PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS OF USE CAREFULLY. THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND ENOVATIVE GROUP, INC. STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE AUTOHOT ENERGY MANAGEMENT SYSTEM ONLINE BETA (“EMS BETA”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY. BY CLICKING “I ACCEPT” OR BY USING THE EMS BETA, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS STATED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT,” AND DO NOT USE THE EMS BETA.

“Enovative” refers to Enovative Group, Inc. “You” and “your” refers to the individual or entity that has ordered the EMS BETA by having clicked “I ACCEPT” during the order process or otherwise having used EMS BETA.

The terms “AutoHot Energy Management System Online BETA,” the “BETA,” “EMS BETA,” and the “services,” mean the service offerings that Enovative makes available through this webportal, including any software or hardware.

The term “users” means those individuals authorized by you or on your behalf to use the services.

The term “your content” means all software (other than your applications), data, and data files provided by you or any user and that reside on, or run on or through, your EMS BETA environment.

This agreement is effective upon your acceptance of this agreement (the “effective date”), and will terminate one (1) year from the effective date, unless ended earlier in accordance with this agreement (the “BETA Period”) or your separate contract documents. If you would like to use the services after the BETA Period, provided that Enovative has made the services commercially available, you must purchase such services from Enovative under a separate contract.

For the duration of the BETA Period, you have the nonexclusive, nontransferable, non-assignable, limited right to use the services, subject to the terms of this agreement, and solely for your internal business purposes to evaluate Enovative’s AutHot Energy Management System offering and not for any production or commercial purposes. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with this agreement.

You acknowledge that Enovative has no delivery obligation and will not ship copies of any Enovative programs to you as part of the services. Third party technology that may be appropriate or necessary for use with some Enovative programs will be specified by Enovative. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Enovative and not under this agreement.

You do not acquire any license to use the services, including any Enovative programs to which Enovative provides you with access as part of the services, in excess of the scope and/or duration of the services defined in this agreement. Upon the end of this agreement or the services hereunder, your right to access or use the services and Enovative programs shall terminate.

You retain all ownership and intellectual property rights in and to your content and your applications. Enovative or its licensors retain all ownership and intellectual property rights to the services and Enovative programs, including derivative works thereof, and anything developed and delivered by Enovative under this agreement.

You may not, and may not cause or permit others to:

• remove or modify any program or services markings or any notice of Enovative’s or its licensors’ proprietary rights;
• make the services, including any Enovative programs or materials to which you are provided access, available in any manner to any third party;
• modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by Enovative programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Enovative;
• disclose results of any benchmark tests or performance tests of the services or Enovative programs without Enovative’s prior written consent;
• perform or disclose any of the following security testing of the Services Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
• license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Enovative programs or materials available, to any third party.

THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ENOVATIVE HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO (A) THE SERVICES, INCLUDING BUT NOT LIMITED TO SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS AND (B) MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

ENOVATIVE DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ENOVATIVE WILL CORRECT ALL ERRORS IN THE SERVICES; (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) YOUR CONTENT AND YOUR APPLICATIONS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (D) THE SERVICES, INCLUDING ANY PRODUCTS, INFORMATION OR OTHER MATERIAL YOU OBTAIN OR PURCHASE FROM ENOVATIVE UNDER THIS AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT ENOVATIVE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ENOVATIVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

YOU ARE SOLELY RESPONSIBLE FOR ANY CONTENT, APPLICATION OR NON-ENOVATIVE SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE BETA ENVIRONMENT, AND AGREE, AT YOUR SOLE COST AND EXPENSE, TO DEFEND ENOVATIVE AGAINST ANY CLAIM AND INDEMNIFY ENOVATIVE FROM ANY DAMAGES, LIABILITIES, COSTS AND EXPENSES OR THE SETTLEMENT AGREED TO BY YOU, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH CONTENT, APPLICATION OR NON-ENOVATIVE SOFTWARE. ENOVATIVE IS NOT RESPONSIBLE FOR THE SECURITY OF ANY CONTENT, APPLICATION OR SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE BETA ENVIRONMENT.

ENOVATIVE RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SERVICES, ENOVATIVE PROGRAMS AND BETA AT ANY TIME WITHOUT NOTICE.

To use the services, you must have an autohotems.com account. Access to and use of password protected or secure areas of the BETA site is restricted to authorized users only. You may not share your password(s), account information, or access to the BETA site. You are responsible for identifying and authenticating all users, for approving access by such users to the services, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating your and your users’ Single Sign-On with Enovative, you accept responsibility for timely and proper termination of user records in your local (intranet) identity infrastructure and on your local computers. Enovative is not liable for any harm caused by users, including individuals who were not authorized to have access to the services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in your local identity management infrastructure or your local computers. You are responsible for all activities that occur under your and your users’ passwords or accounts or as a result of your or your users’ access to the BETA site, and agree to notify Enovative immediately of any unauthorized use. You agree to make every reasonable effort to prevent unauthorized third parties from accessing the BETA.

Services provided under this agreement shall be provided for the BETA Period defined above unless earlier terminated in accordance with this agreement. At the end of the BETA Period, all rights to access or use the services, including any Enovative programs that are part of the services, shall end.

