This End-User License Agreement (“EULA”) available at https://sitelogiq.com/portfolioiq-eula, is entered into the Effective Date (as defined herein) by SiteLogIQ, Inc., a Delaware corporation having a principal office located at IDS Center, 80 South 8th Street, Suite 1850, Minneapolis, Minnesota, 55402, U.S.A. (“SIQ,” “We,” “Us,” or “Our”), and you (“User,” “You,” or “Your”). The following EULA, together with any documents they expressly incorporate by reference, govern Your access to and use of SIQ’s web-based, or device-installed, application, entitled “PortfolioIQ” (accessible at https://www.sitelogiq.com/portfolioiq), including any and all content, functionality, and services offered on or through the Platform (collectively, the “Application”), as well as any related mobile application, available now or in the future, including any and all content, functionality, and services offered on or through the mobile application, (the “Mobile Application”) (hereinafter, the “Application” and the “Mobile Application” shall be collectively referred to as the “Platform”). SIQ and User may be referred to in the singular as a “Party” and collectively as the “Parties.”
WHEREAS, SIQ is in the business of, among other things, creating, developing, hosting, and providing technology- and analytics- based solution for Users, for the purpose of planning, constructing, repairing, retrofitting, and managing Users’ buildings, construction-related projects, facilities, and facility-related operations (each, an “Asset”), so as to promote the longevity and continuity, safety, energy and operating efficiency, and future proofing for the Asset (collectively, “SIQ’s Services”);
WHEREAS, SIQ offers the Platform to its Users to provide, deliver, and facilitate SIQ’s Services;
WHEREAS, SIQ is the owner of certain patentable (and non-patentable) inventions, patents, trademarks, trade dress, copyrightable (and non-copyrightable) works of authorship, copyrights, trade secrets, technology, know-how, proprietary and confidential information, and/or other intellectual property, including the intellectual property underlying the Platform (collectively, the “SIQ Intellectual Property”);
WHEREAS, subject to the terms and conditions of the EULA, SIQ desires to provide the Platform for User to access and use, and User desires to access and use such Platform, conditioned upon acceptance of the terms and conditions of the EULA.
NOW, THEREFORE, in consideration of the mutual covenants and terms hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
TERMS AND CONDITIONS
Device. “Device” means any unit of physical hardware or equipment that provides one or more computing functions within a computer system including, but not limited to, desktop computers, laptop (or otherwise portable) computers, mobile/cellular phones, tablets, and other computers capable of using or accessing the Platform.
Effective Date. This EULA is effective as of the date in which User accepts the EULA by providing affirmative assent to this EULA, or by otherwise using or accessing the Platform (the “Effective Date”).
User. “User” means any and all individuals or entities access or use the Platform, and who are authorized to access or use the Platform, as further specified in this EULA.
Conditions of Use
Eligible to be Bound. This Platform is offered and available to Users who meet the “Eligibility Requirements,” as set forth in Schedule 1. By using and accessing this Platform, User represents and warrants that User is of legal age and of legal capacity to form a binding contract with SIQ, and meets all of the Eligibility Requirements. If User does not meet all of the aforementioned requirements, User may not access or use the Platform.
Geographic Restrictions. SIQ provides this Platform for use only by individuals or entities located in those regions as provided for in Schedule 1. SIQ makes no claims, assertions, representations, or warranties that the Platform is accessible or appropriate outside of the regions so authorized in Schedule 1. If User accesses or uses the Platform from outside the regions so authorized in Schedule 1, User does so on User’s own initiative and is solely responsible for compliance with local laws of the unauthorized regions.
Reservation of Right to Alter EULA. SIQ, from time to time, and in its sole and absolute discretion and without prior notice, may revise, update, or otherwise modify the EULA (“Changes”). User’s continued use of or access to the Platform, following the posting of revised, updated, or otherwise modified EULA, means, signals, and indicates that User accepts and agrees to abide by the Changes. User is expected to routinely access, check, and monitor the EULA so that User is on notice and remains abreast of any Changes, as the Changes are binding on User.
Reservation of Right to Amend, Withdraw, or Suspend. SIQ, from time to time, and in its sole and absolute discretion and without prior notice, may withdraw, suspend, or amend the Platform, in part or in whole, and any service or material SIQ provides or delivers on the Platform. SIQ will not be liable if, for any reason, all or any part of the Platform is unavailable at any time or for any period. SIQ, from time to time, and in its sole and absolute discretion and without prior notice, may restrict, limit, or suspend access to or use of some components or the entirety of the Platform.
