naak inc. (“us”, “we”, “our”, the “Company” or “naak”) provides subscription-based software as a service which allows Users, Limited Administrators and Unlimited Administrators to control, monitor, manage, automate and optimize the use of energy produced, consumed and stored for facilities outfitted with naak hardware and software (the “naak Connect,” “Service” or “Services”).
1. Users. The following are users of the Services (each, a “User” or “You” and, collectively, the “Users”):
a. An “End User” may use the Services to control, monitor, and automate the usage of energy though the purchased Services upon completing required installation and/or sign-up process(es).
b. A “Limited Administrator” is an individual representative of a Third-Party Reseller with certain limited Administrative Access, as determined at the discretion of the Unlimited Administrator.
c. An “Unlimited Administrator” is an individual representative of a Third-Party Reseller that has full Administrative Access to activate and deactivate Users’ accounts, access account records, and configure the software to perform the subscribed services.
2. Service Availability; License.
The Company’s Services are available https://my.naak.io/Account/Agreement website and for download in the app stores on mobile devices (Apple and Android).
a. Subject to your compliance with these Terms, for the duration of End User’s subscription term, and subject to the restrictions set forth herein, the Company hereby grants to End User a revocable, limited, non-exclusive, non-transferrable, non-sublicensable, and personal license to download and use or otherwise access the Services for personal use only. Except as expressly set forth in these Terms, End Users receive no right, title, or interest in and to the Services.
b. Subject to your compliance with these Terms, for the term of Third-Party Reseller’s agreement with the Company, and subject to the restrictions set forth herein, the Company hereby grants to Limited Administrator a revocable, limited, non-exclusive, non-transferrable, and non-sublicensable license to access the administrative dashboard and manage and monitor End User licenses to the extent granted by the Unlimited Administrator. Except as expressly set forth in these Terms, End Users receive no right, title, or interest in and to the Services.
c. Subject to your compliance with these Terms, for the term of Third-Party Reseller’s agreement with the Company, and subject to the restrictions set forth herein, the Company hereby grants to Unlimited Administrator a revocable, limited, non-exclusive, non-transferrable, and non-sublicensable license to access the administrative dashboard, control and monitor End User license, and control and monitor Limited Administrator license. Except as expressly set forth in these Terms, End Users receive no right, title, or interest in and to the services.
3. Limitations. Users may not circumvent any technological measures or features of the Services that are intended to or effectively control access to the Services, or any other protected content or information included on the Services. The Services may contain robot exclusion headers. Users agree to not use any robot, spider, crawler, scraper or other automated means to access the Services for any purpose without the Company’s express prior written consent. Users further agree to not (i) take any action that imposes or may impose, in the Company’s sole discretion, an unreasonable or disproportionately large load on the Service’s infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; (iii) bypass any measures the Services may use to prevent or restrict access to the Services; (iv) harm, disrupt, or intend to harm or disrupt another User or allow yourself or anyone else illegal access to the Software or to bypass security on the public electric power grid, websites, or servers, included but not limited to spamming; or (v) not disassemble, decompile, reverse engineer, or work around any technical limitations in any of the Services including but not limited to the Software.
5. Intellectual Property Ownership.
a. Users acknowledge and agree that the trademarks of the Company (the “naak Marks”), the Services, and the look and feel of any content accessible through naak.io and naak Connect are proprietary, original works of authorship of the Company, or licensors of the Company, protected under United States and worldwide copyright, trademark, and trade secret laws of general applicability (“Company IP”). Users further acknowledge and agree that all right, title and interest in and to the Company IP are and shall remain with the Company or its licensors. Users agree not to contest or infringe these rights, directly or indirectly, at any time. Without the prior written consent of the Company, Users may not use or modify the Company IP.
b. Users acknowledge and agree that, except for any data that is Personal Information Traffic Data, Transaction History, Suggestions, Usage Data and Log Data submitted to or derived through the use of the Services (“User Usage Content”) shall be co-owned by the Company and CarbonTRACK. Users represent and warrant to the Company with respect to the Suggestions, and the rights in and to such content, do not infringe or violate any copyrights, trade secrets, or other intellectual or proprietary rights of any third-party, and that posting or otherwise using any content will not violate any applicable laws, rules, or regulations.
c. Users shall indemnify and hold harmless the Company, and its respective officers, directors, employees, shareholders, members, managers, and agents, from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with any claim that (i) the User Content or any portion of the content infringes the rights of any third-party.
6. Related Infrastructure. User shall be responsible for obtaining, maintaining and knowing the risks and limitations of any third party equipment and infrastructure needed to connect to, access or otherwise use naak Connect (collectively, “Equipment”), including but not limited to solar and battery power. Further, User acknowledges and agree that it is User’s sole responsibility, and Company shall have no liability in connection with, any security breaches, malfunctions or limitations of such Equipment.
