Energis.CLOUD, an Energis SA product
- By continuing to use Energis.Cloud or benefitting from the Service, the User will be deemed to have accepted such modifications.
- The User acknowledges that he or she has been duly authorised by a customer (hereinafter the “Customer”) to use the Service and that he or she will only use the Service under the strict supervision of the Customer.
Grant of Licence
- The User undertakes not to perform any action or omission that may result in a (potential) breach by the Customer of the terms and conditions of the licence granted by Energis SA to the Customer allowing Customer to access the Service (hereinafter the “Licence”). Any right that is not expressly granted to the Customer by the Licence is reserved by Energis SA.
- The User acknowledges that the use of Energis.Cloud is dependent on the Customer complying in full with its obligations under the Licence or under any contractual arrangement between the Customer and Energis SA or between the Customer and an Energis partner.
- The User (i) will not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available in any way to any third party the Licence or the Service or any part thereof; (ii) will not modify or make derivative works based upon the Service or any part thereof; (iii) will not create Internet “links” to the Service or any part thereof or “frame” or “mirror” the Service or any part thereof on any server or wireless or Internet-based device; and (iv) will not reverse engineer or access the Service or any part thereof for any purpose, including, among others (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Service or any part thereof, or (c) copying any ideas, features, functions or graphics of the Service or of any part thereof.
- If the User uploads, submits, stores, sends or receives content to or through the Service, the User gives Energis SA a worldwide licence to use, host, store, reproduce and modify such content. The rights granted by the User in this licence are for the limited purpose of operating, promoting, and improving the Service and to develop new ones.
Customer’s Responsibilities in relation to the Use of the Service
- The User will (i) not send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) not send or store infringing, obscene, threatening, libellous or otherwise unlawful or tortious material, including material that is harmful to children or that violates third-party privacy rights; (iii) not send or store material containing software viruses, worms, Trojan horses or other harmful computer codes, files, scripts, agents or programmes; (iv) not interfere with or disrupt the integrity or performance of the Service or any part thereof or the data contained therein; and (v) not attempt to gain unauthorised access to the Service or its related systems or networks.
- The User acknowledges that the Customer shall have sole responsibility for all activity occurring under the Customer accounts, including, among others, for all actions of the User.
- The User will ensure that the password providing access to the Service is kept secret and is known only to the User to whom it is allocated. The User will not provide false identity information to gain access to the Service or impersonate another user.
- The User will notify the Customer immediately of any unauthorised use of its account or password as well as of any other breach of security, including illegitimate copying or distribution of content known to or suspected by the User and will use all reasonable efforts to immediately stop any such breach.
- The User will indemnify, defend and hold Energis SA harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by Energis SA, arising out of or in connection with the infringement by the User of this article 6.
- The User may be asked whether or not he or she wishes to receive marketing and other non-critical Service-related communications from Energis SA from time to time. The User may opt out of receiving such communications at any time, e.g. by changing his or her preferences.
- The User however acknowledges that, because the Service is a hosted, online application, even if he or she opted out, Energis SA may occasionally need to notify the User of important announcements regarding the Service.
- Energis SA does not endorse any third-party websites and does not endorse such websites even if they are linked through the Service. Any such links are provided to the User only for convenience. Energis SA will not be liable for any content, products, or other materials available through such links.
- While using the Service, the User may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties, such as advertisers or sponsors, showing their goods and/or services through the Service. Any such activity and any terms, conditions, warranties or representations associated with such activity, are solely between the User or the Customer and the said third party. Energis SA shall have no liability, obligation or responsibility for any such activity.
- The User acknowledges that both the provision and the use of the Service require the use of the Internet and of means of electronic communications and may require the availability and use of certain ancillary software, hardware or services provided by third parties. Energis SA shall not be liable for any delays or failures resulting from the use of the Internet and of means of electronic communication nor for the (continuous or interrupted) availability of the said software, hardware and services. Energis SA may cease, interrupt or suspend the Service, if the third-party software, hardware or services on which the Service is dependent are no longer available, suspended or interrupted. Among others, Energis SA indicates that Service features that interoperate with the Google AdWords programme depend on the continuing availability of the Google AdWords application programming interface (“API”) and programme for use with the Service.
- The User also acknowledges that the provision of the said third-party software, hardware or services may be dependent on the agreement between the Customer and the third party and subject to the terms and conditions of the said third party. Such third-party licenses and authorisations do not fall under Energis SA’s responsibility.
Disclaimer of Warranties
- Energis SA’s standard performance of the Service is an obligation of means and (any part of) the Service, including the content and the documentation, are provided on an “as is” basis.
- Energis SA hereby disclaims all conditions, representations and warranties, whether express, implied, statutory or otherwise, to the maximum extent permitted under applicable law. As such and among others, any service, good or information provided by Energis SA is provided without any warranties or representations, whether express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, performance, non-infringement, timeliness, reliability, availability, accuracy, quality or completeness of the Service, the content, the documentation or of any data provided in connection with the Service.
Limitation of Liability
- To the extent permitted under applicable law, Energis SA will under no circumstances be liable for any incidental, special, punitive or consequential damages (including loss of profit and loss of business) suffered by the User. The total aggregate liability of Energis SA shall in any event be limited to the amount recovered by Energis SA from its insurers.
- Energis SA is and remains the exclusive owner of all intellectual property rights relating to Energis.Cloud including, but not limited to, the Service, the documentation or the content, or any service provided by it and all related rights, titles, and interests, which will remain vested in Energis SA.
- The User acknowledges that the source code and object code related to the Service constitute a computer programme as defined in article 1(1) of Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programmes and is therefore protected against (i) any unauthorised permanent or temporary reproduction by any means and in any form, (ii) its translation, adaptation arrangement and any other alteration and (iii) any form of distribution to the public, including rental.
- The User will not, without prior written authorisation from Energis SA, copy, modify, make derivative works based on, disassemble, decompile, reverse engineer or translate anything that is protected by Energis SA’s intellectual property rights nor remove, modify or obliterate any trademark, logo, name, notice, identifying number or coding applied to the Service.
- The User acknowledges that he or she may be brought to receive Confidential Information from Energis SA.“Confidential Information” means: (i) any and all information in relation to the Service provided by Energis SA hereunder including any information contained in the documentation and inter alia trade secrets; (ii) Energis SA’s product plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; (iii) any information designated by a Energis SA or the Customer as confidential in writing, or if disclosed verbally, reduced to writing and designated as confidential within thirty (30) days. Confidential Information will not include any information that:
- is in the public domain at the time it is disclosed or becomes part of the public domain after lawful disclosure;
- is already known to a party at the time of disclosure and is not subject to restriction;
- becomes known to a party from a source other than the other party without breach of an obligation of confidentiality owed to a party;
- is disclosed by a party to a third party without restrictions on such third party’s rights to use or disclose such information;
- is developed by a party without access to any of the other party’s Confidential Information;
- is released for publication by the other party in writing; or
- is disclosed by a party pursuant to judicial order, a requirement of a governmental agency or by operation of law.
- Unless explicitly authorised by Energis SA, the User will not disclose the Confidential Information pertaining to Energis SA to any third party and will disclose it to representatives of the Customer only to the extent that such disclosure is required for the performance of the Service and on the condition that said representatives are bound by confidentiality obligations that are at least as restrictive as those set forth in this article 13.
- The User will keep the Confidential Information that he or she receives from Energis SA in the strictest confidentiality in accordance with this article 13 for five (5) years after its disclosure.