Focus Earth Terms of Service and Conditions
Terms of Service for Focus Earth, LLC., are as follows:
The following Terms of Service and Conditions (hereinafter Terms) constitute an agreement between you and Focus Earth, LLC., a Nevada corporation (hereinafter Focus Earth or the Company), and its affiliates. These Terms of Service and Conditions govern your use of the Services as defined below.USE LICENSE: By logging on or using the Energy Portal through our website or any other means or any derivatives thereof, you agree that these Terms of Services and Conditions are legally binding and valid contract and agree to be bound by it. You further agree to abide by the intellectual property laws and all of the terms and conditions of this Agreement.Your use of our Software indicates your acceptance of these Terms and warranty. Subject to the terms of this Agreement, Focus Earth grants to you a limited, exclusive right to use the Software in accordance with these Terms and any other written agreement with Focus Earth. Focus Earth does not in any way transfer the title of the Software to you or any company. This agreement is a binding legal agreement between Focus Earth and the users of the Software.
For purposes of these Terms:
1. Customer: Our Customers, also referred to as Users, are those approved to use the Software for their purposes and are current on their payments. Customers agree to only input data that is accurate for that job. In the event that the data is not accurate, there is no accountability to Focus Earth.
2. Evaluator: An Evaluator is a limited use licensee. There is a fixed term that the Evaluator may use and review the Software for a reduced fee before becoming a Customer. The time that an Evaluator is allowed to review and test the Software shall be determined by the Company.
3. Feedback: Feedback is any communication sent or transmitted including, but not limited to, comments, questions, suggestions, or related materials to Focus Earth, whether by letter, e-mail, telephone, or any other method. Feedback is not considered privileged or private and may be used at the discretion of the Company, and is wholly owned by Focus Earth.
4. Permitted Uses: The use of the Software is strictly limited to its permitted uses. That is the input and review of information pertaining to properties, projects, LED systems, technical specifications, financial estimates, energy reports, orders quotes, invoices and logistic updates.
5. Ranking Penalty: If any Customer is found to have deliberately entered inaccurate information pertaining to their property, technical specifications or pricing with the intent of garnering a competitive advantage, the Customer will be issued a Ranking Penalty within the Energy Portal, or systematically ejected from the platform. The severity of the Ranking Penalty will be determined by the Company based on evidence collected in any pertinent circumstances.
6. Services: Services mean all services made available by Focus Earth, including but not limited to, services accessed through mobile or internet methods, by means of a browser or by other online communication methods.
7. Software: Software, also referred to as the Platform or Energy Portal, means all of software programs distributed, published or otherwise made available by Focus Earth including, but not limited to, mobile content, downloadable and installable programs and programs accessible by means of a browser or other online communication method. Software and the Platform also includes updates and upgrades as well as accompanying manual(s), packaging, and other written files, electronic or online materials or documentation, and any and all copies of such software and its materials. The Platform is currently known as the Energy Portal. However, Focus Earth retains the right to change the name at any time. Any such change shall not void these Terms. All subsequent software provided by Focus Earth shall fall under the same Terms and guidelines.
1. Use License: During the term of this Agreement, provided that Customer is in compliance with these Terms, the Company hereby grants Customer a limited right to use the Software and the components of the Energy Portal to obtain the Services for the Permitted Purpose, unless otherwise specified in the Software documentation. The rights granted herein are subject to your compliance with these Terms. You hereby acknowledge that no title or ownership in the Software is being transferred or assigned and these Terms are not to be construed as a sale of any rights in the Software.
2. This right of use is granted to Customer on the condition that Customer does not: (i) sublicense, resell, transfer, distribute or otherwise make the Energy Portal accessible to any third parties; (ii) attempt to reverse engineer, decompile or otherwise take steps to discover the source code of the Energy Portal, or permit any third party to do so or attempt to do so; (iii) access the Service to create, develop or otherwise provide any technology, software or platform similar to or the same as the Energy Portal; (iv) frame or mirror any part of the Service; or (v) provide Energy Portal derived information to independent third party contractors without that contractor being approved by Focus Earth. The Platform may only be used by authorized Users.
