2022/10/31 Energage Software agreement - survey data access
Notes
Add (PO) 04265
*Per account executive Dillon Green this contract includes access all historical date going back to 2018 with the Energage Insights platform*
Subscription Terms
Contract Term: 12
Contract Start Date: 10/26/2022
Contract End Date: 10/25/2023
Plan Description Product
Type
Billing
Frequency Start Date Terms
(Months) End Date Quantity
Effective
Price / Billing
Period
Total
Contract
Term
Energage Insights - Annual Insights Subscription
Fee Recurring Annual 10/26/2022 12 10/25/2023 229 Employees $6,000.00 $6,000.00
Total One-Time Charges: $ 0.00
Total Recurring Charges: $6,000.00
Total Investment: $6,000.00
Order Form
Energage, LLC.
397 Eagleview Blvd, Suite 200
Exton, PA 19341
Customer:
City of Menifee
29844 Haun Road
Menifee, California, 92586
United States
Order Number: Q021012
Expiration Date: 10/31/2022
Payment Terms: Net 30
Payment Method: Credit Card
SALES REPRESENTATIVE
Name: Dillon Green
Phone: (484) 334-4566
Email: dillon.green@energage.com
PRIMARY CONTACT
Name: Philip Southard
Phone: (951) 723-3873
Email: psouthard@cityofmenifee.us
BILLING CONTACT
Name: Jennifer Dominguez
Phone: (951) 672-6777
Email: jdominguez@cityofmenifee.us
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Fees shown above do not include any taxes that may apply at the receipt of the invoice. Reasonable and necessary
business and travel expenses actually incurred by Energage, shall be reimbursed by Customer upon submission of
expense reports with appropriate documentation.
Payment Terms
Customer will be invoiced for the current balance due upon acceptance of this proposal with payment due Net 30
days from date of invoice unless otherwise noted in the above order form.
Services Order Terms
This Service Order is entered into on the Contract Start Date, (the “Effective Date”) between the Customer listed
above (“Customer”) and Energage, LLC with its principal place of business at 397 Eagleview Blvd., Suite 200, Exton,
PA 19341 (“Energage”). This Service Order includes and incorporates the above Order Form, the terms as specified
herein, and the General Terms found at https://www.energage.com/terms (See Terms and Conditions) (together,
the “Agreement”). There shall be no force or effect to any different terms of any related purchase order or similar
form even if signed by the parties after the date hereof.
This Agreement constitutes a legally binding agreement between Energage and Customer. In the event of any
conflicts between this Service Order and the Energage General Terms, this Service Order will take precedence and
prevail. Terms not defined in this Service Order have the meaning indicated in the Energage General Terms. This
Service Order and the Energage General Terms constitutes the entire Agreement between the Parties regarding
this subject matter, and supersedes all prior agreements, representations, and understandings between the
Parties regarding this subject matter unless otherwise modified in writing by the Parties under a separate
subsequent amendment.
1. Auto-renewal Terms
If Customer would like to opt-out of the auto renewal or change any of the terms of the renewal subscription prior
to renewal, Customer must notify Energage at contracts@energage.com at least 30 days before the renewal term
is to start. If Customer does not elect to opt-out of auto renewal at least 30 days before the renewal term is to
start, Customer will be invoiced at the renewed price for the successive twelve-month term with payment due
according to Payment Terms specified in this order form. If Customer elects to opt-out of auto renewal, renewal
pricing will be set to current price at time of renewal. Energage will send a notification email to Customer 60 days
before the renewal term. The total aggregate amount shall not exceed $49,999.
2. Multi-Year Terms
The fees set forth herein are based on the total number of Customer's employees as of the Start Date, (the
"Employee Headcount") shown on the above Order Form. Such Customer employees are also referred to as Users
in the Order Form. The annual Fees will not change during the first year of the initial term of the Agreement (“Year
One”), unless there is an increase to the number of Users. Customer may be invoiced for additional Users added
during the first year and will be invoiced at the beginning of each successive Term Year for any additional Users
above the original User count for additional Services requested, with such sums being due and payable in full Net
30 days from Customer's receipt of the invoice. In the event Customer terminates the Agreement, Customer shall
be responsible for immediately paying Energage any and all fees for Services purchased through duration of
Agreement.
Purchase Order Information
Is a Purchase Order (PO) required for the purchase or payment of the products on this Order Form?
Please Select: (Customer to Complete)
[‘\cb_1_yes\’] No
[‘\cb_1_yes\’] Yes
If yes, please complete the following:
PO Number: ‘\tbx_1_text\’_______________________
PO Amount:‘\tbx_1_text\’_______________________
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3. Service-Specific Terms
Workplace Survey
Energage provides access to the use of the Workplace Survey for survey data collection. The Customer will provide
a list of employees to be surveyed with their corresponding organizational hierarchy. Workplace Survey can be
issued electronically, through paper surveys, or various alternative methods approved by Energage. Customers
sending SMS survey invitations through Energage must acquire and maintain explicit phone use consent from each
survey recipient. For more detail, please see energage.com/sms-terms/.
Pulse
Energage provides access to the use of Pulse for short survey data collection and survey customization. Pulse
surveys can be issued electronically. Customers sending SMS survey invitations through Energage must acquire and
maintain explicit phone use consent from each survey recipient. For more detail, please see energage.com/sms-
terms/. Energage will provide access to the specified number of users in this Service Order, each designated by the
Customer. If Customer purchases Pulse without Insights, Energage will deliver an excel file with confidential-
protected data. If Customer purchases Pulse and is a subscriber of Insights, Pulse survey data will be entered into
Insights for analysis. If subscription lapses, Customer will lose access to the service.
