1. GENERAL
Abisko LLC, headquartered in New York, provides a cloud-based software platform that enables users to collect, integrate, and manage building performance data for use in sustainability reporting and disclosure. By using the Platform, users agree to these Terms and Conditions.
2. DEFINITIONS
Abisko: Abisko LLC, the provider of the Platform, headquartered in New York.
Platform: The "Abisko Platform" provided by Abisko Inc., which enables Users to 1) Collect, organize, and integrate building, utility, and other sustainability data; 2) Validate data for reporting purposes; 3) Analyze and visualize data for reporting purposes.
User: The individual or organization using the Platform, with whom Abisko or its affiliate has entered into a User Agreement.
User Agreement: The End User License Agreement between the User and Abisko, detailing the usage, costs, and duration of Platform access.
Scheduled Downtime: A period of time when the Abisko application is intentionally taken offline for planned maintenance or other activities.
3. APPLICABILITY
3.1 These Terms and Conditions govern the usage of the Platform. By accessing or using the Platform, the User agrees to these Terms and Conditions. Continued use of the Platform after any changes constitutes the User's acceptance of the revised Terms and Conditions. If the User disagrees with the amendments, they must discontinue use of the Platform.
3.2 Abisko reserves the right to update or modify these Terms and Conditions at any time. The latest version can be accessed directly within the Abisko platform under "Terms & Conditions" in the top-right menu or requested via email at info@abisko.io. Users will be notified of significant changes.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 User shall be responsible for obtaining and maintaining any equipment and ancillary Platform needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). User shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account or the Equipment with or without User’s knowledge or consent.
4.2 Users are solely responsible for collecting and submitting accurate data via EnergyStar Portfolio Manager®, direct input, or bulk import templates. Users are also responsible for processing and utilizing outputs.
4.3 User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”); modify, translate, or create derivative works based on the Platform or any Software (except to the extent expressly permitted by Abisko or authorized within the Platform); use the Platform or any Software for the benefit of a third party; or remove any proprietary notices or labels.
4.4 Further, User may not remove or export from the United States or allow the export or re-export of the Platform, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
4.5 User represents, covenants, and warrants that User will use the Platform only in compliance with Abisko’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. User hereby agrees to indemnify and hold harmless Abisko against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User’s use of Platform.
4.6 Although Abisko has no obligation to monitor User’s use of the Platform, Abisko may do so and may prohibit any use of the Platform it believes may be (or alleged to be) in violation of the foregoing.
4.7 Abisko reserves the right to unilaterally terminate the User Agreement in writing if it determines that the User has breached the agreement and/or these Terms and Conditions. Abisko is not required to provide further explanation and will not be held liable for any resulting damages. Upon termination, the User must immediately cease using the Platform and permanently remove all versions of it from their server and/or computer.
4.8 Abisko is not liable for non-performance due to events beyond its control, including labor disputes, cyber-attacks, cloud provider disruptions, power failures, server issues, or similar incidents.
4.9 Pilot Period Restrictions: During the Pilot Period, reports or data generated by the Platform are for demonstration purposes only and cannot be used for official disclosures. Abisko is not liable for any misuse of reports/data during the Pilot Period, and Users indemnify Abisko from any resulting damages.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Abisko includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of User includes non-public data provided by User to Abisko to enable the provision of the Platform (“User Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Platform or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 User shall own all right, title and interest in and to the User Data. Abisko shall own and retain all right, title and interest in and to (a) the Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Platform or support, (c) any data that is based on or derived from the User Data, and (d) all intellectual property rights related to any of the foregoing.
5.3 Notwithstanding anything to the contrary, Abisko shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and related systems and technologies (including, without limitation, information concerning User Data and data derived therefrom), and Abisko will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Abisko offerings, (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, and (iii) disclose user’s name and/or logo for marketing purposes.. No rights or licenses are granted except as expressly set forth herein.
6. PAYMENT OF FEES
6.1 User will pay Abisko the then applicable fees described in the Order Form for the Platform and Implementation Platform in accordance with the terms therein (the “Fees”). If User’s use of the Platform exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), User shall be billed for such usage and User agrees to pay the additional fees in the manner provided herein. Abisko reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to User (which may be sent by email). If User believes that Abisko has billed User incorrectly, User must contact Abisko no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Abisko’s User support department.
6.2 Abisko may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Abisko thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. User shall be responsible for all taxes associated with Platform other than U.S. taxes based on Abisko’s net income.
7. SERVICES
7.1 Abisko does not provide the User with any services related to the use of the Platform. Any additional services, customizations, or applications fall outside the scope of the User Agreement and these Terms and Conditions.
7.2 The Platform shall be adequately available at all times to meet User’s needs, with the exception of Scheduled Downtime, which shall not exceed more than three (3) hours per month in the aggregate. All users will be notified at least 48 hours before the start of scheduled downtime if the scheduled downtime is to take place between weekday working hours of 9am and 5pm Eastern Time
7.3 The User acknowledges and accepts that the Platform may be updated or upgraded to new versions, which may include changes to features, functionality, operation, or design. Abisko is not responsible for any loss of access or functionality during updates and will not provide compensation to the User or third parties for such occurrences. If User requests maintenance, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, Abisko is not liable for any downtime resulting from outages of third-party connections or utilities or other reasons beyond Abisko’s control.
7.4 Abisko reserves the right to change the hosting location of the Platform or the hosting provider, provided the new hosting provider complies with applicable privacy regulations.
7.5 User may report any problems or bugs with the platform by submitting an issue via the ‘Send Feedback’ button found in the Platform after logging in or sending an email to info@abisko.io. Abisko will respond to the user and make a best effort to remedy the issue within a reasonable time frame.
8. TERM AND TERMINATION
8.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form (collectively, the “Term”).
8.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. User will pay in full for the Platform up to and including the last day on which the Platform are provided. Upon any termination, Abisko will make all User Data available to User for electronic retrieval for a period of thirty (30) days, but thereafter Abisko may, but is not obligated to, delete stored User Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTY AND DISCLAIMER
Abisko shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the Platform. While Abisko strives to use up-to-date standards, it is not liable for inaccuracies in these guidelines or standards. Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Abisko or by third-party providers, or because of other causes beyond Abisko’s reasonable control, but Abisko shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ABISKO DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM IS PROVIDED “AS IS”.
10. INDEMNITY
Abisko shall hold User harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Abisko is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Abisko will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Abisko, (ii) made in whole or in part in accordance with User specifications, (iii) that are modified after delivery by Abisko, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where User’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform are held by a court of competent jurisdiction to be or are believed by Abisko to be infringing, Abisko may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for User a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and User’s rights hereunder and provide User a refund of any prepaid, unused fees for the Service.
11. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, ABISKO SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, PLATFORM OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ABISKO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY USER TO ABISKO FOR THE PLATFORM UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ABISKO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by User except with Abisko’s prior written consent. Abisko may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and User does not have any authority of any kind to bind Abisko in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. No party shall be permitted to issue a press release with respect to this Agreement without the other party’s prior written consent, and User otherwise agrees to reasonably cooperate with Abisko to serve as a reference account upon reasonable request. Abisko is entitled to transfer the rights and obligations ensuing from these Terms and Conditions and the underlying User Agreement to an affiliated party of Abisko, but to other third parties only with prior consent of User. The User shall not have the right to transfer or assign, including by operation of law, these Terms and Conditions or the underlying User Agreement without the prior written consent of Abisko.
