Zen Ecosystems Terms of Service

Zen Ecosystems Terms of Service

These Zen Ecosystems Terms of Service (the “Terms”) set forth the terms and conditions that govern the products and services provided by the entity specified in the written order form that accompanies these terms (“Company”) that is accepted by the customer identified in such order form (“Customer”) and under each written order form that is mutually executed between Company and the Customer that incorporates these Terms by reference (“Order”).  By electronically or manually signing an Order, Company and Customer signify their agreement to all terms and conditions contained or referenced in each Order and these Terms (collectively, the “Agreement”).  Company and Customer shall each be referred to as a “Party” and together, the “Parties”.

Company reserves the right to revise any portion of these Terms in its sole discretion at any time by updating this posting, provided that Company shall provide Customer prior written notice of such change via email or service notice within the Zen HQ Service (defined below).  If Customer disagrees with any changes to these Terms, Customer’s sole remedy is to terminate the applicable Order(s) (defined below) as provided in these Terms. Customer’s continued use of the Zen HQ Service or other services provided by Company under an Order after a change has been posted constitutes Company’s acceptance of the change thereafter.

  1.          COMPANY’S OBLIGATIONS

1.1.          Obligations of Company.  As further provided in each Order and these Terms, Company shall:  (a) host and provide Customer with access to Company’s proprietary hosted application service known as Zen HQ (“Zen HQ Service”) during the subscription period set forth in the Order (“Subscription Period”) for Customer’s commercial locations (each a “Customer Location”); (b) provide to Customer any equipment purchased from Company that is manufactured by Company, including without limitation any Zen Thermostat (collectively, the “Zen Equipment”); (c) provide to Customer any equipment purchased from Company that is manufactured by a third party, including without limitation any power boards, timers, relays, modems, hubs, and sensors (the “Third-Party Equipment”, and, together with the Zen Equipment, the “Equipment”); (d) provide to Customer technical support as set out in the Order for the Zen HQ Service, Zen Equipment and Third-Party Equipment during the Subscription Period; and (e) provide to Customer any installation, training and/or consulting services described in the Order (“Professional Services”).

1.2.          Zen HQ Service Accounts.  Company will establish in the Zen HQ Service an initial administrative account for an Authorized User (defined below).  Customer will then have the ability to setup and determine usage privileges for additional accounts for its Authorized Users and invite Authorized Users to access and use such accounts.  Customer shall, and shall cause all Authorized Users to, keep all account information confidential and not to share it with any third party.  Customer is fully responsible for all activities that occur under all Authorized User accounts, including any acts or omissions of Authorized Users that result in a breach of the Agreement.  Company will have no responsibility for any failure of the Zen HQ Service caused by any acts or omissions of Authorized Users or to the extent such failure is due to the operating environment or devices utilized by Authorized Users to access the Zen HQ Service.  Authorized Users will also be individually subject any general terms of service that Company posts in the Zen HQ Service.  “Authorized User” means the employees of Customer or its subcontractors, and the tenants of Customer at a Location, that have been assigned a unique username-password combination to access and use the self-service portal for Customer’s account on the Zen HQ Service.

1.3.          Zen HQ Service Availability and Support.  Company will use commercially reasonable efforts to keep the Zen HQ Service operational on a continuous basis during the term of this Agreement, exclusive of downtime necessary for scheduled and emergency maintenance.  Company shall provide support to Customer as set out in Order during the hours of 9 a.m. to 8 p.m. Eastern Time, Monday through Friday (excluding United States national holidays), for all technical support issues relating to the Zen HQ Service.  At Company’s sole discretion, so long as Customer’s account is current, Company shall make available to Customer, when generally available and at no additional charge, updates, revisions, corrections, modifications, improvements, bug fixes, patches, maintenance releases, versions, and enhancements that Company makes to the Zen HQ Service during the Subscription Period (“Updates”).  For the avoidance of doubt, Company reserves the right to offer certain enhancements and optional services for the Zen HQ Service (“Optional Services”) for an additional charge, in Company’s sole discretion.

1.4.          Equipment.  Risk of loss or damage to Equipment will pass to Customer upon, as applicable, Company’s delivery to the shipper of the Equipment or personal delivery directly to Customer by Company or its subcontractor.  Any delivery date specified by Company is approximate only.  Company shall not be liable for any loss or expense, whether arising in tort or contract, incurred by Customer if the delivery does not meet any specified approximate delivery date.  Company shall not be responsible for any failure of the Zen HQ Service resulting from the failure of any Third-Party Equipment, Customer Equipment or operating environment, wi-fi or wired network or Internet service at the Customer Location.  The Zen Devices and Zen Mobile App End User License Agreement and Limited Warranty, set forth at http://zenecosystems.com/eula-limited-warranty/ (“Devices and App EULA”) shall additionally govern Customer’s use of, and warranty for, certain Zen Equipment and Zen HQ Services and is incorporated herein by reference.

