Updated July 19, 2022
Hello and welcome to 60Hertz Energy (“60Hertz Incorporated”, “60Hertz”, “we”, “us”, “our”). We are glad you (“Customer”, “you”) are choosing to access, download and use our maintenance software as a service for your organization and employees, accessed at www.app.60hertz.io (“Maintenance Manager”) and by downloading our mobile application “TRAK App”. These Customer Terms of Service (“Terms & Conditions”) govern your rights and responsibilities when using our software (the “Service”).
We provide access to and use of our Service subject to the following terms of service (the “Terms of Service“), which are effective as of the date stated above. By using the Service, you acknowledge that you have read, understood, and agree to be legally bound by the terms and conditions of these Terms of Service and the terms and conditions of our Privacy Policy, accessed at https://60hertzenergy.com/privacy-policy/ (the “Privacy Policy”), which is hereby incorporated by reference. Please take the time to review our Privacy Policy. If you do not agree to any terms in these Terms of Service or the Privacy Policy, then please do not use our Service.
We may change these Terms of Service from time to time, and will post any changes on our website, accessed at 60hertz energy.com, (the “Website”) or notify you via email, at our option, as soon as such changes are in effect. If you have purchased a Service subscription, then the changes will not go into effect until your Service subscription renews. Please refer back to these Terms of Service on a regular basis.
Agreement
These Customer Terms comprise our contract. (or, if applicable, your written agreement with us) together with any Order Form(s) accepted by us and the Privacy Policy form a binding Contract (the “Contract”). You acknowledge your understanding of the current Contract and agree to the Contract on behalf of Customer. The person accepting these terms represent that he or she has the necessary authority to enter into the Contract on behalf of you before proceeding.
Access and Use
Subject to the terms and conditions of this Agreement, 60Hertz will provide access to and use of the Service to Customer. We will also provide access to and use of the Service to any employee of Customer or other individual authorized by Customer (each, an “Authorized User“). Customer acknowledges that each Authorized User must agree to these Terms of Service prior to use and that Customer shall be responsible for ensuring compliance by each Authorized User with these Terms of Service and for any breach of these Terms of Service by any Authorized User.
You are solely responsible for any data or content uploaded or stored on the Service by your employees, vendors or any Authorized User (“Customer Data“). You warrant and represent that you either own or have the right to provide all Customer Data. We take reasonable steps to protect the Customer Data from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. For the avoidance of doubt, in no event will we share the project information that you upload into the Service with third parties for marketing purposes.
60Hertz is not responsible for the content You upload to the Service or the way your Authorized Users chose to engage or use the Service.
All right, title, and interest in and to the Service, the Website, the Trak App, and any information, data, software, graphics, and interactive features contained therein, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights in any of the foregoing (collectively, “60Hertz Property“), shall be and remain the sole and exclusive property of 60Hertz.
In no event shall 60Hertz be responsible for the use or misuse of any Customer Data by Customer or any Authorized User or other third party
Customer will not, and will not permit any Authorized User or other third party to: (i) allow anyone other than an Authorized User to access or use the Service; (ii) use the Service in any way that is not expressly permitted by this Agreement, including, without limitation, reverse engineering, modifying, copying, distributing, or sublicensing the Service, or introducing into the Service any software, virus, or code; or (iii) use the Service in violation of any applicable law or regulation.
Registration
Prior to using the Service, Customer will be required to register for an account. During the registration process, Customer will select logon credentials for each Authorized User. Logon credentials can only be used by the Authorized User to whom they are assigned and cannot be shared among Authorized Users or with third parties. Customer is solely responsible for the confidentiality and use of all logon credentials for its account and those assigned to Authorized Users, as well as for any use or misuse of the Service using Customer’s or any Authorized User’s logon credentials. Customer shall notify us immediately if it becomes aware of any loss, theft or unauthorized use of any logon credentials, and we reserve the right to delete or change them at any time and for any reason.
Fees and Payment
In consideration for the access to and use of the Service, you shall pay 60Hertz the fees determined according to the Order Form or if not specified in the Order Form, 60Hertz then applicable fees for the Service. You must provide accurate information regarding your credit card or other payment instrument, and you must promptly update your payment information if such information changes. You hereby authorize 60Hertz to periodically bill your payment instrument in advance, in accordance with the payment plan you have selected. If you wish to dispute any charges, you must provide notice to 60Hertz of such dispute within sixty (60) days of payment of the disputed charge. All amounts paid are non-refundable.
