These Terms of Service govern the Services provided by Genea Energy Partners, Inc. and the entity entering into an Order for the Services (“Client” or “you”). MAKE SURE YOU READ THESE TERMS OF SERVICE (INCLUDING ANYTHING THEY REFERENCE) AND THE ORDER. THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO USE THE GENEA SERVICES.
1. CERTAIN DEFINITIONS; PAYMENT
- Unless otherwise set forth in the applicable Order, monthly Service fees shall be invoiced in advance of the month service is rendered and all Client will pay all invoices in full within 15 days from the date of receipt. Any portion of payment not received within 30 days shall bear a service charge of 1.5 percent per month (or lower rate as mandated by applicable law) plus the cost of collection, including reasonable attorney’s fees. Fees are net of any applicable sales, use or similar taxes. Genea may cease providing the Services in the event payment is not received within 30 days.
- The term of the Order is set forth in the applicable Order. Unless otherwise set forth in the appliable Order, the Order and this Agreement shall continue thereafter for successive one year periods (each successive period being a “Renewal Term”) unless 30 days prior to the last day of the Initial Term or any Renewal Term, either party has provided the other written notice of intent not to renew.
- Either party may terminate this Agreement and any outstanding Order if the other party is in material breach of the Agreement and does not cure that breach within 15 days from receipt of notice from the non-breaching party. This Agreement is not terminable for convenience.
- If there is an interruption of Services due to the lack of communication from the Client to Genea related to changes or upgrades to their BMS and/or IT Network Infrastructure, Genea will be compensated their normal monthly fee and in addition will invoice for any resources needed to rectify the interruption of service.
- Genea shall not be in breach of this Agreement for any delay or failure to perform if delay or failure is due to causes beyond Genea’s reasonable control including, but not limited to, action or inaction by a third party, the telephone company, internet service provider, governmental actions, fires, floods, pandemics, or acts of God.
- In performing this Agreement, Genea shall act solely in the capacity of independent contractor for the Client and shall have no liability whatsoever for the Client’s lost HVAC and sub-meter revenues or other economic loss, products, services, representation or warranties in connection therewith.
- Client may only use the Services for its own business and may not use the Services for service bureau basis or otherwise use the Services for any commercial or other purposes not expressly permitted in this Agreement.
- Unless mutually agreed upon, the Client nor Genea, shall disclose the terms associated with this Agreement, including price and structure, to any third party.
- Notwithstanding the foregoing, the Client hereby consents to the placement by Genea in a press release or on its website an acknowledgement that Genea provides its software services to Client.
5. WARRANTIES AND LIMITATIONS OF LIABILITY
- Each party represents and warrants that: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (ii) this Agreement is valid, binding and enforceable against it in accordance with its terms. Each party disclaims all other warranties and representation including, without limitation, the implied warranty of fitness for a particular purpose. The Services and all Hardware are provided “AS IS” and “AS AVAILABLE”.
- Neither party be liable for (i) any special, consequential, incidental or indirect damages, including but limited to loss of profits or loss of revenue, or (ii) direct damages in excess of an amount equal to the fees paid by Client in the previous six months immediately prior to the date of the first incident giving rise to the liability or $15,000, whichever is less. For clarity, nothing herein limits Client’s obligations to pay sums properly payable under this Agreement.
- Client is solely responsible for the accuracy of the data input or provided to Genea and any resulting billing errors. Customer is also responsible for checking and correcting the accuracy of each invoice provided by Genea. Genea is not responsible for such uncorrected errors.
6. LEGAL REMEDIES AND OTHER TERMS
- In the event of any dispute between the parties, the principals of each party shall first meet in person without counsel present in an effort to discuss and resolve the dispute. If such informal mediation is unsuccessful, then the parties, represented by counsel, shall, within thirty days after the informal meeting, mediate the dispute before a mutually-acceptable retired judge or experienced attorney. If said mediation is unsuccessful, either party shall have the right to resort to legal action.
- This Agreement and the performance there under shall be governed, interpreted and construed in accordance with the laws of the State of California. Exclusive venue for all actions and mediations is in the courts of competent jurisdiction located in Orange County, California.
- This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes all prior agreements or discussions between the parties with respect to the matters contained herein.
- Neither party may assign this Agreement without the prior written consent of the other, except that either party may assign its rights and obligations under this Agreement without the approval of the other party to any person or entity that acquires all or substantially all of the assets of a party or to successor in a merger or acquisition of all or a material part of the voting securities of a party. Any attempt by either party to assign or transfer any of the rights, duties, or obligations of this Agreement in violation of this Section is void and of no force or effect.
- No waiver or modification of the terms of an Order will be effective unless it is in writing, refers to this Agreement, and is signed by authorized representatives of the parties. Genea may modify this Agreement from time to time and any modifications will apply upon the next Renewal Term of the applicable Order. Client’s sole remedy for any such modifications will be to non-renew the Order prior to the next Renewal Term. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any obligation or breach is not to be construed as a waiver of any succeeding breach. The terms of any purchase order or acknowledgement form shall not in any way modify or supplement the terms of this Agreement. The parties are independent contractors.
