Eniscope Software as a Service Terms
ACCEPTANCE OF ENISCOPE SOFTWARE AS A SERVICE TERMS
IMPORTANT — PLEASE READ THESE TERMS CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE ENISCOPE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
DESCRIPTION OF SERVICE
The Service includes, and is limited to, a service, web site, or mobile application that allows You or any Eniscope Hardware operated by You access to and use of a single Eniscope Account. “Eniscope Hardware” referred to herein means a piece of hardware supplied or authorised by BEST designed to upload data to Your Eniscope Account. "Eniscope" referred to herein means an online tool that organizes and presents energy related metering data. The Service may contain information, audio clips , text, photographs, videos, data, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service (collectively, “Content”). Subject to these Terms of Service, BEST grants to You and each user of the Service a global, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Service. Authorised BEST Partners may re-sell the Service. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Service is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. Authorised BEST Partners may re-sell the Service. For the purposes of these Terms of Service, “Content” also includes all User Content (as defined below).
An "Eniscope Account" or "Account" referred to herein means a service, web site, or mobile application, provided by BEST, which You may use to create, update, share, and display or publish information, , text, messages, data or other materials ("User Content").
Without limiting the above, the Service is not designed or licensed for use in dangerous environments, including without limitation operation of nuclear plants, aircraft communication and navigation systems , air traffic control, life support or weapons systems, or any situation that may potentially result in a dangerous environment.
Unless explicitly stated otherwise, any new additional features that augment or improve the current Service, including the release of new tools, graphics and resources, shall be subject to the Agreement. In order to use the Service, You must obtain access to the Internet, either directly or through devices that access Internet-based content, and pay any service fees associated with such access. In addition, You must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device. Also, You also understand that any equipment (including, but not limited to, routers, switches etc) in the network path (including that of your Internet service providers) between any Eniscope Hardware or the computer accessing the Service, and the Internet that modifies, limits or otherwise interferes with the free and unmodified flow of information is Your responsibility. BEST are not responsible for Service access issues as a result of problems with your internet access. You also understand and agree that the service may include certain communications from BEST, such as service announcements and administrative messages and that these communications are considered part of the Service and You will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided or supported by BEST for use in accessing the Service. BEST will provide the Service in accordance with this Agreement. BEST may at its sole discretion modify the features of the Service from time to time without prior notice.
Your access to the Service is limited by a Fair Use Policy. You undertake not to use the Services in any way that would in BEST's reasonable opinion materially affect the use of or access to the Service of any other User of the Service, or would lead to BEST incurring additional charges from its suppliers. You acknowledge that the Service is provided to other users and to preserve the integrity of the Service and to avoid Service degradation BEST may need to limit Your access to the Service. If, in BEST's reasonable opinion, it is considered necessary to limit Your access to the Service BEST may change your Service, (including without limitation, your transmission speed or access rate) or manage your use of, or access to our Service in any way BEST may see fit in the circumstances. These reasons include but are not limited to, any circumstances where You are running an application or program that places excessive resource demands including but not limited to bandwidth to and from the Service.
The Upload Service is further limited to a maximum average submission rate of one per minute per channel. A “Submission” is limited to a maximum of 512 bytes and represents the metered data for one channel only. A channel may only represent the metered data gathered from a single metered source. Metered sources include but are not limited to a three-phase electrical meter, a single phase electrical meter, a temperature sensor, a pulse input, a generic-profile Mbus meter, support for legacy Modbus/TCP meters.
DATA STORAGE, ACCESS AND RETENTION
Metered channel data is submitted as 1 minute averages and stored by the Service. After 100 days, 1 minute data is averaged down to 30 minute data then stored and the original 1 minute data is then discarded. Data can only be uploaded with a valid SaaS license code per channel, and further, any data uploaded without an accompanying SaaS code will be discarded. Stored data can only be viewed with a valid SaaS code for the metered channel. Stored data will be discarded 12 months after the last valid SaaS code has terminated. Your configuration data will be discarded 12 months after the last valid SaaS code has terminated for any of the metered channels associated with Eniscope Hardware.
In order to use the Service, You must have a valid Account. To acquire an Account for the Service, You must provide BEST with an electronic mail address and other information ("Registration Data"). You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account. You agree to (a) immediately notify BEST of any unauthorized use of Your Account or any other breach of security, and (b) ensure that You exit from Your Account at the end of each session. BEST cannot and will not be liable for any loss or damage arising from Your failure to comply with this section. In consideration of use of the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service's registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. BEST assumes no duty to verify such information as further detailed in the CONTENT OF THE SERVICE section of these Terms of Service. If You provide any information that is untrue, inaccurate, not current or incomplete, or BEST has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BEST has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service (or any portion thereof). BEST may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation.
You will need to pay to BEST the Eniscope Service Fees as set out in the fee schedule sent to You and acknowledged by You by placing an order.
The Eniscope Service Fees as set out in the fee schedule will be payable for a minimum period (e.g 12, 36 or 60 months) as specified in the schedule.
