Terms of Service

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Terms of Service


OptiMiser Energy Audit Tool and Online Services Subscription Agreement:

TERMS & CONDITIONS

Updated October 23, 2013

IMPORTANT – THIS IS A LEGALLY BINDING AGREEMENT.

BY COMPLETING THE ELECTRONIC PURCHASE PROCESS AND CLICKING THE ACCEPTANCE BUTTON, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE 18 YEARS OF AGE OR OLDER; (ii) ARE, OR ARE AUTHORIZED TO SIGN FOR AND BIND, THE CONTRACTING PARTY DEFINED BELOW AS "CUSTOMER;" AND (iii) HAVE READ, UNDERSTAND AND AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT. OTHERWISE, DO NOT CLICK THE ACCEPTANCE BUTTON TO PROCEED AND YOUR REGISTRATION PROCESS WILL BE DISCONTINUED.

This Subscription Agreement (this "Agreement") is entered into as of the date of electronic acceptance by Customer (the "Effective Date"), by and between OptiMiser, LLC ("OptiMiser"), and the individual or entity subscribing to services and software pursuant to this Agreement (“Customer”). OptiMiser reserves the right to amend this Agreement from time to time without notice to Customer. The latest version of this Agreement can be accessed at www.optimiserenergy.com.

  1. Description of Services. OptiMiser's products include OptiMiser Gold, OptiMiser Silver, and customized OptiMiser services including software used in connection with the delivery of OptiMiser products and services (individually and collectively referred to as the "Services"), as more fully described in subsections (a) through (d) immediately below. The selections made and submitted by Customer during the registration process will identify the specific Services subscribed to by Customer hereunder and the number of Named Authorized Users for each Service, all of which shall be listed on Customer's "My Account" page within the OptiMiser website. "Named Authorized Users" shall mean the Customer-designated individuals (i.e., employees, contractors, consultants, etc.) who may access the Services in accordance with this Agreement. Any use of the Services is subject to the terms the End User License Agreement (EULA), which is described in more detail in Section 11.m below. The following describes the Services currently offered by OptiMiser:

    1. OptiMiser Gold. By subscribing to the OptiMiser Gold Service, Customer may access and use the OptiMiser application for performing building energy and improvement measure analyses on up to 40 distinct dwellings each billing cycle for a set fee. Customer will pay a supplemental per-use fee for each additional use. Current monthly and per-use fees are listed at https://www.omaudits.com/.

    2. OptiMiser Silver. By subscribing to the OptiMiser Silver Service, Customer may access and use the OptiMiser application for performing building energy and improvement measure analyses for a one-time setup fee and a per-use fee based on the number of distinct dwellings analyzed per billing cycle.

    3. OptiMiser Free Trial. By subscribing to the OptiMiser Free Trial, Customer may access and use the OptiMiser application for performing building energy and improvement measure analyses for 30 days with no obligation to purchase. After 30 days, OptiMiser Free Trial service expires and the OptiMiser program will no longer be usable. Only one OptiMiser Free Trial subscription is allowed per customer.

    4. OptiMiser Technical Support. By subscribing to an OptiMiser paid service, Customer is entitled to one hour of technical support to assist in setup. The setup support must be used within the first 30 days of paid service. In addition to setup support, Customer may purchase technical support via phone or email for $150 per hour. Customer is entitled to unlimited, free access to web-based forums and FAQ content.

  2. Cancellation. Customer may cancel an OptiMiser subscription at any time. Once Customer cancels, they will not be charged again, but are responsible for whatever charges have already been incurred for the current billing period. For example, if Customer’s billing cycle is on the 18th of every month, and they cancel on the 24th, they will still have to pay for the current month, but will not be charged again after that. Customer can cancel their account at any time by logging into the My Account section of the omaudits.com website at omaudits.com/user and selecting the “Edit” tab. Once you are on the Edit Account page, click the “Cancel Account” link.

  3. Online Registration. To subscribe to Services via the OptiMiser website, Customer must complete the online registration process, including Customer's electronic acceptance of this Agreement, and OptiMiser must then accept such online registration. OptiMiser may reject an online registration by a potential Customer in its sole discretion and is not obligated to provide a reason for its rejection. In the event a potential Customer's online registration is rejected by OptiMiser, such potential Customer may submit a new online registration for re-evaluation by OptiMiser.

    1. Registration Data. As part of the online registration process, OptiMiser will collect certain limited information about Customer ("Registration Data"). All Registration Data provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Registration Data as necessary. OptiMiser reserves the right to terminate this Agreement immediately in the event any Registration Data is found to be inaccurate, incomplete or not current at any time.