1.5.          Professional Services.  Company shall provide the Professional Services in accordance with the requirements of the Order, provided that any schedule or milestones in any Order for providing the Professional Services are estimates only.  If Customer requests additional services outside the scope of the Professional Services stated in the Order, or if Company is required to correct issues resulting from any failure Customer to provide clear and complete information to Company, the Parties will mutually agree upon the scope and terms of such additional services in a revised Order.  Company may provide Professional Services through a subcontractor; provided, however, that Company will be responsible for any breach of this Agreement caused by any such subcontractor.  If the Professional Services specified in an Order include installation services, Company or its subcontractor shall:  (i) install, activate and test the Zen HQ Service and Equipment in each Customer Location within a mutually agreeable timeframe; (ii) install the Equipment in a manner that does not materially damage the Customer Location, or pose any material danger to workers or employees at the Customer Location; (iii) avoid any activities that would cause excessive noise or any other objectionable conditions within the Customer Location or in the surrounding neighborhood; and (iv) comply with all reasonable security and safety policies of Customer with respect to the Customer Location.  For the avoidance of doubt, Company shall not be liable for Customer on-site configurations or Equipment that was not communicated to Company prior to installation and results in additional installation or travel charges. Customer shall not use any third-party subcontractor to provide installation services in connection with the Equipment unless the Order (or an amendment thereto) permits such installation method and Company has first trained such subcontractor.  In such event, Company will have no responsibility or liability relating to any such installation services.

  1.          CUSTOMER’S OBLIGATIONS

2.1.          Initial Obligations.  Promptly following the order date set forth in the applicable Order (“Order Date”), Customer shall at its sole cost and expense:  (a) use commercially reasonable efforts to make available to Company all data, Customer Locations, on-site configurations, documentation or other information and resources reasonably requested by Company to enable Company to perform the Professional Services and implement the Zen HQ Service; (b) provide to Company responsible Customer employee contact information for each Customer Location; (c) provide a functioning wi-fi or wired network with Internet access at each Customer Location and provide any assistance necessary to allow the Zen HQ Service to connect to, register or access the Equipment through such network; (d) if applicable, provide to Company the utility, electrical energy provider, utility account number, twelve months electricity billing history, and such other information as would be required to properly qualify and commission such Customer’s Customer Location(s); and (e) if applicable, conduct and disclose to Company a preliminary equipment survey/site assessment of the Customer Location(s) using a person having knowledge of the HVAC and/or electrical systems of the Customer Location(s).

2.2.          Third-Party Incentives.  If applicable, Customer shall promptly execute all administration, monitoring, engineering reporting and follow-up activities with Customer’s electricity utility in order to attempt to secure installation/demand response incentive payments on behalf of Customer.  Customer acknowledges that the installation and demand response incentives are subject terms and conditions of Customer’s utility, to which Customer must agree to participate.  Incentives may also be offered in conjunction with a third party, which may have its own sets of terms and conditions to which Customer must agree to participate.  Customer acknowledges that Company is not a party to such terms and conditions and has no control over them.  Any potential savings or benefits from participation in incentive programs that are described in any Order (or proposal to which an Order is attached) are estimates only, and Company makes no guarantee or covenant with respect to the amount of any such savings or benefits that Customer will achieve, if any.

2.3.          Ongoing Obligations.  At all times during the Term, Customer shall:  (a) provide access to each Customer Location for Company and its subcontractors (including under emergency conditions) for the purposes of performing support and maintenance services, and any such access shall be provided within 7 days of Company’s request in each case; (b) ensure a safe working environment at any Customer Location at which Company is performing Professional Services, and immediately notify Company of any safety or health incidents that occur in the course of such performance; (c) maintain applicable HVAC systems and wi-fi or wired networks in good working order; (d) not damage, disconnect, modify, adjust, tamper with, or otherwise interfere with the proper operation of the Zen HQ Service or Equipment at each Customer Location; (e) ensure that Customer’s employees, customers, and subcontractors do not damage, disconnect, modify, adjust, tamper with, or otherwise interfere with the proper operation of the Zen HQ Service or Equipment at each Customer Location; (f) promptly notify Company of any damage to or interference with the Zen HQ Service or Equipment that could reasonably be expected to adversely affect the Zen HQ Service or Equipment at each Customer Location; and (g) promptly notify Company of planned or actual changes which would affect, have affected or which might reasonably be expected to affect operation of the Zen HQ Service or Equipment, which may include changes or downtime of wi-fi or wired equipment or networks at a Customer Location, Internet service downtime, changes to Customer Location operating hours, changes to Customer Location occupancy patterns that may affect electricity demand and consumption and changes to configuration of HVAC equipment and the addition of any on-site generation or energy storage equipment.  Customer will be free to add, remove or change its wi-fi or wired network equipment or internet service provider, heating, cooling and/or other equipment at any time; however any costs associated with re-installing, repairing and reconfiguring the Zen HQ Service or Equipment due to or related to such changes will be charged to Customer at Company’s standard hourly rate.  Customer shall further ensure that any information, data or technology that the Customer provides or uses in connection with the Zen HQ Service or Equipment will not:  (i) violate or infringe on the proprietary rights, including any Intellectual Property Rights (defined below), of any person; or (ii) contain any harmful components or malicious code, including viruses, trap doors, hidden sequences, hot keys or time bombs.

