NRG Peaks Corp. – Terms of Service

Last updated: July 13, 2018


Please read these Terms of Service (these “Terms”) carefully, as they contain information about your legal rights, remedies, and obligations. By accessing the website (the “Website”), the Peak Advisory Notification System (the “PANS”) service or the Peak Advisory Notification System Console (the “PANS Console”, and collectively, with PANS, the “Services”), as provided by NRG Peaks Corp. (“we”, “our”, “us”), these Terms apply to you.

These Terms are a legally binding contract between you and us. If you access or use the Services, or continue accessing or using the Services after being notified of a change to these Terms, you confirm that you have read, understand, and agree to be bound by these Terms and the Privacy Policy. Please note that these Terms hereby incorporate by reference any additional terms and conditions that we post through the Services or otherwise make available to you.

You must be able to form a legally binding contract online either on behalf of a company or as an individual. Accordingly, you represent that: (a) if you are agreeing to these Terms on behalf of a company or other legal entity, you have the legal authority to bind the company or other legal entity to these Terms; and (b) you are at least 18 years old (or the age of majority where you reside, whichever is older), can form a legally binding contract online, and have the full, right, power and authority to enter into and to comply with the obligations under these Terms.

1.              Authorized Users

An organization or other third party, which we refer to in these Terms as “Customer”, has invited you to use the Services. For example, if you have been invited by your employer, Customer is your employer.

Customer has entered into a separate written agreement with us (the “Contract”) or is evaluating the Services on an evaluation basis (an “Evaluation”), each of which permits Customer to offer the Services to you, and any others that have been authorized, to use the Services (each an “Authorized User”) exclusively at or in connection with an authorized facility (each an “Authorized Facility”). If you are both a Customer and an Authorized User, then both the Contract and these Terms apply to you.

2.              Registration; User Names and Passwords

You will need to register to use the Services. Your password is for your personal use only and should be kept confidential; you are responsible for any use or misuse of your account, and you must promptly notify us of any confidentiality breach or unauthorized use of your account.

3.              Use of the Services

You are here at the pleasure of Customer (and us), and these Terms remain effective until Customer’s Contract with us or Evaluation expires or terminates, or your access to the Services is terminated by Customer or us. As between you and us, you are under no obligation to use the Services and, while these Terms remain in effect, you may discontinue use at any time and for any reason. You further acknowledge that we may suspend or revoke your use of the Services at any time and for any reason whatsoever.

4.              Restrictions on Use

You acknowledge and agree that you have been granted access to the Services by Customer, and you will use the Services only for the purposes for which you were granted access. Accordingly, in addition to any other obligations under these Terms or any additional terms or conditions incorporated by reference into these Terms, you may only use the Services in accordance with the following terms and conditions:

(a)           you may only use the Services if: (i) these Terms are in effect in accordance with Section 3; and (ii) if you have a valid licence or have otherwise been granted access to use the Services;

(b)           you may only use the Services at the Authorized Facilities where you have been granted permission to use the Services;

(c)           you shall not copy, duplicate or forward the Services, in whole or in part, to any other party without the express written permission of Customer or us;

(d)           you will not create any derivative works from the Services; reverse engineer, decompile, disassemble or otherwise attempt to discover the underlying source code of the Services;

(e)           you will not share your access or credentials with any other person;

(f)           you will not publish or disclose any information, data or other content the Services to any third-parties or use such information to build a competing service or product without our prior written consent; or

(g)           wilfully tamper with the security of the Services or other Authorized Users’ accounts.

5.              Ownership and Copyright

You understand and agree that between you and us, we own the Services and the Website, and their entire contents, features, and functionality, including but not limited to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection and arrangement (including any intellectual property rights subsisting in the foregoing materials), and our materials are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.

Our name, logo, brands and all related names, logos, product and service names, branding, designs, images and slogans relating to the PANS and PANS Console are our trademarks. You must not use such marks without our prior written permission. Other names, logos, product and service names, designs, images and slogans mentioned or which appear on this Website are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action.

6.              The Relationship between You, Customer, and Us

AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO: (A) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES; (B) OBTAIN ANY LICENCES, RIGHTS, PERMISSIONS OR CONSENTS FOR YOU AND ANY AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE AND OPERATION OF THE SERVICES OR THE WEBSITE; AND (C) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY AUTHORIZED USER RELATING TO OR BASED ON THE SERVICES, THE WEBSITE OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS.

