Genability Terms of Service
As amended: November 10, 2011.
The following terms and conditions (our "Agreement") govern the access and use of the information, data, content and services made available by Genability on this website (the "Genability Services"). This Agreement is entered into between you (hereinafter referred to as "You") and Genability. You must accept or agree to the terms of this Agreement before accessing or using any of the Genability Services. You may not avail Yourself of the Genability Services if You do not accept this Agreement and the terms therein. You acknowledge that by accessing or using the Genability Services, you are agreeing to the terms of this Agreement. If You are accepting or agreeing to this Agreement on behalf of a company or other legal entity, You represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "You" will refer and apply to that company or other legal entity.
Certain areas of the website may have different terms and conditions posted or may require You to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and the terms and conditions posted for a specific service or area of the website, the latter terms and conditions will take precedence with respect to your use of or access to those services or that area of the website.
The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to our website. Your continued use of the Genability Services after such posting will constitute acceptance by You of such amendments. If the modified terms and conditions are not acceptable to You, Your only recourse is to cease accessing and/or using the Genability Services.
You may not use the Genability Services and may not accept the terms if (a) You are not of legal age to form a binding contract with us, or (b) You are a person barred from receiving the Genability Services under the laws of the United States or other countries including the country in which You are resident or from which You use the Genability Services, or (c) Your use of the Genability Services has been previously terminated by Genability in its sole discretion.
In order to access and use the Genability Services, You must create an account (Your "Account"). Through your Account, you will designate and create access controls for your authorized users. You are responsible for any activities or actions taken under your Account (including those by your authorized users). You agree to promptly notify Genability of any unauthorized use of Your password or access of Your Account. You represent that the information that you provide upon registration, and at all other times will be true, accurate, current and complete. By creating an Account You agree to the use of: (a) electronic means to complete this Agreement and to provide You with any notices; and (b) electronic records to store information related to this Agreement and your use of the Genability Services.
Genability provides a broad-based platform, consisting of web-based applications and services ("Genability Applications"), application programming interface (the "Genability API"), and other services, which are designed to assist with electricity management and with the creation of electricity management applications, tools and services designed manage the consumption of electricity.
Subject to Your compliance with this Agreement (including the payment of fees for the use of the applicable Genability Services), Genability hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the term of Your subscription, to access and use the applicable Genability Services you purchased, solely in accordance with the terms and conditions of this Agreement. We may make available to You, for Your installation, copying and/or use in connection with the Genability Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the "Genability Properties"). Subject to Your compliance with this Agreement, Genability hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of Your subscription in the Genability Properties, only to install, copy and use the Genability Properties solely in connection with and as necessary for Your use of such Genability Services, solely in accordance with the terms and conditions of this Agreement.
Additional Terms regarding the Genability API:
If your subscription includes the use of the Genability API, You may write a software application or website (an "Application") that interfaces with the Genability Services. You acknowledge that we may change, deprecate or republish Genability APIs for any Genability Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls or requests You make to or via our Service are compatible with then-current Genability API for the Genability Service. Genability will attempt to inform You of any changes with reasonable notice so You can adjust Your Application, but we are under no obligation to do so. You and any Applications that You may build, distribute, or otherwise create may make network calls or requests to the Genability Services, or may receive data via the Genability Service, at any time that the Genability Services are available provided that those requests do not violate the terms of this Agreement. Provided that You comply with the terms of this Agreement and any additional, applicable policies and procedures, You may use the Genability Services to execute Applications owned or lawfully obtained by You. You are solely responsible for Your Applications, including any data, text, images or content contained therein.
For purposes of this Agreement, Genability hereby grants to You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license during the term of Your subscription to display the trade names, trademarks, service marks, logos, domain names of Genability (each, a "Genability Mark") for the purpose of promoting or advertising that You use the Genability Services, solely in accordance with the terms and conditions of this Agreement. In return You hereby grant Genability a limited, non-exclusive, non-transferable, non-sublicenseable license to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Genability Services.
In using Genability Marks, You may not: (a) display a Genability Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Genability; (b) use Genability's Marks to disparage Genability or its products or services; or (c) display a Genability Mark on a site that violates any law or regulation. Notwithstanding the above, Genability may determine in its sole discretion whether its marks may be used in connection with Your Application. Furthermore, we may modify any Genability Marks provided to You at any time, and upon notice, You will use only the modified Genability Marks and not the old Genability Marks. Other than as specified in this Agreement, You may not use any Genability Mark unless You obtain our prior written consent. All uses of the Genability Trademarks and goodwill associated therewith shall inure to the benefit of Genability.