9. Technical and Customer Support. Users may contact Company for technical support using the following email: [[email protected]].
10. Additional User Responsibilities and Obligations. Users represent, warrant, and covenant the following:
a. Users have all rights, title and interest, including all copyright rights and other intellectual property rights, in and to the content they submit.
b. Users shall not knowingly register with or submit any information or content that is false or misleading, including any content with any false or misleading information.
c. Except for authorized access of End User accounts by Limited Administrators or Unlimited Administrators, Users shall not use their accounts to breach the security or gain access to the account of any other Users.
f. Users shall provide Company with accurate, current and complete registration information.
g. Users are either (i) eighteen (18) or older, or (ii) if under the age of eighteen (18), at least the age of thirteen (13) and are accessing the Service with the knowledge and consent of a parent or legal guardian, who will also be deemed to have agreed to this Agreement.
12. No Warranty; Disclaimer.
a. The Company makes no representation or warranties with respect to the reliability or performance of the Services, and will not be liable to anyone for losses, damages, liabilities, settlements, causes of actions, or other claims arising out of or due to the use of the Services. Users hereby represent and warrant that they understand and agree to such Company disclaimers. Users hereby waive any such claims it may have against the Company arising out of or in any way related to User’s access to or the use of the Services.
c. THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES TO THE SERVICE AND OTHER SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE.
d. USERS EXPRESSLY UNDERSTAND AND AGREE THAT ANY AND ALL CLAIMS, LOSS, LIABILITY, OR DAMAGES AND COSTS INCURRED OR SUFFERED BY USERS, INCLUDING WITHOUT LIMITATION DAMAGES THAT ARISE FROM ISSUES WITH ELECTRICAL SYSTEMS, SOLAR ELECTRICITY SYSTEM, HAVC SYSTEMS, LIGHTING, PLUMBING, APPLIANCES OR OTHER PERIPHERALS CONNECTED DIRECTLY OR INDIRECTLY TO THE SERVICES OR HARDWARE SHALL BE THE SOLE RESPONSIBILITY OF USER.
13. Limitation of Liability.
b. WITHOUT LIMITING AND NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE COMPANY BE LIABLE TO ANY USER FOR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF FORESEEABLE OR IF THE COMPANY OR USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE.
c. WITHOUT LIMITING THE FOREGOING, USERS ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVICES AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED, CELLULAR COMMUNICATIONS CONTROLLED BY THIRD- PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD-PARTIES CAN IMPAIR OR DISRUPT USERS’ OR OTHER THIRD-PARTIES’ CONNECTIONS TO THE INTERNET, OR PORTIONS OF THE INTERNET. ALTHOUGH THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, THE COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. D. YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 13 (LIMITATION OF LIABILITY) ARE AN ESSENTIAL BASIS OF THE BARGAIN AND OF THE ALLOCATION OF RISKS BETWEEN THE PARTIES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OR PART OF THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
18. Fees and Payment.
a. End Users expressly acknowledge and agree to the pricing policies, including payment terms, for each subscription purchased via a Third-Party Reseller and that naak is not liable for any disputes that arises in connection with such terms.
b. End Users also expressly acknowledge and agree that there may be circumstances, such as a Third-Party Reseller’s dissolution of its business, where subscription payments will no longer be paid directly to the Third-Party Reseller. When notified of such legal change of relationship, End Users agree to provide future payments owed directly to Company and to adhere to Company’s payment terms, which shall be net 30.
c. User will pay Company all applicable fees and any related taxes (other than taxes on Company’s income) for use of the Services.
d. Nonpayment of any fees or other sums due related to use of the Services will result in termination. Company may, at its discretion, also appoint an outside debt collection agency to collect amounts owed to Company. User agrees to reimburse Company for all costs that Company incurs in enforcing its collection of User’s unpaid amounts, including debt collection agency fees, reasonable attorneys’ and legal fees and court costs.
e. Except where restricted by a contract between a Third-Party-Reseller and End user, subject to a one hundred ($100) early cancellation fee, Company will refund a pro-rata amount of the unused portion of any pre-paid license fees in the event of an early cancellation. In the event the Services are purchased through a Third-Party Reseller, and such Third-Party Reseller has agreed to an early termination, refunds shall be processed by the Third-Party Reseller, and Company shall provide any reimbursement due directly to such Third-Party Reseller. Company is not responsible for providing any refunds directly to End Users when the Services are purchased through a Third-Party Reseller. In the event the customers cellular data plan was pre-purchased with the telecommunications provider, no refund will be applicable.
19. Updates. Your continued use of the Product is your agreement to these updates. naak may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates naak provides.