Availability, Errors, and Inaccuracies. SIQ is regularly, routinely, consistently, and constantly updating product- and/or service-offerings on the Platform. As a result, SIQ may experience delays in updating information on the Platform and in Our advertisements, marketing, or promotions on other websites, other webpages, and other online multi-media platforms. In addition, the information found on the Platform may contain errors or inaccuracies and may not be complete or current. Therefore, SIQ, in its sole and absolute discretion and without prior notice or liability, reserves the right to change or update information and to correct errors, inaccuracies, or omissions at any time.
Access to and Use of the Platform
Registration Personal to User. User acknowledges that User’s Account is personal, confidential, private, and exclusive to User, and User agrees not to provide any third-party individual or entity with the use, access, or means by which to use or access this Platform or portions of the Platform using User’s registration information, which includes, but is not limited to, name (first and last), email address, postal address, telephone number, login credentials, corporation, limited liability company, or other legal entity with which the User is affiliated, and other identifying information (collectively, the “Registration Information”).
Memberships. To create an Account to use and access the Platform, and for ongoing use and access to the Platform, the User, or an entity acting on behalf of the User, is required to pay SIQ: (1) a fee, or (2) consistent with another contract between SIQ and a User’s corporation, limited liability company, or other legal entity (a “Membership”). The Membership will entitle the User to full, uninterrupted use of and access to the Platform, which may include features outlined and set forth in Schedule 3 to this EULA. There are different levels of Membership. A User’s access to the features outlined and set forth in Schedule 3 are related to: (1) the level of features selected as indicated by the Membership and the fee thereof, or (2) the contract between SIQ and the User’s corporation, limited liability company, or other legal entity, whichever was entered into later.
Renewal and Cancellation. The User’s Membership will automatically renew at the then-applicable fee, or as otherwise, indicated in User’s contract with SIQ, unless SIQ, in its sole and absolute discretion, elects to adjust the quantity of the value of the fee at renewal. User acknowledges and agrees that SIQ’s Membership will automatically renew in accordance with the foregoing, unless either SIQ or User, or an entity acting on behalf of the User, elects to cancel the Membership. In the event that User, or the entity acting on behalf of the User, fails to pay, for any reason, the fee for Membership access, User shall not be permitted to have full, interrupted use of and access to the Platform. Except when required by law, fees for the Membership are non-refundable.
Unauthorized Access; Security Awareness. User shall immediately notify SIQ of any unauthorized access to, use of, or disclosure of User’s Registration Information and/or Account, or any other security incident or breach. User shall exit from the Platform at the end of each session. User should exercise special caution when using or accessing the Platform from a public or shared computer, publicly accessible network, or other nonsecure network-based platforms, for the purpose of preventing third parties from accessing, using, or disclosing User’s Registration Information and/or Account. In the event of actual, imminent, potential, or threatened access to, use of, or disclosure of User’s Registration Information, or in the event that User has otherwise violated the EULA herein, SIQ reserves the right, in its sole and absolute discretion and without liability, to disable, restrict, limit, or deactivate User’s access to or use of the Platform.
Thirty Party Sites and Resources; Third-Party Software
Applications and Services. The Platform may include, directly or indirectly, Third-Party Sites and Resources. Because we do not control, directly or indirectly, Third-Party Sites and Resources, User acknowledges and agrees that SIQ is not responsible or liable, directly or indirectly, for any Third-Party Sites and Resources, including the performance, accuracy, integrity, quality, legality, usefulness, or safety of, or intellectual property rights relating to, Third-Party Sites and Resources. SIQ has no obligation or commitment to monitor Third-Party Sites and Resources. SIQ, in its sole and absolute discretion and without prior notice, may remove, limit, suspend, or otherwise restrict access to any Third-Party Sites and Resources (in whole or part). The availability of Third-Party Sites and Resources through and/or on the Platform does not imply, directly or indirectly, Our endorsement or sponsorship of, or Our affiliation with any third party.
Links to Other Sites and Resources. If the Platform contains links to Third-Party Sites and Resources, these links are provided for User’s convenience only. This may include links contained in advertisements and other marketing endeavors, including banner advertisements and sponsored links. SIQ has neither ownership nor control over the contents of those Third-Party Sites and Resources, and SIQ is not responsible or liable, directly or indirectly, to User for any loss, damage, injury, harm, or cost arising from, related to, or in connection with User’s use of or reliance on the contents, goods, services, offers, advertisements, or promotions of the Third-Party Sites and Resources. If User decides to access any of the Third-Party Sites and Resources linked to the Platform, User does so entirely at User’s own risk and peril. By accessing such Third-Party Sites and Resources, User is bound to those terms and conditions of use of the third parties owning or controlling the Third-Party Sites and Resources.
