Enmax Gen E

Gen-E Program Terms of Use

These Terms of Use govern the use of the Gen‑E Program, the Website and the access given to the Fat Spaniel Technologies (“FST”) Monitoring and Reporting Service (the “FST Service”) (together the “Program”) which is owned, licensed and operated by ENMAX Corporation (”ENMAX”). The Program may not be used or accessed other than in accordance with these Terms of Use so they should be read carefully. If you do not agree with any of these Terms of Use, then you may not use the Program either directly or indirectly. Your use of the Program constitutes your acceptance of these Terms of Use in their entirety.

If you are entering into these Terms of Use on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms of Use, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority you must immediately cease to use the Program.

These Terms of Use may be modified by ENMAX from time to time, in its sole discretion, by posting an updated version on the website. This version of the Terms of Use was posted on the website November 17th, 2008

1. Use of Content

All materials displayed or otherwise accessible through the Program, including, without limitation, video clips, audio clips, text, photographs, images, illustrations, computer software and code, trade-marks, trade names and logos, Program materials and kits, and the website itself as a compilation (collectively, the “Content”) is protected under Canadian and foreign copyright or other laws, and is owned by ENMAX, its licensors or others who may or may not be accredited as the provider of the Content.

As a user of the Content, you acknowledge and agree that any reliance on or use by you of any information available on this website shall be entirely at your own risk and subject to Section 7 of these Terms of Use.

You are granted by ENMAX a limited non-exclusive, non-transferable license to use and display the Content for your own personal, educational, and non-commercial use only, provided that: (i) if you modify any lesson plans, the modified version is uploaded to the Program website, and you acknowledge and agree that ENMAX may, in its sole discretion, remove and/or alter in any way, any modified lesson plans uploaded by you, and that any modified lesson plan that runs contrary to the laws of Alberta, or Canada where applicable, or offends the moral standards of any community in which ENMAX operates, will result in the immediate removal of the modified lesson plan, the termination of your right to use the website or the Program, and may result in ENMAX pursuing any other legal remedies available to ENMAX, whether criminal or civil; (ii) you maintain all copyright and other proprietary notices, including maintaining the ENMAX logo, FST logos and Program names on all Content; and (iii) you abide by all laws of the Province of Alberta, or Canada where applicable, and any additional copyright notices, information and restrictions on or contained in any of the Content.

Any materials borrowed from the Program through the website, will be managed according to procedures outlined on the Program website or materials themselves.

2. Use Restrictions

2.1 You shall not, without ENMAX’s express written permission:

(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit, publish or make available to any third party the Program or the Content in any way; or

(ii) restrict or inhibit any other user from using and enjoying the Program or the Content; or

(iii) modify or make derivative works based upon the Program or the Content; or

(iv) create Internet “links” to the Program or “frame” or “mirror” any Content on any other server or wireless or Internet-based device. Linking to the website without linking to the functionality of the website in its entirety or which results in any form of framing or other use of the website or of any of the Contents in association with any material not previously approved by ENMAX is expressly prohibited; or

(v) reverse engineer or access the Program in order to copy or otherwise infringe any intellectual property rights encompassed within the Program; or

(vi) send or store material containing viruses, worms, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; or

(vii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; or

(viii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or

(ix) interfere with or disrupt the integrity or performance of the Program or the data contained therein; or

(x) attempt to gain unauthorized access to the Program, or to any ENMAX or FST website that is accessible to you or other users or ENMAX’s or FST’s related systems or networks; or

(xi) “spoof” or impersonate another user or provide false identity information to gain access to or use the Service.

2.2 You are responsible for all activity occurring under your accounts and shall abide by all applicable local, provincial, national and foreign laws, treaties and regulations in connection with your use of the Program, including those related to data privacy, international communications and the transmission of technical or personal data. You shall:

(i) notify ENMAX immediately of any unauthorized use of any password or account or any other known or suspected breach of security;

(ii) report to ENMAX immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your users.

3. Trademarks and Intellectual Property Rights

The ENMAX logo, designs and catch phrases within Content are official marks or registered trade-marks of ENMAX or its licensors. Other names, words, titles, phrases, logos, designs, graphics, icons and trade-marks, including without limitation those of FST, displayed on the website and FST Service may constitute registered or unregistered trade-marks of third parties. While certain trade-marks of third parties may be used by ENMAX, the display of third-party trade-marks in the Program should not be taken to imply any relationship or licence between ENMAX and the owner of such trade-mark or to imply that ENMAX endorses the wares, services or business of the owner of such trade-mark. Nothing contained on the website should be construed as granting you any licence or right to use any trade-mark, logo, design or catch phrase of ENMAX or any third party, without the written permission of ENMAX or the respective owner of any third-party trade-mark.

