Standard Terms
TERMS OF SERVICE
AGREEMENT BETWEEN CARBONQUEST, INC. DBA POWERFLY AND USER
This website, www.mypowerfly.com, (“Website”) contains various web pages owned and operated by CarbonQuest, Inc. DBA PowerFly, a Delaware Corporation (“Company”). Company may grant you access to use Company’s Software as a Service including, but not limited to, hardware and software for remote monitoring for power production from energy plants and other clean energy technologies (“Services”). Use of this Website and Services are offered to you conditioned on your full acceptance of the terms and conditions of this agreement contained herein (“Terms”). Your use of this Website and Services constitutes your agreement to all associated Terms. By using Website and Services, you represent that you are lawfully able to enter contracts. Please read the following Terms carefully and keep a copy for your records.
1. ACCOUNT. Company will create a username for you, and you will create a password to access Company Services (“Account”). You are responsible for maintaining the privacy of your Account and for restricting access to your Account. You hereby accept all responsibility whatsoever for any and all activities that occur under your Account. You may not assign, or transfer in any manner, your Account to any other person or entity. You agree that Company is not responsible for third party access to Account that results from theft or misappropriation of your Account.
2. PAYMENT. You shall select a “Service Package” and make all associated payments for that Service Package. Your payment amounts and payment schedule for your chosen Service Package will be further detailed in your quote, estimate, and/or invoices. You shall make all payment within thirty (30) days of receipt of invoice from Company. If you fail to make any payment when due, without limiting Company’s other rights and remedies, Company may charge an interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly, or, if lower, the highest amount permitted by applicable law. You must reimburse Company for all costs incurred by collection of the late payments including attorneys’ fees, court costs, and collection agency fees.
3. TERM/TERMINATION OF SERVICES. Services shall commence upon selection of a Service Package and terminate upon completion of the Service Package. Company may terminate the Services: i) immediately if you fail to make payment under Section 2; ii) immediately if you breach any of your confidentiality and/or use obligations per Section 4; iii) if you otherwise materially breach the Terms and such breach remains uncured thirty (30) days after the Company provides you with written notice of such breach; or iv) if you become insolvent, file for voluntarily or involuntarily bankruptcy, make or seek a general assignment for benefit of your creditors, or appoint an agent to take charge of or sell any material portion of your business. You may terminate the Services if: i) Company is in material breach of these Terms and such breach remains uncured thirty (30) days after you provide Company with written notice of such breach; or ii) if Company become insolvent, files for voluntarily or involuntarily bankruptcy, makes or seeks a general assignment for benefit of Company’s creditors, or appoints an agent to take charge of or sell any material portion of Company.
The rest of your obligations per these Terms shall survive the termination of the Services.
4. INTELLECTUAL PROPERTY/CONFIDENTIALITY. All content included on the Website and other content provided via Services, including but not limited to, text, graphics, logos, images, and any compilation of such, and any and all software, is the intellectual property of Company (“Intellectual Property”). You agree to abide by all copyright and proprietary notices or other restrictions contained in such Intellectual Property and will not make any changes. All Intellectual Property that is not public knowledge is Confidential. You shall not disclose any Confidential Intellectual Property to any third party unless explicitly required by law.
You are hereby granted a non-exclusive, non-transferrable, revocable license to access and use the Intellectual Property strictly in accordance with these Terms. As a condition of your use of the Intellectual Property, you warrant and represent that you will not use the Intellectual Property for any purpose that is illegal or prohibited by these Terms. You may not use the Intellectual Property in any manner which could damage, disable, or impair the Intellectual Property or interfere with any other party’s use and enjoyment of the Intellectual Property.
You shall not modify, publish, transmit, reverse engineer, transfer or sell, create derivative works, or in any way exploit any of the Intellectual Property. You will use Intellectual Property solely for your personal use and will make no other use of the Intellectual Property without the express, written permission of Company. You agree that you do not acquire any ownership rights in the Intellectual Property. Other than the aforementioned license mentioned in this Section 4, Company does not grant you any other license, express or implied, to the Intellectual Property of Company or Company’s licensors. Upon termination of the Services for whatever reason, you shall immediately return, delete, or destroy all copies of Company Intellectual Property and certify such in writing.
