General Terms and Conditions of use of Energybox Inc. , USA , Energybox Ltd. Hong Hong and Energybox GmbH , Germany ( collectively “ EB” ) Services and Products
These Terms and Conditions apply to and form an integral part of all quotations and offers made by EB , all acceptances, acknowledgements and confirmations by EB related to software as a service subscription agreements (“SAAS Agreement(s)”) for the providence of services and use of products delivered by EB , unless and to the extent EB and Customer have signed separate agreement(s) with different terms and conditions which expressly control.
Any terms and conditions set forth on any document or documents issued by Customer either before or after issuance of any document by EB setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by EB, and any such terms shall be wholly inapplicable to any sale , lease, service or license made or provided by EB and shall not be binding in any way on EB.
1.1 Subject to execution of an SAAS Agreement and its terms and conditions as stated therein Customer can use for the duration and purpose of the SAAS Agreement products delivered by EB ( “ Products “ ) at certain sites as defined in the SAAS Agreement ( the “ Connected Site(s) “ ) . Title to Products shall remain with EB at all times and Customer shall not remove products from the agreed Connected Site(s).
All shipments will be made by EB to the agreed Connected Site(s)
2.1 Installation / Connection
Unless otherwise agreed Customer will be responsible to ensure proper installation of the Products at the Connected Site(s) and its connection to EB system. EB will not be responsible for installation or connection nor will it bear any installation costs. EB will provide an installation manual including steps for connection to EB system in English language, mounting screws and strips. Customer is responsible to ensure that it will follow the instructions of the installation and connection manual as provided by EB. For safety reasons Customer shall ensure that the installation is carried out by a qualified installer who has the necessary licenses and permits as required in the country of installation. EB offers remote technical support via its Customer hotline to assist with the installation and connection process.
EB shall provide for the Connected Site(s ) for the duration of the individually agreed SAAS Agreement the services as described therein.( “ Services “ )
3.2 Service Fee
As consideration for the agreed Services and for the use of products provided by EB , Customer shall pay to EB for the duration of the SAAS Agreement for the Connected Site(s) a service fees as agreed between EB and Customer ( the “ Service Fee “ )
4.1 The Services to be provided by EB by any SAAS Agreement for any Connected Site are subject to following conditions :
( i ) Customer’s payment of the agreed upfront payment and of the Service Fee.
( ii ) Customer’s registration at EB’s cloud platform ;
(iii) acceptance of
4.2 Customer’s responsibility :
5.1 Customer Data
Customer retains all title and interest in and to data collected through the Products installed at Customer`s Connected Site ( the “ Customer Data “ ). Customer grants to EB a worldwide royalty-free , sublicensable license to (i) use , modify, reproduce, publicly display , publicly perform and distribute the Customer Data as reasonably required to provide the Services and (ii) use the Customer Data without reference to the identity of Customer for demonstration and benchmarking purposes and any other purpose to expand and improve EB`s services. EB is free to use and incorporate any feedback Customer provides regarding the Services without payment of any fees.
5.2 EB Materials
EB or its licensors retain their ownership in all intellectual property rights to the Services and its underlying technology , the software and related documentation (the “Materials”). This ownership extends to all copies and portions of the Materials, and all improvements, enhancements, modifications, and derivative works. Customer may use the Materials solely as part of the Services for its internal business operations subject to the terms of this Agreement. Customer agrees that this limited right is not a transfer of ownership of or title to the Materials. Customer`s rights to use the Materials are limited to those rights expressly granted by this Agreement.
5.3 EB Products
Title and ownership of Products delivered by EB pursuant to §1 shall remain with EB and Customer shall have no rights title and interests therein. The Products are and shall at all times be and remain personal property and shall not become a fixture or realty.
6.1 Liens and Charges
Customer shall ensure that the Products shall at all times be kept free from any lien, charge or encumbrance of any kind, except those created by or through EB.
6.2 Inspection and Marking
Customer shall permit EB , upon prior notice , to inspect at any Connected Site any Product during Customer`s normal business hours and if Customer is not the owner of the location where the Products installed , then Customer will immediately affix identifying labels, plates or tags identifying EB as the owner.
