Terms of Service

Effective January 1, 2023. These terms may be updated from time to time, so please check back periodically.

Vigilent Corporation and its affiliates (“Vigilent” or “we”) provides valuable information and an online community interested in energy management (the “Services”) through our website, accessible at www.vigilent.com (the “Site”). Please read carefully the following terms and conditions (“Terms of Service”) and our Privacy Policy. These Terms of Service govern your access to and use of the Site and the Services and, except as otherwise provided in these Terms of Service, all text, graphics, images, music, software, audio, video, information or other materials available through the Site and Services (“Content”), and constitute a binding legal agreement between us.

Certain areas of the Site (and your access to or use of certain Services or Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms of Service and terms and conditions posted for a specific area of the Site, Services or Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site, Services or Content.

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR THE SERVICES OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR CONTENT. If you accept or agree to these Terms of Service on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

Modification

Vigilent reserves the right, at its complete discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Service, at any time and without prior notice. If we modify these Terms of Service, we will post the modification on the Site. We will also update the “Effective” date at the top of the home page of the Site. By continuing to access or use the Site or the Services after we have posted a modification on the Site, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your only recourse is to cease using the Site and the Services.

Eligibility

The Site and Services are intended solely for persons who are 18 or older. Any access to or use of the Site or Services by anyone under 18 is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are 18 or older.

Account Registration

In order to access certain features of the Site and Services and to post any Content on the Site or through the Services, you may need to register to create an account (“Account”) and/or become a “Member.” There is no charge to become a Member. During the registration process, you will be required to provide certain information and you will establish a user name and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Vigilent reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current, incomplete or distasteful, or for any other reason whatsoever, at our discretion. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will promptly notify Vigilent of any unauthorized use of your Account.

Payment Terms

You agree to pay the applicable charges and any taxes and other fees that may accrue in relation to your use of the Site and Services, if any. All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. All fees and applicable taxes, if any, are payable in United States dollars.

Privacy

See the Vigilent Privacy Policy for information and notices concerning Vigilent collection and use of your personal information.

Ownership

The Site, Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Service, Vigilent and its licensors exclusively own all right, title and interest in and to the Site, Services and Content, including User Content, and including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Content.

Content License

Subject to your compliance with the terms and conditions of these Terms of Service, Vigilent grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Content, except as expressly permitted in these Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Vigilent or its licensors, except for the licenses and rights expressly granted in these Terms of Service.

User Content

Members may post, upload, publish, submit or transmit text, graphics, images, music, software, audio, video, information or other materials to be made available through the Site and Services (“User Content”). By making available any User Content through the Site and Services, you hereby grant to Vigilent a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content through whatever means Vigilent chooses. Vigilent does not claim any ownership rights in any such User Content and nothing in these Terms of Service will be deemed to restrict any rights that you may have to use and exploit any such User Content that you have created.

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to Vigilent the rights in such User Content, as contemplated under these Terms of Service; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Vigilent use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

The User Content will not contain any “back door,” “trap door,” “time bomb,” “Trojan Horse,” “worm,” “drop dead device,” “Easter Eggs,” “cancelbots” or other computer programming routines or viruses that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit access to or use of the Site and Services or other software or hardware by unauthorized parties, or disable, damage or erase any portion of the Site or Services.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at [email protected] or through the “Help” section of the Site. You acknowledge and agree that all Feedback will be the sole and exclusive property of Vigilent and you hereby irrevocably assign to Vigilent and agree to irrevocably assign to Vigilent all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Vigilent request and expense, you will execute documents and take such further acts as Vigilent may reasonably request to assist Vigilent to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

General Prohibitions

You agree not to do any of the following while using the Site, Services or Content:

  • Post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
  • Use, display, mirror or frame the Site, or any individual element within the Site, Vigilent name, any Vigilent trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without express written consent from Vigilent;
  • Access, tamper with, or use non-public areas of the Site, Vigilent computer systems, or the technical delivery systems of a Vigilent provider;
  • Attempt to probe, scan, or test the vulnerability of any Vigilent system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Vigilent or any Vigilent providers or any other third party (including another user) to protect the Site, Services or Content;
  • Attempt to access or search the Site, Services or Content or download Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Vigilent or other generally available third party web browsers;
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Vigilent trademark, logo URL or product name without express written consent from Vigilent;
  • Use the Site, Services or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms of Service;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Content to send altered, deceptive or false source-identifying information;
  • Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Content;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
  • Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual to do any of the foregoing.