Communications; Linking, Framing, and Social Media Features
Linking to the Platform. User may not link to the Platform from Third-Party Sites and Resources, or other multi-media platforms, nor may User link, or transmit a link, to the Platform to any unauthorized third-party individuals or entities. Notwithstanding, nothing herein prevents a User from sharing an “Internal Link” to another authorized User. An “Internal Link” is a web link that may be generated by a User, and which is exclusively accessible (and the contents reviewable) by other Users affiliated with, or employed by, the linking User’s corporation, limited liability company, or other legal entity. Contents of the User-generated link may include (but are not limited to) summaries or reports of the User’s Assets.
Limited License; Intellectual Property Rights
Grant of License. The Platform, and the SIQ Intellectual Property underlying, embodying, applicable to, or related to the foregoing, are licensed to Users for personal, non-commercial use of and access to the Platform, solely in accordance with the EULA. Subject to Your complete and ongoing compliance with the terms and conditions of the EULA, SIQ hereby grants you a personal, limited, revocable, non-transferable, non-exclusive, non-commercial, and non-sublicensable license to:
access and use the Platform, and the SIQ Intellectual Property therein, on compatible, authorized Devices that You own or control; and
access and use the Platform, and the SIQ Intellectual Property therein, solely for Your own use, or for the entity on whose behalf You are authorized to act.
Limitation on License. You may not modify, alter, reproduce, or distribute the Platform in part or entirety. You may not directly rent, lease, lend, sell, redistribute, or sublicense the Platform. You must not decompile, reverse engineer, deconstruct, disassemble, attempt to derive the source code or object code of, modify, or create derivative works of any portion of the Platform, any updates, or any part thereof, nor attempt to disable or circumvent any security or other technological measure designed to protect the Platform or any content available through the Platform. The Platform and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof) are owned by SIQ, its licensors, or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. User may not:
copy, modify, publish, transmit, participate in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit, any of the content (including related computer software) of the Platform, in whole or in part;
use any illustrations, text, photographs, video, or audio sequences or any graphics separately from the Platform;
delete or alter any copyright, trademark, patents, or other proprietary rights notices from copies of materials from the Platform; or
access or use for any commercial purposes any part of the Platform or any services or materials available through the Platform, except as otherwise permitted in this EULA.
Breach of Restriction. If You breach these license restrictions, or otherwise exceed the scope of the licenses granted in this EULA, Your right to use or access the Platform will cease immediately. Any use of or access to the Platform not expressly permitted by this EULA is a breach of this EULA, and may violate the SIQ Intellectual Property and/or other parties’ copyrights, trademarks, trade dress, patents, trade secrets, proprietary information, intellectual property, and other legally protected rights.
Reservation of Rights. All right, title, and interest in and to the Platform and the SIQ Intellectual Property shall remain the sole and exclusive property of SIQ. SIQ hereby expressly reserves all rights not expressly granted to the User under this EULA.
Uses and Interactive Features
Prohibited Uses. User may access and use the Platform only for lawful purposes and in accordance with this EULA User hereby agrees not to access or use the Platform:
in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the import or export of data or software to and from the United States of America or other countries);
for the purpose of exploiting, harming, or attempting to exploit or harm minors (i.e., persons below the age of eighteen (18)) in any way by exposing them to inappropriate, obscene, pornographic, vulgar, or lewd content, asking for personally identifiable information, or otherwise;
to impersonate or attempt to impersonate SIQ, a SIQ supervisor, officer, director, employee, agent, or professional representative, another User, or any other third-party person or entity;
to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Platform, or which, as determined in SIQ’s sole and absolute discretion, may harm, injure, or damage SIQ or the Users of the Platform, or expose SIQ and the Users to any potential, threatened, imminent, or actual liability;
to transmit, or procure the sending of, any advertising or promotional material including any material constituting solicitation (e.g., “junk mail,” “chain letter,” “spam,” or any other similar solicitation); or
to send, knowingly receive, upload, download, process, disclose, use, or re-use any material that does not comply with the Content Standards, as set forth in Schedule 2.
Moreover, User shall not:
disable, overburden, damage, or impair the Platform or interfere with any other User’s use of or access to the Platform;
introduce any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
use any process to monitor or copy any of the material on the Platform or for any other purpose not expressly authorized in the EULA, without Our prior express, written consent;
use, access, or employ any device, computer, processor, tool, method, software, or routine that interferes with the proper operability, functionality, viability, continuity, and maintenance of the Platform;
introduce any viruses, Trojan horses, worms, bots, logic bombs, or other code that is malicious or technologically harmful;
attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which the Platform is stored, or any server, computer, or database connected to the Platform;
attack the Platform via a denial-of-service (“DoS”) attack, a distributed denial-of-service (“DDoS”) attack, command and control (“C2”), bots, botnets, or any other means by which a malicious actor seeks to make a machine or network resource unavailable to its intended users by temporarily or indefinitely disrupting services of a host or server;
defame, harass, abuse, stalk, threaten, or otherwise violate the legal rights of others, including but not limited to an SIQ director, officer, supervisor, employee, employee agent, or professional representative and other Users; or
otherwise attempt to interfere with the proper working of the Platform.
