GreyJay Energy’s flagship software, Efficiate, offers services that empowers owners and managers of real estate to track, analyze and improve building efficiency by providing actionable information that helps manage energy and water usage (collectively, the “Services”). In light of the fact that we provide our Services in rapidly and constantly evolving markets, we must and hereby do reserve the right, at any time and in our sole discretion, to update and change any or all of these Terms of Service, subject to certain specific terms and conditions set forth in your Proposal (e.g., your contractual terms, pricing, etc.). If any revision we make constitutes a material change to the Agreement, we will notify you; provided, however, that what constitutes a “material change” will be determined by GreyJay Energy in its sole and absolute discretion, which we shall exercise in good faith and using common sense and reasonable judgment. When we change these Terms of Service, whether materially or otherwise, we will modify the “Last Updated” date above. You are responsible for regularly reviewing the most current version of the Terms of Service, which are available at www.greyjayenergy.com. Your continued use of any of the Services after any changes have been made to the Terms of Service shall constitute your consent to be bound by such changes. If you object to any of these Terms of Service, or any changes hereto, whether material or otherwise, your sole and exclusive remedy shall be to terminate your subscription to the Services according to the terms herein.
1. Subscriptions and Implementation
1.1 Subscribing to the Services. We offer our Services through our proprietary software as a service platform that we host for our customers. To subscribe to one or more Services, you must execute a Proposal for that Service. The Proposal shall identify, amongst other things, (a) the fees payable by you to GreyJay Energy, (b) the term of your subscription to the Services to which you have subscribed, and (c) the properties for which you are entitled to utilize the Services. You are only entitled to use the Services for which you have subscribed and paid, and your use of the Services is subject to your compliance with all applicable Terms of Service. You acknowledge and agree that we reserve the right to modify the Services (or any part thereof) from time to time and that we shall not be liable to you or to any third party for any modification of the Services.
1.2 Implementation. You, in consultation with GreyJay Energy, shall determine the appropriate implementation and configuration of your GreyJay Energy account. You will be responsible for approving the implementation, configuration and data migration for your GreyJay Energy account.
1.3 Migration of Data. You and GreyJay Energy shall determine in advance of the implementation process the amount of data, number of data sources and other considerations applicable to the data migration process. You shall be responsible for providing data in a format deemed acceptable by us. You shall retain all right, title and interest in and to your data and other materials submitted to GreyJay Energy. You shall provide such materials and reasonable assistance as identified by us for the migration of your data.
2. Expanding the Services
You may subscribe to additional Services, including any new services made available by GreyJay Energy from time to time, or increase your existing subscription by executing an additional Proposal or completing an additional online sign-up flow. Each new Proposal will include the price and billing date(s) of the Services being added at that time. All new Services are subject to these Terms of Service, as amended from time to time.
3. Customer Support
Provided you have paid all fees owed by you for the Services to which you have subscribed, we will use commercially reasonable efforts to provide, at no charge to you, technical support services to you and your authorized users who have access to the Services. A GreyJay Energy client services representative will be assigned to your cases. Unlimited cases are accepted from authorized users. Our standard support is available from 8am to 5pm (Mountain Time) Monday to Friday, excluding major holidays. You may contact customer support by emailing us at [email protected] Our response time shall not be greater than two (2) business days, absent irregular or unforeseen circumstances.
Provided you have paid all fees owed by you for the Services to which you have subscribed, we shall make available either remote, live or recorded training sessions to your designated, named and authorized users, as well as provide tutorials at no additional charge. Please contact us at [email protected] for more information about onsite training.
5. Your Rights and Restrictions
5.1 License. Subject to (a) your timely payment of all fees set forth in the Proposal and (b) your compliance with these Terms of Service, we hereby grant to you a non-exclusive, non-transferable, limited right and license to use (and permit your authorized users to use) the Services to which you have subscribed solely for your internal business purposes.
5.2 Authorized Users. You (i) are responsible for your authorized users’ compliance with these Terms of Service, and (ii) shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services. You shall notify us immediately of any such unauthorized access or use. It is your responsibility to remove access to the Services if the authorized status of a user or designated employee changes.
