Terms of Service Agreement
THIS IS A CONTRACT BETWEEN YOU ("YOU") AND SAGEWELL INC. ("SAGEWELL"). BY USING THIS SITE OR, WHERE APPLICABLE, CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS FOR OUR SERVICES, YOU ("YOU") AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS "AGREEMENT") GOVERNING YOUR USE OF THIS SITE AND SAGEWELL'S SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" AND RELATED WORDS (SUCH AS "YOUR") SHALL REFER TO BOTH SUCH ENTITY AND TO YOU AS AN AGENT OF THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE USE OF THIS SITE ANY, WHERE APPLICABLE, ANY OF OUR SERVICES.
We may amend the Agreement at any time or times by posting the amended terms on our Site. All amended terms shall automatically be effective after they are posted on our Site. This Agreement is effective for all users of our services and all visitors to our Site.
This Site is Copyright © 2010 Sagewell Inc. All rights reserved.
We provide our users with a variety of resources to facilitate energy efficiency, energy efficiency analysis and research regarding efficiency and other information regarding buildings.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our services and this Site. 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.
2.1 Eligibility. Our web site and other services are available to those interested in buildings and their energy efficiency, including individuals, governments and companies. Our 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 or for any other reason, please do not use our Site and other services.
We have the right to suspend or terminate your use of our Site or other services and refuse any and all current or future use of all or any portion of our Site or other services.
2.2 Password and Security. When you complete our registration process you will receive an email message with login credentials 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 and that you shall be fully responsible for all actions taken using your password.
2.3 Fees. Access to parts of our Sites and use of some of the features within our Sites may be free for some users, and we may charge a fee for certain types of features or users, or we may charge a fee depending on the level of access you require. Sagewell Inc.'s services may also be sold or licensed to third party institutions without restriction hereunder.
3. Your Information
3.1 Definition. "Your Information" is defined as any information or other material you directly or indirectly provide to us in the registration process or through the use of our services. You are solely responsible for Your Information. Any payment information you provide to us is your "Private Information" which we will use only for the purposes for which you provide it, and in compliance with all applicable laws. All of Your Information other than Private Information is "Public Information" as such term is used in this Agreement.
3.2 Restrictions. In consideration of your use of our Site and 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 Site 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, in our sole discretion, that you are not in compliance with this Section.
3.5 Suggestions. You hereby grant to Sagewell a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate any suggestions, ideas, enhancement requests, feedback, recommendations or other information You provide relating to the Site, services or any portion thereof.
4. Use of Services
4.1 Control, errors and omissions. 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 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 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, the information of other users, the information regarding any building, the information regarding any building analysis reports, energy savings estimates, payback calculations 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 Site and services.
Furthermore, for avoidance of doubt, by using this Site or any Sagewell service you acknowledge that our analysis of buildings is based on limited information that are subject to various errors or may be incomplete. In addition, our interpretations of that imperfect information are further subject to human or automated interpretation errors and omissions and the analysis results are therefore inherently subjective, subject to frequent errors and omissions, and may or may not be reliable. We strongly encourage you to seek experienced and properly licensed expert advice before engaging in building improvement project, investment, building, product or service purchase decision or decide to not purchase such a building, product or service. We further strongly encourage you to seek multiple bids for any project, including bids from companies that are not affiliated with us in any way, and get any proposals or agreement terms in writing. The information on our Site is intended for informational purposes only.
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 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 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");
(c) Encouraging others to violate this Agreement;
(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 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;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on our Site (except for Your Information), or create derivative works from our 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 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.
5.1 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. You may also be contacted by Sagewell partners, affiliates or customers who have paid for your contact information and information about your buildings.
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 Site.
We may provide, our members may provide, or third parties may provide, links to other Sites or resources. Because we have no control over such Sites or resources, you acknowledge and agree that we are not responsible for the availability of such 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 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 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 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 Site or located through the use of our services.
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 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 Site and services is at your sole risk. Our 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.
(a) 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 Site, our services or this Agreement or the inability to use our Site or our services (however arising, including negligence).
(b) 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 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 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.
We reserve the right at any time or times to modify or discontinue, temporarily or permanently, all or any portion of our 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 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 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 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 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 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 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 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 Site or services, use of the Site or services, or access to the 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.
16.3 Entire Agreement. This Agreement constitutes the entire agreement between you and Sagewell, superseding any prior agreements between you and Sagewell other than any separate written, signed contract 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 Commonwealth 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 Commonwealth of Massachusetts.
16.6 Assignment. You shall not assign any of your rights under this Agreement. Any attempt by you to assign this Agreement shall be void and without effect. This Section 16.6 limits both the right and the power to assign this Agreement.
16.7 No Guaranty. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of our 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 (Use of Services), 9 (Indemnity), 10 (Warranties; Liabilities), 11 (Dispute Resolution), 13 (Termination; Breach), 14 (Trademarks; Copyrights; Proprietary Rights) and 16 (Additional Terms) shall survive any termination or expiration of this Agreement according to their terms.
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.
17. Notice and Take Down Procedures; Copyright Agent.
If you believe any materials accessible on or from this Site infringe your copyright, you may request removal of those materials (or access thereto) from this Site by contacting Sagewell's copyright agent (identified below) and providing the following information:
1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) e-mail address.
4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.
Sagewell's agent for copyright issues relating to this Site is as follows:
Woburn, MA 01801
In an effort to protect the rights of copyright owners, Sagewell maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this Site who are repeat infringers.
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:
Woburn, MA 01801
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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.