We reserve the right to change our prices at any point. If we do change prices, we will provide notice to you through the Website or via email, at our option, at least thirty (30) days before such change is to take effect. Your continued use of the Service after the price change constitutes your agreement to pay the changed amount; provided, however, that if you have purchased an annual Service subscription, the price change will not go into effect until the end of your then-current subscription period.
We may choose to bill through an invoice. If we so choose, all amounts due must be paid by the date specified in the invoice or access and use of the Service may be terminated. Unpaid invoices 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. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on 60Hertz’s net income.
Publicity
Each Customer is permitted to identify itself as a Customer of the Services for promotional and marketing purposes. Customer grants 60Hertz a non-exclusive, non-transferrable, non-sublicensable, and royalty-free license to use and reproduce Customer’s name, logos, and trademarks for promotional and marketing purposes including on 60Hertz’s customer lists, advertising, and website. Customer may opt out of the provisions in this Section by calling customer support at 1-907-317-4115.
Term and Termination
60Hertz may suspend or terminate your access to and use of the Service, in whole or in part, at any time and for any reason; provided, however, that if you have purchased a subscription for the Service, 60Hertz’s right to suspend or terminate your access to and use of the Service will be limited to cases where you have failed to pay the applicable fees or have otherwise breached these Terms of Service, and have not cured such payment failure or other breach within 10 business days of receiving written notice of such payment failure or other breach from 60Hertz (and provided, further that 60Hertz may suspend your access to and use of the Service immediately without notice in the event that 60Hertz reasonably determines that your account may cause potential harm to 60Hertz or third parties). You may terminate your account at any time upon notice to us; provided, however, that if you have purchased a subscription for the Service, your right to terminate your account before paying the full amount of fees for the subscription period that you have committed to will be limited to cases where 60Hertz has breached these Terms of Service, and has not cured such breach within 10 business days of receiving written notice of such breach from you. In the event of suspension or termination (other than cases where 60Hertz locks your account due to fraudulent activities or other potential harm to 60Hertz or third parties), 60Hertz will provide you with access to your Customer Data for at least 30 days following such termination. It is your responsibility to keep backup copies of the Customer Data.
60Hertz may terminate this agreement upon written notice if 60Hertz determines, in its sole and absolute discretion, that Customer has engaged in or permitted behavior that 60Hertz considers to be immoral, racist, or discriminatory on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.
DISCLAIMERS; LIMITED WARRANTY
THE SERVICE AND THE 60HERTZ PROPERTY IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND 60HERTZ DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT 60HERTZ MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
LIMITATION OF LIABILITY
IN NO EVENT WILL 60HERTZ BE LIABLE TO CUSTOMER OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY AUTHORIZED USER, FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THE 60HERTZ PROPERTY OR OTHERWISE RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF WHETHER 60HERTZ WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. 60HERTZ’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THESE TERMS OF SERVICE WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Indemnification
Customer will defend, indemnify, and hold harmless 60Hertz and its officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees) in connection with any third-party claim that any of the Customer Data: (i) infringes or misappropriates any third-party intellectual property rights, privacy or publicity rights, or any other rights; or (ii) violates any applicable laws, rules, or regulations. 60Hertz shall promptly notify Customer of the claim, provided, however, that failure to provide such notice shall not relieve Customer of its indemnity obligations unless it is materially prejudiced thereby. Customer shall have control over the defense of the claim, provided that (i) Customer does not make any admission of liability on behalf of 60Hertz or agree to any settlement that imposes a financial burden on 60Hertz without 60Hertz’s prior written consent; and (ii) 60Hertz shall have the right to participate in the defense of any such claim, at its own cost, with counsel of its choice.
General Provisions
Customer shall not assign these Terms of Service or any of its rights hereunder without the prior, written consent of 60Hertz. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. These Terms of Service and performance hereunder shall be construed and governed by the laws of the State of Colorado without giving effect to conflicts of laws principles. The parties consent and agree that any and all litigation between them arising from these Terms of Service or the business relationship created hereby shall take place in the federal courts located in Denver, CO and the state courts located in El Paso County, Colorado. Each Party irrevocably consents and submits to the jurisdiction and venue of any such courts. If any provision of these Terms of Service is deemed invalid or unenforceable, it shall be amended or replaced in the way that best reflects the original intention of the parties, and the remainder of these Terms of Service shall remain in full force and effect. These Terms of Service, together with the Privacy Policy and any pricing information made known to you at registration, constitute the final and complete agreement between the parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written.
