Last Update January 30, 2023
By using benefyd Products, you agree to these Terms of Use (these “Terms”, or “Agreement”) which describe your rights and responsibilities as a customer of benefyd Products. These Terms are between you and Energy Datametrics LLC that owns or operates benefyd Products that you are using or accessing listed here (“we” or “us” or “our”). If you use benefyd Products on behalf of an employer or another entity, you confirm that you have the legal authority to bind them to these terms and have read and understood them. If you don’t have this authority, do not proceed with the agreement. If you sign up for benefyd using an email address from your employer or another entity, you represent that party, and your acceptance will bind them to these terms. The word “you” in these terms will refer to your employer or that entity.
These Terms are effective on the date you first use or access any benefyd Products, or when you accept “I agree” (or click similar button, or checkbox), whichever is earlier (the “Effective Date”). You agree to these terms when you accept “I agree” (or click similar button, or checkbox) during registration, or creating an account, or placing an order. No signature is necessary for these terms to be binding.
1. Definitions
Capitalized terms in this Agreement shall have the meanings ascribed to them in the body of this Agreement or as set forth below in this Section 1.
1.1. “Additional Services” means consulting services, customization services, enhanced support or other services related to benefyd Products we provide to you, as identified in a Sales Order.
1.2. “Affiliate” means any entity that controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of this definition, “control” means ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors in the case of a corporation, or fifty percent (50%) or more of the equity interest in the case of any limited liability company or other type of entity, or any other arrangement whereby a Party controls or has the right to control the board of directors or equivalent governing body of a corporation or other Person.
1.3. “App” means a software application for installation on a mobile device such as a smart phone or tablet computer.
1.4. “benefyd” means our cloud-based solutions for companies, including any web based portal and mobile apps we provide as part of it.
1.5. “benefyd-i” means our cloud-based solutions for individuals or consumers, including any web based portal and mobile apps we provide as part of it.
1.6. “benefyd Product(s)” means benefyd, benefyd-i (including benefidi), Additional Services, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
1.7. “User” means an individual you or an Affiliate permits or invites to use benefyd Products.
1.8. “User Account” means an account established by you or a User to enable the User to use or access benefyd Products.
1.9. “Feedback” means comments, questions, ideas, suggestions or other feedback relating to benefyd Products, Support or Additional Services.
1.10. “Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
1.11. “Sales Order” means benefyd online order page(s) or document describing the products and services you are ordering from us and their permitted scope of use. It includes information such as the type of benefyd Product, number of users, subscription term, amount charged, billing and renewal terms, currency, and form of payment. The Sales Order may also include Additional Services and Free Products
1.12. “PO” means a purchase order.
1.13. “Subscription Term” means your permitted subscription period for benefyd Products, as set forth in the applicable Sales Order.
1.14. “Support” means support for benefyd Products.
1.15. “Your Data” means any data, content, photos, images, video or other materials of any type that you (including any of your Users) submit to benefyd Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through benefyd Products.
2. Access and Restrictions
2.1. Access: These Terms provide you access and use of benefyd Products for your business or personal use during the subscription term, in accordance with these Terms and the Sales Order. The rights granted to you in this section are non-transferable, non-sublicensable, and non-exclusive.
2.2. Support: During your subscription period, we will provide support via self-help resources and our online support system.
2.3. Restrictions: You must not: (a) duplicate, change, adapt, or create derivatives of benefyd Products; (b) rent, lease, distribute, sell, sublicense, transfer, or give access to benefyd Products to a third party; (c) use benefyd Products for the benefit of another company or person; (d) add any benefyd Product features to a product or service you offer to a third party; (e) tamper with or bypass any security measures in benefyd Products; (f) reverse engineer, disassemble, decompile, translate, or attempt to obtain the source code, ideas, algorithms, file formats, or non-public APIs of benefyd Products, except as allowed by law (and only after giving us advance notice); (g) remove or obscure any proprietary or other notices in benefyd Products; (h) use benefyd Products for competitive analysis or to create competing products; or (i) assist or encourage any third party to do any of these things.
