Terms of Use Agreement


This agreement is effective from 5th Sept 2016.

Please read this agreement carefully. By accessing or using any portion of the service, or by paying for the service by any means offered by En-trak, you accept all the terms and conditions stated in this agreement. You agree that this agreement is enforceable like any other written negotiated contract signed by you.

The terms and conditions of this agreement apply to any and all use of the service by you or others in your organization, and you agree to be bound by these terms and conditions regardless of the type of use of the service by you or your organization. This agreement, which may be amended from time to time, is between you (you, your, Client) and En-trak Hong Kong Limited (En-trak, us, we).

1. Definitions

You, Subscriber, and Your refers to your organization and anyone in your organization that uses our software or services, including the person signing this Agreement. En-trak, the Company, and Our refer to En-trak and its assigns.

Licensed software means the web-based software program and any modified, updated or enhanced versions of such programs that En-trak in its sole discretion may provide to you pursuant to this Agreement or under a separate support agreement.

Service and Services refers to any and all of En-trak’s automated information collection services licensed to you that operates continuously over the internet to access environmental and performance data, including but not limited to energy, water, paper, lighting and/or gas from your facilities. You understand that this information is stored over time on our owned and/or managed server(s), and data is accessed over the internet to websites or public kiosk displays.

Metered points mean individual data points read from Subscriber’s devices such as but not limited to building automation systems, programmable logic computers, and utility meters, including manually entered or uploaded data.

Activation Date means the date on which the Services for the Subscriber are activated. The Activation Date is the date when En-trak completes connection with Subscriber’s building automation system, programmable logic computer, utility meter, etc. and verifies that the resulting data are accurate and when the activation email notice is sent to you.

Effective Date refers to the executed dates in the En-trak Order Form and will continue in effect until terminated by either party.

Documentation means the description of software features and capabilities as described on En-trak’s website, www.En-trak.com, as of the effective date.

Intellectual property rights means all international copyrights, trademarks, service marks, trade secrets, patents, patent applications, and all other proprietary rights and equivalent rights throughout the world.

Service period means the license term purchased by Subscriber as referenced in a valid price quotation from En-trak.

Subscriber’s materials (or simply Materials) mean the images, artwork, architectural renderings, or other electronic material of a visual nature provided by you to En-trak for display in connection with the Licensed Software.

2. Proprietary rights

2.1   License grant
Subject to the terms and conditions of this Agreement, including the payment of fees as set forth in Section 4, En-trak will provide you access to, and use of, the Licensed Software and the Service on a non-exclusive, non-transferable, revocable, non sub-licensable basis throughout the Service Period. On the Activation Date, En-trak will deliver to you your user account details and/or URLs to access the Service.

2.2 Additional functionality
During the Service Period, En-trak may offer additional functionality and/or the ability to use the Service with other third party applications (collectively the Applications). If you choose to subscribe to such Applications, Your license grant will hereby be amended to include such Applications in the license grant in Section 2.1 above. Applications may allow the use or disclosure of your information, as further set forth in each application description.

2.3 Subscriber’s materials
You hereby grant a non-exclusive, worldwide, fully sub-licensable license to En-trak to copy, display and modify (as necessary for compatibility with the Service) Your Materials. You warrant that Your Materials are owned by you or are properly licensed from the Materials’ rightful owner(s) for use in association with the Licensed Software and Service. By providing such Materials to En-trak, you warrant that all Materials do not infringe any third party’s proprietary rights. You agree to indemnify, defend, and hold harmless En-trak and its licensors from any infringement or similar claims arising from or against a third party relating to En-trak’s use of the Materials and the Materials’ incorporation in the Licensed Software or Services.

2.4   Use of data
Subscriber hereby grants En-trak a non-exclusive, perpetual, worldwide, royalty-free license, including the right to sub-license on an anonymous basis, to Subscriber’s Metered Points data gathered by the Service.