  1.        LICENSES AND PROPRIETARY RIGHTS

3.1.          Licenses to Zen HQ Service, Documentation and Aggregate Data.  Subject to the terms and conditions of the Agreement, Company hereby grants to Customer a non-exclusive, non-transferable (except as expressly permitted under the Agreement), non-sublicensable (except as expressly provided below), revocable license, during the applicable Subscription Period, to:  (a) access and use the Zen HQ Service for Customer’s internal business use, solely with the Equipment, at the Customer Location(s); and (b) internally use, internally reproduce, and internally distribute any user documentation for the Zen HQ Service (“Documentation”) and aggregate, statistical and operational information or analyses relating to Customer’s use of the Zen HQ Service (“Aggregate Data”) that Company provides or makes available.  If Customer fails to pay applicable subscription fees, the foregoing license and rights may be suspended or revoked by Company upon written notice to Customer.  Customer may allow Authorized Users to exercise the foregoing rights, provided that:  (i) any Authorized Users who are subcontractors shall only access and use the Zen HQ Service in the course of performing services for Customer; and (ii) Customer shall be responsible for any breach of the Agreement caused by any Authorized User.

3.2.          Restrictions.  Customer will not attempt to interfere with or disrupt the Zen HQ Service or Equipment.  Except as expressly authorized under the Agreement, Customer shall not:  (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Zen HQ Service or any technology of Company or third parties relating to or embedded in the Equipment, including without limitation any firmware (the “Equipment Technology”); (b) copy, modify, transfer or distribute any portion of the Zen HQ Service or the Equipment Technology; (c) rent, lease, or provide access to the Zen HQ Service or the Equipment Technology on a service bureau basis; or (d) copy, transmit, or distribute any portion of the content on the Zen HQ Service (excluding Customer Information (defined below)).  Customer will use the Zen HQ Service and Equipment solely for authorized and legal purposes and will not use the Zen HQ Service or Equipment knowingly to violate any applicable laws or regulations.  Customer shall use the Zen HQ Service solely in connection with the Equipment.

3.3.          License to Customer Information.  Subject to the terms and conditions of the Agreement, Customer hereby grants Company a royalty-free, non-transferable, non-sublicensable, non-exclusive license, during the Subscription Period, to use the Customer Information to provide the Zen HQ Service and Professional Services hereunder.  “Customer Information” means any information:  (a) about Customer that it provides to Company for the purpose receiving the Zen HQ Service or purchasing the Equipment under the Agreement; or (b) specific to Customer’s business that is generated by the Zen HQ Service (excluding Aggregate Data).

3.4.          Ownership of Company Property.  As between Customer and Company, except for the limited license granted herein, all right, title, and interest in and to any Company Property (defined below), including without limitation any Intellectual Property Rights therein, are and will remain the exclusive property of Company.  Except for the limited license granted herein, Company reserves all rights in and to all Company Property, and nothing contained in the Agreement shall be construed as conveying any right or license in such Company Property, by implication, estoppel, or otherwise.  As the owner of Aggregate Data, Company will have the right, without limitation, to use Aggregate Data for internal research and product development purposes, and to disclose Aggregate Data for the purposes of marketing and communications with the public; provided, however, that:  (a) all Aggregate Data will be in an aggregated format that will not be identifiable to Customer or Authorized Users; and (b) Customer will have the right to opt out of disclosure of Aggregate Data to third-parties by providing written notice to Company.  “Company Property” means:  (i) the Zen HQ Service (including any information or data stored, generated or accessible through the Zen HQ Service, excluding any Customer Information); (ii) all Equipment Technology relating to Zen Equipment; (iii) all Aggregate Data; (iv) any Confidential Information (defined below) of Company; (v) any other technology, goods and services of Company; and (vi) any and all look and feel, improvements, Updates, Optional Services, modifications, translations, copies, compilations, and derivative works related to any of the foregoing.  “Intellectual Property Rights” means patent rights (including patent applications and invention disclosures), design rights, copyrights, rights in database, moral rights, trademarks, service marks, trade secrets, know-how, rights in or relating to confidential information and any other intellectual property right (whether registered or unregistered) recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded including all rights of reversion and rights to any applications and pending registrations and the right to sue for and recover damages for past infringements.

3.5.          Ownership of Equipment and Customer Information.  As between Customer and Company, Customer will own all Equipment purchased hereunder (subject to Company’s and third parties’ ownership of any Equipment Technology therein).  Title to all Equipment (other than ownership of any Equipment Technology) will pass to Customer upon Company’s receipt of the full purchase price of such Equipment, including any interest payable for overdue amounts hereunder.  If Customer fails to make any payment for the Equipment when due, and the Equipment has already been delivered:  (a) Company may use all legal means to recover such Equipment at Customer’s expense; and (b) Company will have the right to block Customer’s use of the Zen HQ Service in connection with such Equipment.  In addition, as between Customer and Company, except for the license granted herein, all right, title, and interest in and to any Customer Information, including without limitation any Intellectual Property Rights therein, are and will remain the exclusive property of Customer.  Except for the license granted herein, Customer reserves all rights in and to all Customer Information, and nothing contained in the Agreement shall be construed as conveying any right or license in such Customer Information, by implication, estoppel, or otherwise.

