Warranty and Terms of Service
EQUIPMENT AND INSTALLATION. ENTOUCH shall provide the thermostat(s), energy monitors, software, and other hardware and components which make up the energy management systems described in the Proposal(s) and, unless otherwise specified in the Proposal(s), shall install the applicable Equipment at the location described in the Proposal(s) (“Installation Services”). For the duration and life of the Equipment, Customer agrees that it shall only have limited use license rights with respect to the software provided as a part of the Equipment and that Customer shall not modify, reverse engineer, distribute, transfer, or allow access to the Equipment (including the software) for purposes other than routine or otherwise required maintenance by any third party. If at Customer’s request, ENTOUCH performs services or provides Equipment in excess of the specifications contained in the Proposal(s), Customer shall be responsible for the costs of such additional services and Equipment at ENTOUCH’s standard rates. If ENTOUCH is required to return to Customer’s location for Installation Services due to a failure by Customer to adhere to the terms of this Agreement, additional charges may apply. The amounts for Installation Services on the Proposal represent only an estimate of the charges that may apply to install the Equipment at the location. If ENTOUCH determines that installation charges are going to be higher than estimated, ENTOUCH will provide Customer with notice of such charges before incurred and will receive approval from Customer prior to completing the installation. If approved, Customer agrees to pay the higher charges for Installation Services. ENTOUCH shall maintain a purchase money security interest in the Equipment to assure payment of the purchase price of the Equipment. ENTOUCH shall be entitled to enforce its rights to reclaim or repossess the Equipment if Customer fails to pay any portion of the purchase price of the Equipment.
EQUIPMENT WARRANTY. ENTOUCH Controls warrants the Equipment to be free from defects in the workmanship or materials, under normal use and service, for a period of one (1) year. The term of this warranty shall begin on the date the Equipment was delivered to Customer (the “Warranty Period”). If the Equipment fails during the Warranty Period for any reason other than an Exclusion, ENTOUCH agrees to provide Warranty Services (defined below) with respect to the Equipment. “Warranty Services” shall include repair or replacement of the Equipment due to failure for a cause other than an Exclusion. Warranty Services shall not include, without limitation, (i) ordinary maintenance of the Equipment; (ii) relocation of the Equipment; (iii) upgrades of the software provided to operate the Equipment; (vi) upgrades of Equipment hardware; (vii) removal or reinstallation costs (viii) training of Customers’ staff in utilizing the Equipment. Customer covenants and agrees to use its best efforts to keep the Equipment in good working condition and to use the Equipment only as provided in this Agreement. Customer agrees to notify ENTOUCH as soon as possible if the Equipment requires any Warranty Services. ENTOUCH shall have the right to provide the services in the manner it deems as appropriate to adequately service Customer. ENTOUCH shall have the right to perform Warranty Services using new or reconditioned parts, shall service the Equipment remotely when possible, and shall retain ownership of any removed Equipment that is replaced. Customer shall reimburse ENTOUCH for the cost of any repairs or services to the Equipment incurred as a result of an Exclusion and hereby authorizes ENTOUCH to collect such fees from Customer in the same method as other payments are made to ENTOUCH hereunder. “Exclusion” means service required due to: (i) Customer’s negligent acts or omissions, (ii) alterations to the Equipment not performed by ENTOUCH, (iii) damage or abuse to the Equipment caused by persons other than ENTOUCH its employees or contractors; (iv) acts of God or other damage to the Equipment outside the scope of normal business activities; (v) water damage; or (vi) Customer’s failure to follow the instructions provided to Customer by ENTOUCH properly. ENTOUCH shall not be obligated to maintain, repair, service, replace, operate or assure the operation of the Equipment other than as provided in this Section 2.
ENTOUCH 360 SERVICES. If a Proposal indicates that ENTOUCH 360 Services (defined below) shall be provided at such location, then during the Term, ENTOUCH shall provide the ENTOUCH 360 service(s) indicated on such Proposal (the “ENTOUCH 360 services”). Customer understands that the ENTOUCH 360 services may be tailored to meet each customers unique business situation. The ENTOUCH 360 Services Addendum contains a definition of the ENTOUCH 360 Services, ENTOUCH’s responsibilities with respect to the provision of such Services, and Customer’s responsibilities for such Services.
