This Agreement (the “Agreement”) describes your rights and responsibilities when using our Website, Portal and Services. Please read it carefully. This Agreement is a legal agreement between you and En-Powered Inc. (“EnPowered”) which governs your access to and use of our Website, Portal and Services as described herein and on EnPowered’s Website. This Agreement may be updated by EnPowered from time to time, and it is your responsibility to ensure your use of the Website, Portal and Services is in compliance with the current version of this Agreement.
BY USING THE WEBSITE, PORTAL OR SERVICES AND/OR BY CLICKING ON THE “I ACCEPT” OR SIMILAR AGREEMENT BUTTON, YOU ARE CONSENTING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, YOU ARE NOT PERMITTED TO USE THE WEBSITE, PORTAL OR SERVICES.
EnPowered provides users with certain services, as more fully described on the Website, including without limitation the peak prediction service, where users are provided with predictions of times when electricity consumption is at a high level and therefore more expensive, and the demand response service, where users register to be “on call” to reduce electricity consumption during or approaching Suppliers’ peak consumption periods and receive credits or compensation for such reduction from Suppliers (the “Services”). The Services are provided subject to this Agreement.
In order to use the Services, you must:
(a) provide up-to-date, complete and accurate contact information as requested by EnPowered, such as your first and last name, your phone number, and your valid email address;
(b) provide up-to-date, complete and accurate utility account and/or payment information as required by EnPowered;
(c) provide up-to-date, complete and accurate payment information to permit EnPowered to bill you for the Services; and
(d) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that EnPowered may rely on the accuracy of the information provided by you to EnPowered, and that EnPowered will have no liability whatsoever, whether to you or to any third-party, for any claims or damages resulting from inaccurate information provided to EnPowered.
EnPowered will provide you with certain information to allow you to access and use the Services through the Portal, such as one or more user IDs and passwords and/or the ability to create user IDs and/or passwords (the “Access Information”). EnPowered will store the Access Information in encrypted form. The Access Information is provided on the understanding that it is personal to you; you must not permit anyone other than you or your authorized representatives to obtain access to the Services using the Access Information. EnPowered is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
You are solely responsible for complying with Suppliers’ terms and conditions respecting their provision of energy services to you, and acknowledge that such Suppliers may change their terms and conditions from time to time, which may affect the Services. Nothing in this Agreement shall imply that EnPowered and such Suppliers are employees or agents of each other. EnPowered expressly disclaims any representation that it has any supervision, control, or direction over Suppliers, or that it can guarantee anything on behalf of such Suppliers. EnPowered’s sole responsibility under this Agreement is to use commercially reasonable efforts to deliver the Services to you, based on information obtained from you and the Suppliers, and your compliance with the applicable conditions related to the Services.
EnPowered will provide the Services in accordance with its policies and conditions described on its Website, which may change from time to time. It is your responsibility to ensure that the Services are appropriate for your needs; EnPowered will not be liable for any inability to supply the Services in a timely manner or at all, arising from incorrect information provided by you or any other cause beyond EnPowered’s reasonable control (which includes the acts or omissions of you or Suppliers). EnPowered is not responsible for, and does not warrant, the suitability, appropriateness, or any other aspect of the Services for your needs, and you agree to accept the Services on an “AS-IS” basis. Under no circumstance will EnPowered be liable for any loss or damage caused by your reliance on information obtained through the Services. Without limiting the foregoing, EnPowered does not assess Supplier data for quality or otherwise; metrics, analyses and reports generated through the Services are based solely on algorithms that are designed to detect whether certain patterns are present within the data, not as the result of any specific examination of the data by EnPowered or its employees, or any judgment exercised by EnPowered or its employees respecting such specific data. It is your responsibility to evaluate the accuracy, completeness or usefulness of any content and data available through the Services, including metrics and analytic results.
EnPowered reserves the right to change, suspend or discontinue the Services at any time, or any promotion offered by EnPowered. EnPowered may also impose limits on the Services and/or terminate or restrict your access to parts or all of the Services without notice or liability.
Use of the Services may contain references to third-parties, links to third-party websites and/or may incorporate information obtained from third-parties (including from Suppliers and other users). All such references, links and information are provided “AS IS”. Third-party websites, documents, information, reviews, opinions, advice, or statements (including those made by Suppliers and other users of the Services) are not under the control of EnPowered, and EnPowered is not responsible or in any way liable for their contents, including without limitation their accuracy, reliability, copyright compliance, legality, decency, or any other aspect of their content.
EnPowered grants you a limited license to visit, browse, access and use the Website, Portal and Services in accordance with this Agreement. You agree that:
(a) You are only eligible to use the Website, Portal and Services if you are capable of forming a legally binding contract under applicable law. If you are not legally qualified to use the Website, Portal and Services, you must immediately cease all use of the Website, Portal and Services.