3.6.          Infringement Notification and Remedies.  Customer shall promptly give notice to Company of any allegation, claim or challenge of which Customer becomes aware that its use of the Zen HQ Service or Equipment violates or infringes on the intellectual property rights of a third party.  If the Zen HQ Service or Zen Equipment or portion thereof is, in Company’s opinion, likely to be or becomes the subject of a claim of infringement, Company shall, at its sole option and expense:  (a) procure for Customer the right to continue using the Zen HQ Service or Zen Equipment; (b) modify the Zen HQ Service or Zen Equipment to become non-infringing; (c) provide a substitute of substantially equivalent functionality; or (d) terminate the Agreement upon written notice to Customer and provide a refund for infringing equipment.  CUSTOMER AGREES, AS A MATERIAL TERM OF THE AGREEMENT, THAT CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY ANY PORTION OF THE ZEN HQ SERVICE OR ZEN EQUIPMENT SHALL BE AS PROVIDED IN THIS SECTION AND THAT COMPANY SHALL HAVE NO INFRINGEMENT LIABILITY TO CUSTOMER EXCEPT AS PROVIDED IN THIS SECTION.  COMPANY SHALL HAVE NO LIABILITY OR OBLIGATION TO CUSTOMER WHATSOEVER WITH RESPECT TO ANY INFRINGEMENT OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS CAUSED BY ANY CUSTOMER OR THIRD-PARTY EQUIPMENT.

  1.        PRICING AND PAYMENT OBLIGATIONS

4.1.          Zen HQ Service Subscription Fee.  Customer shall pay Company the fee for subscribing to the Zen HQ Service, including any fees for optional services, as specified in an Order.   Except as otherwise mutually agreed by the parties in a written amendment to the applicable Order, Company shall not modify such fees during the Initial Subscription Period (defined below); provided, however, that Company will have the right to modify such fees from time to time in its sole discretion, to be effective at the start of the next applicable Renewal Subscription Period, by providing Customer with a written (email acceptable) notice of such modification at least sixty (60) days prior to the beginning of such Renewal Subscription Period, which will be governed by the modified pricing set forth therein.

4.2.          Equipment Purchases; Shipping and Insurance; Restocking.  Customer shall purchase any Equipment listed in an Order at the prices set forth therein.  Customer shall also pay for any shipping charges and restocking fees for purchased Equipment (including any shipping insurance) as set forth in the Order.  The Order shall clearly itemize the costs of Equipment, shipping and insurance, and restocking fees.

4.3.          Professional Services Fees.  Customer shall pay Company any fees for Professional Services set forth in an Order; provided that, in the event that Customer directly hires an HVAC contractor to install Equipment as provided in Section 1.5 and the Order, Customer will be responsible for paying such HVAC contractor directly.   For the avoidance of doubt, such fees are an estimate that is contingent on the accuracy of the site assessment information for each Customer Location that Customer has provided to Company for the purpose of determining enablement costs.  In the event that Company’s installers arrive at a Customer Location and determine that Customer has provided incomplete or inaccurate information (e.g., different and/or additional Customer equipment is at the Customer Location), Customer will also pay the incremental cost of any equipment required or any significant additional effort, including additional transportation charges, required for installation and activation, and the Parties will amend the applicable Order to address such additional work if requested by Company; provided, however, that Company, in its sole discretion, will provide any corrections of minor problems at no additional charge. If Customer experiences any problem with the Zen HQ Service that requires Company to provide on-site support at a Customer Location, and if Company in its sole discretion determines that the problem was caused by any improper installation or use of, or damage to, the Equipment by Customer or its subcontractors, then Company will have the right to charge Customer at Company’s standard rates for the cost of traveling to the Customer Location and repairing such problem.  Company will have the right to invoice or charge Customer for the fees described in this Section without first obtaining a purchase order or other pre-authorization from Customer. The Parties will amend the applicable Order to address such additional work if requested by Company.

4.4.          Payment.  Company shall invoice Customer for subscription fees, Equipment purchases and Professional Services fees as provided in the applicable Order.  Customer shall pay such fees and charges in the manner and upon any additional terms set forth in the Order.  Company may elect not to extend credit to Customer in its sole discretion.  Except as otherwise provided in the Order or in Section 10, all amounts billed to Customer shall be expressed in, and Customer shall make all payments in, United States dollars.  Customer shall pay all amounts due without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).  Company may, at its option, apply money received from the Customer against any money then due to Customer.  Company and Customer shall use good faith efforts to resolve any disputed invoiced amounts or charges.  For the avoidance of doubt, Customer’s payment obligations under the Agreement shall not be contingent on, or subject to, any savings on energy costs that Customer realizes from the use of the Zen HQ Service, including without limitation receipt of payments relating to any utility incentives (demand response programs, or other energy efficiency based programs).  No failure to receive to receive payments from, or to qualify for participation in, any utility incentive program will affect the validity or enforceability of this Agreement, including Customer’s obligation to pay in full all amounts billed hereunder.

4.5.          Taxes.  Customer shall bear all local, state and federal sales, use, gross receipts, excise, import or export, value added or similar taxes, duties, fees, assessments or levies (“Taxes”), if any, legally imposed in connection with any amounts paid to Company under any Order; provided, however, that Customer shall not be responsible for franchise taxes applicable to Company or taxes on Company’s net income, profits, business assets, or ad valorem personal property.

4.6.          Remedies for Non-Payment.  In addition to any other remedies available to Company, including any remedies set forth in the applicable Order, in the event that Customer fails to pay any invoiced amounts when due:  (a) Company will have the right to immediately suspend or block Customer’s access to the Zen HQ Service until full payment of such amounts is received; (b) Customer shall pay a late charge equal to the lesser of 1% per month (pro-rated if necessary) or the maximum amount permitted under applicable law, on any past due balance, and such charge shall accrue beginning on the day after such amount is due; and (c) except as otherwise prohibited under applicable law, Company will have the right to enter any Customer Location to remove and repossess and Equipment for which payment (including any applicable late charges) has not been received when due.

