Terms of Use

Effective Date: November 22, 2013

Welcome to the Optimum Energy LLC (“Optimum”, “we”, “us” or “our”) website (collectively, the “Site”). Optimum provides energy optimization services and applications, including online applications available from the Site. We offer this Site for your information and education.  If you have an active Master Service & License Agreement (“MSLA”) with us, you may also be able to access our OptiCxtm System (which may include E3OS) (“Service”) through this Site or through one of our software applications, such as OptiCx PathTM, OptiCx TrendTM, OptiCx TuneTM, or any software application that we may make available from time to time (“Apps”).  Unless different license terms are provided with the App, your use of the Apps is also governed by these terms of use (“Terms”).

Use of and access to the Site and the Service is subject to your compliance with these Terms so please read these Terms carefully. Optimum reserves the right to limit or terminate your access to the Site and/or the Service if you do not comply with these Terms.

By accessing and using the Site, the Apps, or the Service in any way, you agree to be bound by these Terms. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS, DO NOT USE THE SITE, THE APPS, OR THE SERVICE IN ANY MANNER. If you are using the Site, the Apps, or the Service on behalf of your employer, you represent that you are authorized to accept these Terms on your employer’s behalf.

Changes in Terms

We reserve the right to modify these Terms from time to time. If we modify these Terms, we will indicate that we have done so within the Site. Use of the Site, the Apps, or the Service after the effective date of a modification constitutes your acceptance of any modified Terms.

Privacy Statement

We care about the privacy of our users. Use of the Site, the Apps, and the Service is governed by our privacy statement.

Content on the Site and Service

All content on the Site and Service, including but not limited to Apps, designs, text, graphics, pictures, video, information, software, sound and other files, and their selection and arrangement (the “Content”), is the proprietary property of Optimum, its users or its licensors with all rights reserved. No Content may be modified, copied, distributed, framed, reproduced, republished, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part.

Subject to your compliance with all terms and conditions set forth in these Terms, and unless otherwise explicitly set forth in these Terms, you are granted a limited license to access and use the Site, the Apps, and the Service solely for your internal business and non-commercial use. You may not copy any Content to or post it on any networked computer or publish it in any medium, except as explicitly permitted by valid written permission or license from Optimum covering such materials. This limited license also does not include any right to modify, distribute, prepare derivative works of, or grant sublicenses to any Content. Furthermore, in order to protect the trade secrets and proprietary know-how contained in certain Content, you will not decompile, disassemble, or reverse engineer any Content. This license is revocable at any time as to any Content without notice and with or without cause.

Your use of the Site, the Apps, and the Service must comply with all applicable federal, state, and local laws and regulations.  You will not, and will not authorize any third party to (a) access, monitor, or copy any part of the Site or Service using any robot, spider, scraper, or other automated means or any manual process, including phishing, for any purpose without our express written permission, (b) bypass or circumvent measures employed to prevent or limit access to the Site or Service, (c) “frame,” “mirror,” or otherwise incorporate any part of the Site or Service into any other website without our prior written authorization, (d) rent, lease, sublicense, or provide your access to the Site or Service to another person, (e) use the Site or Service in a manner that threatens the integrity, performance, or availability of the Site or Service, (f) destroy, remove, alter, or obscure any proprietary markings or notices (including copyright, trade secret, trademark, and patent notices) on or contained in any portion of the Site, Apps, or Service, (g) engage in any deceptive, misleading, or unethical practices or (h) make any warranties or performance guarantees concerning any aspect of the Site, Apps, Service or any other Optimum software solution or service.

Optimum, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Content. Except as explicitly stated herein, nothing in these Terms shall be construed as conferring any license to any intellectual property or other proprietary rights, whether by estoppel, implication or otherwise.

The OptimumEnergy logo, OptimumLOOP, OptimumVAV, E3OS, Real-time Dynamic Commissioning, and True Optimization [are the registered and unregistered trademarks of Optimum Energy LLC. All other trademarks are property of their respective companies. All trademarks and registered trademarks are protected by US and international trademark laws.

Apps and Data

You may use the Apps solely to perform preliminary building energy efficiency assessments. You must maintain the security of any logins, passwords, or other credentials that you select or that are provided to you to access the Services or the Apps. Please notify Optimum immediately of any unauthorized use of your account or any other breach of security.

You acknowledge that certain information will be transmitted to Optimum in connection with Customer’s use of the Service and/or Apps (“Usage Data”). Usage Data is owned solely by Optimum. Optimum will not disclose any Usage Data to any third party in any way that could reasonably enable association of that Usage Data with Customer or the Site without Customer’s prior consent, not to be unreasonably withheld or delayed, but Optimum may use the Usage Data in aggregate or anonymized form without restriction.  In connection with your use of any App you (i) will not, and will not authorize any third party to, transmit, provide or store any Data that Optimum, in our sole discretion, deems inappropriate, unlawful, harmful (including without limitation viruses, corrupted data, or other harmful or destructive files), threatening, abusive, tortious, defamatory, invasive of another’s privacy, a violation of another’s intellectual property or other proprietary rights, or otherwise objectionable or inappropriate and (ii) conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of Optimum.

