Peak Relief Terms and Conditions

PEAK RELIEF TERMS OF SERVICE

Last Revised: November 12, 2018

These Peak Relief Terms of Service (“TOS") are between ecobee Inc. (“ecobee”) and the entity or person agreeing to these TOS (“You”).

These TOS govern Your access to and use (“use”) of ecobee’s Peak Relief service (“Peak Relief”, as further described in Section 2 below), whether via an ecobee Internet-enabled residential or commercial thermostat or other ecobee Internet-enabled product (“ecobee Product”), ecobee’s website located at www.ecobee.com (and the webpages within that website) (“ecobee’s Website”), or an ecobee mobile application that ecobee has made available for download via the Google Play Store or the Apple App Store (“ecobee Apps”).

  1. Use of Peak Relief is completely voluntary. You are under no obligation to use Peak Relief in order to use or benefit from any other ecobee service or product. You may cancel Your use of Peak Relief at any time by disabling the feature in the menu of the ecobee mobile app or on the ecobee thermostat feature of Peak Relief. You may re-enable Peak Relief using the same menu options.

You may contact ecobee by e-mail at [email protected] with questions about these TOS.

PLEASE READ THESE ENTIRE TOS CAREFULLY BEFORE USING PEAK RELIEF.

THESE TOS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU

BY USING PEAK RELIEF, OR BY CLICKING THE APPROPRIATE “ACCEPTANCE” BOX, YOU ARE AGREEING TO BE BOUND BY THESE TOS AND AUTHORIZE ECOBEE AND YOUR UTILITY TO SHARE YOUR PRIVATE ENERGY USAGE AND RATE INFORMATION FOR ASSESSMENTS OF YOUR ENERGY MANAGEMENT OPTIONS. IF YOU ARE AGREEING TO THESE TOS ON BEHALF OF ANOTHER PERSON OR ENTITY, THEN YOU REPRESENT AND WARRANT TO ECOBEE THAT (I) YOU HAVE THE AUTHORITY TO BIND THAT PERSON OR ENTITY TO THESE TOS; (II) YOU HAVE READ AND UNDERSTAND THESE TOS; AND (III) YOU AGREE, ON BEHALF OF SUCH PERSON OR ENTIRY, TO THESE TOS.

IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND SUCH PERSON OR ENTITY, OR IF YOU OTHERWISE DO NOT AGREE TO BE BOUND BY THESE TOS, THEN PLEASE DO NOT CLICK THE APPROPRIATE BOX TO ACKNOWLEDGE THAT YOU ACCEPT THESE TOS AND PLEASE CEASE ANY USE OF PEAK RELIEF IMMEDIATELY.

  1. YOU MUST BE OF LEGAL AGE
    You may not use Peak Relief if You are not of legal age to form a binding contract or are a person otherwise barred from using the Service under the jurisdiction under which You reside.

  2. YOU MUST HAVE A UTILITY PROVIDER ACCOUNT
    1. Peak Relief works by monitoring Your energy use and the usage rate structure of an end-user’s utility provider (“Utility Provider”).
    2. In order to use Peak Relief, You must have an account with Your Utility Provider or have the permission of the Utility Provider’s account owner to enter into these TOS. To achieve the full benefits of Peak Relief, you also need to allow Peak Relief to connect to such account.
    3. You agree to: (i) provide true, accurate, current and complete information regarding such Utility Provider account; (ii) maintain and promptly update the information You provide to ecobee; and (iii) not enter any irrelevant data into any form or data entry field other than the data requested by ecobee for such field. In the event that You provide, or ecobee reasonably suspects that You have provided, any information that is untrue, inaccurate, not current, or incomplete, then ecobee has the right to suspend or terminate Your use of Peak Relief and refuse any and all current or future use of Peak Relief.

  3. ECOBEE ACCOUNT
    1. In order to use all the features of Peak Relief, You must have an account with ecobee or must set-up an account with ecobee (“ecobee Account”).
    2. ecobee reserves the right, in ecobee’s sole discretion, to reject any registration for an ecobee Account.
    3. As part of ecobee Account set-up process, You will be asked to provide certain personal information. Please see Section 5 “Privacy Policy”, below.
    4. If You choose to set-up an ecobee Account, then You agree to: (i) provide true, accurate, current and complete information; (ii) maintain and promptly update the information You provide to ecobee; and (iii) not enter any irrelevant data into any form or data entry field other than the data requested by ecobee for such field. In the event that You provide, or ecobee reasonably suspects that You have provided, any information that is untrue, inaccurate, not current, or incomplete, then ecobee has the right to suspend or terminate ecobee Account and refuse any and all current or future use of Peak Relief.
    5. Your ecobee Account username and password (“Login Methods”) are solely for Your use. You are solely responsible for the confidentiality and security of Your Login Methods. You are responsible for all activities that occur under Your ecobee Account. ecobee is not obligated to inquire as to the authority or propriety of any use of, or action taken under, Your Login Methods and/or ecobee Account.