  1.        TERM AND TERMINATION

5.1.          Term; Subscription Period.  Unless earlier terminated as provided herein or in an Order, these Terms shall continue in full force and effect during any Subscription Period in which Company is providing the Zen HQ Service and/or Professional Services to Customer under any Order (“Term”).  The initial Subscription Period is the period commencing on the actual Start Date and ending on the actual End Date under the applicable Order (“Initial Subscription Period”).  Each Order sets forth an Estimated Start Date and Estimated End Date.  The actual Start Date and End Date will be determined under each Order based on the actual date on which Company or Customer completes installation of Zen Thermostat(s) at the first Customer Location, and Company shall confirm such date in writing (email sufficient) to Customer.  In the event that Customer is responsible for installation at the first Customer Location, Customer shall not unreasonably delay such installation, and Company will have the right to determine the actual Start Date in its discretion if Customer does not promptly complete such installation.  For any installations at Customer Locations occurring after the actual Start Date, the term of the subscription to the Zen HQ Service for such Customer Locations will end on the End Date.  Following the Initial Subscription Period, unless otherwise specified in the Order, the subscription(s) to the Zen HQ Service will automatically renew for successive one (1) year renewal subscription periods (each, a “Renewal Subscription Period” and, together with the Initial Subscription Period, the “Subscription Period”), unless either Customer or Company gives notice of non-renewal in writing at least sixty (60) days prior to the expiration of the Initial Subscription Period or applicable Renewal Subscription Period, as the case may be.  For clarity, either Customer or Company may elect to renew all of the Customer Locations or just some of the Customer Locations, as provided in this paragraph, and non-renewal of a Customer Location or Customer Locations will not affect the renewal of other Customer Locations.

5.2.          Termination for Breach.  Either Party may immediately terminate the Agreement by written notice to the other Party if the other Party commits a material breach of the Agreement and such breach remains uncured for thirty (30) days following written notice of breach by the terminating Party; provided, however, that Company may immediately terminate the Agreement without refund, upon written notice to Customer, in the event that:  (a) Customer breaches Section 3.2; or (b) Customer fails to pay any amount owed under an Order within ten (10) days after the due date when due.

5.3.          Effect of Expiration or Termination; Survival.  Upon the expiration or termination of the Agreement for any reason:  (a) Customer will cease using features of the Zen HQ Service as determined by Company; (b) all licenses granted hereunder will immediately terminate; (c) within thirty (30) days after the date of expiration or termination, each Party will either return to the other Party or destroy all copies of the Confidential Information of the other Party, and will, upon request, deliver to the other Party a certificate signed by an officer or duly authorized representative certifying that it has complied with the foregoing requirement; (d) Customer shall, within thirty (30) days of expiration or termination, pay to Company all outstanding accrued and payable amounts owed by Customer to Company under the Agreement, and Customer shall immediately be liable for such amount as debt owed; and (e) Sections  3.2, 3.4, 3.5, 3.6, 4.5, 4.6, 5.3, 6, 7.4, 8, 9 and 10 shall survive.  Neither Party will be liable for exercising any termination right in accordance with the Agreement.  Except as expressly provided, expiration or termination of the Agreement shall not release either Party from any liability or obligation that had already accrued as of the effective date of expiration or termination, and the expiration or termination shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages, injunctive relief, or otherwise, which a Party may have hereunder at law, in equity or otherwise or which may arise out of or in connection with such termination.

  1.        CONFIDENTIALITY, DATA SECURITY, AND PRIVACY

6.1.          Confidentiality.  “Confidential Information” means all technical, business, financial and other information of Party that derives economic value, actual or potential, from not being generally known to others, including, without limitation, any technical or non-technical data, designs, methods, techniques, drawings, processes, products, inventions, improvements, methods or plans of operation, research and development, business plans and financial information of such Party.  The Confidential Information of Company shall include, without limitation, the Zen HQ Service (except any Customer Information therein and those portions of thereof that are made publicly available by Company), the Equipment Technology and the Aggregate Data.  The Confidential Information of Customer shall include, without limitation, all Customer Information.  Each Party (“Receiving Party”) may be granted access to Confidential Information of the other Party (“Disclosing Party”) during the Term.  The Receiving Party shall:  (a) strictly preserve and protect the confidentiality of the Disclosing Party’s Confidential Information and not disclose such Confidential Information to any third party other than the Receiving Party’s employees, subcontractors and agents who have a need to receive such Confidential Information and who are subject to nondisclosure obligations at least as protective as those set forth herein; and (b) refrain from using the Confidential Information of the Disclosing Party except as contemplated in the Agreement.  In no event, will the Receiving Party use less care to prevent unauthorized disclosure or use of the Confidential Information of the Disclosing Party than the Receiving Party uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care.  Notwithstanding the foregoing, the Receiving Party shall have no obligation with respect to information that the Receiving Party can demonstrate:  (i) is or becomes publicly available through no act or omission of the Receiving Party; (ii) is lawfully obtained from a third party without restrictions on disclosure; (iii) is independently developed by the Receiving Party without access to such information; or (iv) was rightfully in possession of, or known to, the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party.  Furthermore, the Receiving Party may disclose the Confidential Information of the Disclosing Party if the Receiving Party becomes legally compelled to disclose such Confidential Information (whether by judicial or administrative order or applicable law, rule or regulation), provided that the Receiving Party so compelled shall use commercially reasonable efforts to avoid such disclosure and to provide the Disclosing Party with prompt notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy to prevent such disclosure.  If such protective order or other remedy is not obtained prior to the time such disclosure is required, the Receiving Party will only disclose that portion of such Confidential Information of the Disclosing Party the Receiving Party is advised by counsel it is legally required to disclose.  Each Party acknowledges that the unauthorized disclosure or use of the Confidential Information of the other Party may cause irreparable harm to the other Party, which harm cannot be compensated by damages alone.  Therefore, in addition to all other rights and remedies at law and in equity, a Party may seek an injunction to prevent a violation of the obligations of confidentiality.