3. In consideration of Services performed under this Agreement, Customer will pay all fees specified in Order Forms. All fees are non-refundable when paid, except as otherwise expressly provided in an Order Form. Any overdue amounts shall be subject to a finance charge at the rate of 1% per month commencing on the date such amount becomes overdue, or the highest rate permitted by applicable law, whichever is lower. The pricing during any automatic renewal term will be the same as that during the term immediately prior, unless Focus Earth has given Customer written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Customer will provide Focus Earth with valid and updated credit card information, a valid purchase order or alternative document reasonably acceptable to Focus Earth. If Customer provides credit card information to the Company, Customer authorizes Focus Earth to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance in accordance with the billing frequency stated in the applicable Order Form. As the Order Form specifies that payment will be by check, Focus Earth will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Focus Earth and notifying the Company of any changes to such information.
4. Focus Earth reserves the right to suspend the performance of any and all Services and/or access to the Energy Portal, without penalty or any liability to Customer or its clients, if any invoice remains unpaid (in whole or in part) after the date payment is due until such invoice (including late penalties) is paid in full. If Services to the Customer are suspended pursuant to this section, fees will continue to accrue during the suspended period and Customer will be obligated to pay the overdue payments as well as the fees accrued during the suspended period. If any unpaid amounts are referred to collection, including but not limited to any applicable late fees, Customer shall reimburse Focus Earth for all costs and expenses of collection, including all reasonable attorneys’ fees and costs related thereto. Notwithstanding anything to the contrary herein, Focus Earth shall have the right to withhold or offset from any amounts, refunds or credits due or payable by the Company pursuant to this Agreement the amount of any and all fees, payments, costs and expenses due to Focus Earth.
5. All fees due to Focus Earth under the Agreement are exclusive of tax. Customer agrees to pay and be solely responsible for the payment of any and all sales, use, value-added, transfer, withholding or any other taxes arising under the Agreement (“Taxes”). All Taxes shall be separately stated on Focus Earth’s invoices. If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible hereunder, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Focus Earth with a valid tax exemption certificate authorized by the appropriate taxing authority verifying that Customer is not required to pay those Taxes and is legally exempt. The Customer is required to provide the accurate taxation rates for their area. Focus Earth shall not be responsible for incorrect taxation amounts where the Customer provided incorrect information.
6. If an Evaluator is granted a no-cost evaluation period, Evaluator covenants that each user in Evaluator’s organization will provide a written report to Focus Earth by email at least once a week. Such report or any combined reports will contain the following items:(a) Number of projects where Evaluator used the Platform to perform work;(b) For each issue encountered, Evaluator will provide the module name, screen name, screenshot of the error code or any visual that displays the issue, as well as a specific description of the issue. Potential issues include: (i) defects; (ii) unclear labels or explanations; (iii) unexpected behaviors, which may not represent defects, but rather aspects where the Evaluator was expecting something else; (iv) a feature or aspect or the user(s) feels is missing but essential; alternatively;(c) If no issues are encountered during any week of the test period, Evaluator must still report to Focus Earth each module included in the evaluation period.
7. If an Evaluator fails to perform the covenants and obligations described in this section more than once during the evaluation period, Focus Earth at its sole discretion may immediately cancel the evaluation period. Thereafter, Evaluator will be responsible for paying the license fees appropriate to the membership level in order to continue using the Platform.
8. Focus Earth’s Obligations: Provided that Customer is in compliance with all the Terms of this Agreement during the term, Focus Earth will (i) provide Energy Portal access to Customer and any available documentation for Customer's use in obtaining the Service for the Permitted Purpose pursuant to this Agreement and the applicable Order Forms; (ii) provide Focus Earth’s standard support for the purchased Services to Customer at no additional charge; and (iii) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (A) planned downtime (which Focus Earth shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern time); and (B) any unavailability caused by circumstances beyond Focus Earth’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service or cloud service provider failure or delay, or ransomware attacks.
9. Focus Earth will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Information consistent with prevailing standards in the industry. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer information by unauthorized third parties. Focus Earth may use Customer information (i) to provide the Services consistent with this Agreement; (ii) to prevent or address service or technical problems; (iii) to develop analytics and to administer Service; (iv) when compelled by law enforcement in accordance with these Terms; or (v) as Customer expressly permits.