ENTOUCH shall not be liable for interruption of ENTOUCH 360 Services due to strikes, riots, floods, storms, earthquakes, power failures, insurrection, interruption or unavailability of telephone or internet service, acts of God, or for any other cause beyond the control of ENTOUCH. ENTOUCH shall not be required to supply ENTOUCH 360 Services for Customer while interruption of ENTOUCH 360 Services due to any such cause continues.
CUSTOMER REQUIREMENTS. Customer represents that the site specified in the Proposal is ready for Installation Services and hereby authorizes ENTOUCH to install the Equipment at the location(s) specified in the Proposal(s). Customer shall provide, at its expense, electrical wiring, and electrical power, and space to properly operate and house the Equipment. Customer shall provide adequate illumination under all operational conditions for the proper operation of such Equipment. Local government agencies may require Customer to secure licenses and permits in connection with the installation and operation of the Equipment. Customer is responsible for obtaining, at its expense, any required permits or licenses and any associated obligations. Customer is responsible for any fines or penalties assessed against Customer and/or ENTOUCH for failure to obtain any required permits or licenses.
Customer acknowledges and agrees that all data generated from the Equipment monitored by Customer or ENTOUCH shall require data transmission and that Customer shall be responsible for ordering, maintaining, and paying for such data transmission installation and services, and that the costs of such services are not included in ENTOUCH’s service charges. Customer agrees to provide connectivity to data transmission services from the Customer’s site(s) sufficient to facilitate monitoring of the Equipment by ENTOUCH as instructed by ENTOUCH. Customer acknowledges and agrees that data is transmitted over third-party telephone and utility lines, which are wholly beyond the control and jurisdiction of ENTOUCH and are maintained by the applicable utility. CUSTOMER UNDERSTANDS THAT ENTOUCH DOES NOT RECEIVE DATA FROM EQUIPMENT WHEN THE DATA TRANSMISSION MODE IS OR BECOMES NON-OPERATIONAL AND THAT DATA FROM CUSTOMER SITE(S) WILL NOT BE RECEIVED BY ENTOUCH IF THE DATA TRANSMISSION MODE IS CUT, INTERFERRED WITH OR OTHERWISE INOPERABLE.
CUSTOMER PROVIDED UTILITY DATA AND AGENCY. ENTOUCH requests and Customer agrees to provide ENTOUCH access to Customer’s energy bills and related statements. Additionally, if available, Customer agrees to provide ENTOUCH access directly to Customer interval data provided by the electronic metering device(s) at Customer’s facilities contemplated under this Agreement.
Customer’s execution of this Agreement provides ENTOUCH with the authorization to act as Customer’s agent for the sole purpose of requesting and receiving, on Customer’s behalf, energy usage data, including kWh, kVA or KW, and interval data (if applicable) for all facilities contemplated under this Agreement. These information requests will be for no more than the most recent twelve (12) months of service. If Customer’s energy providers require additional documentation, Customer will work with ENTOUCH to make all reasonable efforts to complete such documentation.
TERM AND TERMINATION. With respect to each Proposal, the term of this Master Agreement shall start on the date that the Equipment is installed (or delivered if installation services are not provided) at the site and shall continue for a period of three (3) years (the “Initial Term”) from such date. Upon the expiration of the Initial Term with respect to each Proposal, this Master Agreement shall automatically renew annually with respect to such site (each a “Renewal Term”) unless terminated by either party upon written notice at least thirty (30) days prior to the last day of the then-current term. The “Term” of each site shall be the Initial Term and each Renewal Term. When components are added to a site pursuant to a component survey and an amendment to Appendix A of this Master Agreement, the term with respect to such site shall be extended by a period of one calendar year from the date of such amendment.
ENTOUCH may terminate this Agreement with respect to a site at any time if Customer fails to perform its material obligations described herein (including payment) related to such site. Customer may terminate this Agreement with respect to a site at any time upon thirty (30) days prior written notice to ENTOUCH if (1) ENTOUCH fails to reasonably perform its material obligations described herein with respect to such site and such failure has not been cured by ENTOUCH within thirty (30) days after its receipt of such notice or (2) Customer remits the sum of the payments due ENTOUCH under the current term of the Agreement.