6.2.          Data Security; Privacy.  Company will have the right to suspend Customer’s access to the Zen HQ Service on an emergency basis:  (a) in the event that Company detects any actual or apparent theft, unauthorized access or use of the Zen HQ Service, or other malicious activity by Customer or any third party; and/or (b) to maintain data integrity within the Zen HQ Service; and/or as otherwise required by law.  Customer shall use commercially reasonable efforts to protect the security of the wi-fi or wired network (as applicable) at each Customer Location, including providing physical security, industry standard encryption and firewall technology, and up-to-date antivirus software for computers and other devices connected to the network.  Customer shall comply with any commercially reasonable network requirements of Company.  The parties shall each comply with all applicable privacy laws and regulations relating to the protection of personal or personally identifiable information of all third parties.  Customer hereby consents to Company’s use of Customer Information and Customer’s personally identifiable information: (i) for the purpose of providing the Zen HQ Service and Professional Services to Customer; and (ii) in any additional manner described in the Company privacy policy governing the Zen HQ Service.

6.3 Publicity. Zen shall have the right to make public reference to Company as a customer of Zen and include Customer’s name and logo on marketing materials and customer lists. Zen shall have a right to issue a press release stating that Customer is a customer of Zen, subject to Customer’s reasonable prior approval of the content of such release.

  1.      REPRESENTATIONS AND WARRANTIES; DISCLAIMER

7.1.          Customer Representations and Warranties.  Customer represents and warrants during the Term that:  (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder, and the individual executing the Order is duly authorized to bind the Customer to the Agreement; (b) the execution of this Agreement by Customer and performance of its obligations hereunder comply with all applicable laws, rules and regulations; (c) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation of Customer, enforceable against it in accordance with its terms; and (d) neither the execution nor performance of this Agreement by Customer will violate any agreement to which it is a party or by which it is otherwise bound.

7.2.          Services Representations and Warranties.  Company represents and warrants during the Term that: (a) the Zen HQ Service will not contain any viruses, Trojans, spyware, adware, or other malicious code; and (b) any Professional Services will be performed in a competent and workmanlike manner in accordance with generally accepted industry standards.

7.3.          Warranties for Equipment.

(a)           Zen Equipment.  All warranties applicable to Zen Equipment are set forth in the Devices and App EULA.

(b)           Third-Party Equipment.  For any Third-Party Equipment that Company resells to Customer under any Order, Company will pass to Customer all related third-party manufacturer warranties, and Customer will have the right to obtain any remedies under such warranties directly from the third-party manufacturer.  Purchased third-party replacement and spare parts shall be governed related third-party manufacturer warranties.  COMPANY SHALL HAVE NO OBLIGATION WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY EQUIPMENT THAT CUSTOMER PURCHASES DIRECTLY FROM A THIRD-PARTY DISTRIBUTOR OR MANUFACTURER, AND CUSTOMER SHALL LOOK DIRECTLY AND SOLELY TO SUCH THIRD-PARTY DISTRIBUTOR OR MANUFACTURER FOR ANY WARRANTY SERVICE OR OTHER WARRANTY REMEDIES.

7.4.          Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEMS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND EACH PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, HEREBY DISCLAIMS THE SAME.  COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT:  (A) THE ZEN HQ SERVICE WILL BE FREE OF ERRORS, DEFECTS OR INACCURACIES, OR THAT IT WILL BE ACCESSIBLE WITHOUT INTERRUPTION; (B) ANY TECHNICAL ASSISTANCE WILL RESULT IN A RESOLUTION OF THE ISSUES FOR WHICH THE ASSISTANCE WAS PROVIDED; (C) THE ZEN HQ SERVICE WILL FUNCTION ON ALL COMPUTERS; OR (D) ANY WEB FORM PROVIDED AS PART OF THE ZEN HQ SERVICE WILL FUNCTION ON ALL BROWSERS OR OPERATING SYSTEMS.