6.3 Maintenance and Use
Customer shall not remove any Product fro the Connected Site where it was delivered by EB and Customer keep each Product in good condition and working order , ordinary wear and tear excepted and shall operate it in accordance with EB`s operation manuals.
Customer shall be responsible for loss or damage to the Products and to carry primary property damage insurance covering the Products.
6.5 Return of Products
Upon expiration , termination or cancellation of the SAAS Agreement (i) the Products shall be returned to EB at Customer`s expense to a location designated by EB or (ii) upon request of EB Customer shall permit EC access to to the Connected Site and enable EB to deinstall the Products at its own cost. The Products to be returned shall be shall be in good condition and working order ( ordinary wear and tear excepted ).
EB warrants that, as per each Connected Site for the duration of the SAAS Agreement Service the Services and the Products will function in accordance with EB’s accompanying documentation in all material respects. Customer’s sole and exclusive remedy for EB’s breach of warranty is (at EB’s option) to repair or replace the the Products and / or the Services or refund to the the respective Connected Site that paid EB the fees for the period in which the Services did not materially comply. In order to receive either of these remedies, Customer must promptly notify EB of such breach and provide sufficient information specifying the material con- conformance . Deinstallation and installation of replacement Products shall be carried out by Customer at its own cost.
Unavailability or limitation of EB’s Services due to server shut downs of EB’s cloud platform and of servers of EB´s business partners for the purpose of maintenance and upgrades shall be excluded from any warranty claims. To the extent possible EB will inform two weeks ahead of any intended maintenance and upgrade work.
The Service warranty does not apply to any unavailability, suspension or termination of , or any other EB performance issues:
(i) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of EB;
(ii) that result from any voluntary actions or inactions from Customer or any third party (e.g., rebooting a database instance, scaling compute capacity, not scaling storage when the storage is full, misconfiguring security groups, VPC configurations or credential settings, disabling encryption keys or making the encryption keys inaccessible, etc.);
(iii) that result from any voluntary actions or inactions from Customer or any third party (e.g., rebooting a database instance, scaling compute capacity, not scaling storage when the storage is full, misconfiguring security groups, VPC configurations or credential settings, disabling encryption keys or making the encryption keys inaccessible, etc.);
(iv) that result from Customer not following the basic operational guidelines described by EB
(vi) that result from Customer equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within EB direct control);
(v) that result from Products subjected to abuse, misuse or damages.
Except as expressly stated in this §7, to the extent allowed by applicable law, EB:
(a) expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement; and (b) makes no warranty or representation that: (i) the Services will be uninterrupted, completely secure, error-free, or free of viruses; or (ii) the Services will meet Customer’s business requirements or operate with its existing systems.
8.1 EB’s Indemnification Obligation
EB will defend Customer against third party claims brought against Customer to the extent arising solely from an allegation that Customer’s use of the Services directly infringes a third party patent or copyright. EB will indemnify Customer against damages (specifically excluding any increased or enhanced damages resulting from Customers willful infringement) finally awarded against Customer by a court of competent jurisdiction or a settlement amount approved by EB. EB’s obligations under this §8 will not apply if the claim results from :
(i) Customer’s breach of this Agreement,
(ii) modification to the Services or use of the Services outside the scope of the applicable SAAS Agreement ,
(iii) combination, operation, or use of the Services with products, software, services or business processes not provided by EB,
iv) EB’s compliance with any designs, specifications, requirements or instructions provided by Customer or a third party on Customer’s behalf,
(v) Customer’s customer Data , or
(vi) services which Customer provides based on the Services.
