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STANDARD TERMS & CONDITIONS
(a) Grant. Any use, access and/or subscription to EI Services, as defined in Section 2 herein, whether obtained directly from Energy Intelligence, a subscription management service (such as SWETS, EBSCO), or any other source, is governed by these Standard Terms and Conditions. All use, access and/or subscription to EI Services is provided to Subscriber as a limited, non-exclusive and non-transferable license, without right of sublicense, to permit Authorized Users, as defined in Section 2 herein, to access and use the EI Services. All rights in the EI Services not expressly granted in the Standard Terms and Conditions are reserved to Energy Intelligence. In the event any term or condition contained in any subscription order form or subscription renewal or subscription invoice conflicts with the Standard Terms and Conditions, the Standard Terms and Conditions shall control. If any portion of the Standard Terms and Conditions conflicts with any term(s) of a separate, valid and subsisting company-wide license between Energy Intelligence and Subscriber, providing access to all EI Services, known as a Global License, or with a valid and subsisting (multiple) named user subscription agreement, known as a Named User License, between Energy Intelligence and Subscriber, the terms of the Global License or Named User License are deemed to control.
(b) Access. The EI Services may be accessed via Energy Intelligence’s website at www.energyintel.com (the “Website”) and/or provided by e-mail, facsimile, postal service or other delivery method expressly authorized by Energy Intelligence. At any time during the Term and at no cost to Subscriber, Energy Intelligence may change at its election the delivery method of the EI Services from e-mail delivery to web access or vice versa by giving Subscriber and each Authorized User seven (7) days’ prior written notice thereof. Subscriber shall permit only Authorized Users to access and use the EI Services. Each Authorized User is authorized to access and use the EI Services on an individual, per-person basis, through the creation of a unique password, the validation of a unique e-mail address, and/or other method designated by the Standard Terms and Conditions. No generic user name or e-mail address that would not allow the identity of each Authorized User to be ascertained in Energy Intelligence’s sole discretion may be used without the prior written consent of Energy Intelligence. Subscriber is responsible for any communications lines, equipment, software, services or other technology necessary for the Authorized Users to receive and access the EI Services. Any third-party content within the EI Services is subject to the continuing consent of the third-party owner/licensor and may be altered or discontinued at any time. Energy Intelligence may discontinue and/or merge any or all of the EI Services provided hereunder and replace any discontinued content with alternative or merged content. In the event that Energy Intelligence does not replace discontinued content with alternative or merged content as determined in the sole discretion of Energy Intelligence, Subscriber will be entitled to request a prorated refund of prepaid Fees representing any period of the Term that such discontinued EI Services are no longer available.
(c) Use. When the EI Services are accessed and/or provided electronically, Authorized Users may download the licensed EI Services only for their respective individual referential use. In addition, Authorized Users may occasionally distribute a copy of a story from the EI Services to a few individuals, and in a non-systematic manner, in the ordinary course of business, provided the copyright and other proprietary rights notices are included and that Subscriber and/or Authorized User does not edit, alter or abridge the content from the EI Services. For the avoidance of doubt, no such distribution is permitted if in Energy Intelligence’s sole judgment it could serve as a substitute for a subscription to publications and/or the content of the publications within the EI Services. Except as otherwise noted in this Section 1(c), no content from the EI Services may be downloaded, transmitted, broadcast, transferred, assigned, reproduced or in any other way used or disseminated in any form, to any person not specifically identified herein as an Authorized User, without the explicit written consent of Energy Intelligence in each instance. Without limiting the generality of the foregoing, no content from the EI Services may be (i) used in any Subscriber and/or Authorized User intranet, newsletter or other publication, (ii) used in conjunction with any systems or applications that enable data mining, text mining, trend analysis or program or algorithmic trading or that display, retrieve, index or store any content from the EI Services separately from the EI Services as published by Energy Intelligence; or (iii) stored in any shared electronic archive or database, and may not be used to compile historical (i.e. involving data from more than one EI Service) compilation or analysis.