CUSTOMER HEREBY ACKNOWLEDGES THAT:  (I) ENERGY SAVINGS PROVIDED BY THE ZEN HQ SERVICE AND EQUIPMENT ARE DEPENDENT ON A WIDE VARIETY OF FACTORS, INCLUDING WEATHER, LEVELS OF CUSTOMER LOCATION OCCUPANCY, THE SPECIFICATION, FUNCTIONALITY, STATE OF REPAIR AND EFFICIENCY OF CUSTOMER’S HVAC EQUIPMENT, THIRD PARTY COMMUNICATIONS, AND CUSTOMER’S (AND, IF APPLICABLE, CUSTOMER’S TENANTS’) OWN PARTICIPATION IN AND COMPLIANCE WITH THE TERMS OF THE UTILITY INCENTIVE PROGRAMS; AND (II) COMPANY DOES NOT GUARANTEE THE LEVEL OF ENERGY SAVINGS THAT MAY BE ACHIEVED, AND CUSTOMER’S SOLE REMEDY FOR ANY FAILURE TO ACHIEVE ANY ESTIMATED ENERGY SAVINGS WILL BE TO TERMINATE THE ORDER EFFECTIVE AT THE END OF THE INITIAL SUBSCRIPTION PERIOD OR THEN-CURRENT RENEWAL SUBSCRIPTION PERIOD, AS APPLICABLE.

  1.     LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW:  (A) COMPANY, ITS AFFILIATES AND LICENSORS SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR DATA OR BUSINESS INTERRUPTION; AND (B) IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY, ITS AFFILIATES AND ITS LICENSORS UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.  COMPANY SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND, WHETHER DIRECT OR INDIRECT:  (I) RESULTING FROM ANY LOSS OR CORRUPTION OF DATA ON THE ZEN HQ SERVICE APPLICABLE TO CUSTOMER; (II) FOR ANY FAILURE OR SECURITY BREACH OF THE ZEN HQ SERVICE CAUSED BY FAILURE OF ANY WI-FI OR WIRED NETWORK EQUIPMENT, NETWORKS, OR INTERNET CONNECTION PROVIDED BY CUSTOMER OR ANY THIRD PARTY; (III) FOR ANY DAMAGE TO ANY EQUIPMENT OR ANY OTHER PROPERTY AT A CUSTOMER LOCATION CAUSED BY CUSTOMER, ITS SUBCONTRACTOR, OR CUSTOMER’S EQUIPMENT; OR (IV) FOR ANY FAILURE OF THE ZEN HQ SERVICE OR EQUIPMENT RESULTING FROM ANY BREACH OF CUSTOMER’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS BY CUSTOMER, AUTHORIZED USERS OR CUSTOMER’S SUBCONTRACTORS.

COMPANY WILL HAVE NO RESPONSIBILITY FOR THE MAINTENANCE, REPAIR OR OTHER SERVICING OF ANY HVAC EQUIPMENT OF CUSTOMER.  CUSTOMER UNDERSTANDS THAT FAILURE TO MAINTAIN HVAC EQUIPMENT IN PROPER WORKING ORDER, INCLUDING REGULAR SERVICE, WILL DECREASE OR ELIMINATE BENEFITS ASSOCIATED WITH THE ZEN HQ SERVICE, AND MAY PREVENT COMPANY FROM DELIVERING THE ZEN HQ SERVICE OR PROFESSIONAL SERVICES.  CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING IF INSTALLATION OF ANY EQUIPMENT OR USE OF THE ZEN HQ SERVICE WILL VOID ANY WARRANTY FOR ANY OF CUSTOMER’S HVAC EQUIPMENT, AND COMPANY SHALL HAVE NO LIABILITY IN THE EVENT ANY SUCH WARRANTY IS VOIDED.

  1.      INDEMNIFICATION

Customer agrees to indemnify, defend, and hold harmless Company, its affiliated companies, and its respective officers, directors, employees, subcontractors and agents (“Indemnitees“) from and against any claims, suits, investigations and actions, including any associated loss (including reasonable costs and expenses), damage, cost, expense or other liability, brought by any third party against any Indemnitee to the extent based on or arising from:  (a) any failure by Customer to comply with this Agreement; or (b) any allegation that use of the Zen HQ Service or any Equipment at a Customer Location resulted in personal injury or damage to property.  Customer shall not settle any such claim without Company’s consent unless such settlement forever and completely releases Company from all liability with respect to such claim.

