Subject to the terms and conditions below Van Brunt & Associates, Inc. ("us" or "we") grants you a revocable and non-transferable license to access the VBEnergyZone ("Portal") solely for your use in accordance with this Portal Access Agreement (the "Agreement"). You represent and warrant that You are authorized to bind your firm to the terms contained herein. You further agree that any use of the Portal by you and others who have been granted access (collectively, "Authorized Users") by you will be deemed to be fully authorized by you, that you are responsible for the actions of Authorized Users and that the obligations and limitations that apply to you hereunder also apply to your Authorized Users. We are relying upon your agreement to the terms contained herein in continuing to provide you access to the Portal.
You shall take reasonable steps to maintain the security of communications between your and the Portal, including, but not limited to, taking reasonable steps: to maintain confidentiality of your password(s) ("Login Information"), to maintain physical security of equipment and facilities, to exercise appropriate oversight and supervision of your personnel, to evaluate your security safeguards periodically, to install and maintain appropriate firewalls and other technical measures where appropriate, and to guard against the intentional or unintentional corruption or loss of data in your control. Such steps shall include, but not be limited to, the following:
In connection with your access to the Site, you will create Login Information consisting of an initial password and user name. You may be required to complete and execute a login/password form to continue to have access or to provide access to other individuals at your firm. Each password and user name shall be unique and shall be non-transferable. You shall log into the Portal using only your assigned Login Information. We shall be entitled to assume, unless notified by you otherwise, that a user presenting your Login Information is in fact you. Another member of your firm may not use your Login Information. You shall notify us immediately if you become aware of any unauthorized use of any Login Information. We shall have the right at anytime to change, modify or amend any password or user name.
You shall report any loss of the Login Information or any unauthorized access, or reasonable suspicion of unauthorized access, to the Portal using your Login Information promptly to us. Upon receiving such information from you, we shall disable the Login Information and provide you with new and secure Login Information. You shall promptly report to us any material system, equipment, or software malfunction, error, breakage or breach that involves the security of data that you detect or that you believe is imminent or is likely to have occurred. Each party shall reasonably cooperate with the other in efforts to reduce the effects of any such malfunction, error, breakage or breach, to mitigate damage and restore lost code or data.
You agree that any actions taken (or deemed taken) using your Login Information will be attributed to and will be binding and enforceable against you and that you are wholly responsible for any losses arising from misuse of the Login Information.
Your use is subject to the following restrictions:
This Portal is protected by copyright, trade secret, patent, trademark, trade dress, and other intellectual property rights. Our logo, and other trademarks, service marks, logos, and service names (collectively, the "Marks") are owned or licensed by us. The entire Portal, and all object and source code, text, graphics, templates, and all scripts within the Portal and the design, layout and contents of this Portal are Copyright 2012-2021 Van Brunt & Associates, Inc. All rights reserved.
We shall have the right at our option to provide a proprietary legend and/or mark on the Portal and the content; said legend or mark may at our option be included at the beginning and/or end of each page, screen or set of data or in digital form within a field associated with one or more items. You shall not obscure such legend or mark; and, the you may copy such items only on condition that the legend and mark, if any, is reproduced intact with each item.
You will keep confidential and refrain from disclosing any and all technical information, know-how, and inventions disclosed by us in relation to your access to this Portal, except when, after, and to the extent that the information, know-how, and inventions are generally known to the public. You acknowledge and agree that, due to the unique nature of the Portal, there can be no adequate remedy at law for any breach or threatened breach of the provisions of this Agreement, that any such breach or threatened breach will result in irreparable harm to us, and therefore, that, upon any such breach or threat thereof, we shall be entitled to seek injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
THE INFORMATION PROVIDED IN THIS PORTAL IS PROVIDED ON AN "AS IS" BASIS FOR INFORMATIONAL PURPOSES ONLY AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, PERFORMANCE, NON-INTERFERENCE WITH INFORMATION, AND ACCURACY OF INFORMATIONAL CONTENT. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE DATA POSTED ON THE PORTAL, WHETHER CAUSED BY US OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE PORTAL. YOU ACKNOWLEDGE AND AGREE THAT ALL OF THE DATA DISPLAYED ON THIS PORTAL IS FOR YOUR REFERENCE ONLY AND WILL NEVER SUPERSEDE ANY FORMAL COMMUNICATES SENT BY US INCLUDING ACCOUNT STATEMENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
IF YOU ARE DISSATISFIED WITH THIS PORTAL, OR ANY INFORMATION CONTAINED IN THE PORTAL, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE. NOTWITHSTANDING THE FOREGOING, OUR LIABILITY TO YOU SHALL BE LIMITED IN ALL INSTANCES TO $100. YOU FURTHER AGREE NOT TO JOIN IN ANY LAWSUIT WITH ANOTHER PERSON OR SERVE AS A CLASS REPRESENTATIVE OF ANY CLASS ACTION LAWSUIT AGAINST US ARISING OUT OF OR RELATING TO THE USE OF THIS PORTAL. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may apply to certain Users but only to the extent specifically required by the laws of such states/jurisdictions.
You may not assign, transfer or sublicense your rights pursuant to this Agreement.
You do not have the right to use our name or any like reference of us in press releases and marketing materials referring to this Portal without our prior written approval. We shall have the right to use your name in any press release and/or marketing material.
Our performance is subject to existing laws and legal process and nothing contained in this Agreement is in derogation of our right to comply with law enforcement requests or requirements relating to the your use of this Portal or information provided to or gathered by us with respect to such use.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
You acknowledge and agree that we may terminate or suspend the license to access this Portal at any time and for any reason. In the event of termination, you shall immediately destroy any code or data which you have retained in electronic or hard copy. The provisions concerning the limitation on liability, indemnification, intellectual property, confidentiality and choice of law shall survive the termination of this Agreement for any reason.
The validity, performance, and construction of this Agreement will be governed and interpreted in accordance with the laws of the Governing Jurisdiction, without giving effect to conflict of law principles, except to the extent that such laws are preempted by federal intellectual property law. Any controversy or claim arising from or relating to this Agreement will be settled in accordance with the express terms of this Agreement exclusively by a court located in the Governing Jurisdiction (and each party hereto waives any right to object to venue in this regard). EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. If either Party pursues court action to enforce its rights under this Agreement, the non-prevailing party shall promptly reimburse the prevailing party for all its reasonable attorney fees, expenses and costs. For purposes of this paragraph, "Governing Jurisdiction" shall be deemed to be the State of Texas.
No failure by any party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement or to exercise any right or remedy hereunder shall constitute a waiver. No waiver of any breach shall affect or alter this Agreement, but each and every provision and term of this Agreement shall continue in full force and effect with respect to any other existing or subsequent breach.
This Agreement constitute the entire agreement between you and us with respect to this Portal and supersedes any prior agreement of any type between you and us with respect to this Portal. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved by us.
We may update, revise, supplement, modify or amend this Agreement at any time. Any updates, revisions, supplements, modifications or amendments shall be effective immediately upon its posting on the Portal. You agree that you will be bound by this Agreement, however and whenever it is updated, revised, supplemented, modified, or amended, whether you have actual or constructive notice of, and whether you have used or continue to use the Portal after, the updates, revisions, supplements, modifications or amendments. You are responsible for regularly reviewing these terms and conditions.