ENTOUCH will not commence Installation Services described in a Proposal until the Deposit is received. ENTOUCH shall be entitled to pursue all remedies available, including, without limitation, disconnecting or disabling the ENTOUCH 360 Services, in order to collect past due Service Fees. Customer shall be responsible for all licensing, permit fees and sales, use and excise taxes relating to the Equipment, Installation Services, and Interactive Services. Customer is responsible for and agrees to pay all shipping charges related to the installation of the Equipment. ENTOUCH shall have the right, at any time and without Customer’s consent, to increase the monthly charges for any of its provided services to reflect (a) the increase in the Producer Price Index (PPI) published by the Bureau of Labor Statistics, on a percentage basis, between the later of (i) the initiation date of the services for which charges are being increased, or (ii) the last date a PPI increase was applied to such services, and the date of such increase, and/or (b) any additional taxes, fees or charges which hereafter may be imposed on ENTOUCH by any public or private utility or governmental agency relating to the Equipment or ENTOUCH’s services, and Customer agrees to pay the same.
INDEMNIFICATION. Each party Each (as “Indemnitor“) shall defend, indemnify and hold harmless the other party (as “Indemnitee“), its Affiliates, and their respective employees, agents, officers, partners and directors, and anyone else acting for or on behalf of them and any of their respective assigns, from and against all liabilities, claims, damages, losses, and expenses (including reasonable attorneys’ fees and court costs) which directly or indirectly arise out of or result from any willful misconduct or negligent, reckless or tortuous act or omission (including strict liability), or breach of contract or breach of this Master Agreement.
ENTOUCH IS NOT AN INSURER. OTHER THAN THE WARRANTY PROVIDED IN SECTION 2 ABOVE, ENTOUCH DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR SERVICES DESCRIBED HEREIN INCLUDING, BUT NOT LIMITED TO (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THE CAPABILITIES OR EFFECTIVENESS OF THE EQUIPMENT OR SERVICES TO REDUCE OR ELIMINATE THE USAGE OF ENERGY AT CUSTOMER(S) SITE (C) THE RESPONSE TIME OF ENTOUCH TO A PARTICULAR EVENT OR CONDITION AT A CUSTOMER SITE. ADDITIONALLY, ENTOUCH IS NOT RESPONSIBLE FOR THE PROPER PERFORMANCE NOR THE PROMPT REPAIR OF CUSTOMER’S EQUIPMENT NOT INSTALLED OR SERVICED BY ENTOUCH. CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL LOSSES OR DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING ENTOUCH’S NEGLIGENCE OR GROSS NEGLIGENCE, SHALL BE REPAIR OR REPLACEMENT AS SPECIFIED ABOVE. ENTOUCH SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR DAMAGES TO PROPERTY, AND HOWEVER OCCASIONED, WHETHER ALLEGED AS RESULTING FROM BREACH OF WARRANTY OR CONTRACT BY ENTOUCH OR NEGLIGENCE OR GROSS NEGLIGENCE OF ENTOUCH OR OTHERWISE.
NOTWITHSTANDING THE PRECEDING SENTENCES, IN THE EVENT THAT ENTOUCH IS FOUND TO BE LIABLE TO CUSTOMER FOR ANY REASON, TOTAL LIABILITY TO CUSTOMER FOR ALL CLAIMS, REGARDLESS OF THEORY, THAT ARISE OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO SERVICE FEES PAID BY CUSTOMER TO ENTOUCH FOR THE ENTOUCH 360 SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE LOSS.
GENERAL. This Master Agreement is not assignable by Customer except upon written consent of ENTOUCH first being obtained. This Master Agreement, the Proposals attached hereto on Appendix A, and the ENTOUCH 360 Service Addendum referenced herein constitute the entire Agreement between Customer and ENTOUCH. If any of the provisions of this Master Agreement shall be determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. Any notices required or permitted to be given herein shall be made, in the case of ENTOUCH, at its corporate headquarters, and in the case of Customer, at the address provided in the Proposal(s). Customer and ENTOUCH agree that any action, demand, claim or counterclaim under the Master Agreement shall be resolved by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. This transaction shall be governed in all respects by the laws of the State of Texas.
USE OF TRADEMARKS. Customer hereby authorizes ENTOUCH to use its name and likeness, the name and logo of Customer and information provided by Customer concerning Customer and Customer’s use of Equipment, Installation, and ENTOUCH 360 Managed Services described in this Agreement, and to use such information in various advertisements and other marketing tools, as ENTOUCH in its own discretion shall determine. This authorization shall extend to any and all reissues of the advertisements and other marketing tools which ENTOUCH, at its discretion, may choose to utilize in the publicity, promotion, and advertising of its product.