10. Customer may not customize the Software for any purposes. Any customization that is outside of the program shall void the Agreement. If Customer modifies such software, equipment, or data, the Company will not be liable for any loss or damage which Customer encounters as a result of such modification.
11. Customer is responsible for selecting and implementing all equipment, hardware, software, telecommunications connections, security and other resources necessary for Customer to access the Energy Portal in a secure and reliable manner. Customer has sole responsibility for the selection and operation of all such resources at its own expense. Customer shall not access or attempt to access any Energy Portal secure internal network, resources or other information of the Energy Portal or Focus Earth’s customers.
12. The Company assumes no responsibility for compatibility of the Energy Portal with Customer’s software or other equipment, such as the network operating system running on Customer’s computers. Any issues experienced that pertain to system compatibility can be directed to Focus Earth for consideration. Customer agrees that it will be responsible for the security of any passwords and credentials that may be granted by Focus Earth for access to certain components of the Energy Portal and used by Customer’s Users, as well as all activity occurring under such Users’ IDs.
13. Customer agrees that it shall promptly notify Focus Earth of (i) any unauthorized use of a password, (ii) of any other security breach known to Customer, or (iii) any other issues that it experiences.
14. Focus Earth expressly reserves the right to (i) remove or add components of the Energy Portal, and (ii) change the scope of Customer’s authorization at any time with no less than 30 days’ prior written notice before the effective date of the change. Customer will have a commercially reasonable period of time to implement such changes by Focus Earth, not to exceed 30 days after the effective date of the change.
15. Service License: Subject to these Terms, the Company hereby grants you a limited right and license to use the Services as provided by the Company, for your commercial use in the manner permitted by these Terms only. The rights granted herein are subject to your compliance with these Terms.
16. Use License Term: The term of your licenses under these Terms shall commence on the date that you accept these Terms and use the Software or Services of the Company and ends on the earlier date of the receipt of your written termination of this Agreement or the date of Company’s termination of these terms. Your use license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software and/or Services; or you otherwise use the Software and/or Services in breach of these Terms.
17. Ownership: Focus Earth owns all right, title and interest in and to the Energy Portal, suggestions, any and all analytics, confidential information and all intellectual property rights. This Agreement does not grant Customer or any third party any rights or implied licenses with respect to any Focus Earth property other than those expressly granted below. Customer agrees not to dispute or contest Focus Earth's exclusive rights in or to any Focus Earth property or the Energy Portal property or analytics at any time during or after the term of this Agreement. For purposes of this Agreement, “Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, internet domain names, copyrights (including rights in computer software), Common Law rights, database rights, design rights, rights in know-how, rights in inventions (including rights to practice or to exclude others from practicing inventions, whether patentable or not) including, but not limited to, any and all renewals or extensions thereof, and all other proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world, including, but not limited to, any and all renewals or extensions thereof. All rights in and regarding any Focus Earth property not expressly granted to Customer under this Agreement are expressly reserved to Focus Earth.
18. Focus Earth further retains all rights, title and interest in the Company’s Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, settings, artwork, and any other rights not mentioned or registered or not and all applications thereof. The Company’s Services are protected by applicable laws and treaties throughout the United States and the world. Unless expressly authorized by mandatory legislation, the Company’s Services may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent of the Company. All rights not expressly granted to you herein are reserved by Focus Earth.
3. THIRD PARTY SERVICE:
3.1 Focus Earth’s services may include links to third party services and/or the third-party services may be made available to you via the Company’s Services. The services of the third-party provider may include, but are not limited to, social media connectivity and other type services. Those services are subject to that respective third party’s terms and conditions and are completely outside these Terms or Focus Earth’s control. Please study those third-party terms and conditions carefully as they constitute an agreement between you and the applicable third-party service provider.
4. GENERAL USE LICENSE CONDITIONS:
4.1 You agree not to: (1) commercially exploit the Company’s Services; (2) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign Focus Earth’s Services, any copies thereof, or any passwords or usernames of the Company’s Services, without the prior express written consent of the Company of as set forth in these Terms; (3) make a copy of the Company’s Services of any part thereof, including but not limited to Software (other than as set forth herein) of the Energy Portal; (4) make the Company’s Services publicly available or available on the network for use of download by multiple users; (5) except as otherwise specifically provided by the Company’s Services or these Terms, use or installation of the Company’s Services (or permitting others to do the same) on a network, for online use, or on more than one computer or other computing unit at the same time; (6) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Company’s Services, in whole or in part; (7) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Company’s Services, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material; (8) misrepresent the source of ownership of the Company’s Services; (9) transport, export or re-export (directly or indirectly) into any country forbidden to receive the Company’s Services by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (10) scrape, build databases or otherwise create permanent copies of content returned from the Company’s Services; or (11) use the Company’s Services to provide data to a non-related third party or any unrelated third party.