Interactive Features and Asset Information. The Platform may contain interactive features (collectively, the “Interactive Services”), as set forth in Schedule 4, that allow Users review and analyze their Assets. To facilitate SIQ’s Services in connection with the management of the User’s Assets, SIQ collects various data points and other metrics associated with the Assets, including through onsite assessments made pursuant to separate contracts entered into with SIQ and/or third parties (e.g., utility providers) performing said onsite assessments. When managing the Users’ assets, the User represents and warrants the following:
any information pertaining to the User’s Assets, including information and data obtained through onsite assessments, is owned wholly, or in part, by User, or User has been authorized, be it by license, sublicense, or otherwise, to provide said information;
the User has the authority to license the information pertaining to the User’s Assets; and
the sharing, publishing, displaying, transmitting, or using of the information pertaining to the Users’ Assets does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any third-party person or entity.
User understands, acknowledges, and agrees User is solely responsible and liable for any of the information provided by User, in connection with the Platform. User is solely responsible and liable for such information, including its legality, reliability, accuracy, appropriateness, and compliance with this EULA.
Grant of License. User hereby grants to SIQ, as well as Our successors and assigns, a non-exclusive, transferable, sub-licensable, royalty-free, unlimited, and worldwide license to use, edit, modify, reproduce, modify, display, derive, distribute, disclose, and/or use any information pertaining or related to the User’s Assets in connection with the performance of SIQ’s Services on and through the Platform. For the avoidance of doubt, the User is the owner of all right, title, and interest in and to the information pertaining or relating to the User’s Assets, and the intellectual property rights underlying, embracing, or applicable to the foregoing, subject to any third-party rights, licenses, consents, or authorizations. While SIQ retains a license to use the data underlying information pertaining or related to the User’s Assets, in connection with the performance of SIQ’s Services on and through the Platform, SIQ’s use of this information shall be performed in an anonymized fashion, such that the information may be de-coupled or de-identified with respect to the User.
Disclaimer of Liability. To the fullest extent permitted under applicable law, SIQ is under no obligation to edit, modify, alter, revise, amend, or control INFORMATION REGARDING THE USER’S ASSETS THAT ARE DISPLAYED, publish, TRANSMITTED, OR USED IN CONNECTION WITH the PLATFORM, and We expressly disclaim any and all liability in connection with FOREGOING. SIQ, in its sole and absolute discretion and without prior notice, may screen, remove, edit, or block any INFORMATION PERTAINING TO THE USER’S ASSETS that violate THIS EULA or are otherwise objectionable.
Unsolicited User Submissions. Notwithstanding anything to the contrary in the EULA, SIQ does not accept, invite, or consider unsolicited submissions of ideas, proposals, or suggestions (“Unsolicited Submissions”). We do not treat Unsolicited Submissions as confidential. Notwithstanding the foregoing, SIQ owns all right, title, and interest to the Unsolicited Submissions. SIQ has no obligations or commitments to User, in connection with any and all Unsolicited Submissions; accordingly, SIQ, in its sole and absolute discretion and without prior notice, may access, disclose, transfer, exploit, or otherwise use the Unsolicited Submissions for any purpose whatsoever without compensation to User or any third party.
Scrutiny and Enforcement
Monitoring and Enforcement. SIQ, in its sole and absolute discretion and without prior notice, has the right, but is under no obligation, to:
monitor, evaluate, analyze, assess, or alter the Platform or any information pertaining to the User’s Assets;
remove or refuse to post, store, share, submit, publish, display, or transmit any information pertaining to the User’s Assets;
take any action with respect to any information pertaining to the User’s Assets including, but not limited to, any potential, threatened, imminent, or actual violation of the EULA, infringement or misappropriation of any SIQ Intellectual Property and third party’s intellectual property, threats as to the personal, physical, or technological safety of the Users, or liability for SIQ;
disclose User’s identity or other information about User to any third party who claims that the information pertaining to the User’s Assets, or the User’s unauthorized use of or access to the Platform, violates, has violated, or will violate the third party’s rights, including their intellectual property rights or their right to privacy;
seek to verify that all rights, consents, releases, and permissions in or relating to information pertaining to the User’s Assets have been obtained by the User in accordance with the User’s representations and warranties in the EULA;
take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of or access to the Platform; or
terminate, suspend, limit, restrict, or narrow User’s access to or use of all or part of the Platform for any or no reason, including without limitation, any violation of the EULA.