Insights
Energage provides access to the use of Insights for survey data analysis. Access will be granted through individual
log-in credentials to specified number of users in this Service Order, each designated by the Customer. Designated
administrators are responsible for determining access levels for each user. These terms provide access to all data
from previous surveys. If subscription lapses, Customer will lose access to the service.
Employer Branding
Energage provides access to the use of Employer Branding for showcasing Customer’s authentic and unique hiring
differentiators to attract, recruit, and retain employees who share the same passion and purpose. Energage will
deliver Employer Branding assets, including award logos, culture badges, and culture facts, as a service. These
assets are licensed to Customer for commercial use for the duration of the subscription term. If the subscription
lapses, Customer will lose access to the service.
Workplace Survey Briefing
Energage will provide one virtual survey briefing up to one hour in duration to Customer’s leadership team. If
Customer elects to upgrade to Energage Insights within 30 days from survey briefing, the purchase price for
Workplace Survey Briefing will be credited to the Energage Insights subscription.
DEI Analysis
Energage will provide one virtual, DEI briefing up to one hour in duration to the Customer’s leadership team. The
briefing will include the delivery of DEI analysis based on the combination of employee feedback through the
Workplace Survey and demographic information provided by the Customer.
Premium Media Kit
Energage will deliver Premium Media Kit assets, including award logos, as a service. These assets are licensed to
Customer for the duration of the subscription term. If the subscription lapses, Customer will lose access to the
service.
Premier Support
With Premier Support as part of your subscription, Energage will provide you with access to a team of platform
experts. Members of our designated team are available from 9am-5pm EST, Monday through Friday, to ensure you
experience the full potential of your Energage subscription. Premier support offers expert product guidance for the
full suite of Energage products.
Complimentary Services
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Complimentary with your subscription, Energage will provide access to our Onboarding and Support team. This
service is available Monday-Friday, excluding Holidays, from 8:30AM - 8:00PM EST and includes basic product
support via email, phone, and our online help center. In addition, you will receive up to 4 complimentary sessions
per subscription term with a Customer Success Advisor, which can be scheduled via email and within the Energage
platform. Additional support may be purchased via Professional Services and/or Premier Support.
Executive Culture Briefing
Project Assumptions
1. Customer will provide Energage staff access to needed facilities while on site (if applicable).
2. Customer will provide a primary point of contact that will be responsible for client-side scheduling of
facilities and meetings as required to successfully complete the project.
3. Customer will follow the outlined communication plan below:
a. Customer’s designated contact person will coordinate with the Energage Project Manager directly for
all requests during survey setup, execution, and analysis. This will aid the Energage team in
coordinating internal resources and help ensure deliverables are completed on-time and within
scope.
b. When necessary, Customer’s designated point of contact will be available for regularly scheduled
sync calls with the Energage Project Manager or Account Manager.
4. Energage will provide the Project Manager, Consultants, and Implementation Specialists needed to
complete the work outlined in the proposal.
Out of Scope
Any phases not outlined in the proposal are considered out-of-scope and can be subject to additional fees based
on the level of effort required by the Energage Project Team.
Business and Travel Expenses
Reasonable and necessary business and travel expenses actually incurred by Energage, LLC shall be reimbursed by
Customer upon submission of expense reports with appropriate documentation.
Manager Culture Workshop
Project Assumptions
1. Customer will provide Energage staff access to needed facilities while on site (if applicable).
2. Customer will provide a primary point of contact that will be responsible for client-side scheduling of
facilities and meetings as required to successfully complete the project.
3. Customer will follow the outlined communication plan below:
a. Customer’s designated contact person will coordinate with the Energage Project Manager
directly for all requests during survey setup, execution, and analysis. This will aid the
Energage team in coordinating internal resources and help ensure deliverables are
completed on-time and within scope.
b. When necessary, Customer’s designated point of contact will be available for regularly
scheduled sync calls with the Energage Project Manager or Account Manager.
4. Energage will provide the Project Manager, Consultants, and Implementation Specialists needed to
complete the work outlined in the proposal.
Out of Scope
Any phases not outlined in the proposal are considered out-of-scope and can be subject to additional fees based
on the level of effort required by the Energage Project Team.
Business and Travel Expenses
Reasonable and necessary business and travel expenses actually incurred by Energage, LLC shall be reimbursed by
Customer upon submission of expense reports with appropriate documentation.
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“By signing this Order Form, you represent and certify that you are authorized to sign on behalf of your
respective organization and agree to the terms and conditions of this Order and any terms referenced herein.”
Acknowledged and Agreed
City of Menifee Energage, LLC
Signature : ‘\s1\’ Signature : ‘\s2\’
Name: ‘\n1\’ Name: ‘\n2\’
Title: ‘\t1\’ Title: ‘\t2\’
Date: ‘\d1\’ Date: ‘\d2\’
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President, COO
10/26/2022
Dan Kessler
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Armando G. Villa
City Manager
10/26/2022
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https://www.energage.com/terms/1/22
General Terms
Go here to view a list of notable changes to the Energage General Terms >>
Version effective date: 1 September 2022
The General Terms form a contract between you and Energage (“the Agreement”) for
use of the Energage Platform. If there are Subscription Services purchased through a
Service Order, that Service Order and its terms are also incorporated into the
Agreement. This Agreement governs your use of Energage’s website, software, data,
and/or other related applications or services including but not limited to translation,
educational and support resources and experts, analytics, and individual and
organizational-level feedback (together, herein after the “Services”).
As the Customer, you agree to this Agreement by signing a document that references
this Agreement (and you expressly agree and consent to using electronic signatures
to execute this Agreement or associated documents), or by using the Services,
whichever occurs rst. If you are an organization, the individual who agrees to this
Agreement on your behalf must have the authority to bind you to this Agreement, and
both you and such individual represent that to be the case.