ENMAX and its licensors alone shall own all right, title and interest, including all related intellectual property rights, in and to the Program, proprietary technology, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other intangible and tangible material (“Technology”) made available to use by ENMAX and its licensors in the provision of the Program, the Content and the FST Service and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party.

These Terms of Use do not convey to you any rights of ownership in or related to the Program or Technology or the intellectual property rights owned by ENMAX and its licensors.

4. Privacy

ENMAX will collect and use your personal information and the data you generate using the Program for the purposes of delivering, administering, maintaining and promoting the Gen E Program, facilitating communication amongst the Gen E Program teacher participants within Alberta and communicating with FST for the provision of the FST Services, including without limitation, using information about your energy consumption, the performance and efficiency of your renewable energy system, environmental data such as weather conditions, and the internet protocol address for your internet access.

By accepting the Gen E Program Terms of Use, you consent to this collection and use of your personal information and usage data by ENMAX and FST and the use and disclosure of such usage data and other personally identifiable information you provide to us in the course of your registration for the Program (such as your name, physical address, e-mail address, phone number, and other contact information) to third parties. Further, ENMAX or FST may disclose such personal data to the manufacturer, installer or service provider of your equipment and governmental agencies or we may sell the data collected to third parties that may be vendors of related technology or services, utilities, marketing research firms or others.

Because the Program is a hosted, online application, ENMAX and FST may need to notify all users of the Service of important announcements regarding the operation of the Service. You agree to receive such communications.

5. Links

Links on the website may lead to third-party sites. ENMAX provides these links only as a convenience and not as an endorsement by ENMAX. Any such links are used at your own risk and it is your responsibility to take all protective measures to guard against viruses and other destructive elements. ENMAX is not responsible, and you agree that ENMAX will not be liable for, the content of, or any other material on or accessed through any such linked sites or any other web page which is not part of the Program website.

6. Indemnification

You agree to defend, indemnify and hold harmless ENMAX and its officers, directors, employees and agents, including FST and all third parties mentioned in the website, from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to: (ii) your breach of any of these Terms of Use; (i) your access to or use of the Program; (iii) your use or reliance on or publication, communication or distribution of anything on or from the website; (iv) your improper or illegal use of any data that is obtained as a result of using the Program; (v) the misuse of the Program; or (vi) the breach of the representation and warranty in section 10 hereto. You shall use your best efforts to cooperate with us in the defence of any claim. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you.

7. Limitation of Liability

THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ENMAX AND ITS LICENSORS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ENMAX, OR ITS LICENSORS, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER ENMAX HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (I) THE USE, INABILITY TO USE OR PERFORMANCE OF ANY PART OF THE PROGRAM; OR (II) ANY OTHER MATTER RELATING TO THE PROGRAM OR ANY OF THE CONTENT, INCLUDING WITHOUT LIMITATION ANY CORRUPTED CONTENT OR OTHER MATERIALS ACCESSED BY MEANS OF THE WEBSITE.

THE PROGRAM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ENMAX AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

YOU ACKNOWLEDGE THAT IN THE EVENT OF A LAPSE OR FAILURE OF YOUR INTERNET ACCESS, YOU MAY NOT RECEIVE THE BENEFITS OF ENMAX’S APPLICATION FOR MONITORING, COLLECTING, REPORTING AND DISPLAYING DATA GENERATED BY YOUR RENEWABLE ENERGY SYSTEM AND, IN SUCH CASE, YOU WILL NOT BE ENTITLED TO ANY REFUND, CREDIT OR OTHER COMPENSATION.

8. Governing Law/Jurisdictional Issues

The website is controlled, operated and administered by ENMAX from Calgary, Alberta, Canada (the “Jurisdiction”). ENMAX makes no representation or warranty that the Program, website or any of the Content is appropriate or available for use at any locations outside the Jurisdiction. If you access the website from outside the Jurisdiction, you are responsible for compliance with all applicable laws. These Terms of Use are to be governed by and to be interpreted and construed according to the laws of Alberta and the laws of Canada applicable therein and shall be treated in all respects as an Alberta legal document. Furthermore, conflict of laws principles or risks that would impose the laws of any jurisdiction other than the laws of Alberta or Canada where applicable, or the construction or interpretation of this legal document shall be excluded. You and ENMAX hereby agree to the exclusive jurisdiction of the Alberta Courts and Courts of Appeal with respect to any matter arising under this legal document. Finally, you and ENMAX also agree that a judgment, after exhaustion of all available appeals, in any action or proceeding under this legal document, is conclusive and binding upon you and ENMAX and may be enforced in any other jurisdiction by a suit upon that judgment, a certified copy of which is conclusive evidence of that judgment.