Cooperation with Law Enforcement. Without limiting the foregoing, SIQ reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity, or other related information, of any individual or entity, including the User, posting, linking, storing, sharing, submitting, publishing, or displaying any materials on or through the Platform.
Representations and Warranties
Mutual Representations and Warranties. The Parties represent and warrant to the other Party the following:
both Parties have the full right, power, and authority to enter into this EULA and to perform its obligations hereunder; and
the EULA will constitute the legal, valid, and binding obligation of the Parties, enforceable against each Party in accordance with its terms.
User Representations and Warranties. User represents and warrants to SIQ the following:
User owns or controls all rights in and to the information pertaining to the User’s Assets;
User will abide by and consent to the Content Standards, as set forth in Schedule 2;
User will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of SIQ, SIQ’s Services, or the SIQ Intellectual Property;
User’s use of or access to the SIQ Intellectual Property or the Platform will not infringe, misappropriate, or otherwise violate the intellectual property rights or proprietary rights of SIQ;
User will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or legal right of a third-party individual or entity;
User will not misappropriate, infringe, use, disclose, transmit, or perform any unauthorized action related to, or in connection with, any and all Confidential Information (as defined herein);
User will not defame, slander, libel, or invade the right of privacy, publicity, or other property rights of any other individual, including other Users; and
User will not otherwise violate the rights of any other User or third party, or violate any applicable local, state, federal, or international law, code, or regulation.
Confidential Information. From time to time, the User may receive (inadvertently or otherwise) “Confidential Information” (as defined herein) from SIQ. “Confidential Information” shall mean all information, regardless of the form in which it is communicated or maintained, concerning SIQ (and/or any Affiliate of SIQ) or its respective products, services, or operations that constitutes a trade secret of SIQ (and/or its Affiliate(s)) or is of value to SIQ (and/or its Affiliate(s)) and indicated or treated as Confidential Information by SIQ, including, but not limited to, any and all business plans, product plans, technical and non-technical data, computer programs, computer software, object code, source code, formulas, assessments, patterns, compilations, programs, devices, methods, techniques, drawings, blueprints, designs, design plans, future designs, future design plans, processes, financial data, financial plans, products plans, or lists of actual or potential Users or suppliers, and the terms and conditions of any agreements between the Parties, as well as any confidential, non-public plans, strategies, methods, protocols, or other processes associated with the Platform and the other confidential information pertaining to SIQ’s management or analysis of the User’s Asset, or other content therein. The term “Confidential Information” shall also include all reports, analyses, notes, or other information prepared by the User or its officers, employees, partners, attorneys, or other professional representatives that are based on, contain, or reflect any Confidential Information. The term “Confidential Information” also includes notes, materials, applications, drafts, or documents pertaining to prospective intellectual property protections not otherwise available to the public, including, but not limited to, the following forms of intellectual property: patents, trademarks, copyright, and the right of publicity. The term “Confidential Information” further includes all calculations relating to the Assets, such as cost of replacement and remaining useful lifespan.
Exclusion from Confidential Information. “Confidential Information” does not include information that (i) is now, or hereafter becomes, through no act or failure to act on the part of the User, generally known or available, (ii) is known to the User prior to disclosure pursuant hereto as evidenced by its records, and/or (iii) is hereafter furnished to the User by a third party, as a matter of right (i.e., absent direct or indirect solicitation and/or circumvention in breach of the EULA) and without any restriction on disclosure.
Duty Not to Disclose; Duty to Exercise Reasonable Care; Compelled Disclosure. Except as otherwise expressly set forth in the EULA, User shall hold in confidence and shall not disclose, reproduce, publish, distribute, transmit, reverse engineer, decompile, disassemble, or transfer, directly or indirectly, in any form, by any means, or for any purpose, the Confidential Information of SIQ or any portion thereof. User shall exercise reasonable care, but in no event less care than it uses to protect its own proprietary information, to prevent the disclosure of Confidential Information to any third party. If the User is required by law or ordered by a court or governmental agency of competent jurisdiction to disclose any of SIQ’s Confidential Information, User shall immediately notify SIQ. User must not decompile, reverse engineer, deconstruct, disassemble, derive the source code or object code of (as applicable), modify, or create derivative works of any portion of the Confidential Information (or attempt any of the foregoing), or any part thereof. Both Parties shall seek to restrain such disclosure and to obtain a protective order or other appropriate relief from the court or agency. If a protective order or other relief is not obtained, the User may disclose only that portion of the Confidential Information that is legally required. The User shall notify SIQ immediately upon discovery of any unauthorized disclosure of Confidential Information, use of Confidential Information other than in pursuance of the purpose of the disclosure, or any other breach of the EULA. The User will cooperate with SIQ in every reasonable way to help SIQ regain possession of its Confidential Information and prevent further unauthorized uses or disclosures of the Confidential Information.