- If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.
Genea and its licensors retain all right, title, and interest to all software, products, works, and other intellectual property created, used, or provided by Genea for the purposes of this Agreement, including, but not limited to, the Services and any modifications derivatives and changes to such intellectual property.
7. TERMS SPECIFIC TO SUBMETER BILLING SERVICES ONLY
- Client shall arrange for safe access to and make all provisions for Genea and Genea’s consultants to enter upon public and private property as required for Genea to perform its Services. Client represents and warrants that Client possesses all necessary permits and licenses required for Genea to conduct the scope of Services.
- In the event the property where the Services are performed is not owned, possessed or controlled by Client, Client must obtain all necessary permission for Genea to enter and conduct electrical sub meter reading services on the property. It is assumed that the Client possesses all necessary permits and licenses required for conducting the scope of Services.
- Genea will maintain insurance for general liability, worker’s compensation, auto liability, and property damage in the amounts deemed appropriate by Genea. Client will maintain insurance for general liability, worker’s compensation, auto liability, and property damage typical within Genea’s industry. Client agrees to have its insurers endorse these policies to reflect that, in the event of payment of any loss or damages, subrogation rights are hereby waived by the insurer with respect to claims against Genea.
8. TERMS SPECIFIC TO OVERTIME HVAC SERVICES ONLY
- Upon termination of this Agreement for any reason, the Client, at their expense, shall be responsible for removing, packaging and returning to Genea all Overtime HVAC hardware and/or ancillary components including, but not limited to, the field communications device. Client shall return that equipment to Genea via UPS or FedEx within 30 days after termination.
9. TERMS SPECIFIC TO ACCESS CONTROL SERVICES ONLY
- Additional Definitions: “Hardware” means hardware and/or equipment that Genea supplies in connection with the Services as specified in the applicable Order, such as sensors, controllers, etc. but does not include any hardware or equipment not specifically set forth in an Order. “Defect” means a material defect caused by defective material or workmanship resulting in a failure of the Hardware to substantially conform to the specifications provided in hardware documentation.
- Client will (i) be responsible for maintaining the confidentiality of the administrator and user logon identifications, passwords, and account information; and (ii) use each Services in compliance with the all applicable laws. If there is unauthorized use of any Services by anyone who obtained access to the Services directly or indirectly through Client, Client will take all steps necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Genea to prevent or terminate unauthorized use of the Services.
- Genea will only use personal data entered into the Access Control Services for providing the Services to Client and its users.
- Except as otherwise set forth in an Order, Client will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, internet connectivity, web servers and the like (collectively, “Equipment”). Client will also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for Client’s use of the Services, Client’s account, the Equipment or Hardware, with or without Client’s knowledge or consent. If the Equipment does not permit, or restricts access to, the Client Systems and/or the Genea Services, Client acknowledges that the Genea Services may be impacted as a result.
- Client acknowledges and agrees that in order to provide the Services, Genea must access Client’s systems, Equipment and Client’s use of the Services. Client expressly consents and grants Genea and its employees, agents, representatives, independent contractors, and third party service providers’ permission to access and use any Client system to the extent necessary to implement the Services and/or provide the Genea Services.
- For a period of one year from shipment of Hardware (“Repair Period”), (which period will not be extended by any Hardware repair or replacement), Genea will repair or replace, at its discretion, Hardware, or Hardware installations by Genea, which have Defects, provided that Client delivers proper notification to Genea during the Repair Period. Such warranty shall not apply to Hardware that Genea reasonably determines is not functioning properly as a result of (a) Client’s Improper Use or (b) a force majeure condition; or Hardware installations performed by a party other than Genea or its designated installer. If Client believes a Defect has occurred, Client will: work in good faith with Genea’s support team to evaluate, troubleshoot and test any Hardware that appears to have a Defect, and if the Support Team determines that the Hardware appears to have a covered Defect requiring Genea’s physical intervention: uninstall the affected Hardware, attach the Return Material Authorization Number (“RMA”) assigned by the support team in a clearly visible location on a package that includes the affected Hardware, and, return such Hardware, securely packaged, to the address designated by Genea for repair with the assigned RMA clearly visible on each shipping form and carton. Hardware returned to Genea for repair that Genea reasonably determines not to be covered by this paragraph will be charged to Client at a flat, reasonable diagnostic/repair rate established by Genea. Repair services for Hardware that is outside the Repair Period may not be available and replacement may be required. Repaired or replaced Hardware will be warranted for the remainder of the original Repair Period or 30 days whichever is longer. Notwithstanding the above, Client is responsible for any charges or costs to uninstall, install or replace Hardware under this paragraph.
- Genea may suspend provision of the Services pursuant to an Order immediately: (i) in the event of a security incident involving Client until such time as Client is able to certify to Genea, in Genea’s reasonable discretion, that the causes of such security incident have been remedied in full; or (ii) if Client fails to timely pay any Genea invoice until Client pays all amounts then due and owing pursuant to such Order and this Agreement.