(d) Intellectual Property. Subscriber and Authorized User(s) agree and acknowledge that the EI Services and all parts thereof are the intellectual property of Energy Intelligence or its licensors. In particular, but without limitation, the works, publications and databases included in the content of the EI Services are protected by copyright or other applicable laws. Any unauthorized reproduction or other use of content from the EI Services not specifically authorized under Section 1(c) herein will constitute willful infringement of Energy Intelligence’s copyright and/or other proprietary and intellectual property rights. As determined in Energy Intelligence’s sole discretion, the damages for infringement of Energy Intelligence’s copyright and/or other proprietary and intellectual property rights will either be the maximum amount allowed as statutory damages under the Copyright Act, or calculated by multiplying the price Energy Intelligence charges a non-subscriber to purchase an article appearing in an Energy Intelligence publication (the “Pay-per-Article Price”) by the total number of articles reproduced without authorization, multiplied again by the number of unauthorized reproductions made. For purposes of clarity, if an entire Energy Intelligence publication is deemed to be reproduced without authorization, each article in the reproduced publication will be counted for purposes of the Pay-per-Article calculation. The Pay-per-Article Price constitutes the fee that would have been required to make such otherwise unauthorized use authorized, and is therefore a reasonable estimate of Energy Intelligence’s actual damages for such unauthorized use. The current Pay-per-Article prices charged by Energy Intelligence are $9.00 for articles appearing in daily publications and $24.00 for articles appearing in weekly publications. The corporate names, logos, trademarks, service marks, devices and any other indicia of identification used by Energy Intelligence appearing in any of the EI Services are the sole property of Energy Intelligence and may not be used in any way without the prior written consent of Energy Intelligence in each instance. Energy Intelligence expressly reserves all legal, equitable, contractual or other rights and remedies it may have in connection with such infringement.
The term “Standard Terms and Conditions” means the terms and conditions herein and in the associated subscription order form or subscription invoice, where applicable, and any subscription renewal(s), which constitutes the entire understanding between Energy Intelligence and the Subscriber with respect to the subject matter hereof, except where access to the EI Services is governed by a Global License or Named User License; “Affiliates” means entities that are under common control with Subscriber such that Subscriber has both the legal and practical ability to ensure their compliance with the terms of the Standard Terms and Conditions; "Authorized Users" means employees (and any independent contractors performing functions comparable to employees in the ordinary course of business) of Subscriber and its Affiliates who are listed on the associated subscription order form, subscription renewal and/or associated invoice under the “Bill to” and/or “Ship to” notation, with the required information and are bound by the terms of the Standard Terms and Conditions. An Authorized User can only be a living individual and never a company, organization or other entity; “Billing Start Date” means the date identified on the subscription order form or subscription invoice as the date from which the Fees shall be calculated (provided that the Fees will be calculated beginning with the EI Services Start Date if such date precedes the Billing Start Date); the “EI Service(s)” means the Energy Intelligence publications, products, services, archives and/or databases listed on the subscription order form, or other associated order form or agreement, including, but not limited to reports, e-mail, website(s), editorial coding, metadata, instructions, specifications or other content provided by Energy Intelligence under the Standard Terms and Conditions; “EI Services Start Date” means the date from which Subscriber first receives the applicable EI Services; “Energy Intelligence” means Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) Limited; “Fees” means the annual fees referenced in the subscription order form, subscription renewal form, Global License or Named User License or other associated order form and/or subscription invoice, as payable pursuant to Section 3 herein; “Subscriber” means the entity or entities and/or individual(s) identified as such on the subscription order form, subscription renewal form, Global License or Named User License or other associated order form and/or subscription invoice, that control and are responsible for the Authorized Users; and “Term” means the subscription period specified in the subscription order form, subscription renewal form, Global License or Named User License, or other associated order form and/or subscription invoice, and any subsequent renewal periods, as applicable.
3. Fees and Payment
(a) Fees. In exchange for the licenses granted herein, Subscriber shall pay Energy Intelligence the Fees for the first annual period on the Billing Start Date. Unless otherwise expressly defined on the subscription order form and/or subscription invoice, subscription renewal form, Global License or Named User License executed by and between Energy Intelligence and Subscriber, the Fees for any subsequent annual period shall be due on the anniversary of the Billing Start Date. The Fees are non-refundable with the exception of the limited circumstances detailed herein.
(b) Late Payments. If Subscriber fails to pay the Fees as provided in Section 3 herein, Energy Intelligence shall be entitled to interest from the day on which the Fees are due at the rate of 1.5 per cent per month, accruing daily.
(c) Taxes. In addition to the Fees, Subscriber will pay Energy Intelligence or the relevant taxing authority, as appropriate, any applicable sales, use, goods and services, value added or other taxes, including withholding tax excluding income taxes imposed on Energy Intelligence’s income. In all cases, the amounts due will be paid by Subscriber to Energy Intelligence in full without any right of set-off or deduction and the amount received by Energy Intelligence shall not be less than the aggregate Fees.