5.3 Your Responsibilities and Restrictions. You are responsible for all activities that occur under your user accounts or by your authorized users. You shall (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data that you submit to the Services; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us promptly of any unauthorized use or security breach; (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; and (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services and pay all access charges (e.g., ISP fees) incurred by you in connection with your use of the Services.
You may not, and you shall ensure your authorized users do not, (i) disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services, or modify, adapt, create derivative works based upon, or translate the Services; (ii) license, sublicense, sell, rent , assign, distribute, time share transfer, lease, loan, resell for profit, distribute or otherwise commercially exploit, grant rights in or make the Services available to any third party; (iii) use the Services except as expressly authorized hereunder or in violation of any applicable laws; (iv) engage in any illegal or deceptive trade practices with respect to the Services; (v) circumvent or disable any security or other technical features or measures of the Services or any other aspect of the Software or, in any manner, attempt to gain or attain unauthorized access to the Services or its related computer systems or networks; (vi) use the Services to transmit infringing, libelous, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs or to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; or (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
5.4 Ownership; Reservation of Rights. We own all right, title and interest, including all intellectual property rights, in and to the Services and the underlying software, and any and all updates, upgrades, modifications, enhancements, improvements or derivative works thereof, and in any idea, know-how, and/or program(s) developed by us or our licensees during the course of performance of the Services. No other rights are granted except as expressly set forth in these Terms of Service, and nothing herein conveys any rights or ownership in, or to, the Services or any underlying software or intellectual property.
6. Term and Termination
6.1 Term. The term of the Services varies depending on the Service(s) to which you have subscribed and shall be set forth on the Proposal, and shall automatically renew for successive one (1) year terms unless we discontinue the Service(s) or you provide us with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. Written notice must be submitted to [email protected].
6.2 Termination. Either party may terminate any subscription to Services (i) if the other party breaches any of its obligations under these Terms of Service and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Notwithstanding the foregoing, GreyJay Energy may terminate the Agreement immediately in the event of your material breach, as determined by GreyJay Energy in its sole discretion, of these Terms of Service. Upon a termination of the Agreement, you will immediately discontinue all use of the Services, cease to represent in any form that you are a user of the Services, and destroy all our Confidential Information (as defined below in Section 9) in your possession. Neither party shall be liable for any damages resulting from a valid termination of any subscription(s) to Services as provided for herein; provided, however, that termination shall not affect any claim arising prior thereto.
6.3 Handling of Your Data in the Event of Termination. You acknowledge and agree that following expiration or termination of any of your subscriptions to the Services, we may immediately deactivate the affected Services and that, following a reasonable period of not less than ninety (90) days, we may delete your account and data. However, in the event that the Services are terminated by us, we will grant you temporary, limited access to the Services, not to exceed thirty (30) days, for the sole purpose of permitting you to retrieve your proprietary data, provided that you have paid in full all good faith undisputed amounts owed to us. You further agree that we shall not be liable to you or to any third party for any termination of your access to the Services or deletion of your data, provided that we are in compliance with the terms of this Section 6.3.
6.4 Termination For Convenience; Early Termination Fee. You may terminate your subscription to the Services for convenience at any time by providing thirty (30) days’ prior written notice to GreyJay Energy; provided, however, that if you terminate your subscription prior to the end of its term under this Section 6.4, then you shall pay to GreyJay Energy an early termination fee equal to fifty percent (50%) of the Service Fees (as defined below) payable for the remaining period of your subscription, calculated on a pro rata basis (the “Early Termination Fee”). You hereby expressly acknowledge and agree that GreyJay Energy shall have the right to charge the Early Termination Fee to the payment method associated with your account. In addition to the foregoing, you shall not be entitled to a refund of any pre-paid amounts under any circumstances.
7.1 Service Fees. You shall pay the non-refundable fees for the Services in the amount set forth in the SaaS Service Agreement (the “Service Fees”) and according to the billing frequency stated therein. Service Fees shall be due and payable on the date of the invoice. Service Fees may be increased from time to time, and any increase during the term of your subscription would become applicable to you at the time of renewal of your subscription to the Services. Service Fees are non-refundable even if you terminate your subscription early. Delinquent fees are subject to a 1% per month interest charge and may result in suspension of the Services until paid.