In the event a claim is made or likely to be made, EB may, at EB’s option, (i) procure for Customer the right to continue using the Services under the terms of this Agreement, or (ii) replace or modify the Services to be non-infringing without material decrease in functionality. If these options are not reasonably available, EB may terminate the SAAS Agreement upon written notice to Customer and refund Customer a pro rata portion of the price Customer had prepaid to EB for the Services for the remainder of the unexpired term
8.2 Customer’s Indemnification Obligation
Customer will defend EB and its affiliates, and their respective officers, directors, employees, contractors and agents (each, a “EB Indemnified Party”) against third party claims brought against a EB Indemnified Party arising from (a) Customer’s use of the Services in a manner not expressly authorized by the SAAS Agreement or that is in violation of applicable law, (b) Customer’s Customer Data or the combination of Customer’s Customer Data with other applications, content or processes, (c) EB’s compliance with any designs, specifications, requirements or instructions provided by Customer or a third party on Customer’s behalf, and (d) a dispute between Customer and any of Customer’s users. Customer will indemnify the applicable EB Indemnified Party against all damages finally awarded against the EB Indemnified Party (or the amount of any settlement entered into by Customer) with respect to such claims.
8.3 Indemnification Procedure
The party against whom a third party claim is brought will (a) timely notify the other party in writing of the claim (provided, that the failure to provide timely notice that prejudices the indemnifying party shall relieve the indemnifying party of its obligations under this Section 8 to the extent the indemnifying party has been prejudiced and such failure to provide timely notice shall relieve the indemnifying party of any obligation to reimburse the other party for its attorney’s fees incurred prior to notification), and (b) reasonably cooperate in the defense of the claim and may participate in the defense of the claim at its own expense. The party that is obligated to defend a claim will have the right to fully control the defense and to settle the claim; provided, however, that any settlement of a claim shall not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought. This section and section 9 state the parties’ entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement
All liability of EB, its affiliates officers, directors, employees, agents suppliers, and licensors collectively, to Customer, for claims related to, or arising out of the SAAS Agreement , shall not exceed the fees paid to EB for the Services during the twelve (12) months before the last event that gave rise to Customer’s claim. This limit is in the aggregate and not per incident. In no event will either party be liable, regardless of the theory of liability or whether arising out of the use or inability to use the Cloud Service or otherwise, even if either party been advised of the possibility of such damages : (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or, (c) loss of revenues, profits, goodwill or anticipated sales or savings. This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement or otherwise, even if either party has been advised of the possibility of such damages. Nothing in this agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
10.1 “Confidential Information” shall mean any non-public know-how and information relating to (i) Customer’s business, and to (ii) EB’s business, the Product (including the technical specifications), and the Software .
10.2 Each party (the “Disclosing Party”) may from time to time during the term of an agreement disclose to the other party (the “Receiving Party”) Confidential Information. The Receiving Party will hold such Confidential Information in trust and confidence for the Disclosing Party and, except as set forth by individual agreement or as otherwise may be authorized by the Disclosing Party in writing, will not disclose such information to any third party. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by agreement, and will treat all Confidential Information of the Disclosing Party with the same degree of care than the Receiving Party treats its own confidential or proprietary information, but in no event less than reasonable care.
10.3 Information and/or know-now does not qualify as Confidential Information if (i) the information or know-how is publicly available or becomes generally available to the public, through no fault or action of the Receiving Party; (ii) the Receiving Party can demonstrate that the the information or know-how was independently developed by it or for it and was not obtained in whole or in part from the Disclosing Party; (iii) the information or know-how was known to the Receiving Party prior to its disclosure hereunder; or (iv) the information or know-how becomes rightfully available to the Receiving Party on a non-confidential basis from any third party, the disclosure of which to the Receiving Party does not violate any contractual or legal obligation the third party has to the Disclosing Party with respect to such information or know-how.
10.4 The Receiving Party may disclose Confidential Information of the Disclosing Party (i) to the Receiving Party’s officers, directors and employee solely as required in order for the Receiving Party to perform an agreement between EB and Customer, and/or (ii) if required to do so under applicable law, rule or order, provided that the Receiving Party, where reasonably practicable and to the extent legally permissible, provided the Disclosing Party with prior written notice of the required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy, and provided further that the Receiving Party shall disclose only such Confidential Information of the Disclosing Party than is reasonably necessary in order to respond to the required disclosure.
10.5 In the event of a breach or threatened or attempted breach of the Receiving Party’s obligations with respect to Confidential Information, the Disclosing Party may have no adequate remedy in damages and, accordingly, may immediately seek injunctive relief against such breach or threatened.