4. Term and Termination
(a) Term. The terms and conditions herein must be agreed to and accepted by any and all Authorized Users as a condition to receiving, using or accessing the EI Services, except as may otherwise be provided by Energy Intelligence. The Standard Terms and Conditions shall become effective when Subscriber and/or any Authorized User(s) pays the Fees, or clicks the “I Accept” button below, unless otherwise provided in this section, or unless access to the EI Services is terminated earlier in accordance with Subsection 4(b), and shall (i) continue from the Billing Start Date for one year, or such other period as may be specified in the subscription order form and /or subscription invoice, subscription renewal form, Global License or Named User License or other order form, and (ii) after receipt of any subscription renewal shall automatically renew for subsequent annual periods upon the expiration of the then current Term, subject to Subscriber’s right to terminate pursuant to Subsection 4(b)(i). For the avoidance of doubt, in the event Subscriber pays the Fees or “Accepts” the Standard Terms and Conditions after the Billing Start Date, then the Standard Terms and Conditions will be deemed effective from the Billing Start Date, and in the event Subscriber receives the EI Services before the Fees are paid or the Standard Terms and Conditions are “Accepted,” then the Standard Terms and Conditions shall be deemed effective from the EI Services Start Date.
(b) Termination. The EI Services licensed hereunder may be terminated or suspended as follows: (i) by Subscriber within thirty (30) days after receiving a subscription renewal or notice of revision(s) to these terms and conditions, provided Subscriber notices Energy Intelligence of its inability or unwillingness to comply with the revised term(s) or condition(s) as provided in Subsection 8(b); (ii) by either party if the other party commits a material breach of the Standard Terms and Conditions; (iii) by either party on written notice with immediate effect if a receiver is appointed over any assets of the other party or the other party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing or the other party ceases to carry on business; and (iv) by Energy Intelligence with immediate effect if Subscriber does not pay any Fees within 14 days after notice from Energy Intelligence of such past due amounts. In addition to Energy Intelligence’s right to terminate under Subsection 4(b)(ii) above, if Subscriber commits a material breach of the Standard Terms and Conditions (including but not limited to late payment of Fees and breach of licence terms), then, provided Energy Intelligence gives Subscriber notice of the details of such breach, Energy Intelligence may suspend access to any or all EI Service(s) with immediate effect, without notice or penalty, until such breach is remedied. If any EI Services are terminated hereunder by Subscriber under Subsection 4(b)(ii) or (iii), then Energy Intelligence will pay Subscriber a prorated refund of Fees representing the amount of such unused EI Services. If any EI Services are terminated hereunder other than by Subscriber under Subsection 4(b)(ii) or (iii), then Subscriber will promptly pay Energy Intelligence any unpaid Fees for the balance of the then-current initial subscription period or renewal period, as applicable. All licenses granted hereunder shall automatically terminate upon any termination or expiration of the license hereunder to the EI Services.
5. Audits and Inspections
For the purpose of verifying compliance with the Standard Terms and Conditions, Energy Intelligence (and Energy Intelligence’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit and inspect from time to time Subscriber’s records (including back-up storage tapes) relevant to the EI Services and to verify the use made of and the number of Authorized Users given access to the EI Services.
THE EI SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND ENERGY INTELLIGENCE DOES NOT MAKE AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ENERGY INTELLIGENCE MAKES NO REPRESENTATION THAT THE EI SERVICES WILL BE ERROR FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. IN PARTICULAR, BUT WITHOUT LIMITATION, NO PART OF THE EI SERVICES CONSTITUTES ANY FORM OF ADVICE (INVESTMENT, TAX, OR LEGAL), RECOMMENDATION, REPRESENTATION, OR ENDORSEMENT OR SHOULD BE RELIED UPON BY ANY PERSON FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTMENT DECISION. THE EI SERVICES MAY CONTAIN LINKS TO WEBSITES OPERATED BY THIRD PARTIES (“THIRD PARTY SITES”). THESE LINKS ARE PROVIDED FOR YOUR CONVENIENCE ONLY AND DO NOT IMPLY ANY OFFICIAL ENDORSEMENT OF, OR RESPONSIBILITY FOR, THE CONTENT, INFORMATION, OPINIONS, DATA, PRODUCTS OR SERVICES CONTAINED IN ANY THIRD PARTY SITES. YOU AGREE THAT SUCH THIRD PARTIES ARE RESPONSIBLE FOR THE OPERATION AND CONTENTS OF THIRD PARTY SITES, AND THAT ENERGY INTELLIGENCE HAS NO LIABILITY TO YOU OR ANY OTHER PERSON FOR THE USE OF SUCH THIRD PARTY SITES.