2.5   Proprietary rights
The Service and Licensed Software, including its underlying software and structure, and all worldwide Intellectual Property Rights therein are the exclusive property of En-trak. Except as may be expressly provided in this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of En-trak’s existing or future intellectual property, including patents. Subscriber will not remove, alter, or obscure any proprietary notices (including copyright notices) of En-trak.

3. Updates, upgrades and new products

En-trak may update the Services, hardware and software used to provide the Service from time to time. En-trak shall include in the Services provided hereunder any such updates that En-trak generally provides to its similarly situated customers free of charge; however, nothing in this Agreement will obligate En-trak to provide Services that include any upgrade (i.e. revisions to the Services that include new features or substantial increases in functionality), unless such upgrade is described in a new purchase order and You have paid the applicable license fees for such upgrade.

4. Fees and payment

4.1 Fee Payment
You shall pay, within 30 days of receipt of invoice from En-trak, all fees or charges accruing to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may only use the Service and Licensed Software if you have paid all license fees due to En-trak (Fees). All payments must be made in respectively local currency or any pre-agreed currency. The Fees exclude all applicable sales, use and other taxes and you are responsible for payment of all such taxes (other than taxes based on En-trak’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees.

4.2 Fee Revision
En-trak reserves the right to revise its fees and charges and to introduce new charges upon renewal of the Agreement. Fees for other services will be charged on per quoted basis. All pricing terms are confidential, and you agree not to disclose them to any third party.

4.3Unpaid fees
Any portion of the fees that is not paid when due will accrue interest at 15% per annum, or at the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If your payment is overdue for 30 days or more, your service and this agreement may be terminated at En-trak’s discretion.

5. Independent contractor status

This Agreement shall not be construed to create a relationship between the parties of agent, servant, employee, partnership, joint venture or association. En-trak shall perform the services hereunder as an independent contractor, retaining complete control over its personnel and operation. Neither En-trak nor its employees shall be, in any manner considered or act as your employees or agents. You shall be responsible for paying all required local taxes, including applicable sales and use taxes.

6. Your obligations

6.1 Non-transfer
The Services are for use by you and your authorized end users only, and only for your internal business purposes, and not for resale, distribution, assignment, transfer, rent or loan to any third party, including any of your parent or subsidiary entities unless expressly authorized by En-trak.

6.2 Other Restrictions on Use
Subscriber agrees to use only web application software licensed by En-trak to access the Services for Subscriber’s own internal business operations. You agree not to reverse engineer or otherwise attempt to discover source code or underlying ideas or algorithms of the Services or Licensed Software, or to modify, reorder, augment or manipulate or create derivative works based on the Services and Licensed Software. Any breach of this Section 6.2 or other manipulating, reverse-engineering, or otherwise exploiting the Service using software not properly licensed by En-trak constitutes grounds for immediate termination of this Agreement by En-trak and En-trak reserves the right to pursue legal action against any such events.

7. Warranties

7.1    Performance
For the period of time described below, En-trak warrants that the Service and Licensed Software, when used as permitted under this Agreement and in accordance with the Documentation, will operate substantially as described in the Documentation. En-trak, on behalf of itself and its licensors, does not warrant that your use of the Service or Licensed Software will be error free or uninterrupted. En-trak is not liable whatsoever for interruptions in the Service stemming from your computers, network hardware, building automation software, internet connectivity, or other elements owned or controlled by you or others that are reasonably required for the Service or Licensed Software to operate. En-trak will, at its own expense and as its sole obligation and as Your sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to maintain maximum uptime throughout the term of this Agreement.

7.2    Disclaimers
Except as to the express warranties in this Section 7, En-trak offers its Service and Licensed Software on an, as is basis. En-trak makes no other warranties, express, implied or statutory, regarding the Service and Licensed Software including any warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights. Subscriber acknowledges that it has relied on no warranties other than the express warranties in this Section 7.

8. Liability limitation

In no event will En-trak or its licensors be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement. In no event will En-trak’s Total Cumulative Liability in connection with this Agreement, the Service and the Licensed Software, whether in contract or tort or otherwise, exceeds the amount of Service Fees actually paid to En-trak hereunder. Subscriber acknowledges that the Service Fees reflect the allocation of risk set forth in this Agreement and that En-trak would not enter into this Agreement without these limitations on its liability.