(b) You will not permit anyone other than an authorized representative of your organization to obtain access to the Services through your EnPowered account or otherwise using your Access Information, and will only use the Services in accordance with this Agreement and applicable law;
(c) You will ensure that any information that is provided to EnPowered pursuant to this Agreement is true, accurate, current and complete, and represent and warrant that you have the right and the authority to post or upload any content to the Portal or otherwise provide such content and data to EnPowered (including, as applicable, obtaining all necessary consents and authorizations from third parties for the use of such third party data in the Services, and providing EnPowered with proof of such consent and authorization);
(d) You will be solely responsible for all activities with respect to the Services undertaken by you;
(e) Unless such use is expressly permitted in the description of the Services or is otherwise expressly agreed upon between you and EnPowered in writing, you are specifically prohibited from: (1) any resale or commercial use by you of the Website, the Services and/or any data that you derive from the Services; (2) any derivative use of the Portal, Website or its contents; (3) any use of data mining, robots, or similar data gathering and extraction tools; (4) any reproduction, duplication, copying, selling, reselling, re-posting or any exploitation of the Website and its contents or the Services and data derived from the Services for any public or commercial purpose; and (5) mirroring of any material contained on the Website on any other server.
(f) Unless otherwise specified, the content provided in the Website and through the Portal is for your personal and internal use. You may not download (other than page caching), modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information obtained from the Website or Portal.
(g) You may not attempt to gain unauthorized access to the Website, Portal and/or any EnPowered computer systems or networks connected to such sites, through hacking, password mining, or any other means.
(h) You may not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through this Website or the Portal.
(i) You will ensure that your use, or the use of any third party through you, of this Website and the Services does not interfere with, degrade, or adversely affect any EnPowered software, system, network or data or that of any other users of this Website, including taking any action that imposes an unreasonable or disproportionately large load on the Website or Portal, or otherwise interferes with its proper functioning. You and anyone obtaining access to this Website, Portal or the Services through you will not post or transmit any harassing, abusive, libellous, illegal, deceptive or otherwise offensive messages or information whatsoever.
(j) You will not use the Website, the Portal, or any contents thereof, or the Services, to commit or attempt to commit a crime or to facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent activities, any deceptive impersonation, or any activities that violate any third party’s privacy or other rights.
(k) You acknowledge that EnPowered makes no representation that materials on this site, including the Services, are appropriate or available for use in any particular location, and accessing them from territories where their contents are illegal is prohibited.
(l) You shall not use, nor permit others to use, this Website, the Portal or the Services in a manner or for a purpose contrary to this Agreement.
(m) You will at all times during your use of these Services and your transactions and interactions with EnPowered’s personnel and Suppliers (as applicable), act in a civil, courteous and respectful manner, and will not take any action that could reasonably endanger or damage the health, well-being or property of EnPowered, its personnel, Suppliers, other users of the Services, or any third-party with whom you may have contact in connection with the Services.
(n) You will not interfere with or in any manner compromise any of EnPowered's security measures;
(o) You will cooperate with EnPowered and provide information requested by EnPowered to assist EnPowered and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law; and
(p) You will comply with the terms and conditions of any applicable Supplier policies relating to the Plans (including return policies).
Specific Services will be subject to the policies and conditions applicable to such Services as provided to you by EnPowered from time to time, including in electronic form by posting on the Website, and such terms are incorporated herein by this reference. Such policies may include limitations based on Supplier, location or equipment, and obligations on your part that are conditions for you to obtain the Services. You are solely responsible for compliance with such policies and conditions. For example, for the demand response service, you have an obligation to reduce your consumption of energy upon request by the Supplier or EnPowered.
You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all equipment, software and services used in conjunction with using the Services (except for EnPowered’s computer systems and networks), including without limitation your ISP and internal network infrastructure. You acknowledge and agree that EnPowered does not guarantee data availability at any particular time, and that it is solely your responsibility to take steps to download or otherwise preserve any data that you wish to retain from the Services.
You acknowledge and agree that EnPowered will exercise no control over your use of the Services, and that you are solely responsible for complying with the provisions of this Agreement and all applicable laws respecting your use of the Services, including, without limitation, all laws applicable to the safety of your operations. Notwithstanding anything to the contrary herein, EnPowered reserves the right to take any steps reasonably necessary to verify your compliance with this Agreement, and reserves the right to revoke any or all Services in the event of any abusive conduct or fraudulent use of the Services and/or to cease the Services, temporarily or permanently, in the event that your use of the Services or the provision of the Services constitutes, in EnPowered’s reasonable judgment, a threat to EnPowered’s or any third party’s computer systems, networks, files, materials or other data.