7.2 Implementation Fees. The non-refundable fees for implementation in the amount set forth on the Proposal (the “Implementation Fees”) are due and payable by you on the date of invoice. Implementation Fees are non-refundable unless we fail to complete the implementation for reasons other than your failure to provide us with the requested data or other information required to complete the implementation.
7.3 Late Payments. You acknowledge that your failure to pay any fees or charges set forth in Sections 7.1 or 7.2 above when due may result in suspension or termination of your GreyJay Energy subscription(s). If you fail to pay any of the fees or charges due hereunder, GreyJay Energy reserves the right to, among other things, engage an attorney or a collections agency to collect the outstanding fees and charges. You shall pay all fees and costs incurred by GreyJay Energy in connection with the collection of such past due amounts by any appropriate means, including without limitation any and all court and related costs, reasonable attorneys’ and/or collections agencies’ fees.
7.4 Taxes. You shall be responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by federal, provincial or local governmental entity on the transactions contemplated hereby. When we have the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. Representations and Warranties
8.1 Mutual Representations and Warranties. Each party hereby represents and warrants to the other that (i) it has all necessary authority to enter into and perform its obligations under these Terms of Service without the consent of any third party or breach of any contract or agreement with any third party, (ii) all persons performing any obligations hereunder have entered into all necessary agreements in order for them to comply with these Terms of Service, and (iii) it shall comply in all material respects with all laws applicable to the Services and/or the use thereof.
8.2 Additional Representations and Warranties. You warrant, represent and covenant to us that you will use the Services only for lawful purposes in accordance with these Terms of Service and any and all applicable GreyJay Energy policies and guidelines. GreyJay Energy warrants, represents and covenants that it shall materially comply with all applicable federal, provincial and local laws, regulations and codes (“Applicable Laws”). Applicable Laws include without limitation federal, provincial and local laws and regulations governing or relating to privacy rights in connection with GreyJay Energy’s performance under this Agreement (“Privacy Laws”).
8.3 Data Security Matters.
i. allow for user password management
ii. transmit passwords in a secure format
iii. protect passwords entered for purposes of gaining access to GreyJay Energy by utilizing code that follows password management best practices.
i. use information security best practices for transmitting and storing content and adhere to industry standards;
ii. employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
iii. ensure its host facilities maintain industry standards for security and privacy; and
8.4 Disclaimer of Warranties. Except for the express warranties set forth in this section 8, to the maximum extent permitted by applicable law, we make no other warranties, express, implied, statutory or otherwise, in law or from a course of dealing or use of trade, as to any matter, including those of merchantability, satisfactory quality, title, fitness for a particular purpose, or non-infringement. We do not warrant that the software or the services will meet all of your requirements, including accounting requirements, or that the use of the software or the services will be uninterrupted or error-free. The software and services are provided to you on an “as is” basis and your use of software and services is at your own risk, including, without limitation, compliance with any laws, rules or regulations related to property management. The parties expressly acknowledge that the disclaimer of warranty constitutes an essential part of the agreement.
We hereby expressly disclaim any representations or warranties that your use of the services will satisfy or ensure compliance with any legal obligations or laws, rules or regulations. this disclaimer applies to but is not limited to any federal or provincial statutes or regulations that may be applicable to you. You are solely responsible for ensuring that your use of the services is in accordance with applicable law.
If you are dissatisfied with the services or this agreement, your sole and exclusive remedy is to discontinue using the services.
9. Confidential Information
Unless expressly authorized by the other party, neither party shall disclose to any third party any information or materials provided by the other party hereunder that are reasonably understood to be confidential (“Confidential Information”), or use such Confidential Information in any manner other than to perform its obligations pursuant hereto. The foregoing restrictions do not apply to any information that is in the public domain or already in the receiving party’s possession, was known to the receiving party prior to the date of disclosure or becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, providing receiving party provides disclosing party of timely notice of such court order or subpoena.
This Section 9 shall survive termination or expiration of this Agreement.