In this Agreement, a reference to:
Energage, we, us, or our means Energage, LLC;
the Customer, you, or your means the organization using the Services;
Energage Platform means the cloud-based Software as a Service model through
which Energage provides access to its suite of products and services;
Subscription or Subscription Service means the licensing model in which the
Customer pays a per User fee at regular intervals for access to and use of the
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Energage Platform;
Service Order means the order form that outlines the speci c Subscription
Services purchased by the Customer;
Amendment Service Order means the order form that outlines changes to the
speci c Subscription Services ordered by the Customer;
User means any person or entity to whom you provide access to our Services,
including any administrators or managers of your account, employees, survey
invitees, or survey respondents;
Survey means the web-based Customer employee survey(s) consisting of
Energage’s standard survey questions and/or additional questions requested by
Customer;
Subscription Term means the length of time set forth on a Service Order in which
access to the Energage Subscription Service is provided to you;
Recurring Service means a service that is delivered to you on a recurring basis;
One-time Service means a service that is delivered to you on a one-off basis, such
as a workshop or consultation;
Customer Data means Customer’s proprietary data and information that
Customer provides to Energage so that Energage may, as part of the Services,
conduct an assessment (e.g., demographic and corporate information necessary
to distribute a survey to participants, such as email address, name, or corporate
location). For the avoidance of doubt, Customer Data does not include either
Aggregate Data or Raw Data;
Raw Data means the con dential and anonymous responses received by
Energage from Customer and Customer’s employees in connection with surveys
administered by Energage pursuant to this Agreement;
Aggregate Data means de-identi ed and anonymized sets of data derived from
the data of multiple sources for the purpose of research and analytics. Aggregate
Data does not include Personal Information or other information that could
reasonably identify or relate to a natural person.
Personal Information means any information relating to an identi ed or
identi able natural person; an identi able natural person is one who can be
identi ed, directly or indirectly, in particular by reference to an identi er such as a
name, an identi cation number, location data, an online identi er or to one or more
factors speci c to the physical, physiological, genetic, mental, economic, cultural,
or social identity of that natural person.
Employer Recognition Program means a collection of awards and other
recognition based on various eligibility criteria determined by Energage, including
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but not limited to, geography, industry, employee count, and employee
demographics and based on Customer’s most recent Workplace Survey
completed within 12 months of the recognition eligibility deadline. An example
would be the Top Workplaces Program.
1 Services
1.1 ENERGAGE SERVICES
We will provide you with access to, and use of, the Energage Services.
You may order additional Subscription Services at any time by contacting Energage
and requesting a Service Order. Any additional Services will be provided through a
Subscription, and they will be delivered and invoiced in accordance with these
General Terms and any additional terms detailed on the Service Order. If you already
have a current Subscription, the additional Services will be invoiced at the prorated
amount at the time those Services are added to the Subscription, and any
Subscription renewal will include the additional Subscription Services at the annual
rate.
Access to, and use of, the Services ordered by you will be terminated at the end of
your Subscription Term.
1.2 CHANGES TO SERVICES
We continually change and improve our Services. Energage may alter the Services at
any time. We will provide you with reasonable advance notice if we make a change to
the Services resulting in an overall material decrease in functionality of the Services.
If we do make a change that results in a material decrease in functionality and you
have a Subscription, you may terminate your Subscription under Section 8.4.
1.3 CUSTOMER THIRD PARTY SERVICES
If you use any Customer third-party service together with the Services, such as
BambooHR, Namely, Slack, and Workday, you acknowledge that the Customer third-
party service may access or use the Customer Data. Energage will not be
responsible for any act or omission of the Customer third party, including such third
party’s use of Customer Data. Energage does not warrant or support any such
Customer third-party service, and you should contact that third party for any issues
arising from your use of the Customer third-party service.
2 Fees and Payments (Applicable to
Subscription Services Only)
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2.1 FEES FOR SUBSCRIPTION SERVICES
Energage Subscription Services are invoiced annually beginning on the Contract
Start Date and every 12 months thereafter. The Subscription includes use of the
Services by a speci ed number of Users as stated in the Service Order.
Energage One-Time Services are billed on the Contract Start Date.
You agree to pay Energage any fees for Subscription Services you purchase or use, in
accordance with the pricing and payment terms presented to you for those
Subscription Services in the Service Order, whether you use the Subscription
Services or not. Except as indicated in this Agreement or required by law, fees paid by
you are not refundable.
2.2 PRICE CHANGES AND USER INCREASES
Energage may change its fees for Subscription Services at any time. Except where
you exceed the number of Users stated in a Service Order, any changes to fees will
apply from the start of your next Subscription Term.
Energage reserves the right to calculate the total number of Users periodically and if
the number of Users exceeds your current Subscription, Energage may invoice you
for the additional Users on a pro-rated basis for the remaining period left in your
Subscription Term.
2.3 AUTOMATIC RENEWAL
Your Subscription for any Recurring Services will automatically renew at the end of
each Subscription Term unless you cancel the automatic renewal of the Services by
notifying us at contracts@energage.com at least 30 days prior to the end of the
current Subscription Term for the Services. Auto-renewing Subscriptions that are not
canceled at least 30 days prior to the end of the Subscription Term will be invoiced to
you automatically at a price not greater than 10% above the previous Subscription
Term price for the successive Subscription Term, with the payment terms speci ed
in the original Service Order.
Notice of automatic renewal will be provided at least 60 days prior to the end of each
Subscription Term.
Automatic renewal does not apply to One-Time Services.