  1.      MISCELLANEOUS

Customer shall not assign this Agreement without the prior written consent of Company.  Any attempt by Customer to assign other than in accordance with this provision shall be null and void. The Agreement shall be binding on, and shall inure to the benefit of, the authorized successors and assigns of the Parties.  Any notice required or permitted to be given by Company under this Agreement shall be in writing and shall be delivered to the email address Customer provided in the applicable Order, by means of a service notice to Customer within the Zen HQ Service, or via registered mail return receipt requested or an internationally recognized overnight courier addressed to the address Company provided in the applicable Order.  Any notice required or permitted to be given by Customer under the Agreement shall be in writing and shall be delivered via registered mail return receipt requested or an internationally recognized overnight courier.  Notices shall be considered to have been given one (1) business day after deposit with an overnight courier or five (5) business days after deposit in the mail.  Notices to Company shall be sent to Zen Ecosystems, 2901 West Coast Highway, Newport Beach, CA 92663.  The Parties acknowledge that the relationship of the Parties is that of independent contractors and that nothing contained in this Agreement shall be construed to place the Parties in the relationship of principal and agent, master and servant, partners or joint venturers.  Company will have the right to modify these Terms as provided at the beginning of these Terms.  Except as provided in the preceding sentence, no amendment of any provision of the Agreement shall be effective unless set forth in a writing signed by a representative of Company and Customer, and then only to the extent specifically set forth therein.  No course of dealing on the part of either Party, nor any failure or delay by either Party with respect to exercising any of its rights, powers or privileges under the Agreement or law shall operate as a waiver thereof.  No waiver by either Party of any condition or the breach of any provision of this Agreement in any one or more instances shall be deemed a further or continuing waiver of the same or any other condition or provision.  If any dispute arises under the Agreement, each Party shall submit the dispute for resolution by a level of employee or officer with decision-making authority.  If the dispute cannot be resolved in thirty (30) days, any Party may pursue all available remedies at law or in equity.  This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law rules.  Any claims or litigation arising under this Agreement will be brought by the Parties solely in state and federal courts located in Orange County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or litigation, except that Company may seek injunctive relief in any court having jurisdiction to protect its Intellectual Property Rights or Confidential Information.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  If any action at law or in equity is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reimbursement from the other Party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing Party may be entitled.  These Terms, together with each Order Form and the Devices and App EULA, embody the entire agreement between the Parties with respect to the subject matter hereof and thereof, and supersedes all prior negotiations, discussions, agreements and understandings between the Parties relating to the subject matter hereof and thereof.  In the event of any conflict between these Terms and the terms and conditions of the Devices and App EULA, these Terms shall control.  Any terms and conditions of Customer set forth in, or incorporated by reference into, any purchase order or other document supplied by Customer shall be of no force or effect and are hereby rejected.  If any term of this Agreement or part hereof not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable, it is the intention of the Parties that the remaining terms hereof or part hereof shall constitute their agreement with respect to the subject matter hereof and thereof and all such remaining terms, or parts thereof, shall remain in full force and effect.  Each Party hereto has had an opportunity to review and negotiate this Agreement with the assistance of counsel, and no provision of this Agreement be construed to the disadvantage of a Party because that party was responsible for drafting that provision.  Company will have the right to list the name and logo of Customer and each Customer Location owned by Customer in a list of Company customers on the Company website and in marketing materials.  In addition, Customer will use commercially reasonable efforts to obtain the right for Company also to list the name and logo of each Customer Location not owned by Customer in such customer list.  Company will cease using the name and logo of Customer and/or any Customer Location upon written request from Customer.  Except as otherwise provided in the prior sentence, neither Party shall use or refer to the name of the other Party or any trademark or service mark of the other Party in any marketing, advertising, press release, or other public announcement without the prior written consent of the other Party.   Neither Party shall be liable to the other for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by any cause beyond such Party’s reasonable control.  This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.  A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature.

  1.    TERMS APPLICABLE TO AUSTRALIAN CUSTOMERS

If the Customer purchases or uses the Equipment or subscribes to or uses the Zen HQ Service in Australia, the following terms and conditions shall supersede any conflicting terms and conditions set forth elsewhere in this Agreement:

(a)           Payments.  If the Customer completes the form provided by Company whereby Customer authorizes Company to direct debit fees payable under an Order from time to time (“Direct Debit Request”), Customer consents to Company charging any amounts owing under an Order in accordance with the Direct Debit Request. A reference to money or payment means money or payment in Australian Dollars. Any late payment of Customer attracts interest.  Interest will be calculated at four percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time.  That interest will accrue and be recoverable from day to day.

(b)           GST.  Unless otherwise stated, all fees quoted by Company are exclusive of GST and Customer is responsible for payment of any GST liability in respect of the purchase of the Equipment and payment for Professional Services and subscription to the Zen HQ Service, which amount will be payable to Company at the same time as the GST exclusive consideration subject to the provision by Company of a GST invoice to Customer.

(c)            Copyright Restrictions.  Any restrictions set forth in these Terms with respect to decompilation, reverse engineering, modification or creation of derivative works of the Company Property shall only apply to the extent such restrictions are not prohibited by law, and subject to any rights under the Copyright Act 1968 (Cth) that cannot be excluded by agreement.

(d)           Privacy.  To the extent that Company has obligations under the Privacy Act 1989 (Cth) (‘Privacy Act’), it remains fully responsible for those obligations and ensuring that the Equipment, Zen HQ Service and Professional Services comply with those obligations.  Customer permits Company to provide Customer’s Personal Information (as defined in the Privacy Act) to third parties in order to supply the Equipment and Professional Services and to facilitate access to the Zen HQ Service.

(e)           Governing Law; Jurisdiction.  The Agreement will be governed by the law of Victoria, and the parties submit to the non-exclusive jurisdiction of the Victorian courts.

(f)             Disclaimers of Warranties; Limitations of Liability; Implied Terms.  No disclaimer of warranty, limitation of liability or other provision set forth in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. Subject to the preceding sentence, none of the guarantees, conditions, warranties or other terms implied by Commonwealth of Australia, State or Territory laws (if the Zen HQ Service or Equipment are purchased or used in Australia) (‘Implied Terms’) apply to the Agreement except to the extent that the Implied Terms cannot be lawfully excluded.  Company’s liability for breach of any provision of the Agreement or for breach of any Implied Terms is limited at the option of Company to re-supplying the Zen HQ Service and Equipment, or paying the cost of re-supplying the Zen HQ Service and Equipment.  In no circumstance whatsoever will Company be liable to Customer or to any third party for any damages of any nature arising out of the late supply of the Zen HQ Service or Equipment.

(g)           Trustees.  If Customer is a trustee of a trust, it is bound to this Agreement both personally and in its capacity as trustee for each trust for which it acts as trustee.

Last Updated July 23, 2019.