and inadmissible for any purpose, including
impeachment, in any arbitration or other proceeding involving the
parties, provided that evidence that is otherwise admissible or
discoverable shall not be rendered inadmissible or non-discoverable
as a result of its use in the mediation. Either party may initiate
arbitration with respect to the matters submitted to mediation by
filing a written demand for arbitration at any time following the
initial mediation session or forty-five (45) days after the date of
filing the written request for mediation, whichever occurs first. The
mediation may continue after the commencement of arbitration if the
parties so desire. Unless otherwise agreed by the parties, the
mediator shall be disqualified from serving as arbitrator in the
case.

11.4 Arbitration. The parties agree that any and all
disputes, claims or controversies arising out of or relating to this
Agreement that are not resolved by their mutual agreement by
negotiation or mediation under Sections 11.2 and 11.3 shall be
submitted to final and binding arbitration before JAMS, or its
successor, pursuant to the United States Arbitration Act, 9 U.S.C.
Sec. 1 et seq. Either party may commence the arbitration process
called for in this Agreement by filing a written demand for
arbitration with JAMS, with a copy to the other party. The
arbitration will be conducted in accordance with the provisions of
JAMS' Streamlined Arbitration Rules and Procedures in effect at the
time of filing of the demand for arbitration. The parties will
cooperate with JAMS and with one another in selecting an arbitrator
from JAMS' panel of neutrals, and in scheduling the arbitration
proceedings. The parties covenant that they will participate in the
arbitration in good faith, and that they will share equally in its
costs.

11.5 Enforcement. The provisions of Sections 11.3 and 11.4
may be enforced by any Court of competent jurisdiction, and the party
seeking enforcement shall be entitled to an award of all costs, fees
and expenses, including attorneys fees, to be paid by the party
against whom enforcement is ordered.

11.6 Notice; Waiver. By agreeing to this Agreement you
have, except as otherwise specified in Section 11.1, all disputes,
claims or controversies arising out of or relating to this Agreement
decided by negotiation, neutral mediation and/or neutral arbitration
as provided in this Section 11, and you are giving up any rights you
might possess to have those matters litigated in a court or jury
trial. Also, by agreeing to this Agreement you are giving up your
judicial rights to discovery and appeal except to the extent that
they are specifically provided for under this Agreement. If you
refuse to submit to arbitration after agreeing to this provision, you
may be compelled to arbitrate under federal or state law. Your
agreement to this arbitration provision is voluntary.

12. Modifications

We reserve the right at any time or times to modify or
discontinue, temporarily or permanently, all or any portion of our
web site and services with or without notice. You agree that we shall
not be liable to you or to any third party for any modification,
suspension or termination of the web site or services.

13. Termination; Breach

You agree that we, in our sole discretion, may issue a warning,
temporarily suspend, indefinitely suspend or terminate your account
or your ability to use all or any portion of our web site and
services, for any reason, including, without limitation, (a) for lack
of use, (b) if we believe that you have violated or acted
inconsistently with the letter or spirit of this Agreement or the
documents it incorporates by reference, (c) if we are unable to
verify or authenticate any information you provide to us, or (d) if
we believe that your actions may cause legal liability for you, our
users or us. You agree that any termination of your account or access
to all or any portion of the Services under any provision of this
Agreement may be effected without prior notice, and acknowledge and
agree that we may immediately deactivate or delete your account and
all related information and files in your account and/or bar any
further access to such files or our web site and services. You also
agree that we shall not be liable to you or any third party for any
termination of your use of or access to all or any portion of the web
site and services.

14. Trademarks; Copyrights; Proprietary Rights

14.1 Sagewell's Trademarks. Sagewell trademarks and service
marks, and other Sagewell logos, products and service names, are
trademarks of Sagewell Inc. (the "Sagewell Trademarks").
You agree not to display or use in any manner the Sagewell Trademarks
without Sagewell's prior written consent. Nonetheless, Sagewell's
written consent shall not be required if your display or use of the
Sagewell Trademarks constitutes noncommercial use, news reporting or
news commentary.

14.2 Copyrights and Trademarks of Others. Sagewell respects
the intellectual property of others, and we ask our users to do the
same. To the extent Sagewell uses a trademark that is the property of
a third party, Sagewell shall provide clear notice to anyone viewing
Sagewell's use of that trademark that (a) Sagewell does not own the
trademark and that the trademark is the property of a third party,
(b) Sagewell has no affiliation, connection or association with that
third party, and (c) that third party has not approved or sponsored
Sagewell's use of the trademark in any way. If you believe that your
work has been copied in a way that constitutes copyright or trademark
infringement, or your intellectual property rights have been
otherwise violated, please provide notice of such violation(s) to
Sagewell as provided in Section 16.1.