9. Termination

9.1 ENMAX may, in its sole and absolute discretion, without notice or liability to you, suspend or terminate your account or your use of, or access to, the Program, the Content or any part, and remove and discard any information or content related to the website and the Content (and your use thereof), for any reason, including where ENMAX believes that you have violated any of these Terms of Use.

9.2 Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14 will survive any expiration or termination of these Terms of Use.

10. Submissions

ENMAX solicits ideas or suggestions for use in connection with the Program, website, and Content, or otherwise for use by ENMAX. UNDER NO CIRCUMSTANCES WILL ANY DISCLOSURE OF ANY IDEA AND/OR SUGGESTION OR RELATED MATERIAL BY YOU TO ENMAX BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION. BY SUBMITTING ANY IDEA AND/OR SUGGESTION TO ENMAX OR ANY RELATED MATERIAL, YOU HEREBY GRANT ENMAX A NON-EXCLUSIVE, ROYALTY FREE, WORLDWIDE, TRANSFERABLE LICENSE TO USE THE IDEA AND ANY INTELLECTUAL PROPERTY RIGHTS EMBODYING SUCH IDEA AND WAIVE ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA, INCLUDING WITHOUT LIMITATION MORAL RIGHTS AND/OR SUGGESTION OR ANY RELATED MATERIAL AND ARE REPRESENTING AND WARRANTING TO ENMAX THAT THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR SUGGESTION OR ANY RELATED MATERIAL AND THAT ENMAX IS FREE TO IMPLEMENT THE IDEA AND/OR SUGGESTION AND TO USE THE RELATED MATERIAL IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY ENMAX, WITHOUT OBTAINING PERMISSION OR LICENCE FROM ANY THIRD PARTY.

11. Local Laws and Export Control

11.1 The website provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this website acknowledges and agrees that the website shall not be used, and none of the underlying information, software, or Technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.

11.2. The Program may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

11.3. Fat Spaniel and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Program, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

12. General provisions

Any waiver by ENMAX of any of these Terms of Use, whether express or implied, will not constitute a waiver of any other of these, different or subsequent, Terms of Use. You may not assign or transfer any rights or obligations under these Terms of Use. If any term or provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, it will be severed and the remaining provisions shall remain in full force without being invalidated in any way. These Terms of Use are not intended to create a partnership, joint venture, or agency relationship between ENMAX any other person. These Terms of Use constitute the entire agreement between you and ENMAX relating to the matters contained herein and each updated version of these Terms of Use is deemed to supersede and replace this version in respect to your use or continuing use of the Program after the updated version is posted on the website.

13. Force Majeure

If, for any reason beyond the reasonable control of a party, including, without limitation, acts of God, earthquakes, floods and other insurrections, strikes, transportation conditions, labour or material shortages, riots or fires, such party is unable to perform in whole or in part its obligations set forth in these Terns if Use, such party will be relieved of those obligations to the extent it is so unable to perform and such inability to perform, so caused, will not make such party liable to the other party; provided that the party unable to perform has notified the other party of such inability within one calendar month of the onset of such inability.

14. Notices

ENMAX may give notice by means of a general notice on the website; electronic mail to your e-mail address on record in ENMAX’s account information or by written communication sent by first class mail or pre-paid post to your address on record in ENMAX’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email). You may give notice to ENMAX (such notice shall be deemed given when received by ENMAX) at any time by sending a recorded delivery letter sent to ENMAX referencing the Gen-E Program at its Calgary head office address, as follows: ENMAX Corporation, 141 – 50th Ave. S.E., Calgary, Alberta T2G 4S7.

15. Further information

Any questions or comments regarding these Terms of Use, and notice of linking to this website, may be referred to Gen-E@enmax.com. ENMAX will endeavour to reply to questions or comments made in good faith, but makes no undertaking to do so and will not be considered to have given its consent to any interpretation or waiver of these Terms of Use unless it does so expressly in writing addressed to the person claiming the benefit of such interpretation or waiver.