Reservation of Rights
The rights granted in this Agreement with respect to the Genability Properties, the Genability Marks and the Genability Services are nonexclusive, and we reserve the right to: (a) act as a developer of products or services related to any of the products that You may develop in connection with the Genability Properties or via Your use of the Genability Services; and (b) appoint third parties as developers or systems integrators who may offer products or services which compete with Your Application.
Except as may be expressly authorized under this Agreement, You may not, and may not attempt to, nor allow any third party to: (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Genability Services; (b) reverse engineer, disassemble, or decompile the Genability Services or apply any other process or procedure to derive the source code of any software included in the Genability Services. You may not, copy, distribute, sell, disclose, lend, transfer, convey, the Genability Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Genability Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Genability. You may not remove, obscure, or alter any notice of any Genability trademark, service mark or other intellectual property or proprietary right appearing on the website or contained within the Genability Services.
Access and Interference
You may not do any of the following while accessing or using the Genability Services (without our express written consent): (a) Access, tamper with, or use non-public areas of the Genability Services, our computer systems, or the technical delivery systems of our providers; (b) Access or search or attempt to access or search the Genability Service by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by Genability (and only pursuant to those terms and conditions); (c) Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Genability Services or any portion of the Genability Service; (d) Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Genability Service or the Genability website; (e) Attempt to decipher, decompile, disassemble, or reverse-engineer or otherwise attempt to discover or determine the source code of any software or any proprietary algorithm used, comprising or in any way making up a part of the Genability Services or the Genability website; (f) Attempt to probe, scan or test the vulnerability of the Genability webite or system or network or breach or impair or circumvent any security or authentication measures protecting the Genability Services; (g) Frame or mirror the Genability Services; (h) Use the Genability Services to develop, create or design a competitive or similar service; (i) Use the Genability Services in any way that competes with Genability; or (j) encourage or instruct any other individual to do any of the foregoing.
We reserve the right to access, read, preserve, and disclose any information provided through the Genability Services we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Genability, its users and the public.
Genability may allow You to use the Genability Services for a limited, free trial period, the terms of which are determined by Genability in its sole discretion and which may not provide all of the features and functionality of the paid version. Genability will determine whether You are eligible for a free trial subscription to the Genability Services. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
If You have subscribed to the paid version of our Genability Services, then You agree to pay applicable fees (including any minimum subscription fees) for the Genability Services you have ordered. We may increase or add new fees for any existing Genability Service or feature by giving You 30 days' advance notice before such prices take effect. We will (and You authorize us to) charge the applicable amounts against the credit card or debit card you have provided each month, unless we have specified an alternative manner in which You may pay the applicable fees, subject to our general accounts receivable policies in effect. All amounts payable by You under this Agreement are non-refundable and will be made without setoff or counterclaim and without deduction or withholding.
You agree to provide current, complete, and accurate billing and payment information regarding Your Account and to promptly update Your billing and payment information with us in the event of any changes. If we are unable to charge Your card, You agree to pay all amounts due on Your Account upon demand and we may temporarily suspend or terminate your access to the applicable Genability Services for nonpayment. Your non-termination or continued use of the Genability Services reaffirms that we are authorized to charge Your card for additional subscription terms.
Should You have any dispute as to fees associated with Your Account, please contact us at firstname.lastname@example.org within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Your Account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
Termination and Suspension
You may terminate your use of any Genability Services or Your Account at any time and for any reason by deleting Your Account or by sending us notice. Upon any termination by You, the Genability Services and/or Your Account (whichever is applicable) will no longer be accessible. Any cancellation request will be handled within 30 days of receipt of such request. If You choose to terminate Your use of the Genability Services, you may use the Genability Services until the end of the then-current subscription period; however, You will not be eligible for a prorated refund of any portion of the fees paid for the then-current subscription period.
Genability may at any time, suspend, disable or terminate Your access to or use of the Genability Services (a) if you violate or breach any provision of this Agreement (or have acted in a manner which shows that You do not intend to, or are unable to comply with the provisions of this Agreement), (b) if Genability, in its sole discretion, believes it is required to do so by law (for example, where the provision of the Genability Service to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason); (c) there is an unusual spike or increase in Your use of the Genability Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Genability Service; or (d) immediately upon notice, to the e-mail address provided by you as part of Your registration information.