    2. Account Password/Security. As part of the online registration process, Customer will choose a password and a user name. Customer is entirely responsible for maintaining the confidentiality of its password and account, and Customer is solely responsible for any and all activities that occur under its account. Customer agrees to notify OptiMiser immediately of any unauthorized use of its account or any other breach of security. OptiMiser shall not be liable for any loss that Customer may incur as a result of a third party using its password or account, either with or without its knowledge. Customer may be held liable for losses incurred by OptiMiser or another party due to a third party using Customer's account or password.

    3. Payment Information. As part of the online registration process, OptiMiser will collect certain additional information related to billing and payment matters ("Payment Information"). Such Payment Information will include a valid debit card or credit card number with available credit sufficient to pay the applicable Subscription Fees, an election of a preferred billing frequency, and other information as required by OptiMiser. All Payment Information provided by or on behalf of Customer must be current, complete and accurate, and Customer is solely responsible for updating such Payment Information as necessary. Customer hereby authorizes OptiMiser, from time to time, to take steps to determine whether the debit card or credit card number provided is valid. OptiMiser reserves the right to terminate this Agreement immediately in the event any Payment Information is found to be inaccurate, incomplete or not current at any time. OptiMiser shall not be responsible for any overdraft charge or other fees that may be incurred by OptiMiser's use of Customer's debit card or credit card.

    4. Trial and Promotional Offers. From time to time, OptiMiser may offer certain trial and/or promotional offers. OptiMiser reserves the right to discontinue or modify coupons, credits, trials and promotional offers at its discretion and without notice. Any such trial or promotional offers may not be combined with other coupons, credits, trials, promotions or any other discounts, and are limited to one (1) per Customer.

  4. Customer Rights and Restrictions.

    1. During the Term of this Agreement, and upon Customer's payment of all applicable Subscription Fees, OptiMiser will enable Customer to access and utilize the Services as contemplated herein, and Customer may access and use the Services subscribed to hereunder pursuant to and in accordance with the provisions of this Agreement.

    2. Customer shall be solely responsible for all content transferred by Customer or any other party in connection with Customer's access and/or use of the Services, including all visual, written and/or audible communications. Customer hereby agrees not to access and/or use the Services in a manner which constitutes or encourages conduct that could be a criminal or civil offense under any applicable law or regulation.

    3. Customer may not reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services or any other aspect of OptiMiser's technology.

    4. Customer may reassign Named Authorized Users without incurring additional fees.

    5. Customer may inform its Named Authorized Users, customers and employees that the Services subscribed to hereunder are powered by OptiMiser.

    6. Customer may not resell, distribute, or otherwise use any of the Services on a timeshare or service bureau basis.

    7. Customer shall not access and/or use any of the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the OptiMiser websites, Services or any networks or security systems of OptiMiser.

    8. No other rights are granted hereunder except as expressly set forth in this Agreement.

  5. Term and Termination.

    1. Term. This Agreement shall commence on the Effective Date and continue for the subscription period as stated on Customer's "My Account" page within the OptiMiser website. Customer may access its "My Account" page at any time and update certain account information.

    2. Termination for Cause. OptiMiser reserves the right to terminate this Agreement immediately if Customer breaches any of its material obligations under this Agreement.

    3. Effect of Termination. Upon termination of this Agreement, Customer will immediately discontinue all access to and use of the Services. OptiMiser shall not be liable for any damages resulting from a termination of this Agreement as provided for herein; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination.

  6. Subscription Fees. Customer is responsible for all Subscription Fees, and hereby authorizes OptiMiser to obtain payment of all such Subscription Fees in accordance with the Payment Information, as stated on Customer's "My Account" page within the OptiMiser website. Customer shall also be responsible for all applicable taxes (withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), etc.) or duties imposed by any government entity or collecting agency EXCEPT those taxes based on OptiMiser's net income.

  7. DISCLAIMER OF WARRANTIES. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED BY OPTIMISER ON AN "AS IS" BASIS, AND CUSTOMER'S ACCESS TO AND/OR USE OF THE SERVICES IS AT ITS SOLE RISK. OPTIMISER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OPTIMISER MAKES NO WARRANTY THAT ANY OF THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE, NOR DOES OPTIMISER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES OR THAT ANY DEFECTS WILL BE CORRECTED. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY OF THE SERVICES IS DONE AT THE SOLE RISK OF CUSTOMER AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND USE OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM OPTIMISER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.