You specifically acknowledge that the Services are not developed, or licensed for use in any inherently dangerous, time-sensitive or mission critical function. You agree that EnPowered shall not be liable for any claims or damages arising from such use if you use the Services for such purposes, and agree to hold EnPowered harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Services for such purposes.
If you have an issue with the provision of energy pursuant to any plans offered by a Supplier, or any other energy or related services provided by a Supplier, it is your responsibility to deal directly with the applicable Supplier. If you change plans with your Supplier, or any other change occurs that may affect the provision of the Services to you, you agree to notify EnPowered immediately.
You agree to pay all applicable fees and taxes in connection with the Services, as set forth in EnPowered’s pricing model for such Services set forth on the Website (if any), or as otherwise agreed upon between you and EnPowered in writing. Such pricing model may be either a percentage of your savings, a commission on amounts to be paid to you by a Supplier, or a specific fee, and unless otherwise specified in the applicable pricing model, is payable on a monthly basis per account.
For any Services in which EnPowered acts as an intermediary between you and the Supplier in any program where you may receive credits or compensation based on your energy usage, such as the demand response service, EnPowered shall be responsible for collection of any such credits or compensation, and shall, on a quarterly basis, remit such credits or compensation to you, less a commission fee or percentage that will be retained by EnPowered. Such commission fee or percentage is as set forth in EnPowered’s pricing model for such Services set forth on the Website in the policies and conditions relating to such specific services, or as otherwise agreed upon between you and EnPowered in writing. EnPowered shall not be responsible for paying, nor have any liability to pay, you in any instance where the Supplier does not pay EnPowered, or where you have become ineligible under the terms relating to such Services, whether EnPowered’s terms or those of the Supplier.
At EnPowered’s options, payments may be made by cheque or processed by a third-party payment processor. Where payments are made through a third-party payment processor, EnPowered will not obtain any of your payment information, except to the extent that you specifically and intentionally disclose such information directly to EnPowered. Provision of the Services to you is subject to payment in full, whether by cheque or through the third-party payment processor.
You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of EnPowered. Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Services, the execution of this Agreement or otherwise. If you are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to EnPowered shall equal the amount invoiced or otherwise due.
You agree to promptly and accurately report to EnPowered any actual or apparent errors, problems, nonconformities or other difficulties in Services, along with any other information reasonably requested by EnPowered to aid in resolving such errors, problems, nonconformities or other difficulties, and hereby consents to the collection, processing, transmission and disclosure of such information by EnPowered for the purposes of EnPowered’ internal use to improve the Services or other EnPowered products or services.
Additionally, by submitting personal information to EnPowered pursuant to this Agreement, including without limitation your name, address, e-mail address and telephone number, you consent to the collection, processing, transmission and disclosure of such information by EnPowered for the purposes of EnPowered’s provision of the Services and EnPowered’s internal use, and specifically the purposes for which such information has been requested, such as billing requirements. You specifically agree that EnPowered may disclose your name, address, e-mail address and/or other pertinent information to Suppliers to the limited extent necessary to provide you with the Services. Additionally, by agreeing to this Agreement, you are also providing your express consent to communications by EnPowered (including e-mail communications, both marketing and informational) respecting the products and services of EnPowered.
To the extent that you provide any third party personal information to EnPowered for any reason, including to refer such third parties as potential customers of EnPowered, you represent and warrant that you: (a) have obtained all relevant and informed consents respecting the disclosure to EnPowered of any such personal information, from the owner of such information, such consents to be in relation to the purpose for which such information is to be used, and (b) has the full right to provide EnPowered with such personal information for the purposes for which such information will be used, as agreed upon between you and EnPowered. You hereby agree to defend, indemnify and hold EnPowered harmless from and against any claims relating to such provision and inclusion of personal information in the Services. Without prejudice to the foregoing, EnPowered reserves the right to delete any data containing such personal information where the owner of such information, or the individual to whom such information pertains, requests such deletion.
You acknowledge that, due to the nature of the Services, information or data uploaded to the Services may be hosted on servers residing in jurisdictions other than Canada, over which EnPowered has no direct control. By using the Services, you acknowledge that your information and data may become, during the period that they are hosted on such servers, subject to the laws of the jurisdiction in which those servers reside and/or to the terms of agreements respecting the hosting of data on such servers. Although EnPowered has made reasonable efforts to verify that its agreements with such server providers are reasonably protective of your data, you acknowledge that EnPowered has no liability for any acts or omissions of third parties in relation to such servers and the data stored on them. You therefore hereby release EnPowered from all liability for any governmental or third party action taken in such jurisdictions with respect to such data (including your information, data, and any results, such as metrics and analytic reports, based on such data) and/or the servers on which such data resides, and you acknowledge that you retain sole responsibility to back up and retain copies of such information, data and reports.
