DECH, INC. SUBSCRIBER TERMS AND CONDITIONS
DECH, INC., a Delaware corporation doing business as Distributed Energy Clearinghouse™ (“Company”), provides users and subscribers with access to its webbased analytical platform and related services. By creating an account, accessing or using the Company’s software-as-a-service platform (the “Service”), you or the entity on whose behalf you are using the Service (“Subscriber”) agree to be bound by these Subscriber Terms of Use (the “Terms”). If you are using the Service on behalf of an organization, you represent that you have authority to bind that organization to these Terms.
Certain features of the Service may be made available only through a paid subscription. The applicable price, subscription period, project allowance, and other commercial terms presented to Subscriber at the time of purchase are incorporated into these Terms.
1. Definitions
1.1 “Service” means the Company’s software-as-a-service (SaaS) platform providing energy analytics, modeling, and related insights.
1.2 “Third-Party Data” means any data, information, or software provided by third parties that the Company integrates or utilizes in delivering the Service.
1.3 “Authorized Users” means Subscriber’s employees, contractors, or agents authorized to use the Service.
1.4 “Subscription” means the Subscriber’s contracted rights and obligations related to provision by the Company of the Service.
2. Grant of Rights
2.1 Non-Exclusive and Non-Transferable Rights Subject to these Terms and payment of any applicable fees, the Company grants Subscriber a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right to access and use the Service during the applicable Subscription Term solely for Subscriber’s internal business purposes.
2.2 Prohibition on Modification, Copy and Reverse Engineering Subscriber shall not, and shall not permit any third party to: (a) modify, copy, reverse engineer, decompile, disassemble, or attempt to discover or extract the source code, underlying algorithms, models, methodologies, or other proprietary components of the Service; (b) use the Service for any unlawful purpose; (c) sublicense, sell, lease, distribute, or commercially provide access to the Service to any third party; (d) interfere with or disrupt the integrity, security, or operation of the Service; or (e) use the Service to develop, train, or improve a competing product or service.
3. Service Use and Limitations
3.1 Estimates and Informational Use Only:
Subscriber acknowledges that the Service provides preliminary estimates, analytical results, project qualification information, and related insights based on information available to the Company, Subscriber-provided inputs, assumptions, modeling methodologies, and Third-Party Data.
Outputs from the Service are intended for informational, screening, evaluation, and preliminary project qualification purposes only. They are not intended to constitute or replace detailed engineering, system design, construction plans, equipment specifications, interconnection studies, legal advice, financial advice, investment advice, tax advice, regulatory advice, or other professional services.
Subscriber is responsible for independently evaluating and verifying Service outputs before relying upon them in connection with any investment, procurement, design, construction, operational, contractual, regulatory, or other business decision.
3.2 Subscriber Inputs and Assumptions:
The accuracy and usefulness of Service outputs depend in part upon information, assumptions, selections, and other inputs provided or selected by Subscriber. Subscriber is responsible for the accuracy, completeness, and appropriateness of such information and inputs.
The Company is not responsible for errors, omissions, or inaccurate results caused by inaccurate, incomplete, outdated, or inappropriate Subscriber inputs or assumptions.
3.3 Third-Party Data and Software:
The Service may utilize Third-Party Data in performing analyses and generating results. The Company does not control and does not guarantee the accuracy, completeness, timeliness, availability, or reliability of Third-Party Data.
Energy prices, utility tariffs, market rules, incentive programs, regulatory requirements, equipment costs, market participation requirements, and other factors relevant to Service outputs may change over time. Accordingly, Service outputs may become inaccurate or outdated after they are generated.
3.4 No Determination of Eligibility or Performance
The Service does not constitute a determination, certification, or guarantee that Subscriber or any project will qualify for any tariff, incentive, market program, interconnection arrangement, financing structure, regulatory treatment, equipment configuration, or other opportunity identified or evaluated through the Service.
The Company does not guarantee any level of savings, revenue, return on investment, net present value, internal rate of return, payback period, energy performance, market revenue, or other economic or operational result.
3.5 No Warranty on Data and Outputs: The Company makes no representation or warranty, express or implied, regarding the accuracy, completeness, reliability, or future applicability of analyses, estimates, reports, recommendations, or other outputs generated by the Service. Subscriber assumes responsibility for decisions made based upon use of the Service.
4. Subscription and Payment
4.1 Subscription Terms:
Certain features of the Service may require purchase of a Subscription. The applicable subscription fee, subscription period, number of projects or analyses permitted, and any other applicable commercial terms will be displayed to Subscriber before purchase.
Those commercial terms are incorporated into and form part of these Terms upon Subscriber’s purchase of the applicable Subscription.
4.2 Payment:
Subscriber agrees to pay all fees presented at the time of purchase. Payment may be processed by a third-party payment processor designated by the Company. Subscriber authorizes the Company and its payment processor to charge the payment method provided by Subscriber for the applicable fees and taxes.
Unless otherwise expressly stated at the time of purchase, all fees are due upon purchase and are non-refundable.
4.3 Subscription Period:
A paid Subscription begins upon successful completion of payment and continues for the subscription period stated at the time of purchase, unless earlier terminated in accordance with these Terms.
Unless expressly stated otherwise at the time of purchase, unused project allowances, analyses, or other Subscription benefits expire at the end of the applicable Subscription Term and do not carry forward.
4.4 Taxes
Subscriber is responsible for all applicable sales, use, excise, and similar taxes associated with Subscriber’s purchase or use of the Service, excluding taxes imposed on the Company’s net income.
5. Intellectual Property
5.1 Company Intellectual Property
The Company and its licensors retain all right, title, and interest in and to the Service and all underlying and related technology, software, source code, object code, algorithms, models, methodologies, databases, workflows, interfaces, designs, documentation, trademarks, trade names, and other intellectual property.