Period of Confidentiality. User’s duty to protect, and prevent disclosure of, Confidential Information shall expire only after SIQ provides written notice to the User that the Confidential Information, or the Confidential Information is no longer considered confidential and non-public.
Destruction of Confidential Information; Return of Confidential Information. Upon request from SIQ, User shall destroy, and certify the destruction of, all Confidential Information received by User, as specified in the request, and any copies thereof, within thirty (30) days of SIQ’s request. In the event of Termination (as defined herein) of EULA, or upon request from SIQ, User shall return all Confidential Information, and any copies thereof, to SIQ within thirty (30) days of SIQ’s request or the date of Termination. In the event it is impracticable or impossible to return all Confidential Information to SIQ, User shall destroy, and certify the destruction of, all Confidential Information, any copies thereof, within thirty (30) days of SIQ’s request or the date of Termination.
Commencement. The term of the EULA (the “Term”) shall commence on the Effective Date. SIQ, in its sole and absolute discretion and without prior notice, may terminate, restrict, narrow, or limit User’s access to and use of the Platform.
Termination by SIQ. Notwithstanding the foregoing, SIQ may terminate the EULA, without opportunity for User to cure, prior to the end of the Term (“Termination”), if the User:
violates any Content Standards, any representations and warranties made under the EULA, and any other provisions in the EULA;
materially breaches User’s obligations hereunder, including, without limitation, infringement of SIQ Intellectual Property, misappropriation of SIQ Intellectual Property, any unauthorized transfer, conveyance, or license of SIQ Intellectual Property, or non-compliance with all laws and regulations governing User’s use of or access to the Platform;
infringes upon, misappropriates, or violates the intellectual property rights, publicity rights, privacy rights, or other legal rights of third-party individual or entity;
breaches or causes another to breach a contract with a third-party person or entity; or
has made or makes any material misrepresentation regarding information pertaining to the User’s Assets, or engages in conduct that reflects materially and unfavorably upon SIQ’s Services, the SIQ Intellectual Property, and/or the reputation of SIQ.
Prohibition on Re-Registration. Unless SIQ agrees to otherwise, if SIQ terminates or suspends a User’s use of or access to the Platform for any reason, such as the disablement of the User’s Account, the User is prohibited from seeking or acquiring access to, or use of, the Platform under the User’s name, credentials, or an alias.
Effect of Termination. Upon Termination of the EULA, User shall immediately discontinue, cease and desist, and terminate the use of or access to the Platform.
In General. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes the copyright owners’ rights under U.S. copyright law.
Copyright Notification. If the User believes, in good faith, that materials available on the Platform infringe Your copyright, You, or Your representative or agent, may send SIQ a notice requesting that We remove the material (in whole or in part) or disable access to the material. If, however, the User believes, in good faith, that a third party (or other User) has wrongly filed a notice of copyright infringement against You, in connection with Your authorized use of or access to the Platform, the DMCA permits You to send SIQ a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA, as available at https://www.copyright.gov/dmca-directory/faq.html. Notices and counter-notices must be sent to:
General Disclaimer; Disclaimer of Platform; Limitation of Liability for Platform; Equitable Relief
No Liability for Use of Information. The information, including energy savings estimates, analyses or evaluations directed to the User’s Assets, is conveyed and communicated on the Platform is solely for general informational purposes. Neither SIQ, its affiliates, nor SIQ’s and its affiliates’ directors, officers, supervisors, employees, agents, contractors, licensors, or other professional representatives shall be held liable or responsible for any errors or omissions on THE PLATFORM or for any damage you may suffer as a result of ACTING UPON, RELYING UPON, OR USING THE INFORMATION CONVEYED AND COMMUNICATED TO YOU. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL ADVICE, AND IN PARTICULAR PROFESSIONAL ADVICE PERTAINING TO THE USER’S ASSETS.
No Warranty as to Contents of Platform. SIQ MAKES NO, AND YOU ACKNOWLEDGE THAT YOU RECEIVE NO, WARRANTY (PROMISE), EXPRESS OR IMPLIED, INCLUDING A WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THE CONTENTS OF THE PLATFORM OR THE FUNCTIONALITY, VIABILITY, CONTINUITY, OR OPERABILITY OF THE PLATFORM. YOUR USE OF OR ACCESS TO THE PLATFORM, OR THE CONTENT OR SERVICES OBTAINED THROUGH THE PLATFORM, IS AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY STATEMENTS MADE TO THE CONTRARY ARE VOID.
