ENTERPRISE MANAGER TERMS AND CONDITIONS OF USE

 

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY

BEFORE USING THIS SITE AND THE ENTERPRISE MANAGER DATABASE.

 

ADMMicro, Inc. (“ADMMicro”) collects energy and environmental parameter operating data from the owner of that data who has subscribed to the Enterprise Manager service (the “Subscriber”).  ADMMicro collates and makes that data available to users of the Enterprise Manager Web site authorized by Subscriber to have access to Subscriber’s data contained therein (the “Program”).

 

The Enterprise Manager Web site and Program were developed by ADMMicro.  Your use of the Enterprise Manager Web site (“Site”) and the Program, and all content contained therein (“Content”), is subject to these Terms and Conditions. 

 

1.             YOUR WARRANTIES AND COVENANTS.

You warrant and represent that you have been permitted access to Subscriber’s data by Subscriber or Subscriber’s authorized designees and you are an authorized user of the Site, Content and Program.  You understand and agree that Subscriber’s data contained on the Site is the confidential information of Subscriber and shall not be disclosed to or shared with any third party except as explicitly authorized by Subscriber.  You understand and agree that you shall only access data you are authorized to access by Subscriber and no other Content at the Site.

 

2.             PASSWORD AND CONFIDENTIAL INFORMATION.

Upon becoming an Enterprise Manager authorized user, you will be given a user name and password to access the Program via the Site. This password can be changed within the Site after logging in. For security purposes, it is recommended that you memorize your password and do not write it down. Your user name and password are not transferable.  You are responsible and liable for all transactions consummated using your active user name and password.  You are responsible for ensuring that no unauthorized person shall have access to your user name, password or account.  It is your sole responsibility to (1) control the dissemination and use of your user name and password; (2) authorize, monitor, and control access to and use of your Enterprise Manager account and password; and (3) promptly inform ADMMicro of any need to change or deactivate your password. You grant ADMMicro and all other persons or entities involved in the operation of the Site and Program the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the Site and Program. ADMMicro cannot and does not assume any responsibility or liability for any information you submit, or your or third parties' use or misuse of information transmitted or received using ADMMicro’ tools and services.

 

3.             INTELLECTUAL PROPERTY RIGHTS.

The Site, Program and Content, including but not limited to text, graphics, design, look and feel, images, logos, button icons and software, are protected by copyright under both United States and foreign laws, and U.S.A trademark and other laws.  ADMMicro owns the proprietary rights in the Site and Program.  ADMMicro, or its Subscribers, licensors and content suppliers own the proprietary rights in the Content.  The compilation (meaning the collection, arrangement and assembly) of all Content is the exclusive property of ADMMicro.

 

4.             USE OF SITE AND PROGRAM CONTENT.

ADMMicro authorizes you to view or download a single copy of the Content you are permitted access to solely for internal business purposes provided: (i) you include the following copyright notice: "Copyright © 2007, ADMMicro, Inc. All rights reserved" and other copyright and proprietary rights notices that are contained in the relevant Content; (ii) you do not redistribute or resell any Content without the express, prior, written permission of ADMMicro; (iii) you do not make any attempt whatsoever to reverse engineer, compile, copy or adapt any part of the Site, Program or Content; and (iv) you do not utilize the Site, Program or Content other than in a manner, which is strictly in accordance with accepted Internet usage standards and protocols.  Any use of the Content not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws.  If you violate any of these Terms and Conditions, your permission to use the Content automatically terminates, you must immediately destroy any copies you have made of any portion of the Content, and you may be liable for damages or violations of law.

 

5.             EXPIRATION AND TERMINATION.

(a)Your access to the Program will cease upon expiration or termination of the Enterprise Management Subscription between ADMMicro and Subscriber.

 

(b) ADMMicro may immediately without notice terminate or suspend your access to the Program for cause if you breach any of these Terms and Conditions, without prior notice or liability. 

 

(c)  The provisions of Paragraphs 1 (as it relates to confidentiality), 3, 5, 6, 7, 8 and 9 shall survive any expiration or termination of your Program account and/or access to the Site. Expiration or termination of your account and/or access to the Site shall not release you from any obligation that has accrued prior to such expiration or termination.

   

6.             WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY AND REMEDIES.

 

ADMMICRO DISCLAIMS ALL WARRANTIES BEYOND THOSE WARRANTIES MADE IN ITS MASTER CONTRACT WITH SUBSCRIBER.  EXCEPT AS WARRANTED TO THE CONTRARY TO SUBSCRIBER IN THE MASTER CONTRACT: (A) THE SITE AND PROGRAM ARE PROVIDED ON AN "AS IS" BASIS; (B) ADMMICRO, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, QUIET ENJOYMENT AND FITNESS FOR A PARTICULAR PURPOSE; AND (C) WITHOUT LIMITING THE FOREGOING, ADMMICRO, ITS LICENSORS AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, SECURITY, CURRENTNESS, EFFECTIVENESS OR TIMELINESS OF THE CONTENT, SOFTWARE, TEXT, GRAPHICS, LINKS, OR COMMUNICATIONS PROVIDED ON OR THROUGH THE USE OF THE SITE OR PROGRAM. 