Modifications to the Site and Service

Optimum does not provide you with the equipment to use the Site. You are responsible for all fees charged by third parties to access and use the Site (e.g., charges by ISPs or mobile carriers).

Optimum reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Site, the Apps, or Service without notice. Optimum will not be liable to you or to any third party for any modification, suspension, or discontinuance of any part of the Site or Service.

Support

Unless otherwise agreed by Optimum in writing, Optimum is not obligated to provide any support for any part of the Site or Apps.

Support for the Service is determined by the subscription plan you elected in the MSLA.  Support requests are accepted only from customers with an active service subscription under a Master Service & License Agreement. Optimum will make a reasonable business effort to initially respond to support requests within the response time defined for each level of service.  For more information on support for the Service, please visit our website at http://optimumenergyco.com.

Notice

Except as set forth herein, all notices to a party shall be in writing and shall be made either via e-mail or conventional mail. Optimum may broadcast notices or messages through the Site to inform you of changes to these Terms, the Site, the Apps, the Service, or other matters of importance. Such broadcasts shall constitute notice to you.

Disclaimers

Optimum is not responsible or liable in any manner for any third party content or products or services offered through, linked to or posted on the Site.

The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Optimum assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of the Site or the Service. Under no circumstances will Optimum be responsible for any loss or damage, including any loss or damage resulting from anyone’s use of the Site, the Apps, or the Service, any third party content or sites linked to or posted on or through the Site, or any interactions between users of the Site or the Service, whether online or offline.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  • The Site and Content are provided “AS IS,” with no warranties whatsoever. Except as specifically stated herein, Optimum disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose.  We will strive to provide our Service in a professional and workmanlike manner.
  • Optimum makes no warranty or representation regarding (i) any Content, Data, third party content, product or service offered or sold through by any user or third party, (ii) the results that may be obtained from the use of the Site, (iii) the currency, accuracy, quality, content, completeness, legality, operability, availability or reliability of any information or products obtained through the Site, or (iv) the deletion, failure to store, mis-delivery, or untimely delivery of any information, products or material. Optimum does not represent or warrant that the Site will meet any of your requirements or that it will be uninterrupted, timely, secure or error free.
  • Use of the Site is at your sole risk. You will be solely responsible for any damage that results from your use of the Site.

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL OPTIMUM BE LIABLE TO YOU ON ACCOUNT OF (i) ANY DATA, (ii) YOUR USE OR MISUSE OF OR RELIANCE ON THE SITE, APPS, OR SERVICE, OR (iii) YOUR INABILITY TO USE THE SITE, APPS, OR SERVICE, OR THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SITE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, AND THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA ARISING FROM ANY CLAIM RELATING TO THE SITE, APPS OR SERVICE, THESE TERMS OR THE SUBJECT MATTER HEREOF, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF OPTIMUM OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT SHALL THE LIABILITY OF OPTIMUM OR ITS OFFICERS, DIRECTORS, AND EMPLOYEES EXCEED $10. SUCH LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so some of the above limitations may not apply to you.

Miscellaneous

Feedback. If you provide feedback to Optimum regarding any aspect of the Site, Apps, or Service (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Optimum to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Optimum a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.

Links. Our Site may contain hyperlinks to websites owned and/or controlled by other parties. Access to any other website is at your own risk. Optimum has not reviewed all of these third party sites and does not control and is not responsible for the accuracy or reliability of any information accessible from these websites.

Waiver and Severability of Terms. The failure of Optimum to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Optimum. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.

Choice of Law and Forum. These Terms shall be governed by and construed in accordance with the laws of the State of Washington, excluding its conflict of law provisions. You and Optimum agree to submit to the exclusive jurisdiction of the state and federal courts of King County, Washington.

Forward-Looking StatementsThe information on this Site contains forward-looking statements about our business and prospects, such as statements concerning our ability to market, commercialize, and achieve market acceptance for our energy optimization solutions. Such statements are based on management’s current expectations and are subject to a number of risks, factors and uncertainties that may cause actual results, events and performance to differ materially from those referred to in the forward-looking statements. Consequently, no forward-looking statement can be guaranteed, and actual results may vary materially.

Entire Agreement. These Terms are the entire agreement between you and Optimum regarding your use of the Site.  These Terms and your Master Service & License Agreement together are the entire agreement between you and Optimum regarding your use of the Service.  Unless different terms were provided, these Terms are the entire agreement between you and Optimum regarding your use of the Apps.

Contacting Optimum. If you have any questions or concerns about these Terms, the Site, any App, or the Service, please send a thorough description by email to info@optimumenergyco.com.