No Warranty as to Functionality of Platform. NEITHER SIQ, SIQ’s AFFILIATES, NOR SIQ’s AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER SIQ, SIQ’s AFFILIATES, NOR SIQ’s AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES REPRESENTS OR WARRANTS THAT THE PLATFORM, OR THE CONTENTS AND SERVICES OBTAINED THROUGH THE PLATFORM, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM, OR THE SERVER THAT MAKES IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM, OR ANY CONTENT OR SERVICES OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER SIQ, SIQ’S AFFILIATES, NOR SIQ’S AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES WILL BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY A DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, ANY MALWARE OR MALICIOUS CODE, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR DEVICES, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF OR ACCESS TO THE PLATFORM, OR ANY SERVICES OBTAINED THROUGH THE PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED, PUBLISHED, DISPLAYED, OR TRANSMITTED ON THE PLATFORM, OR ON ANY WEBSITE OR OTHER THIRD-PARTY MULTI-MEDIA PLATFORM OR THIRD-PARTY SITES AND RESOURCES LINKED TO THE PLATFORM.
Disclaimer of Certain Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) USER’S USE OF THE PLATFORM OTHER THAN EXPRESSLY PERMITTED IN THE EULA ABOVE, (B) EITHER PARTY’S BREACH OF PROVISIONS ON CONFIDENTIALITY, AND (C) LIABILITY ARISING FROM THE USER’S INDEMNIFICATION OBLIGATIONS BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
Disclaimer on Displayed Information. SIQ MAKES, AND YOU ACKNOWLEDGE THAT YOU RECEIVED, NO WARRANTY (PROMISE), EXPRESS OR IMPLIED, AS TO CALCULATIONS, ASSESSMENTS, OR OTHER DATA PROVIDED WITHIN THE PLATFORM, INCLUDING INFORMATION GENERATED OR RENDERED IN CONNECTION WITH THE USER’S ASSETS. USER SHOULD CONSULT SIQ OR ANOTHER PROFESSIONAL SERVICES PROVIDER BEFORE RELYING UPON THE INFORMATION CONTAINED IN THE PLATFORM. FURTHERMORE, NEITHER SIQ, SIQ’s AFFILIATES, NOR SIQ’s AND ITS AFFILIATES’ DIRECTORS, OFFICERS, SUPERVISORS, EMPLOYEES, AGENTS, CONTRACTORS, LICENSORS, OR OTHER PROFESSIONAL REPRESENTATIVES MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, VERACITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE CALCULATIONS, ASSESSMENTS, OR OTHER DATA PROVIDED WITHIN THE PLATFORM, AS PREVIOUSLY DESCRIBED.
Indemnification by User. SIQ assumes no liability to the User or third parties with respect to the operability, functionality, viability, continuity, and maintenance of the Platform. In addition, SIQ assumes no liability to the User regarding the accuracy of the marketing, delivery, display, performance, distribution, or use of the SIQ Intellectual Property or any segments thereof. User acknowledges that SIQ shall not be responsible, in any way, for information given by the User to third parties in connection with the Platform or otherwise. User shall indemnify, hold harmless, and defend SIQ and its directors, officers, supervisors, employees, agents, professional representatives, affiliates, and successors against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees, that are incurred by SIQ or awarded against SIQ in any judgment, administrative proceeding, or any alternative dispute resolution proceeding, arising out of any third-party claim alleging:
breach or non-fulfillment of any representation, warranty, or covenant set forth in this EULA;
any negligent or more culpable act or omission (including any reckless or willful misconduct) of User or its agents, officers, employees, partners, attorneys, or other professional representatives, in connection with the performance of its obligations under the EULA;
any infringement, violation, or misappropriation of third parties’ intellectual property rights in connection with or related to the Platform, the SIQ Intellectual Property, or the EULA;
any failure by User to abide by the Content Standards and limitations and restrictions regarding what is permissible pertaining to the use of information pertaining to the User’s Assets; or
any failure by User to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under the EULA.
Procedure for Indemnification. SIQ shall notify the User in writing of any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind arising out of the any third-party claim alleging the aforementioned claims. User shall cooperate with SIQ at the User’s sole cost and expense. User shall not settle, nor attempt to settle, any matter in a manner that adversely affects the rights of SIQ without SIQ’s prior written consent. To the extent applicable, SIQ may participate in and observe the proceedings at its own cost and expense.
Arbitration. In SIQ’s sole and absolute discretion, SIQ may require User to submit any disputes arising from, related to, or in connection with the EULA or access to or use of the Platform, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying the laws of the United States of America and the State of Minnesota. In addition, this agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THE TERMS AND CONDITIONS OF THIS EULA, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Entirety of the EULA; General Provisions; Equitable Relief
Equitable Relief. User recognizes that, in the event the User fails to perform, observe, or discharge any of its obligations or liabilities under this EULA, or threatens to fail to perform, observe or discharge such obligations or liabilities, any remedy at law may prove to be inadequate relief to SIQ; therefore, SIQ shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving that actual damages are not an adequate remedy. User acknowledges that actual damages would be both inadequate and insufficient to protect SIQ from liability related to User’s failure to perform, observe, or discharge any of its obligations or liabilities under the EULA.