  4. DESCRIPTION OF PEAK RELIEF SERVICE
    Peak Relief is a personal home energy assistant that simplifies Your life by helping to ensure your thermostat is optimized to save you money and keep you comfortable, all the time. Many utilities are introducing complicated electricity rates. For homeowners with electricity rates that change throughout the day, Peak Relief can intelligently shift your air conditioning to periods when electricity is less expensive. By connecting Peak Relief to your utility, ecobee will look after it for You. You'll always be in control; you can personalize your settings in favour of prioritizing comfort or maximizing savings. More information is available at https://www.ecobee.com/introducing-peak-relief/

    For certainty, the Peak Relief service includes any functionalities provided by accessible through the service, as well as any text, graphics, video, audio, information, data, trademarks, logos, trade names or other content on or within Peak Relief (including the design, structure, selection, coordination, expression and arrangement of such content).

  5. PRIVACY POLICY
    In order to operate and make Peak Relief available, ecobee collects, uses and may disclose certain personal information about You with your Utility Porvider. ecobee collects, uses, discloses and protects that information as described in ecobee’s Privacy Policy, which You can find at ecobee.com/legal/use/, which is hereby incorporated into and forms a part of these TOS. Your privacy is important to ecobee and ecobee’s Privacy Policy explains how ecobee collects, uses, discloses and protects Your personal information.

  6. SPECIFIC ACKNOWLEDGEMENTS BY YOU
    You acknowledge and agree that:
    1. ecobee may manage and control Your ecobee Product(s) in order to provide Peak Relief and in order for You to participate in Peak Relief;
    2. ecobee may control Your thermostat in periods of additional energy savings for the grid may or may not be coincident with peak electricity price periods.
    3. ecobee may manage and control Your ecobee Product(s) in order to provide additional energy savings when it provides value to utilities or the electricity grid, for example: during periods of high electricity demand;
    4. Your Utility may issue requests for reducing your energy consumption during these peak electricity price periods (aka, “demand response events”). ecobee may turn off Your ecobee Product(s) during these demand response events. You may override ecobee’s control of Your ecobee Product(s) and manually turn on Your affected ecobee Product(s) in such event;
    5. Your Utility may offer programs and/or offer incentives for You to participate in demand response events (“DR Programs”). ecobee may enroll your ecobee Product(s) in these DR Programs for your benefit. In some cases, you may need to accept additional terms in order to participate in one of these DR Programs. Participation in a DR Program is optional. Ecobee will communicate with you the full details of the DR Program, including how to participate or opt out;
    6. ecobee may communicate with you via email with respect the Peak Relief Program, DR Programs and related energy-savings opportunities. You may unsubscribe to these emails at any time;
    7. without limiting the disclaimers in Section 9, ecobee makes no representations, warranties or guarantees regarding any results of or performance of Peak Relief, including that Peak Relief will achieve any energy saving or other benefits for You. Although unlikely, in rare circumstances, Peak Relief could potentially result in increase costs.

  7. LIMITED USE; RESERVATION OF RIGHTS
    Subject to the terms and conditions of these TOS, ecobee may make available Peak Relief to You for Your use. ecobee expressly reserves all rights not expressly granted in these TOS.

  8. ACCEPTABLE USE; COMPLIANCE WITH LAWS
    1. You agree to abide by and not violate the Acceptable Use Policy, which can be found below.
    2. If You breach the Acceptable Use Policy, or any other provision of these TOS, ecobee may take whatever steps it deems necessary to protect Peak Relief, ecobee, ecobee’s business, ecobee’s and its supplier’s infrastructure, and ecobee’s other customers, including, without limitation, suspending Your use of Peak Relief, terminating Your ecobee Account, and/or terminating these TOS.
    3. You agree that You are solely responsible for compliance with any and all laws, rules, regulations, that may apply to Your use of Peak Relief.

