Effective: January 1, 2017
1.2 The Qado Services and our business may change from time to time. As a result, at times it may be necessary for Qado to make changes to this Agreement. Qado reserves the right to update or modify this Agreement at any time and from time to time. If we do so, we will post the changes at http://www.qadoenergy.com/#!terms-of-use/ctf5 and indicate at the top of the page the date that this Agreement was last revised. We will also notify you of any material changes, either through a Qado Services interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Qado Services or changes made for legal reasons may become effective immediately. Your continued use of the Qado Services after any such changes or modifications become effective constitutes acceptance of such changes or modifications. If you do not agree to abide by any such changes or modifications to this Agreement, do not access, browse, or use (or continue to access, browse, or use) the Qado Services.
1.4 Arbitration. Section 9 of this Agreement contains an Arbitration Agreement, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Under the Arbitration Agreement, (a) you will only be permitted to pursue claims against QADO on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
2.1 General. The Qado Services provide users of the Qado Services with information about our company and, in certain cases, such as with the Interconnection Application Portal, provide you with the opportunity to submit information to your applicable utility company (each, a “Utility”) in order to facilitate connecting a distributed energy resource to the applicable electrical grid.
2.3 Restrictions. Unless otherwise expressly authorized by Qado or within the Qado Services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Qado Services, use of the Qado Services, or access to the Qado Services. Unless otherwise expressly agreed by Qado, the Qado Services are for your personal use.
2.4 Changes to Qado Services. Qado reserves the right to modify, suspend, or discontinue the Qado Services (or any part thereof) with or without notice. You agree that Qado will not be liable to you or any third party for any modification, suspension, or discontinuance of the Qado Services (or any part thereof).
- Content; Intellectual Property Rights.
3.1 Content. The Qado Services contain material, including but not limited to software, text, graphics, and images (collectively referred to as the “Content”). We may own the Content or portions of the Content may be made available to us through arrangements that we have with third-parties. The Content is protected by U.S. and foreign intellectual property laws. Unauthorized use of the Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use, copy, or display the Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of any of the Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Content and Qado Services shall automatically terminate and you shall immediately destroy any copies you have made of the Content.
3.2Trademarks. The trademarks, service marks, logos, and design of Qado (the “Qado Trademarks”) used and displayed on the Qado Services are registered and unregistered trademarks or service marks of Qado. Other company, product, and service names located on the Qado Services may be trademarks or service marks owned by third parties (collectively with the Qado Trademarks, the “Trademarks”). Nothing on the Qado Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Qado Services without the prior written consent of Qado specific for each such use. The Trademarks may not be used to disparage Qado or the applicable third party, Qado’s or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without Qado’s prior written consent. All goodwill generated from the use of any Qado Trademark shall inure to Qado’s benefit.
3.3 Interconnection Application Portal. Certain users may register for and use the Interconnection Application Portal in accordance with the terms and conditions of this Agreement. Qado makes the Interconnection Application Portal available via the Internet. Subject to all of the terms and conditions of this Agreement, Qado hereby grants such registered users a limited, revocable, non-exclusive, non-sublicenseable, non-transferable right to access and use the Interconnection Application Portal solely for users’ personal use only. You will not use the Interconnection Application Portal for any other purpose. Except as expressly set forth herein, you will not, directly or indirectly: (a) attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Interconnection Application Portal; (b) modify, translate or create derivative works based on the Interconnection Application Portal; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Interconnection Application Portal; (d) use the Interconnection Application Portal for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Interconnection Application Portal or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing.
3.4 Additional Restrictions. You agree not to: a) take any action that imposes an unreasonable load on the infrastructure of the Qado Services; (b) use any device, software, or routine to interfere or attempt to interfere with the proper working of the Qado Services or any activity being conducted on the Qado Services; c) attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the Qado Services; (d) delete or alter any material posted on the Qado Services by Qado or any other person or entity; or e)frame or link to any of the materials or information available on the Qado Services.
3.5 User Content. You are solely responsible for all information, data, text, messages, images or other materials that you upload, post, publish or display (hereinafter, “upload”) or email via the Qado Services (“User Content”). Qado reserves the right to investigate and take appropriate legal action against anyone who, in Qado’s sole discretion, violates this provision, including without limitation, removing content from the Qado Services, suspending or terminating the account of such violators, and reporting you to the law enforcement authorities. You agree to not use the Qado Services to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) 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; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, or ethnically or otherwise objectionable; or (vii) in our sole judgment is objectionable or which restricts or inhibits any other person from using or enjoying the Qado Services, or which may expose Qado or its users to any harm or liability of any type;
- interfere with or disrupt the Qado Services or servers or networks connected to the Qado Services;
- violate any applicable local, state, national, or international law, or any regulations having the force of law;
- impersonate any person or entity,
- falsely state or otherwise misrepresent your affiliation with a person or entity;
- further or promote any criminal activity or enterprise; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Qado Services.