2.4 PAYMENT METHODS
You authorize us to charge fees using the payment method indicated in a Service
Order. Unless otherwise agreed, payments for invoices are due 30 days after the
invoice date. If you elect to pay by credit card, debit card, or any other billing method
that supports automatic recurring payments, we will initially attempt to charge you
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using that billing method when payment is due, and payments will be considered
overdue if payment is not received within 30 days of that due date. You agree to keep
your billing and billing contact information current and accurate.
2.5 INTEREST
Overdue payments may incur interest at the rate of 1.5% per month (or the highest
rate permitted by law, if less) on the amount overdue, from the date that the relevant
payment was due until that payment has been received. You will be responsible for
all reasonable expenses (including lawyers’ fees) incurred by Energage in collecting
such overdue amounts, except where:
the overdue amounts are due to Energage’s billing inaccuracies; or
you have sought to resolve a dispute using the dispute resolution process in
clause 13.1 and that process is still active.
2.6 TAXES
Unless stated otherwise in the Service Order, all fees for Services exclude sales tax,
GST, VAT, or other similar taxes. Except for any income taxes payable by Energage,
you are responsible for all other taxes or duties payable under applicable law relating
to the Services provided under this Agreement, including any penalties or interest. If
Energage is required to collect or pay any taxes on your behalf, we will invoice you for
those taxes unless you provide us with valid evidence that no tax should be invoiced.
3 Data Protection
3.1 PRIVACY
In the course of using the Services, you or your Users may transfer to us Customer
Data containing personal data. You agree and consent to the use, transfer,
processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Services, we will
process your personal information as a data processor on your behalf. In this case,
you will be the data controller of the personal information as de ned in Article 4(7) of
the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy
Directive (Directive 2002/58/EC).
If requested, we will execute the European Union Standard Contractual Clauses to
facilitate the transfer of personal information to countries outside the European
Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.
By continuing to use Services, you agree to allow Energage, and its third-party
vendors to collect certain information about your Users. Please see Energage Privacy
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Policy (located here: https://www.energage.com/privacy/) for more information
about the information collected.
Under no circumstances will any entity in the Energage Group be deemed a data
controller with respect to Customer Data under any relevant law or regulation.
3.2 SECURITY
Energage will store and process Customer Data in a manner consistent with industry
security standards. Energage has implemented technical, organizational, and
administrative systems, policies, and procedures to help ensure the security, integrity,
and con dentiality of Customer Data and to mitigate the risk of unauthorized access
to or use of Customer Data. Please see Energage Trust and Security information
(located here: https://www.energage.com/trust/) for more information about
security, data protection and data processing.
3.3 DISASTER RECOVERY
Energage will retain backup copies of Customer Data made in the ordinary course of
business by Energage, for the purpose of enabling appropriate disaster recovery
practices. Despite any other term in this Agreement, Energage will retain these
backups for a period determined by us from the time that each backup copy is
generated. Thereafter, Customer agrees and acknowledges that Customer Data may
be irretrievably deleted from backups.
4 Con dentiality
4.1 CONFIDENTIAL INFORMATION DEFINITION
In this Agreement, Con dential Information means any information disclosed by a
party (the “Discloser”) to the other party (the “Recipient”) in connection with the use
of the Services that is marked con dential or would reasonably be considered as
con dential under the circumstances. Customer Data is the Customer’s Con dential
Information. Con dential Information does not include any information that:
is or becomes public through no fault of the Recipient;
the Recipient already lawfully knew;
was rightfully given to the Recipient by a third party free of any con dentiality
duties or obligations; or
was independently developed by the Recipient without reference to the Discloser’s
Con dential Information as demonstrated by documentary evidence.
4.2 CONFIDENTIALITY OBLIGATIONS
The Recipient must:
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protect the Discloser’s Con dential Information using commercially reasonable
efforts and no less than the same efforts it uses to protect its own Con dential
Information;
not disclose the Discloser’s Con dential Information, except to a liates,
employees, directors, contractors, agents, and professional advisors of the
Recipient who need to know it and who have agreed in writing to keep it
con dential;
only use the Discloser’s Con dential Information to exercise its rights and ful ll its
obligations under this Agreement; and
ensure that its a liates, employees, directors, contractors, agents, and
professional advisors only use the Discloser’s Con dential Information to exercise
its rights and ful ll its obligations under this Agreement.
4.3 COMPELLED DISCLOSURE
The Recipient may disclose the Discloser’s Con dential Information to the extent
required by law or legal process, but only after it, if permitted by law:
uses commercially reasonable efforts to notify the Discloser in writing;
gives the Discloser the opportunity to challenge the requirement to disclose; and
cooperates with the Discloser if the Discloser seeks an appropriate protective
order.
4.4 NON-DISCLOSURE AGREEMENTS
The provisions of Section 4 will supersede any non-disclosure agreement between
the Parties and such agreement will have no further force or effect.
4.5 SURVEY RESPONDENT CONFIDENTIALITY
In this Agreement, Con dentiality Notice means: (i) the notice given to survey
respondents at the time of answering a survey conducted by Energage, including the
degree of con dentiality and anonymity that a survey respondent will have when
answering survey questions, and/or (ii) the notice given to individual users of our
feedback services.
To provide the Services to you, Energage must provide Users with a Con dentiality
Notice for each survey conducted.
5 Ownership and Use of Data; and
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5.1 INTELLECTUAL PROPERTY RIGHTS DEFINITION
In this Agreement, Intellectual Property Rights means any and all present and future
intellectual and industrial property rights, including any registered or unregistered
forms of copyright, designs, patents, trademarks, service marks, domain names,
good will and any commercial information. Intellectual Property Rights also include
any application or right to apply for registrations of any of these rights, any rights
protected or recognized under any laws throughout the world, related to these rights,
and anything copied or derived from such property or rights.