Comments, Concerns, and Complaints. All notices of infringement or misappropriation as to the SIQ Intellectual Property or any third-party’s intellectual property should be directed to: firstname.lastname@example.org. All other feedback, comments, requests for technical support, and other communications relating to the Platform should be directed to: email@example.com.
Merger. Each Party acknowledges that it has read the EULA, that it understands it, and that it is the complete and exclusive statement of the agreement between the Parties, which supersedes and merges all prior and contemporaneous proposals, representations and warranties, understandings, and all other agreements, oral and written, between the Parties relating to the subject matter of the EULA and the Platform.
Enforceability. If any provision of the EULA is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the EULA will continue in full force and effect. To the extent any provision of the EULA is judicially determined to be invalid, illegal, or unenforceable for any reason, a court of competent jurisdiction may reform any such provision to make it valid, legal, and enforceable.
Governing Law; Jurisdiction. The EULA shall be governed and interpreted pursuant to the laws of the State of Minnesota, United States of America, notwithstanding any principles of conflict of law. For all disputes, legal suits, actions, or proceedings not subject to arbitration under Section XIV hereof, You agree to irrevocably submit to the personal jurisdiction and venue of the courts located within or embracing Hennepin County, Minneapolis, Minnesota, and waive any and all objections to the exercise of jurisdiction over You by such courts, as well as venue in such courts.
No Assignment. This EULA may not be assigned or transferred by User without SIQ’s prior written consent. User acknowledges and agrees that the EULA, and all incorporated agreements, may be automatically assigned by SIQ in its sole and absolute discretion.
Attachments. The exhibits, schedules, and appendices attached hereto are included in the EULA and incorporated into the EULA as part of a unified document.
SCHEDULE 1 – ELIGIBILITY REQUIREMENTS
In order to use or access the Platform, the User must meet the following eligibility requirements:
User must be of legal age (eighteen (18) years or older) and of legal capacity to form a binding contract with SIQ; and
User must be affiliated with, or employed by, a corporation, limited liability company, or other legal entity that has entered a contract with SIQ to access PortfolioIQ services.
Users may reside in and access the Platform from in any state, territory, or protectorate of the United States.
SCHEDULE 2 – CONTENT STANDARDS
Without limiting the foregoing and pursuant to the EULA, User shall adhere to the following Content Standards in connection with the User’s use of and access to the Platform. User shall not:
submit, share, disclose, or transfer information pertaining to the User’s Assets, or other content, containing any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
infringe or misappropriate any SIQ Intellectual Property or other intellectual property rights of any third party;
conceal, mispresent, or omit any material information to SIQ or any third party in connection with the EULA and the Platform;
promote any illegal activity, or advocate, promote, or assist any unlawful act;
cause annoyance, inconvenience, or needless anxiety or be likely to upset, harass, mortify, humiliate, embarrass, alarm, aggravate, or annoy any other third-party person or entity;
impersonate any person, or misrepresent, mislead, or conceal the identity or affiliation with SIQ or any third-party person or entity;
involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, marketing or advertising, except as otherwise authorized by SIQ; and
create the false impression that User’s information pertaining to the User’s Assets emanate from or endorsed by SIQ or any other third-party person or entity.
SCHEDULE 3 – FEATURES FOR USERS HAVING MEMBERSHIP
The following features that may be available to a User, who registered for an Account (i.e., having a Membership), are listed below. Not all Memberships are the same. The features available to each User is based upon the level selected by the User’s corporation, limited liability company, or other legal entity. The features may include, but are not limited to, the following:
Review of facility and Asset condition assessments;
List of projects planned for Asset replacement or facility improvement, including project scope and budget;
Prioritization of projects to plan for implementation;
For projects in implementation, report on project costs and timeline; and
Energy dashboards to track energy and sustainability goals.
SCHEDULE 4 – INTERACTIVE FEATURES
The Platform contains and hosts a variety of “Interactive Features” that may be available to a User based upon their Membership. Not all Memberships are the same. The “Interactive Features” available to each User is based upon the level selected by the User’s corporation, limited liability company, or other legal entity. These Interactive Features may include, but are not limited to, the following:
Review of facility and Asset condition assessments;
List of projects planned for Asset replacement or facility improvement, including project scope and budget;
Prioritization of projects to plan for implementation;
For projects in implementation, report on project costs and timeline; and
Energy dashboards to track energy and sustainability goals.