Genability will not be liable to you or to any third party for the suspension or termination of Your access or use of the Genability Service (including the forfeiture of any pre-paid amounts for Genability Services). Upon any termination or suspension, you will no longer be able to access Your Account or the Genability Service and Genability will have no obligation to maintain any account information or any related information that was stored in our database related to Your Account or to forward any information to you (or to any third party). Any suspension or termination will not affect your obligations to Genability under this Agreement, which by their sense and context are intended to survive such suspension or termination.
You acknowledge that: (ai) Your access to and use of the Genability Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Genability Services for any reason, including as a result of power outages, system failures or other interruptions; and (b) we shall also be entitled, without any liability to You, to suspend access to any portion or all of the Genability Services at any time, on a service-wide basis: (i) for scheduled downtime to permit us to conduct maintenance or make modifications to any Genability Service; (ii) in the event of a denial of service attack or other attack on the Genability Services or other event that we determine, in our sole discretion, may create a risk to the applicable Genability Services, to You or to any of our other customers if the Service were not suspended; or (iii) in the event that we determine that any Genability Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide You notice of any Service Suspension and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
Intellectual Property Rights
Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (aa) the Genability Services; (b) the Genability Properties; (c) the Genability Marks; and (d) any other technology and software that we provide or use to provide the Genability Services. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Genability Services, the Genability Properties, the Genability Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
Other than the rights and interests expressly set forth in this Agreement and excluding any and all works derived from Genability Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content and data You may send to us or use as part of Your use of any Services ("Your Content"); and (ii) Your Applications.
In the event You elect, in connection with any of the Genability Services, to communicate to us suggestions for improvements to the Services, the Genability Properties or the Genability Marks (collectively, "Feedback"), we shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information You post or provide to Genability via comments, forums, emails and the like (collectively, "Communications") shall be considered the property of Genability. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
With respect to any of the Genability Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sub-licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Genability Services.
Representations and Warranties
You represent and warrant that You will not use the Genability Services, or Your Application or Your Content in a manner that violates this Agreement. Although Genability does not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, Genability reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies relating to our website or Genability Services.
You represent and warrant: (a) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (b) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (c) that neither Your Application nor Your Content (i) violates, misappropriates or infringes any rights of us or any third party, (ii) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (iii) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) that neither Your Application nor Your Content contains any harmful components; and (e) to the extent to which You use any of the Genability Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Genability. You also represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Application, no matter whether the Application acted in error.
You agree to abide by all applicable local, state, national, foreign and international laws and regulations and that You will be solely responsible for all acts or omissions that occur under Your account or password, including the content of Your transmissions through the Genability Services.
THE GENABILITY SERVICES, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS." WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE GENABILITY SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE GENABILITY SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE GENABILITY SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Limitation of Liability
NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE GENABILITY PROPERTIES, THE GENABILITY MARKS, THE SERVICES OR PROMOTIONAL CREDITS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Third Party Materials
Certain content, products, and services available via the Genability website (or links contained therein) may include materials, software, plug-ins, applications and other resources from third parties and access to third party websites (collectively "Third Party Materials"). You acknowledge and agree that Genability is not responsible for examining or evaluating the content or accuracy of any such Third Party Materials and that Genability does not warrant or endorse and does not assume (and will not have) any liability or responsibility for any Third Party Materials or any damage or loss resulting therefrom. The availability of Third Party Materials is provided solely as a convenience to you. You agree that you must evaluate, and bear all risks associated with, the use of any Third Party Materials, including any reliance on the accuracy, completeness, or usefulness thereof.Indemnification
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (a) Your use of the Genability Services, Genability Properties and/or Genability Marks in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, this Agreement, and/or applicable law, (b) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (c) Your violation of any term or condition of this Agreement, or any applicable additional policies, including without limitation, Your representations and warranties, or (d) You or Your employees' or personnel's negligence or willful misconduct.
We agree to promptly notify You of any claim subject to indemnification; provided that our failure to promptly notify You shall not affect Your obligations hereunder except to the extent that our failure to promptly notify You delays or prejudices Your ability to defend the claim. At our option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to our written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Genability's or any third party's intellectual property rights and/or proprietary rights. Any dispute hereunder shall be adjudicated in any state or federal court in San Francisco, California, and You consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the Genability Services, Genability Properties and the Genability Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages. You agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between us.
Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on Your Account page or via the email address provided to us in Your registration for the Genability Services. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email. For notices made by You to us under this Agreement and for questions regarding this Agreement, You may contact Genability as follows: by US Postal Mail at Genability Inc., 211 Main Street, Suite 400, San Francisco California 94105, or by contacting us at email@example.com
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.