The governing law (ignoring any conflict of laws provision) and exclusive forum over any claim arising under these General Terms and Conditions and any SAAS Agreement ( collectively “ the Agreements “ ) the shall based on the following :
11.1 If the primary place of business of Customer is in the US , Canada , Mexico and any country in Latin America
Governing Law. The Agreements will be governed by and construed in accordance with the laws of the State of New York, without giving effect to New York’s conflicts of laws rules and principles (but shall include Section 5-1401 of the New York General Obligations Law).
Forum Selection; Litigation. Any controversy, claim, or dispute between the parties arising out of, related to, or in any way connected with any of the Agreements, regardless of whether it is labeled as contract, tort, or otherwise, shall be decided solely and exclusively by the state or federal courts located in the State of New York (specifically, the Supreme Court of New York, New York County, or the United States District Court, Southern District of New York), and the parties agree to waive all defenses related to lack of personal jurisdiction, venue, and forum non convenience with respect to such courts. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY CONTROVERSY, CLAIM, OR DISPUTE BETWEEN THE PARTIES, WHETHER LABELED AS CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH ANY AGREEMENT.
11.2 If the primary place of business of Customer is in the European Union
Governing Law : The Agreements shall be governed by, and construed and enforced in accordance with, the laws of Germany. Dispute Resolution : Any dispute, controversy or claim arising out of or relating to the Agreements, including the validity, invalidity, breach or termination thereof, shall be decided by the applicable courts in Cologne, Germany.
11.3 If the primary place of business of Customer is in Hong Kong , China or any country which is not covered by 11.1 and 2
Governing Law : The Agreements shall be governed by, and construed and enforced in accordance with, the laws of Hong Kong.
Dispute Resolution: Any dispute, controversy or claim arising out of or relating to the Agreements, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in Hong Kong at the Hong Kong International Arbitration Center (the “HKIAC”) under the Hong Kong International Arbitration Centre Administered Arbitration Rules (these “Rules”) in force when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one (1), jointly appointed by both of the claimant(s) and the respondent(s). If the claimant(s) and the respondent(s) is unable to reach an agreement regarding the arbitrator, the HKIAC Council shall appoint the arbitrator. The arbitration proceedings shall be conducted in English. The arbitration award shall be final, conclusive and binding on the parties to the arbitration. Any party to the dispute may apply to a court of competent jurisdiction for enforcement of such award. The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses, provided, however, that the prevailing party in any such arbitration shall be entitled to recover from the non-prevailing party its reasonable costs and attorney fees.
EB shall not be liable for any failure to perform, or any delay in the performance of, any of its obligations under an agreement with its Customer to the extent such failure or delay to perform is caused in whole or in part by an event of force majeure. For purposes of this § 12 an event of force majeure shall mean and include, war, civil war, insurrection, rebellion, civil unrest, fire, flood, earthquake, adverse weather conditions, strike, lockout, labor unrest, unavailability of supplies, materials or transportation, acts of the public enemy, acts of government authorities (including, but not limited to, the refusal of the competent government agencies to issue required regulatory approvals), and, in general, any other cause or condition beyond the reasonable control of EB whose performance is affected thereby. In the event that EB’s performance is affected by the occurrence of any event of force majeure, EB shall furnish immediate written notice thereof to Customer hereto.
The failure by EB or Customer to assert any of its rights under an agreement reached between them, including, but not limited to, the right to terminate such agreement due to a breach or default by the other party hereto, shall not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of such agreement in accordance with its terms.
Unless otherwise agreed , neither EB nor the Customer shall have the right or the power to assign any of its rights, or delegate or subcontract the performance of any of its obligations under an agreement reached between them, without the prior written authorization of the other party, such written authorization not to be unreasonably withheld or delayed; provided, however, that the prior written authorization of Customer shall not be required for EB or EB to assign any of its rights, or delegate or subcontract the performance of any of its obligations hereunder to an affiliate or an acquirer of all or substantially all of the assets relating to EB . Any permitted assignment or delegation hereunder by EB, or EB whether to an affiliate or acquirer pursuant to this § 14, or pursuant to the prior written authorization of the other Party, shall not relieve the other Party of any of its obligations under this Agreement.