5. SUSPENSION OF SERVICES. Company may temporarily suspend your access to the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Intellectual Property; (B) your use of the Intellectual Property disrupts or poses a security risk to the Intellectual Property or to any other customer or vendor of Company; (C) you are using Intellectual Property for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue your business in its ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company's provision of the Services to you is prohibited by applicable law; (ii) any vendor of Company has suspended or terminated Company's access to or use of any third-party services or products required to enable you to access the Services; or (iii) you are in violation of your payment obligations per Section 2. Company shall use commercially reasonable efforts to provide you with at least 48 hours prior written notice of any Service suspension. Company shall provide updates regarding resumption of access to the Services. Company shall resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension of Services is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of a suspension of Services.
6. DATA USE AND PRIVACY POLICY. Company may monitor your use of the Services and collect and compile “Aggregated Statistics.” Aggregated Statistics are data and information related to your use of the Services that is automatically generated by the normal operation of the Services and used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. As between Company and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. You acknowledge that Company may compile Aggregated Statistics based on your data input into the Services. You agree that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify you or your confidential information. Further, your use of Website and Services is subject to Company’s Privacy Policy. Please review Company’s Privacy Policy, which also governs the Website, Services, and informs users of data collection practices.
7. ELECTRONIC COMMUNICATIONS. You consent to receive electronic communications and you agree that all agreements, notices, disclosures, and other communications that we provide electronically, via email and on the Website, satisfy any legal requirement that such communications be in writing.
8. THIRTY-PARTY PRODUCTS, SERVICES, AND LINKS TO THIRD PARTY SITES. Company may from time to time make third-party products and services available to you. For purposes of these Terms, such third-party products and services are subject to their own terms and conditions. If you do not agree to abide by the applicable terms for any such third-party products and services, then you should not install or use such third-party products and services. Additionally, Website may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of Company and Company is not responsible for the contents of any Linked Site. Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Company.
9. INTERNATIONAL USERS. Website and Services is controlled and operated by Company from our offices within the United States of America. If you are located outside of the United States, you are responsible for complying with all local laws. You agree that you will not use Services or Website accessed in a manner such that is prohibited by any applicable laws or regulations in another country.
10. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless Company, Company’s officers, shareholders, employees, directors, and agents for any losses, costs, liabilities and expenses (including court costs and reasonable attorney’s fees) relating to or arising out of your use of the Website or Services or your violation of any of these Terms. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses.
11. LIABILITY DISCLAIMER/RISKS. THE WEBSITE, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES AVAILABLE MAY INCLUDE INACCURACIES OR ERRORS. COMPANY MAKES NO REPRESENTATION ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, OR ACCURACY OF THE WEBSITE, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE AND ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES ARE PROVIDED “AS IS” WITHOUT A WARRANTY OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE WEBSITE, INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND RESULTS.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST BUSINESS, OR LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO USE OF THE WEBSITE, SERVICES, SOFTWARE, PRODUCTS OR OTHERWISE PROVIDED IN THESE TERMS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY) EVEN IF COMPANY HAS BEEN MADE AWARE OF THE POSSIBLILITY OF SUCH DAMAGES.
13. GOVERNING LAW; SUBMISSION TO JURISDICTION. These Terms are governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Washington in each case located in Spokane County, and you and Company irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
14. SEVERABILITY. If any provisions of these Terms or any application of such provision to any party or circumstances, shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent, the remainder of the Terms or the application of such provision to such person or circumstances, other than the application as to which such provision is determined to be invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law.
15. ENTIRE AGREEMENT/CHANGE TO TERMS AND SERVICES. These Terms, and the associated Service Package, constitute the entire agreement between you and Company with respect to use of the Website and Services. In the event of a conflict between the Terms and the Service Package, the Terms shall control. Company reserves the explicit right, in its sole discretion, to change the Terms. Company may also discontinue or change certain Services. Company will use reasonable efforts to communicate such changes and update associated Terms. The most current version of the Terms will supersede all previous versions. Company encourages you to periodically review the Terms to stay informed of any updates.
CONTACT US
Company welcomes your questions or comments:
CarbonQuest, Inc.
3010 1st St
Spokane Valley, WA 99216
Effective as of: 01/01/2024