7. Indemnification; Limitation of Liability
ENERGY INTELLIGENCE AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNS AND LICENSORS (“THE ENERGY INTELLIGENCE PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR ANY OF THE FOLLOWING TYPES OF LOSS: LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOST PROFITS, LOST SAVINGS, LOST REVENUES OR LOSS OF REPUTATION OR GOODWILL; ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), HOWSOEVER ARISING AND WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE ENERGY INTELLIGENCE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE ENERGY INTELLIGENCE PARTIES ARISING OUT OF ANY CLAIM RELATED TO ANY AGREEMENT BETWEEN ENERGY INTELLIGENCE AND SUBSCRIBER (INCLUDING, WITHOUT LIMITATION, ITS FORMATION OR TERMINATION) OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. SUBSCRIBER HEREBY FURTHER AGREES THAT ANY CAUSE OF ACTION THAT SUBSCRIBER MAY HAVE WITH RESPECT TO ENERGY INTELLIGENCE MUST BE FILED WITHIN TWO MONTHS OF THE TIME IN WHICH THE EVENTS GIVING RISE TO SUCH CLAIM BEGAN, OR YOU AGREE TO WAIVE SUCH CLAIM. Subscriber will indemnify, defend and hold harmless the Energy Intelligence Parties for any loss, damage or cost in connection with (i) any breaches of the Standard Terms and Conditions, including, but not limited to, any breach by the Subscriber or an Authorized User, and (ii) any claim or action which may be brought by any third party against the Energy Intelligence Parties arising out of any violation and/or breach by Subscriber or an Authorized User under the Standard Terms and Conditions.
(a) Notices. All notices or communications between Energy Intelligence and Subscriber shall be in writing and delivered by mail, facsimile or electronic mail either to the receiving party’s contact address on the subscription order form and/or subscription invoice, subscription renewal form, Global License or Named User License or other order form, or as designated by the receiving party for such purposes in writing. Such notices will be deemed delivered and received on the date two business days after they were posted, if sent by mail, or on the date actually received if sent by facsimile or electronic mail.
(b) Amendments. Energy Intelligence may revise the Standard Terms and Conditions of use of the EI Services from time to time. Subscriber shall be provided with notice of, and asked to “Accept” any such revision(s) by Energy Intelligence when such revisions take effect. Should Subscriber be unwilling or unable to agree to or comply with any term and condition so revised, Subscriber may contact Energy Intelligence Customer Service to cancel its subscription and request a pro-rated refund. Continued use of the EI Services upon receiving notification of such revision(s) shall constitute your agreement to be bound by those revision(s).
(c) Assignment. Access to the EI Services shall not be transferable, assignable, delegable, or sublicenseable by Subscriber in whole or in part, without the prior written permission of Energy Intelligence in each instance, which may be withheld for any reason. Any assignment made without the written consent of Energy Intelligence shall be void and of no effect. For purposes of this provision, any assignment by operation of law, order of any court or pursuant to any plan of merger, consolidation or liquidation shall be deemed an assignment for which prior written consent is required. No third party is a beneficiary of the licenses to the EI Services. The Standard Terms and Conditions will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns.
(d) Survival. The following obligations of the parties herein will survive termination or expiration of the EI Services for any reason: Sections 1(c), 1(d), 2 and 5 through 8, and any payment obligations of Subscriber that accrue prior to such termination or expiration.
(f) No Waiver. Any failure of either party at any time to require full performance by the other party of any provision hereof will not constitute a waiver or otherwise adversely affect the right to require full performance at any time thereafter.
(g) Injunctive Relief. If Subscriber is in ongoing violation of any provision of the Standard Terms and Conditions, Energy Intelligence will be entitled, in addition to any other rights available under the Standard Terms and Conditions, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees that compensatory damages are not an adequate remedy in such circumstances and covenants not to claim otherwise in response to such an action.
(h) Remedies Cumulative. The rights and remedies under the Standard Terms and Conditions are intended to be cumulative and non-exclusive of any legal, equitable, contractual or other rights and remedies.
(i) Force Majeure. Any failure or delay by either Energy Intelligence or Subscriber in the performance of its obligations pursuant to the Standard Terms and Conditions (other than in respect of payment of Fees) will not be deemed a default or breach of the Standard Terms and Conditions or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of that party.
(j) Enforceability. If any term or condition herein (in whole or in part) is found to be illegal or unenforceable, this will not affect the validity and enforceability of the remainder of the Standard Terms and Conditions, and each provision shall be valid and enforced to the fullest extent permitted by law.
(k) Governing Law. The Standard Terms and Conditions, as well as any and all tort claims arising from the Standard Terms and Conditions or arising from any of the proposals, negotiations, communications or understandings regarding the Standard Terms and Conditions, will be governed by and construed in accordance with the laws the United States of America. Jurisdiction and venue for any litigation arising herefrom, including copyright infringement, will be appropriate in any federal or state court located in New York or other proper jurisdiction as determined under the Federal Rules of Civil Procedure, or other applicable state laws or regulations. If such action is filed in New York, Subscriber hereby agrees and consents to personal jurisdiction in any court located within the State of New York.
By clicking the “I Accept” button below, you indicate that you agree to and accept these Standard Terms and Conditions.