5.2 CUSTOMER DATA
You retain all ownership and Intellectual Property Rights to Customer Data. Energage
does not claim ownership over any Customer Data. Energage will use Customer Data
solely to perform the Services and will ensure that any Personal Information included
in Customer Data is properly maintained and protected in accordance with Section 3.
5.3 AGGREGATE DATA AND RAW DATA
As between Energage and Customer the Raw Data and Aggregate Data are and will
remain the exclusive property of Energage.
The Raw Data will not be provided to Customer by Energage to protect the
con dentiality of Customer respondents. Customer may use Aggregate Data as
described in Section 5.4.
Using the Raw Data obtained from the survey results, we create de-identi ed and
anonymized sets of data or Aggregate Data. Aggregate Data is used to provide
survey results to a company with a summary or more detailed results reports.
Aggregate Data may be made publicly available and may be used after termination
of this Agreement provided that such Aggregate Data cannot be used directly or
indirectly to identify Users or Customers. Energage will not retain, use, sell or
otherwise disclose any Personal Information for any purpose other than to provide
the Services contemplated by this Agreement.
Aggregate Data is used to compile and score participating companies in Employer
Recognition Programs. Aggregate Data is also used and disclosed to third party
service providers for research and analytics purposes and other lawful business
purposes including, without limitation, benchmarking, text analytics linkage
analysis, attrition prediction, algorithm improvements, comment translation and
the development and provision of additional services and functionality
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In this Agreement, Reports means any reports, analysis, or other Aggregate Data or
output generated using Energage Services.
For the Term of this Agreement, you grant Energage a worldwide, royalty free license
to use, reproduce, distribute, or archive Customer Data for the purposes of providing
the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive,
non-transferable, non-assignable and non-sublicensable license to use any Reports
which you can (and are authorized to) export through the functionality of the
Services for your internal purposes only (in each case subject to any Con dentiality
Notices) unless otherwise agreed upon in writing by Energage.
5.5 CUSTOMER DATA AND RAW DATA REVIEW
You acknowledge that, in order to ensure compliance with legal obligations,
Energage may be required to review certain content submitted to the Services to
determine whether it is illegal or whether it violates this Agreement (such as when
unlawful conduct or content is reported to us). We may also modify, prevent access
to, delete, or refuse to display content that we reasonably believe violates the law or
this Agreement. However, Energage otherwise has no obligations to monitor or
review any content submitted to the Services by you or any other person.
5.6 CUSTOMER FEEDBACK
If you provide us with any feedback associated with the Services, Energage may use
that feedback internally without any obligation to you.
5.7 CUSTOMER LISTS
Energage or an Energage Partner may identify you (by company name and logo) as
related to an Employer Recognition Program. Energage or an Energage Partner may
contact you as part of an Employer Recognition Program. Energage may identify you
(by company name and logo only) as an Energage customer in promotional
materials or during promotional events.
Should you provide Energage with a testimonial or case study, written permission will
be required from your authorized representative prior to Energage publishing any
such material.
5.8 ENERGAGE INTELLECTUAL PROPERTY RIGHTS
Energage owns all right, title, and interest in and to the Services and the systems and
networks used to provide such Services, including all survey statements and
questions, system-generated data (e.g., dashboard data or Reports), modi cations,
improvements, upgrades, derivative works, and all Intellectual Property Rights in and
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to any of the foregoing. Except for the express rights granted herein, we do not grant
you any other licenses, express or implied, to any of our Intellectual Property Rights,
including software, Services, or products. Without limiting the foregoing, nothing in
this Agreement or from your use of the Services grants you:
ownership in the Services or the content (including Reports) you access through
the Services, and any De-Identi ed Information or Aggregate Data;
any right to use any Energage trademarks or other Intellectual Property Rights
contained in our brand identity;
ownership to the Energage survey statements or other Intellectual Property Rights
associated with the content of the Services, or any right to use Energage survey
statements or other content of the Services other than in connection with your
authorized use of the Services.
5.9 ENERGAGE PLATFORM THIRD-PARTY SERVICES
You agree that Energage and the third-party service providers that are utilized by
Energage to assist in providing the Services to you have the right to access your
account and to use, modify, reproduce, distribute, display and disclose Customer
Data to the extent necessary to provide or improve or deliver the Services, including,
without limitation, in response to your or your Users’ support requests.
Any third-party service providers utilized by Energage will only be given access to
your account and Customer Data as is reasonably necessary to provide the Services
and will be subject to: (i) con dentiality obligations which are substantially consistent
with the standards described in this Agreement; and (ii) their agreement to comply
with the data transfer, processing and protection restrictions applicable to personal
information as set forth in this Agreement.
5.10 CUSTOMER-PROVIDED CONTENT
The Services may display content provided by others that is not owned by Energage.
Such third-party content is the sole responsibility of the entity that makes it available.
Correspondingly, you are responsible for the content that you provide through the
Services. As such, you must ensure that you have all the rights and permissions
required to use that content in connection with the Services. Example content
includes survey statement and questions not provided by Energage. Energage has no
obligation to monitor or review any additional content submitted to the Services by
you or a third party.
6 Account Management
6.1 ACCOUNT SECURITY AND ACCESS
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You are responsible for safeguarding any passwords or other credentials used to
access your account. Administrator or manager accounts may not be shared and
may only be used by one individual per account. You are responsible for any activity
occurring in your account (other than activity that Energage is solely responsible for
and is not performed in accordance with your instructions), whether or not you
authorized that activity. If you become aware of any unauthorized access to, or use
of, your account, you should immediately notify Energage.
6.2 CUSTOMER SYSTEMS
You are responsible for maintaining and updating your operating systems, Internet
browsers, anti-virus software, or other software that you or your Users use to access
and use the Services.