Except for the limited rights expressly granted under these Terms, no right, title, or interest in or to the Company’s intellectual property is transferred to Subscriber.
5.2 Subscriber Data
As between Subscriber and the Company, Subscriber retains ownership of data, information, documents, and other materials submitted by or on behalf of Subscriber to the Service (“Subscriber Data”).
Subscriber grants the Company a non-exclusive, worldwide, royalty-free license to host, process, reproduce, transmit, and otherwise use Subscriber Data to the extent reasonably necessary to provide, maintain, support, secure, and improve the Service.
5.3 Service Outputs
Subject to Subscriber’s compliance with these Terms, Subscriber may use reports, analyses, estimates, and other outputs generated by the Service from Subscriber Data for Subscriber’s internal business purposes.
For clarity, Subscriber’s right to use Service outputs does not transfer ownership of the Company’s software, methodologies, models, algorithms, databases, Third-Party Data, or other underlying intellectual property embodied in or used to generate such outputs.
5.4 Aggregated and De-Identified Data
The Company may create and use data derived from Subscriber’s use of the Service that has been aggregated or de-identified so that it does not reasonably identify Subscriber, an Authorized User, or a specific Subscriber project.
The Company may use such aggregated or de-identified data for analytics, benchmarking, research, product development, Service improvement, and other lawful business purposes.
6. Data and Privacy
6.1 The Company’s collection, use, processing, and handling of personal information in connection with the Service is described in the Company’s Privacy Policy, as updated from time to time.
6.2 Data Rights and Permissions
Subscriber is responsible for ensuring that Subscriber has all rights and permissions necessary to provide Subscriber Data to the Company and to permit the Company to process such Subscriber Data as contemplated by these Terms.
6.3 Data Storage and Security
Subscriber acknowledges that no electronic system or method of transmission or storage can be guaranteed to be completely secure, and the Company does not warrant that unauthorized third parties will never be able to defeat security measures or improperly access Subscriber Data.
7. Disclaimer of Warranties
7.1 As-Is Service:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ALL DATA, ANALYSES, REPORTS, ESTIMATES, RESULTS, AND OTHER CONTENT PROVIDED THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
THE COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY, RELIABILITY, AVAILABILITY, AND RESULTS.
THE COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM HARMFUL COMPONENTS.
8. Limitation of Liability
8.1 Officers and Directors
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AFFILIATES, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, SAVINGS, BUSINESS OPPORTUNITY, DATA, OR GOODWILL, ARISING OUT OF OR RELATED TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Liability Limited to Fees Paid
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AFFILIATES, AND LICENSORS ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO THE COMPANY FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8.3 Limitations and Law
THE LIMITATIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
9. Term and Termination
9.1 Term of Terms
These Terms become effective with respect to Subscriber when Subscriber first affirmatively accepts them, including by creating an account through a page that states that account creation constitutes agreement to these Terms, and remain in effect for so long as Subscriber maintains an account, accesses the Service, or has an active Subscription.
9.2 Paid Subscription Term
Each paid Subscription begins upon successful completion of payment and continues for the subscription period displayed to Subscriber at the time of purchase.
Expiration of a paid Subscription terminates Subscriber’s right to use paid features associated with that Subscription but does not necessarily terminate Subscriber’s account or these Terms.
9.3 Termination or Suspension by Company
The Company may suspend or terminate Subscriber’s access to all or any portion of the Service if Subscriber violates these Terms, fails to pay amounts when due, uses the Service in a manner that creates a security, legal, or operational risk, or otherwise misuses the Service.
9.4 Effect of Expiration or Termination
Upon expiration or termination of a Subscription, Subscriber’s right to access the paid features associated with that Subscription will cease.
Unless otherwise required by law or expressly stated by the Company, expiration, suspension, or termination will not entitle Subscriber to a refund of fees previously paid.
Sections that by their nature should survive expiration or termination, including provisions relating to intellectual property, disclaimers, limitations of liability, and miscellaneous terms, shall survive.
10. Miscellaneous
10.1 Governing Law: These Terms shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of laws principles.
10.2 Assignment: Subscriber may not assign their Subscription without the prior written consent of the Company. The Company may assign these Terms in connection with a merger, reorganization, sale of assets, financing transaction, or other corporate transaction.
10.3 Force Majeure: The Company shall not be liable for any failure or delay in performance caused by circumstances beyond its reasonable control, including failures of telecommunications networks, internet services, utilities, cloud infrastructure, thirdparty service providers, governmental actions, natural disasters, labor disputes, civil disturbances, acts of war or terrorism, or other events of force majeure.
10.4 Entire Agreement
These Terms, together with the commercial terms presented to Subscriber at the time of purchase and the Company’s Privacy Policy with respect to matters addressed therein, constitute the complete understanding between the Company and Subscriber regarding Subscriber’s use of the Service and supersede prior or contemporaneous understandings relating to the same subject matter.
If Subscriber and the Company have separately executed a written master services agreement, subscription agreement, order form, statement of work, or similar agreement governing Subscriber’s use of the Service, the separately executed agreement will control to the extent of any conflict with these Terms.
10.5 Changes to Terms
The Company may modify these Terms from time to time. If the Company makes material changes, it will provide reasonable notice through the Service, by email, or by other appropriate means.
Material changes will apply prospectively. If applicable law requires affirmative consent to a modification, the Company will obtain such consent before the modification becomes binding.
10.6 Severability
If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid or unenforceable provision shall be enforced to the maximum extent permitted by law.
10.7 Waiver
The Company’s failure to enforce any provision of these Terms shall not constitute a waiver of that provision or of the Company’s right to enforce it later.
DECH, INC., d/b/a Distributed Energy Clearinghouse™