3. Administration of benefyd Products
3.1. Designating Administrators: benefyd allows you to appoint certain Users as administrators who have significant control over your use of benefyd and User accounts. This includes creating plans or activating services that may incur fees, managing User accounts, setting User usage permissions, and controlling access to your data by Users or others.
3.2. Credentials Confidentiality: It’s crucial that Users keep their benefyd Product login credentials confidential and not share them with anyone unauthorized. User IDs are assigned to individual users and must not be shared. You are accountable for any actions taken using User accounts and passwords and must promptly notify us of any unauthorized use discovered.
3.3. User Age Requirement: benefyd Products are not intended for, and should not be used by, anyone under the age of 16. You are responsible for making sure that all Users are at least 16 years old.
4. Security and Data Privacy
4.1. Security Measures and Compliance: We take the security of Your Data seriously and have implemented robust physical, technical, and administrative security measures to protect it from unauthorized access, destruction, use, modification, or disclosure. Additionally, we adhere to a compliance program that includes independent third-party audits and certifications to ensure the safety and integrity of Your Data.
4.2. Data Privacy: We collect certain data and information about you and your Users in connection with your and their use of benefyd Products and as per the terms of these terms. We handle and use all such data in accordance with our Privacy Policy, which you acknowledge and agree to.
4.3. Continuous Improvement: We are continuously working to improve benefyd Products and as a part of this process, we use analytics techniques to understand how our products are being used. For more information on these techniques and the data we collect, please refer to our Privacy Policy.
4.4. Legal Compliance: We may be required to disclose Your Data in response to legal processes such as subpoenas or court orders. In such cases, we will use commercially reasonable efforts to notify you where permitted by law.
5. Terms Regarding Your Data
5.1. Use of Your Data to provide benefyd Products: You retain ownership of Your Data in its original form. Subject to these terms You grant us a limited-term, worldwide license to access, use, process, copy, distribute, perform, export and display your Data as necessary to provide benefyd Products to you. This license also includes the right to make modifications and derivative works. We may also access your accounts, User Accounts, and Your benefyd Product instance with User permission in order to respond to your support requests.
5.2. Compliance obligations: You and your use of benefyd Products must comply with these Terms and all applicable laws. You warrant that you have obtained all necessary rights and permissions to submit Your Data to benefyd Products and grant the rights outlined in these Terms, and that Your Data and its submission and use will not violate any laws, third-party intellectual property rights, privacy rights, or any policies or terms governing Your Data. We are not responsible for Your Data and You are solely responsible for Your Data and any consequences that may arise from submitting and using it with benefyd Products.
5.3. Prohibited sensitive personal information: You will not submit or use benefyd Products to collect any sensitive personal information unless its processing is supported as a feature of benefyd Products. We will not be liable under these Terms for sensitive personal information submitted in violation of this provision.
5.4. Indemnity: You will defend, indemnify and hold us (and our affiliates, officers, directors, agents and employees) harmless from any claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising from any claims or disputes brought by your Users, your breach of compliance obligations or prohibited sensitive personal information, or Your Data. This indemnification is subject to You receiving prompt written notice of the claim, the exclusive right to control and direct the investigation, defense or settlement of such claim and all reasonably necessary cooperation by us at your expense.
5.5. Removals and Suspensions: We may remove Your Data from benefyd Products or suspend your access to benefyd Products if deemed necessary based on your violation of these Terms, including our Privacy Policy, or in response to takedown requests. We will use reasonable efforts to provide You with advance notice of removals and suspensions when possible, but if your actions endanger the operation of benefyd Products or other users, we may suspend your access or remove Your Data immediately without notice. We will not be liable for removing or deleting Your Data or suspending your access to benefyd Products as defined in this section.
6. Third Party Products and Services
You (including your Users) may choose to use or purchase third-party products or services with benefyd Products, including third-party marketplaces, service providers or other services. Your use of any third-party products or services (and the third-parties‘ access to Your Data) is subject to a separate agreement between you and the third-party provider. If you enable or use third-party products or services with benefyd Products, we will allow the third-party providers to access or use Your Data as required for the integration of their products and services with benefyd Products. This may include transmitting, transferring, modifying, or deleting Your Data, or storing Your Data on systems belonging to the third-party providers or other third-parties. Any third-party provider’s use of Your Data is subject to the agreement between you and such third-party provider. We are not responsible for any access to or use of Your Data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to access or use Your Data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
7. Additional Services
In addition to the services provided under these Terms, we may offer additional services for purchase. These additional services will be provided according to the terms outlined in the applicable Sales Order. Additional policies and terms may apply to these services. We retain ownership of all deliverables provided as part of any additional services. You are only permitted to use these deliverables in connection with benefyd Products and are subject to the same usage rights and restrictions as benefyd Products.