9. Term and termination

9.1 Term
The term of this Agreement will begin on the Start Date in the Order Form and will continue in force for the period as stated or for such other term as mutually agreed upon in writing (the Term). This Agreement will automatically renew upon re-subscription to our service as agreed upon in writing by the parties (Renewal Term), unless either party gives the other party not fewer than thirty (30) days’ notice of its intent not to renew, or unless terminated under the terms contained within this Agreement.

9.2 Termination
Subscriber may terminate this Agreement at any time, with or without cause, upon written notice to En-trak. There will be no refund for any unused period of the service agreement period. En-trak may terminate this Agreement with immediate effect upon written notice to Subscriber, if:

9.2.1 Subscriber fails to pay any portion of the Service Fees when due within thirty (30) days after receiving written notice from En-trak that payment is due; or

9.2.2 Subscriber breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from En-trak. En-trak may also immediately terminate this Agreement for Subscriber’s breach of Section 6, upon written notice.

9.3 Effects of termination
Upon termination of this Agreement for any reason, any amounts owed to En-trak under this Agreement before such termination will be immediately due and payable, all rights granted to Subscriber in this Agreement will immediately cease to exist, and all Services and Licensed Software provided by En-trak may cease functioning, the precise timing of which shall be determined at En-trak’s sole discretion. If subscriber elects to terminate this Agreement, no portion of the Fees will be refunded or excused.

9.4    Survival
Sections 1 (Definitions), Section 2 (Proprietary Rights), Section 6 (Your obligations), 7.2 (Disclaimers), 8 (Liability Limitation), 9.3 (Effects of Termination), and 10 (General) will survive termination of this Agreement for any reason.

10. General

10.1 Support
En-trak is not required to provide any support services with respect to Subscriber’s property, including without limitation computers, building automation systems, network connections, routers, firewalls, or software products that operate on Subscriber’s computers.

10.2 Compliance with Laws
Subscriber will comply with all applicable laws and regulations in its use of the Service and Licensed Software. Subscriber will defend, indemnify and hold harmless En-trak from and against any claim arising out of or related to a violation of such laws or regulations by Subscriber or any of its agents, officers, directors, or employees.

10.3 Notices
All notices, consents, and approvals under this Agreement must be delivered in writing via email and will be effective one the business day of sending by email. En-trak will use the email address provided by Subscriber upon entering into this Agreement. It is Subscriber’s duty to promptly notify En-trak of any change in Subscriber’s email at the following email address sales@en-trak.com.

10.4 Governing Law
This Agreement will be governed by the laws of Hong Kong SAR, without giving effect to its rules regarding conflicts of law. This Agreement shall not be governed by, and shall be construed without regard to, the United Nations Convention on the International Sales of Goods. Each party hereby irrevocably submits to the jurisdiction and venue before the Court of Hong Kong SAR, as to any action or proceeding arising out of or relating to this Agreement, and each party irrevocably waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have regarding jurisdiction and venue in such forum, and any claim that such forum is an inconvenient forum.

10.5 Assignment
You may subcontract your duties or obligations in this Agreement to a third party without En-trak’s prior written consent; however, En-trak may assign this Agreement in connection with merger, reincorporation, reorganization or sale of all or substantially all of the assets and/or shares of En-trak.

10.6 Waiver
All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.7 Severability
If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect.

10.8 Construction
The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word including means including but not limited to.

10.9 Force Majeure
Except for Subscriber’s obligations to pay En-trak hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

10.10   Entire agreement
This Agreement constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the Service and Licensed Software and supersedes all prior or contemporaneous agreements, understandings, and communication between the parties, whether written or oral. The terms and conditions listed on any purchase order that conflict with this Agreement are null and void and shall have no binding effect. This Agreement may be amended only by a written document signed by both parties.

If you have any queries, please contact us at info@en-trak.com