6.3 CUSTOMER COMMUNICATIONS
Customer agrees during the term of this Agreement, to not opt out of Energage
operational communications regarding account administration and support, Services
administration and support, Services status, and Recognition Program
administration.
7 Customer Obligations
7.1 LEGAL COMPLIANCE
You must use the Services in compliance with, and only as permitted by, applicable
law. If your use of the Services requires you to comply with your industry-speci c
regulations applicable to such use, you will be solely responsible for such
compliance. You must not use the Services in a way that would subject Energage to
any industry-speci c regulations (for example, the Children’s Online Privacy
Protection Act, the Payment Card Industry Data Security Standard or the Health
Insurance Portability and Accountability Act).
If the Services include the disclosure of survey respondent information pertaining to
race, nationality, gender, or other protected category information, you agree to use
this information only for lawful, non-discriminatory purposes in accordance with the
advice of your counsel.
You acknowledge and agree that we are not responsible for any liabilities arising
from your violation of this Clause 7.1, and that your violation of this Clause 7.1 will
constitute a breach of this Agreement.
7.2 UNACCEPTABLE USES
You are responsible for your conduct and the conduct of your Users. You must use
commercially reasonable efforts to ensure that you and your Users do not:
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misuse the Services by interfering with their normal operation, or attempting to
access them using a method other than through the interfaces and instructions
we provide;
circumvent or attempt to circumvent any limitations that Energage imposes on
your account (such as any User limits in the Service Order);
probe, scan, or test the vulnerability of any Energage system or network, unless
with prior written authorization of Energage;
decipher, decompile, disassemble, translate, create derivative works, reverse
engineer, or otherwise attempt to reconstruct, identify, or discover any source
code, algorithms, underlying ideas, or underlying user interface techniques in the
Services or any of the software used to provide the Services, or attempt to do so;
directly or indirectly identify a User contrary to the terms of any Con dentiality
Notice or other privacy setting, or attempt to do so;
transmit any viruses, malware, or other types of malicious software, or links to
such software, through the Services;
engage in abusive or excessive use of the Services, which is usage signi cantly in
excess of average usage patterns that adversely affect the speed, responsiveness,
stability, availability, or functionality of the Services for other customers and their
users. Energage will endeavor to notify you of any abusive or excessive usage to
provide you with an opportunity to reduce such usage to a level acceptable to
Energage;
use the Services to infringe the Intellectual Property Rights of others, or to commit
any unlawful activity;
attempt to circumvent any license, timing or use restrictions that are built into the
Services; or
unless authorized in writing by Energage, lend, resell, lease or sublicense or
otherwise use the Services for the bene t of a third party.
use any automated script to submit any form or other database entry to or for the
Services. Our Services may use robot exclusion methods, which include robots.txt
les and HTML meta-tags that expressly allow and/or exclude speci ed
automated programs from accessing certain portions of our Services. Much of the
information ascertained during Services is updated on a real-time basis and is
proprietary to Energage or is licensed to Energage, by third parties. You agree that
if and to the extent prohibited in the then current robots.txt le or HTML meta-tags,
you will not use any robot, spider, scraper, or other automated means to access
the Services for any purpose, including but not limited to performing “o ine”
searches and mirroring, without our express written permission. Additionally, you
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agree that you will not: (i) take any action that is likely to impose an unreasonable
or disproportionately large load on our infrastructure; (ii) interfere or attempt to
interfere with our Service offerings or any Energage activities; (iii) harvest email
addresses for any purpose whatsoever, or (iv) bypass our robot exclusion methods
or other measures we may use to prevent or restrict access to our Services.
use the Energage survey statements or content (including reports) you access
through the Services (other than Customer Data) within another tool or service not
provided by Energage.
7.3 USERS
You must:
use commercially reasonable efforts to ensure that your Users comply with this
Agreement;
obtain any consents required from each User to allow you and the administrators
or managers of your account to engage in the activities contemplated by this
Agreement, as required by applicable law;
obtain any consents required from each User to allow Energage to provide the
Services, as required by applicable law;
not provide any person under the age of 16 with access to the Services, unless
otherwise permitted by applicable law.
7.4 SUSPENSION OF USERS
If a User breaches this Agreement or uses the Services in a manner that Energage
reasonably believes will cause Energage liability or disrupt others’ use of the
Services, then Energage may request that you suspend or close the applicable User
account until the breach has been cured or the use in such manner has stopped. If
you fail to comply with such request, then Energage may suspend or close the
applicable User account.
7.5 DISQUALIFICATION & WITHDRAWAL
Any applicant to an Employer Recognition Program may be disquali ed immediately
and without notice upon a determination by Energage that any of the following
events have occurred:
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Customer provided inaccurate or incomplete information concerning Customer’s
employees, in particular, the number of employees in a region;
Customer received fewer survey responses from eligible invitees than the required
number of survey responses;
Customer offered an incentive to employees for providing speci c survey
responses or for achieving a speci c ranking or otherwise attempting to in uence
survey responses by an improper means;
Customer engaged in measures to solicit biased, coerced, or false responses from
employees;
more than 5% of Customer’s employees agreed that they felt pressured to respond
positively to the survey;
suspicious statistical anomalies in Customer’s employee survey responses;
any failure to comply with this Agreement;
any other reason as may be determined appropriate in the sole discretion of
Energage.
Should Customer be disquali ed, Energage will automatically provide a high-level
summary of the basis for disquali cation within 30 days of disquali cation. Under no
circumstances will this explanation compromise the con dentiality of the survey
responses or the proprietary methodologies of Energage.
8 Term and Termination
8.1 TERM
This Agreement begins on the date you rst use the Services or sign the Service
Order (whichever is earlier) and continues until you stop using the Services or your
Subscription ends or otherwise terminates, or if this Agreement is terminated
(whichever is earlier).