8. Subscription Plans, Billing, and Payment
8.1. Subscription Plans: benefyd is offered on either a monthly or annual subscription basis. Benefyd-i offered as a Free Product.
8.2. Renewals: Unless either party cancels the subscription prior to the expiration of the current term, it will automatically renew for a period equal to the initial subscription term. You must provide notice of non-renewal through the designated means, which may include account settings in benefyd or contacting our support team. Cancellation of the subscription means that you will not be charged for the next billing cycle, but no refunds or credits will be given for already charged amounts. Renewals are subject to benefyd continuing to be offered and will be charged at current rates.
8.3. Adding Users: You may add users, modifying an existing subscription plan. We will charge you for any increased users at our current rates, prorated for the remainder of the current subscription term.
8.4. Payment: You will pay all fees in accordance with your subscription plan, by the due dates, and in the specified currency. If a PO number is required, You must provide it. For additional services provided on-site, unless otherwise specified, You will reimburse us for pre-approved travel, lodging, and meal expenses, which we may charge as incurred. All amounts are non-refundable, non-cancelable, and non-creditable, except as specified in other sections. We may bill your credit card or other payment method for renewals, additional users, overages, expenses, and unpaid fees.
9. Taxes
9.1. Excluding Taxes: Your fees for benefyd under these Terms do not include any taxes or duties that may be due in the jurisdiction where payment is made or received. If we are responsible for paying such taxes or duties, you must pay us the additional amount. However, if you have a tax exemption or can receive a tax credit, you may provide us with proof of such exemption or credit and we will make reasonable efforts to provide you with invoicing documents that allow you to claim a refund or credit from the relevant tax authority if applicable.
9.2. Withholding Taxes: All fees should be paid without any applicable withholding taxes. Both parties will work together to prevent any withholding taxes if exemptions or reduced treaty withholding rates are available. If we are eligible for tax exemptions or reduced treaty withholding rates, we will provide you with reasonable proof of this. You must also provide us with reasonable proof that you have paid the relevant authority for the amount withheld or deducted.
10. No Reliance on Future Functionality
You acknowledge that your subscription or purchase of benefyd is not based on any promises or expectations of future features or functionality, including availability of any features beyond the current Subscription Term. You agree that you will not rely on any public comments or statements, whether written or oral, regarding future functionality or features. Your rights and obligations under these Terms are limited to the functionality and features of benefyd as they exist at the time of purchase.
11. Free Products, Trials, and Betas
11.1. Free Products. We may offer you certain benefyd Products at no cost, including free accounts, trial usage, and beta versions as defined (collectively referred to as “Free Products”). Your use of these Free Products is subject to any specific terms we may specify and is limited to the Subscription Term we set (or, if not set, until terminated according to these Terms). Unless stated otherwise in this section, the terms and conditions of these Terms applicable to benefyd Products, including Section 2.3 (Restrictions), also apply to Free Products. We may modify or end your right to use Free Products at any time and for any reason, without any liability to you.
11.2. Beta Versions: Some Free Products may include pre-release or beta features within the generally available benefyd Products, which we may make available to you (collectively referred to as “Beta Versions”). These Beta Versions are still under development and may be inoperative, unfinished, and likely to have more errors and bugs than the generally available benefyd Products. We make no promises that any Beta Versions will be made widely available. In some cases, we may charge a fee to access Beta Versions, but they will still remain subject to this Section.
11.3. Confidential Information: All information regarding the characteristics, features, or performance of any Free Products, including Beta Versions, constitutes our Confidential Information. To the fullest extent permitted by law, we disclaim all obligations or liabilities related to No-Charge Products, including any support, warranty, and indemnification obligations.