You acknowledge that the Website, Portal and Services, including all back-end software and algorithms relating thereto and any derivatives therefrom, are owned by EnPowered, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. You do not acquire any intellectual property or other proprietary rights under this Agreement relating to the Website, the Portal, the Services, or any part thereof, including data derived from the Services. Your only rights to the Website, the Portal, the Services and any part thereof, including the data derived from the Services, shall be those rights expressly licensed or granted to you under this Agreement. Nothing herein grants you any right to use any of EnPowered’s trade names, trade marks, service marks, logos, domain names, and/or other distinctive brand features. Any rights not expressly granted under this Agreement are reserved.
For greater certainty, all intellectual property rights in third-party content accessible through the Website, including, without limitation, any Supplier content, or other material attributed to third parties, are the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. Each such third-party expressly reserves all rights into such content. You understand that you are not granted any commercial, sale, resale, reproduction, distribution, or promotional use rights for or to any such third-party content. Additionally, the unauthorized reproduction or distribution of such third-party content is prohibited by applicable law.
The only type of damages that can be recovered against EnPowered arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, to the extent arising from the gross negligence or wilful misconduct of EnPowered. In no event shall the aggregate liability of EnPowered exceed the amount paid by you for the portion of the Services that gave rise to the claim. EnPowered shall have no liability whatsoever to you or any party claiming by or through you for the accuracy, timeliness or continued availability of the Website, Portal or Services. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Services, Portal or Website is to cease use of the Services, Portal and Website.
Except for the limited direct damages specified above, to the maximum extent permitted by law, in no event shall EnPowered be liable for any damages whatsoever (including, without limitation, indirect, special, incidental, exemplary or consequential or punitive damages, or other pecuniary loss arising out of or related to this Agreement) whether or not such damages were foreseen or unforeseen including without limitation the use of or inability to use the Website, Portal or Services, even if EnPowered has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages; in such jurisdictions, the above limitations or exclusions shall apply to you to the maximum extent permissible by such jurisdictions.
Either party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other party. Additionally, EnPowered may terminate this Agreement and/or immediately cease to provide the Services without any liability whatsoever if EnPowered is prevented from providing any portion or all of any Services due to the acts or omissions of you or any third party, or by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require EnPowered to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. Upon any termination of this Agreement for any reason (whether by you or by EnPowered), you must cease all use of the Portal and Services, and destroy or permanently delete any information or data derived from the Services.
Without limiting other remedies, EnPowered may limit your activity, warn Suppliers and other affected third-parties of your actions, issue a warning, and/or refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) EnPowered is unable to verify or authenticate any information you provide; or (c) EnPowered believes that your actions may cause financial loss or legal liability for you, Suppliers, other third-parties or EnPowered.
EnPowered reserves the right to investigate suspected violations of this Agreement. You hereby authorize EnPowered to cooperate with: (a) law enforcement authorities in the investigation of suspected criminal violations and (b) authorized persons carrying out civil legal processes in order to enforce the terms and conditions of this Agreement.
The above-described actions are not EnPowered’s exclusive remedies and EnPowered may take any other legal, equitable or technical action it deems appropriate in the circumstances. EnPowered will not be liable for any damage caused by the termination of this Agreement.
Termination of this Agreement for any reason shall not affect your payment obligation for any fees accruing hereunder or payments owing prior to the date of termination. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
Each party shall perform its obligations hereunder as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the parties. Except as expressly authorized by EnPowered in writing, you shall neither act nor purport to be acting as the legal agent of EnPowered, nor enter into any agreement on behalf of EnPowered or otherwise bind or purport to bind EnPowered in any manner whatsoever.
Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, courier or facsimile addressed to you or EnPowered at their respective addresses as advised in writing.
No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
This Agreement constitutes the entire agreement between you and EnPowered with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out in this Agreement.
This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. In construing, interpreting and enforcing this Agreement, choice of law principles shall not apply. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
You hereby agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies, and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
Neither party may assign this Agreement by operation of law or otherwise without the prior written consent of the other party, except in connection with a merger, acquisition, or sale of all or substantially all of the assigning party’s assets. Any attempted assignment in violation of the preceding sentence will be void.
You acknowledge and agree that the Services and Website have been developed at significant cost and has significant commercial value to EnPowered, and that inappropriate use of the Services or Website could cause EnPowered irreparable harm. You therefore agree that EnPowered will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of this Agreement without posting bond or by posting bond at the lowest amount required by law.