7.              Limited Warranty

Subject to the limitations and conditions set out in these Terms, you acknowledge that the Services provided hereunder are provided with a limited warranty whereby the Services will be performed in a professional manner and in accordance with customary industry practices for similar services. You further acknowledge that the Services use information derived from third-party sources believed to be reliable at the time of delivery to you, such as information supplied by the Independent Electricity System Operator (“IESO”). You acknowledge that the third-party sources that the Services use may change from time to time, without explicit notice given to you.

8.              Disclaimer

EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THESE TERMS, THE SERVICES AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND YOU HEREBY WAIVE ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR USE OR A PARTICULAR PURPOSE, TITLE, SECURITY, AVAILABILITY, RELIABILITY, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, EACH OF WHICH IS EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE BY LAW. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT NO CONDITION OR WARRANTY OF ANY KIND REGARDING THE SERVICES’ ABILITY TO: (A) MEET ANY OF YOUR OR ANY OTHER PERSON’S REQUIREMENTS; (B) OPERATE WITHOUT ANY INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES; OR (E) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS, INCLUDING ANY COLLECTED FROM ANY THIRD-PARTY SOURCES THAT THE SERVICES MAY USE (INCLUDING FROM THE IESO), ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

9.              Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES OR THE WEBSITE WILL REMAIN WITH YOU. IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOSSES OR DAMAGES IN CONNECTION WITH THESE TERMS, WHETHER DIRECT OR INDIRECT, PUNITIVE, EXEMPLARY, IMMEDIATE OR CONSEQUENTIAL, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.

10.           Notices

We may from time to time send email you at the address provided during registration regarding your account, the Services or the Website, including in the event of any downtime (such as for maintenance).

11.           Modifications

From time to time, we may change these Terms. If we make a material change to the Terms, we will notify you and provide you with a copy of the updated Terms. You may review the most current version of these Terms and any other related documents, at any time by visiting the Website. Any material revisions to these Terms will become effective on the date set forth in our notice, and all other changes will become effective on the date we publish the change. If you use the Services after the effective date of any changes, that use will constitute your acceptance of the revised terms and conditions.

12.           Waiver

No failure or delay by you or us in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

13.           Severability

These Terms will be enforced to the fullest extent permitted under applicable law. If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified to the extent required by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.

14.           Assignment

You may not assign any of your rights or delegate your obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign these Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.

15.           Governing Law; Venue; Waiver of Jury Trial; Fees

These Terms and any disputes arising out of or related hereto are governed by and will be construed in accordance with the internal laws of the province of Ontario and the federal laws of Canada applicable in that province, without giving effect to any choice or conflict of law provision or rule (whether of the province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the province of Ontario. Any claim arising out of, or related to these Terms or the rights granted hereunder will be instituted exclusively in the courts of Ontario, located in Toronto, and each party irrevocably submits to the jurisdiction of such courts in any such claim. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.

16.           Language

The parties hereto have expressly requested that these Terms and all ancillary documents be drafted in English. Les parties aux présentes ont expressément requis que la présente entente et tous les documents y afférents soient rédigés en langue anglaise.

17.           Entire Agreement

These Terms, including any terms incorporated by reference into these Terms, constitute the entire agreement between you and us, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in these Terms and any other documents incorporated by reference into these Terms, the terms and conditions of these Terms will first prevail; provided, however, that if there is a conflict or inconsistency between the Contract and these Terms, the terms of the Contract will first prevail, followed by the provisions in these Terms, and then followed by any terms and conditions incorporated by reference into these Terms (e.g. the Privacy Policy). Customer will be responsible for notifying Authorized Users of those conflicts or inconsistencies and until such time the terms set forth herein will be binding.

18.           Contacting NRG Peaks

Please contact us if you have any questions about these Terms. You may contact us at: info@nrgpeaks.com or by mail at:

NRG Peaks Corp.     
5 Hazelton Ave., Suite 200    
Toronto, Ontario, Canada  M5R 2E1

19.           Survival

The following sections will survive the expiration or termination of these Terms, regardless of the reasons for its expiration or termination, in addition to any other provisions which by law or by its nature should survive: Section 2 and 4 through 19 (inclusively).