10.1 Indemnification for Infringement. Subject to Section 10.4, we shall, at our expense, defend, indemnify and hold you harmless against any third-party claim brought against you which alleges that the Services infringe any Canada patent issued to a third party as of the Effective Date or infringe any copyright, trademark or trade secret of any third party (collectively referred to as the “Intellectual Property Underlying the Services”). In the event an injunction is sought or obtained against use of the Intellectual Property Underlying the Services or in our opinion is likely to be sought or obtained, we shall, at our option and expense, either (i) procure for you and your named authorized users the right to continue to use the Services, or (ii) replace or modify the Services to make their use non-infringing while being capable of substantially performing the same function. In the event subsections (i) and (ii) above are not commercially practicable, we may terminate the Services and refund any prepaid, but unused Service Fees. We shall not be obligated to defend or be liable for any costs or damages under this Section.
If the alleged infringement arises out of or is in any manner attributable to (i) any modification of any Services by you (or any of your authorized or designated users), or (ii) use of Services in combination with services and products not provided by GreyJay Energy if such infringement would have been avoided without such modification or combination, or (iii) our compliance with your designs or instructions, or (iv) a claim that does not state with specificity that the Services are the subject of the claim (each an “Excluded Claim”). The indemnification obligations contained in this Section 10.1 shall survive any termination or expiration of this Agreement.
10.2 Indemnification for Data Security and Privacy. Subject to Section 10.4, and during the term of your subscription to the Services, we shall, at our expense, defend, indemnify and hold you harmless against any third party claim brought against you which alleges our gross negligence in preventing unauthorized access to, or our willful misconduct in disclosing, Personally Identifiable Information (as defined below in Section 12) of your customers in our possession, custody or control. This indemnity will not apply to the extent that such claim arises from or relates to your negligence or willful misconduct or that of your agents or representatives, or to the extent liability is disclaimed or limited by either party hereunder. The indemnity obligations set forth in this section are contingent upon you proving our gross negligence or willful misconduct has directly and proximately resulted in the unauthorized access to or disclosure of personally identifiable information of your customers in our possession or control.
10.3 Your Indemnification. You agree to indemnify, defend, and hold us and all our employees, officers, directors and agents harmless from any and all claims, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) arising out of or relating to (i) your use of the Services in violation of these Terms of Service, (ii) an Excluded Claim, (iii) any actual or alleged breach by you of any representation, warranty, covenant or obligation under these Terms of Service, or (iv) your gross negligence or willful misconduct. Your indemnification obligations under this Section 10.3 shall survive any termination or expiration of the Agreement.
10.4 Notification and Cooperation. The indemnifying party’s obligations to the indemnified party under this Section 10 above are conditioned upon (i) the indemnified party notifying the indemnifying party promptly in writing upon knowledge of any claim for which it may be entitled to indemnification hereunder; (ii) to the extent applicable, the indemnified party ceasing use of the claimed infringing Services upon receipt of notice of same; (iii) the indemnified party permitting indemnifying party to have the sole right to control the defense and settlement of any such claim (provided that indemnifying party may not settle any claim without the indemnified party’s consent unless the settlement unconditionally releases indemnified party from all liability); (iv) the indemnified party providing reasonable assistance to indemnifying party, at the indemnifying party’s expense, in the defense of such claim; (v) the indemnified party not entering into any settlement agreement or otherwise settling any such claim without indemnifying party’s express prior written consent or request; and (vi) the indemnified party complying with any settlement or court order made in connection with the claim (related to the future use of any infringing materials). For clarity, the indemnified party may participate in the defense or settlement of a claim with counsel of its own choice and at its own expense.
10.5 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. Limitation on Liability
Except with respect to damages arising in connection with a breach of section 5.3 or 12, to the maximum extent permitted by law, in no event shall either party’s total cumulative liability arising out of or related to the agreement exceed the sum of the amounts paid by you for the services giving rise to the liability during the one-year period immediately preceding the date the cause of action arose.