4.2 The Company’s Services may include measures to control access to the Company’s Service, or otherwise attempt to prevent anyone from exceeding the limited rights and use licenses granted under these Terms. Only the Company’s Services subject to a valid license can be used to access online services and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Services will not function properly, and you will be in violation of these Terms.
4.3 The Services may allow you to create some content. In exchange for use of the Services and to the extent that your contributions through use of the Services gives rise to any copyright, design right or other intellectual or industrial property right you hereby grant the Company an exclusive, royalty-free, perpetual, irrevocable, fully transferable and sub-licensable right and license to use the created content in any way and for any purpose including, but not limited to the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual and industrial property rights by applicable laws.
4.4 It is Customer's responsibility to input the appropriate and correct data. Any error in data is not the responsibility of the Company. There is no liability of the Company where the output is based on faulty or incorrect data from the Customer. Should a Customer intentionally provide false or misleading information, then the Company at its discretion may file ranking penalties against the Customer. The penalties shall be determined by the Company.
4.5 If Customer sends or transmits any communications, comments, questions, suggestions, or related materials to Focus Earth, whether by letter, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Energy Portal or its services, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Focus Earth. Customer hereby assigns all right, title, and interest in any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback, and Focus Earth is free to use without any attribution or compensation to Customer. Customer agrees and understands that Focus Earth is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Customer has no right to compel such use, display, reproduction, or distribution.
6. PAYMENTS AND PURCHASES OF VIRTUAL GOODS:
6.1 The Company may license certain virtual goods to be used with the Company’s Services. Unless otherwise specified, these virtual goods shall be deemed an integral part of the Software. Subject to mandatory legislation, you acknowledge that the Company is not required to provide a refund for virtual goods for any reason, and that you will not receive money or other compensation for unused virtual goods, whether the loss of your license under these Terms was voluntary or involuntary.
7.1 Warranty for Physical Software Products. The Company warrants to you (if you are the initial and original purchaser of the Software) that, to the extent the Software is made available to you on a physical storage medium, the original storage medium holding the Software is free from defects in material and workmanship under normal use for 30 days. Any implied warranties prescribed by statute are expressly limited to the warranty period described above.
7.2 No other Warranties. NOTWITHSTANDING THE ABOVEMENTIONED WARRANTY FOR PHYSICAL STORAGE MEDIUM SPECIFIED IN SECTION 7.1 ABOVE, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY’S SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND THE CUSTOMER USE IS AT ITS SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH THE CUSTOMER. FOCUS EARTH DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
8. OTHER TERMS AND CONDITIONS:
8.1 Termination: These Terms and Conditions will terminate automatically if Customer fails to comply with these terms and conditions. In such event, Customer must cease and desist from accessing any the Company’s Services.
8.2 Equitable Remedies: You hereby agree that if these Terms are not specifically observed, the Company will be irreparably damaged, and therefore you agree that the Company shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the Terms, in addition to any other available remedies.
8.3 Miscellaneous: These Terms and Conditions represent the complete agreement concerning this use license between the parties and supersedes all prior agreements and representations between them. The Company reserves the right, at its discretion, to change, modify, add or remove portions of these Terms by posting the updated Terms on the Company’s website with no prior notice to the Customer. However, Focus Earth shall attempt to notify all customers when there is a change to the Terms by contacting them at the email address that is on record for the Customer. You will be deemed to have accepted such changes by continuing to use the Company’s Services. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the remaining provisions of these Terms and Conditions shall not be affected.
8.4 Governing Law and Dispute Resolution: These Terms will be governed by the laws of Nevada without reference to its choice of law rules.
8.5 If a suit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of these Terms or to interpret or enforce any rights under the Terms, Focus Earth’s attorney’s fees will be paid by the Customer.