You may discontinue your use of the services at any time. Enovative may terminate your password, account, and access to or use of the services at any time for any reason, unless a separate agreement dictates otherwise. You acknowledge and agree that Enovative has no obligation to retain your content and applications, and that your content and applications will be irretrievably deleted, following the termination of the services.

Provisions that survive termination or expiration of this agreement are those which by their nature are intended to survive.

The services under this agreement are provided to you free of charge during the BETA Period.

By virtue of this agreement, you may have access to information that is confidential to Enovative, including but not limited to the services and Enovative programs, and any information related to the services and Enovative programs (“Enovative Confidential Information”). Enovative Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. You agree, both during the term of this agreement and for a period of three years after termination of this agreement and of all licenses granted hereunder, to hold Enovative’s Confidential Information in confidence. You agree not to make Enovative’s Confidential Information available in any form to any unauthorized third parties. You agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this agreement.

You agree that this agreement including the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. It is expressly agreed that the terms of this agreement shall supersede the terms in any purchase order or other non-Enovative document and no terms included in any such purchase order or other non-Enovative document shall apply to the services ordered. This agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Enovative Store by authorized representatives of you and of Enovative. Notwithstanding the foregoing, Enovative may make changes to the services and this agreement, and you agree that your continued use of the services constitutes your acceptance of, and agreement to, such changes.

IN NO EVENT SHALL ENOVATIVE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EVEN IF ENOVATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ENOVATIVE’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE THOUSAND UNITED STATES DOLLARS ($1,000.00).

1. Enovative is an independent contractor and we each agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance. Enovative reserves the right to provide the services from locations, and/or through use of affiliates and subcontractors, worldwide.
2. You are responsible for obtaining at your sole expense any rights and consents from third parties necessary for your content, your applications, and other vendors’ products provided by you and used with the BETA environment, including all rights and consents to such content, applications and products necessary for Enovative to provide the services.
3. This agreement is governed by the substantive and procedural laws of the State of California and you and Enovative agree to submit to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa Clara counties in California in any dispute arising out of or relating to this agreement.
4. You may not assign this agreement or give or transfer the services or an interest in them to another individual or entity.
5. Except for actions for breach of Enovative’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.
6. Enovative may use software tools to audit and otherwise request information from you regarding your use of the services. You agree to cooperate with Enovative’s audit and provide reasonable assistance and access to information.
7. The Uniform Computer Information Transactions Act does not apply to this agreement or orders placed under it. You understand that Enovative’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of Enovative and are not Enovative’s agents. Enovative is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an Enovative subcontractor on an engagement ordered under this agreement.

Neither of us shall be responsible for events outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event.

Enovative makes no assurances that any of your content or your applications loaded into the BETA environment will be secured or that such data will remain confidential. You acknowledge that the EMS BETA is not designed for use with production data (including business content and personal information) and accordingly, you shall not include any production data in your content or use the services for any commercial purpose. YOU SHOULD FREQUENTLY BACK UP ANY CONTENT, APPLICATION OR SOFTWARE THAT YOU LOAD INTO, OR CREATE WITHIN, THE BETA ENVIRONMENT. ENOVATIVE RESERVES THE RIGHT AT ITS SOLE DISCRETION TO DELETE, AT ANY TIME AND FOR ANY REASON, ANY CONTENT, APPLICATION OR SOFTWARE IN THE BETA ENVIRONMENT, AND ANY SUCH CONTENT, APPLICATION OR SOFTWARE MAY BECOME PERMANENTLY LOST IF SO DELETED.

Enovative has no obligation to monitor your content and your applications, but at its sole discretion, may access, monitor, and/or review your activity, content and applications in the environment. You agree to provide any notices and obtain any consents related to your use of the services and Enovative’s provision of the services, and you shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your content and your applications. You warrant and represent that your content and your applications do not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of a computer including Enovative’s Cloud services.

You shall not upload, email, post, publish, distribute or otherwise transmit any of your content containing a solicitation of funds, promotion, advertising, solicitation for goods or services, or other commercial matter. You agree not to solicit other users of the Enovative Cloud Services Online BETA to use or join or become members of any commercial online or offline service or other organization. Except where expressly authorized by Enovative, you agree not to collect or store personal data about other users. You agree that Enovative has no obligation to retain or archive any content or applications posted on the BETA site. At the end of the BETA Period, Enovative will disable the BETA accounts and remove any associated content and your applications.

Your content, including text and images, may be disclosed as required by law without your prior consent. Enovative will use diligent efforts to inform you, to the extent permitted by law, of any request for such disclosure promptly upon receipt of such request.

You remain solely responsible for your regulatory compliance in connection with your use of the services.

“Feedback” shall mean any input regarding Enovative’s products and/or services (including the EMS BETA), including changes or suggested changes to Enovative’s current or future products and/or services. Notwithstanding anything that you may note or state in connection with providing Feedback, all Feedback provided by you shall not be considered confidential information and shall be received and treated by Enovative on a non-confidential and unrestricted basis. You agree that Enovative or its licensors retain all ownership and intellectual property rights (including all derivatives or improvements thereof) in and to any Feedback provided by you or any other party, and acknowledge that Enovative may use the Feedback for any purpose, including but not limited to incorporation or implementation of such Feedback into an Enovative product or service, and to display, market, sublicense and distribute such Feedback as incorporated or embedded in any product or service distributed or offered by Enovative.