11.4. Limitation of Liability: Despite anything else stated in these Terms, our maximum aggregate liability to you in relation to No-Charge Products is US$100.
12. Intellectual Property in benefyd Products and Feedback
The use of benefyd Products is granted on a limited basis, and no ownership rights are transferred to You, regardless of terms such as “purchase” or “sale.” We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to benefyd Products. If you choose to provide Feedback to us, we may freely use, copy, disclose, license, distribute, and exploit it in any way without any obligation, royalty, or restriction based on intellectual property rights or otherwise. Feedback is not considered Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services that incorporate Feedback or not.
13. Confidentiality
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Products and related documentation will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
14. Term and Termination
14.1. Term. This agreement becomes effective on the Effective Date and will remain in effect until the expiration or termination of all Subscription Terms.
14.2. Termination for Cause: Either party may terminate these Terms (including all related Sales Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
14.3. Termination for convenience: You may choose to stop using benefyd Products and terminate this agreement at any time by giving written notice to us. However, you will not be eligible for a refund of any prepaid fees and any outstanding fees for the current Subscription Term must be paid immediately.
14.4. Effects of termination: Upon termination of this agreement, you must stop using benefyd Products and delete all Confidential Information in your possession. You will also lose access to Your Data, so it is important to export it before termination. If you terminate this agreement Terms in accordance with Section 14.2 (Termination for Cause), we will refund any prepaid fees for the remainder of the Subscription Term. If we terminate this agreement in accordance with Section 14.2 (Termination for Cause), you will be responsible for paying any outstanding fees for the remainder of the Subscription Term. Termination will not relieve you of the obligation to pay any fees owed prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
14.5. Survival: The following provisions will survive any termination or expiration of these Terms: Sections 2.3 (Restrictions), 5.4 (Your Indemnity), 6 (Third-Party Products and Services), 8.4 (Payment), 9 (Taxes), 11 (Free Products, Trials, and Betas) (disclaimers and use restrictions only), 12 (Intellectual Property in benefyd Products and Feedback), 13 (Confidentiality), 14 (Term and Termination), 15.4 (Warranty Disclaimer), 17 (Limitations of Liability), 16 (Indemnification) (but solely with respect to claims arising from your use of benefyd Products during the Subscription Term), 19 (Dispute Resolution) and 22 (General Provisions).
15. Warranties and Disclaimer
15.1. Mutual Warranties: Both parties agree that they have the legal authority to enter into these Terms.
15.2. Our Warranties: We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into benefyd Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
15.3. Warranty Remedy: We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the benefyd Products for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to Free Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section.
15.4. WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, benefyd PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE benefyd PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE benefyd PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
16. Indemnification
16.1. Intellectual Property Indemnification: We shall indemnify, defend and hold You harmless from and against any and all claims, actions, damages, demands, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising in connection with any legal action against You brought by a third party to the extent that the action is based upon a claim that benefyd Products infringe any U.S. copyright, patent, or misappropriates any trade secret in the United States, provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to benefyd Products in the twelve (12) month period immediately preceding the Claim is less than US$60,000; (2) if any benefyd Products are modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if any benefyd Products are used in combination with any non-Energy Datametrics product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) an unauthorized use of benefyd Products; (5) to any Claim arising as a result of Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Indemnity) or (6) any third-party deliverables or components contained within benefyd Products or (7) if you settle or make any admissions with respect to a Claim without our prior written consent.
16.2. Remedial Actions: In the event that any such infringement or misappropriation action is commenced or threatened, or in the event use of benefyd Products becomes, or in our reasonable opinion is likely to become, the subject of a claim of infringement or misappropriation, we shall promptly (a) procure for You the right to continue to use the allegedly infringing deliverable as set forth in this Agreement, or (b) replace or modify the allegedly infringing deliverable to make its use noninfringing while being capable of performing qualitatively the same function without degradation of performance, or (c) accept return of the infringing deliverable and thereafter provide a credit to You equal to the Charges paid by You for the allegedly infringing deliverable during the preceding 3-month period. The intellectual property indemnification provided for in this Section shall constitute the entire liability of benefyd Products with respect to any action or claim for infringement or misappropriation. THIS SECTION STATES OUR ENTIRE LIABILITY AND OBLIGATION, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO benefyd PRODUCTS AND/OR DOCUMENTATION.