  8. LIMITATION ON LIABILITY. IN NO EVENT SHALL OPTIMISER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT OPTIMISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPTIMISER'S LIABILITY HEREUNDER IS LIMITED TO $500. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

  9. Indemnification. Customer hereby agrees, at its sole expense, to indemnify, defend and hold OptiMiser harmless from and against any loss, cost, damages, liability or expense arising out of or relating to (i) a third-party claim, suit, proceeding, action or allegation of infringement based on information, data, files or other content submitted by Customer or otherwise related to Customer's access to and/or use of the Services; or (ii) any fraud or manipulation, or other breach of this Agreement by Customer.

  10. Contracting Party, Choice of Law and Location for Resolving Disputes. This Agreement is between Customer and OptiMiser, LLC, whose principal place of business is 4801 West Yale Avenue, Denver, Colorado 80219, United States. This Agreement will be governed by the laws of the State of Colorado without reference to conflict of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this Agreement, Customer consents to the exclusive personal jurisdiction and venue in the State and Federal courts within Denver County, Colorado.

  11. Additional Terms

    1. Authority. Each party hereby represents and warrants to the other party that it has all necessary authority to enter into and perform its obligations under this Agreement without the consent of any third party or breach of any contract or agreement with any third party.

    2. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part, and any such attempted assignment or delegation shall be void.

    3. Force Majeure. OptiMiser will not be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond the control of OptiMiser.

    4. Choice of Law. This Agreement and any dispute arising out of or in connection with this Agreement shall be governed by and construed under the laws of the State of Colorado, without regard to the principles of conflict of laws.

    5. Export. Both parties agree to comply with applicable United States export and import laws and regulations.

    6. High-Risk Use. Customer hereby acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities. OptiMiser hereby expressly disclaims any express or implied warranty of fitness for such purposes.

    7. Proprietary Rights. OptiMiser retains ownership of all proprietary rights in or associated with all its products and services (including the Services), and Customer may not use the OptiMiser logo, or any other name, logo, icon or mark identifying OptiMiser's products and/or services (including the Services) without prior written permission of OptiMiser.

    8. Compliance with Laws. Customer shall comply with all applicable laws, rules and regulations relating to Customer's access to and/or use of the Services.

    9. No Waiver. The failure of either Customer or OptiMiser in any one or more instances to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such terms on any future occasions.

    10. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.

    11. No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement or any provision hereof.

    12. Privacy. OptiMiser's use of any information provided by Customer, including without limitation, Registration Data and Payment Information, is set forth in OptiMiser's current Privacy Policy for each of the applicable Services (“Privacy Policy”), which can be found by clicking on the "Privacy Policy" hypertext link located at the bottom of the respective web page for each Service.

    13. Incorporation by Reference. The Privacy Policy and the terms of the standard end user license agreement (“EULA”) offered by OptiMiser, as published on its website (www.optimiserenergy.com) and as amended from time to time, are incorporated into this Agreement by reference. Customer has had full opportunity to reach the Privacy Policy and the EULA and accepts and agrees to the terms stated therein.

    14. Integration. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either party unless agreed to in writing by both parties.

    15. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.

    16. Language. Only the most current English version of this Agreement is binding. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English-language version shall prevail.

    17. Beta version. The terms of this subsection 11(o) shall only apply to Customer with respect to any "Beta" version of any of the Services (the "Beta Services") made available to Customer for purposes of evaluation and feedback. Customer acknowledges that the Beta Services Customer is evaluating may contain bugs, errors and other problems and is provided to Customer "as-is." Therefore, OptiMiser disclaims any warranty or liability obligations to Customer of any kind with respect to the Beta Services. Customer further acknowledges the importance of communication between OptiMiser and Customer during Customer's use of the Beta Services and participation in OptiMiser's Beta program and hereby agrees to receive related correspondence and updates from OptiMiser. In the event Customer requests to opt-out from such communications, Customer's participation in the OptiMiser Beta program will also be canceled. Customer also hereby acknowledges that OptiMiser has not made any representations, promises or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that OptiMiser has no express or implied obligation to Customer to announce or introduce the Beta Services. During the OptiMiser Beta program, Customer will be asked to provide feedback regarding Customer's use of the Beta Services and Customer hereby grants to OptiMiser a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any OptiMiser product or service (including the Beta Services) at any time at the sole discretion of OptiMiser. With respect to the Beta Services, this subsection shall supersede any other terms and conditions contained herein, but only to the extent necessary to resolve conflict.

©2013 OptiMiser, LLC. All rights reserved.

 

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