The minimum period will start on the date that You complete the Registration process detailed above for the Eniscope Service provided under the order that You have placed. Registration must be completed within twelve months of the date of the order You have placed; in the event that You do not complete the Registration process within twelve months the Eniscope Service will lapse.
The fees are payable in full even if You never use the Service, never complete the Registration process or don’t use it for the full term.
Additional features may be added to the Service and made available to You at an additional fee a ("Premium Service"). If You choose to subscribe to a Premium Service, You shall pay additional fees to BEST as set out in the fee schedule sent to You and acknowledged by You by placing an order for such Premium Service.
If you select Credit card as the method of payment of an Eniscope Service Fee or Premium Service, You must provide current, complete and accurate Billing Data. You must promptly update all Billing Data to keep Your Account current, complete and accurate (such as a change in billing address, credit card number or credit card expiration date) and You must promptly notify BEST if Your Payment Method is changed (for example, for loss or theft) or if You become aware of a potential breach of security, such as the unauthorized disclosure or use of Your name or password. If You fail to provide any of the foregoing information, You agree that BEST may continue charging You for any use of the Eniscope Service or Premium Service under your Billing Data.
BEST may change prices at any time without prior notice, but will endeavour to provide reasonable advance notice via the BEST website and/or electronic mail.
You agree that in the event BEST is unable to collect the fees owed to BEST for Your Account through Your Subscription Fee, BEST may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by BEST in connection with such collection activity, including collection fees, court costs and lawyer's fees.
TERMINATION, BREACH, SUSPENSION AND CANCELLATION
If Your Eniscope Service Fee or Premium Service Fee payment is overdue, BEST will disable Your access to the features provided. BEST may, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, Your account will be disabled and You may not be granted access to Your Account or any files or other Content (including Your User Content) contained in Your Account, and BEST may delete Your User Content, although residual copies of information may remain in our system for some time for back-up purposes. In the event of termination, BEST may also withdraw and at its discretion reallocate the public web address of Your Account.
If You terminate Your Account, via means provided for cancellation on the BEST website, or via telephone call or electronic mail to BEST, and You request that BEST delete Your User Content and files contained in Your Account, BEST will make all reasonable efforts to do so.
PROPRIETARY/INTELLECTUAL PROPERTY RIGHTS
BEST and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of BEST's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service.
ENISCOPE is a Trademark of Best Energy Saving Technology Limited or its affiliates.
You acknowledge that the Service, or portion thereof may be subject to the export control laws.. You will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to BEST, its affiliates, suppliers and any other party authorized by BEST to resell, distribute, or promote the Service ("Resellers"), and under such circumstances BEST, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
BEST does not claim ownership over any User Content submitted on or through the Service. Your User Content belongs to You. However, by uploading any User Content to the Service, You agree that BEST may store and display (only to You, to the extent that You make such User Content private) Your User Content solely as necessary in connection with the Service. To the extent You choose to share any of Your User Content with other users of the Service, You agree to allow these users to view Your User Content and, to the extent applicable, collaborate with You and Your User Content.
You understand that all User Content is the sole responsibility of the person from which such User Content originated. This means that You, and not BEST, are entirely responsible for all User Content that You upload, post, transmit or otherwise make available via Your Account. BEST does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content.
You understand that by using the Service, You may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will BEST be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that BEST does not pre-screen User Content, but that BEST and its designees shall have the right (but not the obligation) in their sole discretion to refuse, modify or move any Content that is available via the Service. Without limiting the foregoing, BEST and its designees shall have the right to remove any User Content that violates the Agreement or is otherwise objectionable. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, You acknowledge that You may not reasonably rely on any Content created by BEST or submitted to BEST. You acknowledge and agree that BEST may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce the Agreement;
(c) respond to claims that any Content violates the rights of third-parties; or
(d) protect the rights, property, or personal safety of BEST, its users and the public.
If BEST discloses User Content to comply with legal process or respond to claims that any User Content violates the rights of third-parties, to the extent permitted by law, regulation or legal process, BEST agrees to provide You with prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
You agree that BEST may use the energy data in a fully anonymised way to demonstrate energy consumption trends across its clients, or for presentation of real time data to prospective clients or for any other marketing, publicity or research purpose.
You understand that the technical processing and transmission of the Service, including Your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in BEST's sole discretion as to what action should be taken. You agree that You will not:
(a) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) impersonate any person or entity, including, but not limited to, a BEST official, forum leader, guide or host, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
(d) upload, post or otherwise transmit any User Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(e) upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(f) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(g) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(h) intentionally or unintentionally violate any applicable local, state, national or international law;
(i) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices.
(j) offer for sale or sell any item, good or service that (i) violates any applicable local law or regulation, (ii) You do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) BEST determines, in its sole discretion, is inappropriate for sale through the Service provided by BEST;
(k) use the Account website as a redirecting/forwarding service to another website;
(l) exceed the scope of the Service that You have signed up for; for example, accessing and using the tools that You do not have a right to use, or having humans share User logins, or deleting, adding to, or otherwise changing other people's comments or User Content as an Account holder. If any user is reported to be in violation with the letter or spirit of these terms, BEST retains the right to terminate such account at any time without further warning.