8.2 TERMINATION WITHOUT CAUSE
If this Agreement includes a Subscription, either party may terminate this Agreement
to be effective at the end of the then current Subscription Term by providing the
other party with written notice of termination at least 30 days prior to the end of a
Subscription Term. No refunds will be provided.
Energage may terminate this Agreement for any reason by providing at least 90 days’
written notice to you and will provide a pro rata refund of any fees prepaid by you
applicable to the period following the termination of this Agreement.
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If your Service Order states that your Subscription will not auto-renew, then your
account will terminate at the end of your current Subscription Term with no further
action required by you.
8.3 TERMINATION FOR CAUSE
Each party may suspend performance or terminate this Agreement if the other party:
is in material breach of this Agreement and fails to cure that breach within 30 days
after receipt of written notice; or
ceases its business operations or becomes subject to insolvency proceedings and
the proceedings are not dismissed within 90 days. Energage may terminate this
Agreement if any payment owed by you to Energage is more than 30 days
8.4 TERMINATION FOR MATERIAL DECREASE IN
FUNCTIONALITY
If we make a change to the Subscription Services resulting in an overall material
decrease in functionality of the Services, you may terminate this Agreement
immediately by providing notice to Energage. Upon receiving notice of termination
from you, Energage will provide you with a pro rata refund of any fees prepaid by you
applicable to the period following the termination of this Agreement.
8.5 CONSEQUENCES OF TERMINATION
If this Agreement is terminated:
by you due to breach by Energage and you have a Subscription, we will provide you
with a pro rata refund for any fees prepaid by you applicable to the period following
the termination of this Agreement; or
by Energage due to breach by you and you have a Subscription, we will bill you, and
you will pay, for any accrued but unbilled fees, and you will remain liable to pay any
invoices outstanding on the termination date.
In no event will expiration or termination of this Agreement relieve you of any fees
payable for the period prior to the date of termination.
Energage reserves the right to collect outstanding fees, as stated in a Service
Order, if Subscription Services are not used within one year of purchase.
8.6 DATA EXPORTS
A portion of Energage Services include functionality that enables you to export
Customer Data in your account at any time during the Term. If the foregoing
functionality is not operational, we may assist you to export any Customer Data that
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existed in your account at the time of termination, provided you make such request
after you stop using the Services and before the end of your Subscription Term (if
you have a Subscription). However, we do not guarantee that all Customer Data will
be able to be exported and only Customer Data that is permitted to be transferred to
you within the terms of any applicable Con dentiality Notice or other privacy setting
will be transferred to you. Upon Customer’s written request, Energage will delete all
Customer Data from its production environments.
8.7 SURVIVAL
The following clauses will survive the termination of this Agreement: 2, 3.3, 4, 5.3, 5.4,
5.8, 8, 10, 11, 13 and 14.
9 Warranties
Each party represents and warrants that:
it has full power and authority to enter into this Agreement; and
it will comply with all laws and regulations applicable to its provision or use of the
Services, as applicable.
10 Indemnities
10.1 BY CUSTOMER
You will indemnify, defend, and hold harmless Energage, its o cers, Board of
Directors, and its a liates from and against all liabilities, damages, and costs
(including settlement costs and reasonable lawyers’ fees) arising out of a third-party
claim regarding or in connection with:
Customer Data (including claims of Intellectual Property Rights infringement);
your use of the Services in breach of this Agreement; or
your Users’ use of the Services in breach of this Agreement.
10.2 BY ENERGAGE
Energage will indemnify, defend, and hold harmless you, your o cers, Board of
Directors, and your a liates from and against all liabilities, damages, and costs
(including settlement costs and reasonable attorneys’ fees) arising out of a third-
party claim that the technology used to provide the Services to you infringes any
Intellectual Property Rights of such third party. However, in no event will Energage
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use of any Services in a modi ed form or in combination with materials not
furnished or authorized by Energage;
any content or data provided by you, your Users, or any third parties; or
designs or speci cations provided to Energage by Customer that caused such
infringement claim.
10.3 POTENTIAL INFRINGEMENT
If we believe the Services may infringe or may be alleged to infringe a third party’s
Intellectual Property Rights, then we may:
obtain the right for you, at our expense, to continue using the Services;
provide a non-infringing functionally equivalent replacement; or
modify the Services so that they no longer infringe.
If we do not believe that the options above are commercially reasonable, then we
may suspend or terminate your use of the impacted Services and provide you with a
pro rata refund of any fees prepaid by you applicable to the period following the
termination of such Services.
10.4 INDEMNITY PROCEDURES
A party seeking indemni cation under this Agreement will promptly notify the other
party of the claim and cooperate with the other party in defending the claim. If
permitted by applicable law, the indemnifying party will have full control and authority
over the defense, except that:
any settlement requiring the indemni ed party to admit liability or to pay any
money will require that party’s prior written consent (such consent not to be
unreasonably withheld or delayed); and
the indemni ed party may join in the defense with its own counsel at its own
expense.
Nothing in this Agreement will restrict or limit a party’s general obligation at law to
mitigate a loss it may suffer or incur as a result of an event that may give rise to a
claim under Clauses 10.1 and 10.2. The indemnities in this Agreement are a party’s
sole and exclusive remedy under this Agreement for violation by the other party of a
third party’s Intellectual Property Rights.
11 Disclaimers and Limitations of
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11.1 DISCLAIMERS
Except as expressly provided in this Agreement and to the extent permitted by
applicable law, neither party makes any warranties of any kind, express, implied,
statutory, or otherwise, including those of merchantability, tness for a particular
purpose, and non-infringement. Energage provides the services on an “as is” basis
and, except as expressly provided in this Agreement and to the extent permitted by
applicable law, we make no representations regarding the availability, reliability, or
accuracy of the Services, or regarding any Customer Data or other content
associated with your account.