14.3 Proprietary Rights. You acknowledge and agree that our
web site and our services contain proprietary and confidential
information that is protected by applicable intellectual property and
other laws. You also acknowledge and agree that content contained in
sponsor advertisements or information presented to you through our
web site and services or advertisers is protected by copyrights,
trademarks, service marks, patents or other proprietary rights and
laws. Except as consented to by Sagewell or advertisers in writing,
you agree not to modify, rent, lease, loan, sell, distribute or
create derivative works based on our web site or services, in whole
or in part.

15. No Resale

You agree not to reproduce, duplicate, copy, sell, resell or
exploit for any commercial purposes, any portion of Sagewell's web
site or services, use of the web site or services, or access to the
web site or services.

16. Additional Terms

16.1 Notices. Except as otherwise stated, any notice to us
shall be given by certified postal mail to Sagewell Inc., Attn:Legal
Department, 400 TradeCenter, Suite 5900, Woburn, MA 01801, and any
notice to you shall be given to the e-mail address that you provided
us during the registration process. Notice given by postal mail shall
be considered given three (3) days after the date of mailing.

16.2 Incorporation by Reference. Our privacy policy
statement (http://www.sagewell.com/privacypolicy)
is incorporated by reference. We may change our privacy policy
statement at any time or times and our changes are effective after we
provide you with at least thirty (30) days notice as provided under
Section 9 of our privacy policy statement ("Notification of
Changes").

16.3 Entire Agreement. This Agreement constitutes the
entire agreement between you and Sagewell, superseding any prior
agreements between you and Sagewell.

16.4 No Agency. No agency, partnership, joint venture,
employee-employer or franchiser-franchisee relationship between you
and Sagewell is intended or created by this Agreement.

16.5 Governing Law. This Agreement and the relationship
between you and Sagewell shall be governed by the laws of the State
of Massachusetts without regard to its conflict of laws provisions,
as such laws are applied to agreements entered into and to be
performed entirely within Massachusetts between Massachusetts
residents. You and Sagewell agree to submit to the personal and
exclusive jurisdiction of the courts located within the State of
Massachusetts.

16.6 Assignment. You agree that this Agreement and all
incorporated agreements may be automatically assigned by Sagewell, in
our sole discretion, to one or more third parties in the event of a
merger or acquisition.

16.7 No Guaranty. We do not guarantee continuous,
uninterrupted or secure access to our services, and operation of our
web site may be interfered with by numerous factors outside of our
control.

16.8 No Waiver. Sagewell's failure to exercise or enforce
any right or provision of this Agreement shall not constitute a
waiver of such right or provision and does not waive our right to act
with respect to subsequent or similar breaches.

16.9 Severance. If any provision of this Agreement is found
to be invalid by a court of competent jurisdiction, you and Sagewell
nevertheless agree that the court should endeavor to give effect to
the parties' intentions as reflected in the provision, and that the
other provisions of this Agreement will remain in full force and
effect.

16.10 Survival. Sections 3.3 (License), 4.3 (Interference
with Services), 4.2 (Release), 9 (Indemnity), 10 (Warrants;
Liabilities), and 11 (Dispute Resolution) shall survive any
termination or expiration of this Agreement.

16.11 Limitation. You and Sagewell each agree that
regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to the use of our services or
this Agreement must be filed within one (1) year after the claim or
cause of action arose or be forever barred.

16.12 Titles. The section titles in this Agreement are for
convenience only and have no legal or contractual effect.

18. Disclosures; Violations

The services under this Agreement are offered by Sagewell Inc., 400 TradeCenter,
Suite 5900 Woburn, MA 01801. Please report any violations of this
Agreement by sending a notice of the violation to the Secretary of
Sagewell by postal mail or e-mail, as follows:

Postal Address:

Sagewell Inc.
400 TradeCenter,
Suite 5900

Woburn, MA 01801
email: support@sagewell.com

* * *

By indicating during registration that you have read and agreed to
this Agreement, you are agreeing that you have read and understand
this Agreement and agree to all of the terms of this Agreement,
including Section 11 which provides that, except as otherwise
specified in Section 11.1, all disputes, claims or controversies
arising out of or relating to this Agreement shall first be dealt
with through negotiation and mediation and if the dispute is not
resolved shall then be submitted to binding, neutral arbitration.

Sagewell Inc. Terms of Service Agreement

Sagewell Inc.

Terms of Service Agreement