Apple Device and Application Terms. If you are accessing the Service via an application on a device provided by Apple, Inc. (“Apple”) or an application obtained through the Apple App Store (each an “Application”), the following shall apply:
- Both You and BEST acknowledge that these Terms of Service are concluded between you and BEST only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- The Application is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for Your private, personal, non-commercial use, subject to all the terms and conditions of these Terms of Service as they are applicable to the Service;
- Authorised BEST Partners may re-sell the Service;
- You will only use the Application in connection with an Apple device that You own or control;
- You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to you the purchase price, if any, of the Application;
- You acknowledge and agree that BEST, and not Apple, is responsible for addressing any claims You or any third party may have in relation to the Application;
- You acknowledge and agree that, in the event of any third party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, BEST, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
- Both You and BEST acknowledge and agree that, in Your use of the Application, You will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both You and BEST acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon Your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against You as the third party beneficiary hereof.
Apple, the Apple logo, iPhone and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Google Play is a trademark of Google Inc.
In-App Purchases. Through the Application, You may purchase (“In App Purchase”) keys or other goods or services (collectively, “Goods”). To the extent You purchase Goods through the Apple iTunes service, you are agreeing to Apple’s iTunes’ Terms and Conditions (http://www.apple.com/legal/itunes/uk/terms.html) or such other link as apple use in the country of purchase.
GENERAL PRACTICES REGARDING USE AND STORAGE
You agree that BEST has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content and other communications maintained by the Service. You acknowledge that BEST may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. BEST retains the right to create limits on use and storage at our sole discretion at any time with or without notice. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time.
You agree that You will not:
(a) upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(b) interfere with or disrupt our Service or networks connected to our website or through the use of our Service, or disobey requirements, procedures, policies or regulations of networks connected to our website or through the use of our Service, or otherwise interfere with our Service in any way, including through the use of coding;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on the Service (except for Your User Content), or create derivative works from our website (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of BEST or any other third party, except with the prior written consent of BEST or the appropriate third party.
CONTENT OF THE SERVICE
BEST takes no responsibility for any third-party Content or User Content (including, without limitation,any viruses or other disabling features), nor does BEST have any obligation to monitor such third-party Content. BEST reserves the right at all times to remove or refuse to distribute any Content on the Service, such as Content which violates these Terms of Service. BEST also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of BEST, its users and the public. BEST will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
If BEST discloses such information to satisfy any applicable law, regulation, legal process or governmental request or to respond to user support requests, to the extent permitted by law, regulation or legal process, BEST agrees to provide You with prompt notice of any such demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure.
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, You agree to comply with all applicable laws regarding the transmission of technical data exported the country in which You reside.
NO RESALE OF THE SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of BEST. Authorised BEST Partners may re-sell the Service.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that (a) all of the information provided by You to BEST to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
NO WARRANTIES OR REPRESENTATIONS BY BEST ENERGY SAVING TECHNOLOGY LIMITED
You understand and agree that the Service is provided "as is" and BEST, its affiliates, suppliers and Resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of your data on BEST's servers. BEST, its affiliates, suppliers and Resellers make no warranty or representation regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet any user's requirements. Use of the Service is at Your sole risk. You will be solely responsible for any damage to You resulting from the use of the Service. The entire risk arising out of use, security or performance of the Service remains with You. No oral or written information or advice given by BEST or its authorized representatives shall create a warranty or in any way increase the scope of BEST's obligations. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, BEST, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
You agree to indemnify, defend and hold harmless BEST, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of these Terms of Service or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
MODIFICATIONS TO SERVICE
BEST reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that BEST shall not be liable to You or to any third party for any modification, suspension, termination or discontinuance of the Service.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and BEST Software is intended or created by these Terms of Service.
LIMITATION OF LIABILITY
In no event will BEST or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if BEST, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, BEST's, its affiliates', suppliers' and Resellers' maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by You for the Service (if any) in the previous twelve (12) months.
WAIVER AND SEVERABILITY
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of BEST services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
CHOICE OF LAW AND FORUM
This Agreement shall be governed by and construed under the laws of England and Wales. The parties consent to the exclusive jurisdiction and venue of the courts located in England and Wales.
ENTIRE AGREEMENT/GENERAL PROVISIONS
This Agreement constitutes the entire understanding and agreement between the parties relting to the subject matter of this Agreement and supersedes any and all prior communicationss and agreements between the parties respecting such subject matter whether written or oral. BEST may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of BEST upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on BEST, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Service. All notices or other correspondence to BEST under this Agreement must be sent to the following electronic mail address for such purpose: [email protected]
Or the following physical address:
Best Energy Saving Technology Limited,
St. Austell Enterprise Park,