11.2 EXCLUSION OF LIABILITY
To the extent permitted by applicable law, neither party will be liable for any lost
pro ts, business interruption, replacement Services or any indirect, consequential,
special, incidental, punitive, or exemplary damages arising out of or in connection
with this Agreement, even if the party knew or should have known that such
damages were possible and even if a remedy fails of its essential purpose, and
regardless of the theory of liability.
11.3 LIMITATION OF LIABILITY
To the extent permitted by applicable law, the aggregate liability of either party
arising out of or in connection with this Agreement will not exceed the total amounts
paid or payable by you to Energage under this Agreement during the 12 months prior
to the event giving rise to the liability or claim.
11.4 EXCEPTIONS TO LIMITATIONS
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation
of liability) do not apply to violations of a party’s Intellectual Property Rights by the
other party or each party’s indemni cation obligations under this Agreement.
12 Amendments
12.1 AGREEMENT AMENDMENTS
Energage may amend the General Terms from time to time and the most current
version will be posted on the Energage website. If an amendment is material, as
determined in Energage’s reasonable discretion, we will notify the Customer Contact
by email or when they next log in to your account. Except in the case of an
amendment being made to satisfy legal requirements, we will provide you with at
least 30 days’ notice of material amendments.
If an amendment has a material adverse impact on you and you do not agree to the
amendment, you may terminate the Agreement by notifying
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contracts@energage.com within 30 days of receiving notice of the amendment.
Otherwise, you will have been deemed to have consented to the amendment.
12.2 OTHER AMENDMENTS
Any amendment to this Agreement that is not made to the General Terms displayed
on our website, must be in writing, signed by you and Energage, and must expressly
state that it is amending this Agreement.
13 Dispute Resolution, Governing
Law, and Jurisdiction
13.1 DISPUTE RESOLUTION
Before commencing any form of litigation, including court proceedings, professional
mediation or arbitration, each party agrees to:
give the other party notice of the dispute and its nature;
give the other party the opportunity to remedy any breach of this Agreement within
30 days; and
hold good faith negotiations with the other party to settle the disputed matter.
13.2 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Delaware, United States of America and
each party submits to the exclusive jurisdiction of the courts of Delaware, United
States of America, in relation to any proceedings connected with this Agreement.
13.3 INJUNCTIONS
Nothing in this Agreement prevents a party from seeking a temporary restraining
order, injunction, or other equitable relief in relation to a breach (or attempted breach)
of this Agreement by the other party.
14 Other Terms
14.1 ASSIGNMENT
Neither party may assign this Agreement without the other party’s prior written
consent (such consent not to be unreasonably withheld). However, both parties may
assign this Agreement without notice to an a liate or to a successor or acquirer, as
the case may be, in connection with a merger, acquisition, corporate reorganization
or consolidation, or the sale of all or substantially all of the party’s assets or its
business to which the subject matter of this Agreement relates. The terms of this
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Agreement shall be binding upon the parties and their respective successors and
permitted assigns. Any other attempt to transfer or assign this Agreement or any
rights or obligations under this Agreement are void.
14.2 ENTIRE AGREEMENT
This Agreement and related Service Orders (including any documents incorporated
by reference to a URL), constitute the entire agreement between you and Energage
and supersedes any other prior or contemporaneous agreements, terms and
conditions, written or oral concerning its subject matter. Any terms and conditions
appearing on a purchase order or similar document issued by you do not apply to the
Services, do not override or form a part of this Agreement, and are void.
14.3 FORCE MAJEURE
Neither party will be liable for inadequate performance to the extent caused by a
condition (for example, natural disaster, act of war or terrorism, riot, governmental
action, pandemic, or general internet disturbance) that was beyond the party’s
reasonable control.
14.4 INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors, and not legal
partners, employees, or agents of each other.
14.5 INTERPRETATION
The use of the terms includes, including, such as and similar terms, will be deemed
not to limit what else might be included.
14.6 NO WAIVER
A party’s failure or delay to enforce a provision under this Agreement is not a waiver
of its right to do so later.
14.7 NOTICES
All notices pertaining to the Agreement must be in writing and will be deemed given
when:
veri ed by written receipt, if sent by postal mail with veri cation of receipt service
or courier;
received, if sent by mail without veri cation of receipt; or
when veri ed by automated receipt or electronic logs if sent by email.
Notices to Energage must be sent to Energage LLC at 397 Eagleview Blvd. Ste 200,
Exton, PA 19341 and marked to the attention of Legal Department, or by email to
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Certi ed B Corporation
As a founding BCorporation, we are on a mission to help leaders make a
valuable impact on workplace culture, the working lives of employees, and
society overall.
Sign up for our newsletter
Email
Sign Up
legal@energage.com. Notices to you may be sent to the email address associated
with the Customer Contact details in the Service Order. You must keep the contact
details associated with your account current and accurate by notifying
contracts@energage.com when your contact details change. You may grant
approvals, permission, extensions, and consents by email.
14.8 PRECEDENCE
To the extent any con ict exists between the documents that constitute this
Agreement, the order of precedence will be Service Order then General Terms.
14.9 SEVERABILITY
If any provision of this Agreement is determined to be unenforceable by a court of
competent jurisdiction, that provision will be severed from this Agreement and the
remaining terms will remain in full effect.
14.10 THIRD-PARTY BENEFICIARIES
There are no third-party bene ciaries to this Agreement. Your Users are not third-
party bene ciaries to your rights under this Agreement.
– END TERMS –
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