3.6 License to Interconnection Application Data. By uploading or otherwise submitting any data via the Interconnection Application Portal (the “Interconnection Application Data”), you hereby grant and will grant Qado and its affiliated companies a non-exclusive, worldwide, royalty-free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to (a) copy, use, modify, distribute, display and disclose the Interconnection Application Data solely to the extent necessary to process the applicable interconnection application with the applicable utilities or other third parties identified by you, (b) copy, modify and use the Interconnection Application Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (c) copy, use, modify, distribute, display and disclose the Interconnection Application Data on an aggregate and/or anonymized basis for marketing purposes.
3.7 License to Other User Content. By uploading any User Content (excluding any Interconnection Application Data), you hereby grant and will grant Qado and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use such User Content in connection with the operation of the Qado Services or the promotion, advertising, or marketing thereof, in any form, medium, or technology now known or later developed.
3.8 Preservation, Disclosure, and Removal of User Content. You acknowledge and agree that Qado 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, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Qado, our users of the Qado Services, and the general public. You understand that the technical processing and transmission of the Qado Services, including your content, may involve transmissions over various networks and changes to conform and adapt to the technical requirements of connecting networks or devices. In addition, Qado has the sole right to remove any User Content from the Qado Services that it believes in its sole discretion is in violation of this Agreement or is otherwise inappropriate in any way.
3.9 No Liability for Third-Party Content. Under no circumstances will Qado be liable in any way for any content uploaded by third parties or at the direction of users of the Qado Services, 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 uploaded or emailed via the Qado Services. You acknowledge that Qado may not pre-screen content, but that Qado and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Qado Services. 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.
3.10 External Sites. The Qado Services may contain links to third-party web sites (“External Sites”). These links are provided solely as a convenience to you and not as a referral or endorsement by us of any other entity or the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites.
We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
3.11 Certain elements of the Qado Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to, the use of framing or mirrors, except as otherwise expressly permitted by Section 3.1 of the Agreement. None of the Content may be retransmitted without the express written consent from Qado for each and every instance.
Limitation of Liability and Disclaimer of Warranties.
4.1 QADO AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “QADO PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT OR THE QADO SERVICES, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY. THE QADO PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE QADO SERVICES AND THE CONTENT AT YOUR OWN RISK.
THE QADO PARTIES DO NOT WARRANT THAT THE QADO SERVICES WILL OPERATE ERROR‑FREE OR THAT THE QADO SERVICES, THEIR SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE QADO SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO QADO PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE QADO SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE QADO PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON‑INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
4.2 IN NO EVENT SHALL ANY QADO PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE QADO SERVICES AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH QADO PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE QADO PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Indemnification. You agree to defend, indemnify, and hold harmless the Qado Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use, or misuse of the Content or Qado Services. Qado shall provide notice to you of any such claim, suit, or proceeding. Qado reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Qado’s defense of such matter.
- Termination of the Agreement.
6.1 Qado reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Qado Services or the Content at any time and for any reason without prior notice or liability. Qado reserves the right to change, suspend, or discontinue all or any part of the Qado Services or the Content at any time without prior notice or liability.
6.2 Sections 2 (Qado Services), 3 (Content; Intellectual Property Rights), 4 (Limitation of Liability and Warranty), 5 (Indemnification), 6 (Termination of Agreement), 9 (Dispute Resolution By Binding Arbitration), and 10 (Miscellaneous) shall survive the termination of this Agreement.
- User Must Comply with Applicable Laws.
7.1 Our Web Sites are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Qado Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
7.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Qado Services or Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Qado Services and/or Content.
- U.S. Government Restricted Rights. The Content is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the Government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Use of the Qado Services or Content by the Government constitutes acknowledgement of our proprietary rights in the Qado Services and Content.
- Dispute Resolution By Binding Arbitration
9.1 PLEASE READ THIS SECTION 9 CAREFULLY AS IT AFFECTS YOUR RIGHTS.
9.2 Agreement to Arbitrate. This Section 9 is referred to as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Qado, whether relating to this Agreement (including any alleged breach thereof), the Qado Services, any advertising, any aspect of the relationship between us, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Qado are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
9.3 Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND QADO AGREE THAT WE MAY EACH BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND QADO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
9.4 Pre-Arbitration Dispute Resolution. Qado is always interested in resolving any disputes amicably and efficiently, and most user concerns regarding the Qado Services can be resolved quickly and to the user’s satisfaction by emailing customer support at firstname.lastname@example.org If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Qado should be sent to 55 Union Place Summit NJ 07901 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought. If Qado and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Qado may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Qado or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Qado is entitled.
9.5Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website at http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Qado and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Qado agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
9.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Qado will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Qado will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Qado will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Finally, if the value of the relief sought is $75,000 or less, Qado will pay reasonable attorneys’ fees should you prevail. Qado will not seek attorneys’ fees from you. But, if you initiate an arbitration in which you seek more than $75,000 in relief, the payment of attorneys’ fees will be governed by the AAA Rules.
9.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
9.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 9.3 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any provision in Section 9.3 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
9.9 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, Qado agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Qado Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
Subject to Section 9 above, this Agreement is governed by the internal substantive laws of the Commonwealth of Massachusetts, without respect to its conflict of laws provisions. Failure of Qado to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Qado unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Qado and you, this Agreement constitutes the entire Agreement between you and Qado with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. Any information submitted or provided by you to through the Qado Services might be publicly accessible. Important and private information should be protected by you. Qado is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.