Vigilent will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Vigilent may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Vigilent has no obligation to monitor your access to or use of the Site, Services or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Vigilent reserves the right, at any time and without prior notice, to remove or disable access to any Content, including, any User Content, that Vigilent, at its sole discretion, considers to be in violation of these Terms of Service or otherwise harmful to the Site or Services.

Copyright and IP Policy

Vigilent respects copyright law and expects its users to do the same. Vigilent has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. It is our policy to respond to any notices of alleged copyright infringement. To file a notice of infringement with us, you must provide a written communication, by fax or regular mail, not only by email, that sets forth the items specified below. Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing your copyrights. Please consult an attorney prior to sending a notification.

  • The name, address, and electronic signature of the copyright owner or a person authorized to act on behalf of the copyright owner.
  • Identification in sufficient detail of the copyrighted material you believe has been infringed. For example, “The copyrighted work at issue is ‘My Poem,’ by John Doe, Published by Doe Publishing, ISBN #0123456789101”.
  • Identification of the material that you claim is infringing the copyrighted work listed in Item #2 above and information reasonably sufficient to permit us to locate the material, for example, the URL of the infringing material.
  • Your contact information, including your name, address, telephone number, and email address.
  • Include the following statements: “I have a good faith belief that use of the copyrighted material described in this notice is not authorized by the copyright owner, its agent, or the law.” And “I swear, under penalty of perjury, that the information contained in this notice is accurate and that I am the copyright owner or I am authorized to act on behalf of the copyright owner to enforce the copyrights that are allegedly infringed.”
  • Sign the notice and send the notice to our designated agent to receive written notification of alleged copyright infringement at the following address: Vigilent Corporation, 2001 Broadway, Oakland, CA 94612.

Failure to include all of the above information may result in a delay of the processing of your complaint.

Links

The Site may contain links to third-party websites or resources. You acknowledge and agree that Vigilent is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Vigilent of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Termination and Account Cancellation

If you breach any of these Terms of Service, Vigilent will have the right to suspend or disable your Account or terminate these Terms of Service, at its sole discretion and without prior notice to you. Vigilent reserves the right to revoke your access to and use of the Site, Services and Content at any time, with or without cause. In the event Vigilent terminates these Terms of Service for your breach, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to [email protected].

Disclaimers

THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, VIGILENT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. VIGILENT MAKES NO WARRANTY THAT THE SITE, SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. VIGILENT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VIGILENT OR THROUGH THE SITE, SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES. YOU UNDERSTAND THAT VIGILENT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR SERVICES, NOR DOES VIGILENT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR SERVICES. VIGILENT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

Indemnity

You agree to defend, indemnify, and hold Vigilent, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services or Content, or your violation of these Terms of Service.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT REMAINS WITH YOU. NEITHER VIGILENT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIGILENT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL VIGILENT CORPORATION’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO VIGILENT FOR USE OF THE SITE, SERVICES OR CONTENT, IF YOU ARE REGISTERED FOR PAID ACCOUNT, OR ONE HUNDRED DOLLARS ($100), IF YOU ARE REGISTERED FOR A FREE ACCOUNT, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VIGILENT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Vigilent used herein are trademarks or registered trademarks of Vigilent. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Controlling Law and Jurisdiction

These Terms of Service and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Vigilent reserves the right to require that any such action be resolved by binding arbitration before an impartial arbiter with venue and process of its reasonable choice.

Entire Agreement

These Terms of Service constitute the entire and exclusive understanding and agreement between Vigilent and you regarding the Site, Services and Content, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Vigilent and you regarding the Site, Services and Content.

Assignment

You may not assign or transfer these Terms of Service, by operation of law or otherwise, without prior written consent from Vigilent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. Vigilent may assign or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted to required hereunder, including those regarding modifications to these Terms of Service, will be given by posting to the Site.

General

The failure of Vigilent to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Vigilent. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.

Contacting Vigilent

If you have any questions about these Terms of Service, please contact Vigilent at [email protected].

Rev. 20100515