17. Limitation of Liability
17.1. EXCLUSION OF DAMAGES: EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 16.1 AND AS OTHERWISE PROVIDED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY (OTHER THAN DUE TO A BREACH OF THE INDEMNIFYING PARTY’S OBLIGATIONS UNDER SECTION 13, CONFIDENTIALITY), (D) COST OF REPLACEMENT GOODS OR SERVICES, OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
17.2. CAP ON MONETARY LIABILITY: EXCEPT FOR THE INDEMNITY OBLIGATIONS OF THE PARTIES SET FORTH IN SECTIONS 16.1 ABOVE, OR A BREACH OF SECTION 13, CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY MAKING ANY CLAIM PURSUANT TO THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE FEES AND CHARGES PAID BY YOU TO US IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
18. Marketing Rights
We may identify you as a benefyd Products customer in our promotional materials, media releases, or marketing material. We will promptly stop doing so upon your request sent to support@benefyd.com.
19. Dispute Resolution
19.1. Informal Resolution: In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 19.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
19.2. Governing Law; Jurisdiction: These Terms will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws and (b) each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Los Angeles, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Los Angeles, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
19.3. Injunctive Relief: Notwithstanding the provisions of Section 19.1 (Informal Resolution) and 19.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
20. Changes to benefyd Products
You acknowledge that benefyd Products are online products and to enhance the user experience we may make updates and modifications to benefyd Products and documentation. Subject to our obligation under existing Sales Orders, we reserve the right to discontinue any benefyd Products or any features at any time without liability to you.
21. Changes to This Agreement
We may modify the terms and conditions of this Agreement (including our Privacy Policy) from time to time by posting the modified Agreement on our website.
22. General Provisions
22.1. Entire Agreement: This Agreement constitutes the entire agreement between you and us hereto with respect to the subject matter hereof, and there are no, and You have not relied on any, written or oral representations, understandings or agreements relative hereto which are not fully expressed herein. This Agreement are the sole and exclusive statement of the agreement between you and us hereto with respect to the subject matter hereof and any other terms or conditions included in any other agreement, purchase order provided by you, or other forms utilized or exchanged by the you and us hereto, shall be of no force or legal effect and shall not be incorporated herein or be binding.
22.2. Relationship of the Parties: The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
22.3. Severability: If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then, both parties shall be relieved of all obligations arising under the provision, but only to the extent that the provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying the provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by the declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
22.4. Notices: Any notice under this Agreement must be given in writing. Any notice under these Terms must be given in writing. We may provide notice to you through your email address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by mail to Energy Datametrics, 100 W. Broadway, Suite 680, Long Beach, CA, 90802, Attn: benefyd Products. Your notices to us will be deemed given upon receipt.
22.5. Waiver: No delay or omission by either party hereto to exercise any right or power hereunder shall impair such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained.
22.6. Conflicts: In event of any conflict between the main body of these Terms, Privacy Policy, and Product Specific Terms, the Product Specific Terms will control with respect to their subject matter.
22.7. Force Majeure. If the performance of this Agreement or any obligation hereunder, other than failure to pay fees, is prevented, restricted or interfered with by reason of fire or other casualty or accident, acts of God, severe weather conditions, strikes or labor disputes, utility interruption, war or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental agency, or any other act or condition beyond the reasonable control of the parties hereto, the party whose performance is so affected, shall be excused from such performance for the duration of such force majeure condition.
22.8. Export Compliance. benefyd Products are subject to export restrictions by the United States government, you agree to comply with all applicable export rules and regulations under the U.S. Export Administration Act and the U.S. Foreign Corrupt Trade Practices Act, for your use, access to, and download of benefyd Products (or any part thereof). Without in any way limiting the foregoing, You shall not (and shall not allow any third-party to) export or otherwise remove any part of benefyd Products from the United States, either directly or indirectly: (a) to (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person.
22.9. Assignment: You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Sales Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
22.10. Interpretation: The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation.” The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