Except with respect to damages arising in connection with a breach of section 5.3 or 12, to the maximum extent permitted by law, in no event shall either party hereto, its licensors or suppliers, have any liability to the other party for any lost profits or cost of procurement of substitute goods or services or for any indirect, special, consequential, exemplary or incidental damages, however caused and based on any theory of liability (including negligence), arising out of or relating to the services or these terms of service, and/or the performance or non-performance by either party of its obligations hereunder, whether or not such party has been advised of the possibility of such damages.
12. Personal Information and Privacy Statement
You will comply with all applicable privacy and other laws, rules, regulations and guidelines relating to protection, collection, use and distribution of Personally Identifiable Information (as defined below) of any person. You will post a privacy statement on the page where you collect Personally Identifiable Information (“Privacy Statement”) that complies with all applicable laws, rules, regulations and guidelines and, at a minimum, (a) notifies users of the Personally Identifiable Information collected, how it will be used and how it will be secured, and (b) identifies the collection (via cookies, web beacons and other applicable means) and use of information gathered in connection with the Services and obtains prior informed consent (opt-in) before utilizing any tracking technologies, to the extent required by applicable laws and regulations. Such Privacy Statement shall also include technical information related to collection, transmission and storage of Personally Identifiable Information provided by us through the Services. If required by applicable data protection legislation or other law or regulation, you will inform third parties that you are providing their Personally Identifiable Information to us for processing and will ensure that any required third parties have given their consent to such disclosure and processing. You agree to comply with the descriptions and provisions of the Privacy Statement. “Personally Identifiable Information” means any information that can be associated with or traced to any individual, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).
13. Customer Interactions
We frequently engage with our customers to understand how they interact with our Services and how to better develop our Services to meet their collective and ever-evolving needs. While transparency and candor are key to that process, you acknowledge and agree that you shall not improperly use or disclose to us any confidential information or trade secrets of any third parties, and shall not breach any obligation of confidentiality that you may have to any third party. You further acknowledge and agree that no jointly owned intellectual property shall be created as a consequence of our customer engagement process or practices, and that GreyJay Energy owns all right, title and interest in and to its intellectual property.
14.1 Independent Parties. You and GreyJay Energy are independent contractors. These Terms of Service does not create any joint venture, partnership, agency or employment relationship between the parties. You shall be solely responsible for managing your employees and for any and all compensation, taxes, benefits and liabilities to your employees and any of your other representatives or service providers. Neither you nor any of your employees, representatives, or service providers shall make any representations, warranties or guarantees with respect to us, these Terms of Service or the Services other than as expressly authorized by us in writing.
14.2 Assignment. Neither the Services nor any of your rights or obligations under these Terms of Service may be assigned or transferred, by operation of law or otherwise, without our prior written consent. We may freely assign our rights and/or obligation hereunder without your consent. Subject to the foregoing, these Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3 Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; failures of telecommunications providers or internet service providers; failures of third party suppliers, service providers or vendors; and any other cause beyond the reasonable control of a party.
14.4 Choice of Law. These Terms of Service and any dispute arising out of or relating to the Services and/or these Terms of Service shall be governed by and construed under the laws of the Province of Alberta, without regard to the principles of conflict of laws. All disputes arising out of or related to the Agreement shall be subject to the exclusive jurisdiction and venue of the provincial and federal courts for Alberta, Canada, and the parties hereby expressly consent to the personal and exclusive jurisdiction of these courts.
14.5 E-mail and Notices. You further agree that we may provide any and all notices, statements and other communications to you through either e-mail, mail, express delivery service, or delivered by a recognized commercial carrier addressed to the address last designated on the Proposal. You are responsible for providing us with any updated contact information.
14.6 No Waiver; Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms of Service shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.7 Severability. If any of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions hereof shall remain in full force and effect.
14.8 Entire Agreement. To the maximum extent permitted by applicable law, these Terms of Service, together with the documents referenced herein and all Proposals, constitute the entire agreement between the parties as to their subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter hereof. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided herein. You acknowledge and agree that your agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in a Proposal or dependent upon any oral or written, public or private comments made by us with respect to future functionality or features for the Services. In the event of any conflict between the provisions in these Terms of Service, any applicable additional terms and conditions, and any Proposal, the terms of such Proposal or additional terms of service shall prevail, to the extent of such conflict.