 

IN NO EVENT SHALL ADMMICRO, ITS LICENSORS, OR ITS SUPPLIERS, INCLUDING INTERNET BROWSER SUPPLIERS, INTERNET ACCESS PROVIDERS AND ONLINE SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY FAILURE TO DELIVER THE SITE, PROGRAM OR ANY CONTENT TO YOU, OR FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OR DAMAGE TO DATA AND BUSINESS INTERRUPTION) RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE, PROGRAM OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ADMMICRO, ITS LICENSORS OR SUPPLIERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE SITE, PROGRAM OR CONTENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.

 

7.             ACCEPTABLE SITE AND PROGRAM USE.

(a)  General Rules

You may not use the Site or Program, or post material (if an available option) at the Site or in connection with the Program: (a) in violation of any applicable law or regulation; (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others; (c) that is, in ADMMicro’s sole discretion, defamatory, obscene, threatening, harassing, abusive or hateful or otherwise violates the Acceptable Use Standards defined below; or (d) for the purpose of posting advertisements or solicitations of business, chain letters or pyramid schemes.

 

(b)  Security Rules.

You are prohibited from violating or attempting to violate the security of the Site and Program, including without limitation by the following means: (a) accessing data not intended for or directed to you or logging into a server or account you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the system or network supporting the Site and Program, or to breach the Site/Program security or authentication measures without proper authorization; (c) attempting to interfere with the transmission of ADMMicro’s services to any user, host or network, including, without limitation, by submitting a virus or other harmful code to the Site, or overloading,  flooding, spamming, mailbombing or crashing the Site; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any e-mail or public forum posting (if available).  Violations of ADMMicro’s system or network security may result in civil or criminal liability. ADMMicro will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

   

(c)  Acceptable Use Policy.

The Site and Program may be used only for lawful purposes. ADMMicro specifically prohibits any use of the Site and Program, and you agree not to use the Site and Program, for any of the following:

  

i.  Deleting or revising any material posted by any other person or entity.

   

ii.  Using any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site.

 

iii.  Taking any action that imposes an unreasonable or disproportionately large load on the Site’s infrastructure.

  

iv.  If you have a password, allowing access to a non-public area of the Site to, or disclosing to or sharing your password with any third parties, or using your password for any unauthorized purpose.

  

v.  Notwithstanding anything to the contrary contained herein, using or attempting to use any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site other than the search engine and search agents available from ADMMicro on the Site.

   

vi.  Attempting to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Site and Program.

 

vii.  Impersonating another person.

 

viii.  Harvesting or collecting information about others.

 

ix.  Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Site and Program, or which, in the judgment of ADMMicro, in its sole discretion, exposes ADMMicro or any of its customers, licensors or suppliers to any liability or detriment of any type.

  

(d)  Failure to abide by any of the provisions of this Paragraph 7 shall constitute a material breach of these Terms and Conditions. 

 

8.             INDEMNITY.

You agree to indemnify and hold ADMMicro, its parents, subsidiaries, affiliates, officers, employees, agents, licensors and suppliers harmless, from and against any claims, damages, losses, costs, expenses, suits, judgments, actions, demands, liabilities and settlements, including without limitation, attorneys’ and expert witness fees, from (i) any claim or demand made by any third party due to or arising out of access to and use or misuse of the Site and Program by you or a third party using your account, or (ii) the violation of these Terms and Condition by you or a third party using your account.

 

9.             JURISDICTION.

Any claim or controversy relating in any way to these Terms and Conditions shall be governed and interpreted exclusively in accordance with the laws of the Commonwealth of Virginia and the United States without regard to the United Nations Convention on Contracts for the International Sale of Goods.  This Agreement shall be deemed to have been made in, and shall be construed under, the internal laws of the Commonwealth of Virginia, without regard to the principles of conflicts of laws thereof.  Any mediation in connection with this Agreement shall be conducted in Roanoke, Virginia, United States of America.  In addition, the parties acknowledge and agree that the federal and state courts located in Roanoke, Virginia, United States of America shall have exclusive jurisdiction in any action or proceedings with respect to this Agreement. In addition, each such party hereby irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such proceedings, and hereby further irrevocably and unconditionally waives and agrees to the fullest extent permitted by law not to plead or claim that any such proceeding brought in any such court has been brought in an inconvenient forum.

 

10.           ENTIRE AGREEMENT.

Both parties agree, except as expressly provided in additional terms of use contained in the Site and Program, these Terms and Conditions constitute the entire agreement and understanding between you and ADMMicro with respect to the use of the Site and Program and supersede all prior and contemporaneous discussions, agreements and writings in respect thereto.  In the event of a conflict between these Terms and Conditions and any other legal notice contained in the Site and Program, the provisions of these Terms and Conditions shall be controlling.