  9. DISCLAIMERS
    1. USE OF PEAK RELIEF, AND ANY DATA OR RESULTS OBTAINED FROM OR OUTPUT BY PEAK RELIEF, IS SOLELY AT YOUR OWN RISK.
    2. PEAK RELIEF, AND ANY DATA OR RESULTS OBTAINED FROM OR OUTPUT BY PEAK RELIEF, ARE MADE AVAILABLE "AS IS" AND AS AVAILABLE.
    3. ECOBEE DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS OR INACCURACIES WITH PEAK RELIEF OR ANY DATA OR RESULTS OBTAINED FROM OR OUTPUT BY PEAK RELIEF, INCLUDING INCREASE COSTS OR OTHER LOSSES OR DAMAGES YOU INCUR AS A RESULT OF YOUR USE OF PEAK RELIEF; OR (II) ANY UTILITY PROVIDER ACTS OR OMISSIONS.
    4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ECOBEE DISCLAIMS ANY AND ALL REPRESENTATIONS, GUARANTEES, WARRANTIES AND CONDITIONS IN RESPECT OF PEAK RELIEF AND ANY DATA OR RESULTS OBTAINED FROM OR OUTPUT BY PEAK RELIEF, INCLUDING ANY POSSIBLE ENERGY SAVINGS AND RELATED BENEFITS.
    5. THE DISCLAIMERS IN THIS SECTION 10 APPLY TO ANY AND ALL REPRESENTATIONS, GUARANTEES, WARRANTIES AND CONDITIONS, WHETHER STATUTORY, COLLATERAL, IMPLIED, EXPRESS OR ARISING THROUGH A COURSE OF DEALING OR TRADE, INCLUDING ANY REPRESENTATION, GUARANTEE, WARRANTY OR CONDITION: (I) OF QUALITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, RELIABILITY, ACCESSIBILITY, AVAILABILITY, UNINTERRUPTED USE; (II) THAT PEAK RELIEF OR ANY DATA OR RESULTS OBTAINED FROM OR OUTPUT BY PEAK RELIEF WILL MEET ANY REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT; AND (III) THAT PEAK RELIEF OR ANY DATA OR RESULTS FROM OR OUTPUT BY PEAK RELIEF WILL BE ERROR-FREE OR SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS).
    6. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ECOBEE WILL CREATE ANY REPRESENTATION, GUARANTEE, WARRANTY OR CONDITION.

  10. EXCLUSIONS OF LIABILITY
    TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ECOBEE AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES (INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER TYPES OF DAMAGES) OR LOSSES (INCLUDING LOSS OF SAVINGS, PROFITS, REVENUES, DATA, CONTENT, BUSINESS OR GOODWILL) WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
    THIS SECTION “EXCLUSIONS OF LIABILITY” APPLIES TO ALL CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FUNDAMENTAL BREACH, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF ECOBEE IS ADVISED IN ADVANCE OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE.

  11. CAUSES BEYOND ECOBEE’S CONTROL
    ecobee will not be liable under these TOS because of a failure or delay in performing ecobee’s obligations hereunder on account of any cause beyond ecobee’s reasonable control, including, acts or omissions of any Utility Provider, Internet availability failures, wireless network failures, cloud service failures, service provider failures, strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, and governmental action.

  12. EXTERNAL SOURCES
    ecobee is not responsible for information on any third party website or service that is referred in, or accessible or connected by hyperlink to, Peak Relief, the Website or any App, including any Utility Provider website or service. If You access any third party website or service, including that of any Utility Provider, through Peak Relief, the Website or any App, then You do so at Your own risk. Hyperlinks do not constitute third party endorsement of, sponsorship or endorsement by, or affiliation with, ecobee.

  13. INDEMNIFICATION
    You agree to indemnify, defend and hold harmless ecobee and its affiliates, and their shareholders, directors, officers, employees, agents, and third party sources from and against any and all suits, losses, claims, demands, liabilities, damages, costs and expenses (including reasonable lawyers' fees) that arise from or relate to Your breach of these TOU. ecobee has the right but not the obligation to participate in any defense or settlement. If ecobee chooses to participate, then each party must pay for its own lawyers' fees. This obligation survives the termination of these TOS.

  14. FEEDBACK
    If You submit ideas, suggestions, commentary or feedback to ecobee regarding Peak Relief (or any other product or Peak Relief offered by ecobee) (collectively, "Feedback"), through any means whatsoever, then You agree that ecobee may use the Feedback freely and for any purpose, without obligation or restriction of any kind on account of intellectual property rights or otherwise. Feedback is and shall be given entirely voluntarily. Even if Feedback is designated as confidential by You, it shall not, absent a separate written agreement, create any confidentiality obligation on ecobee.

  15. INTELLECTUAL PROPERTY OWNERSHIP
    1. As between ecobee and You, ecobee reserves all right, title and interest (including all intellectual property rights) in and to Peak Relief (including any content in Peak Relief). You do not and will not acquire any rights or licenses in any copyrights, trademarks, patents or other intellectual property on or in Peak Relief.
    2. All trademarks and other indicia of origin appearing on or in Peak Relief are the property of ecobee or ecobee’s providers, suppliers or licensors, unless otherwise indicated. You may not use any trademark or other indicia of origin for any purpose whatsoever.
    3. ecobee or ecobee’s providers, suppliers or licensors may enforce its or their intellectual property rights to the fullest extent permitted by law, including against You personally.

  16. UPDATES TO PEAK RELIEF; TOS AMENDMENTS
    1. ecobee may, in ecobee’s sole discretion, release fixes, patches or updated versions of Peak Relief or otherwise add or remove services, functionalities, content or features (including modifications to the features, availability or functionality any part of any of the foregoing) at any time without notice (each, an “Update”). Upon release, each Update will be deemed to become part of Peak Relief and will be subject to these TOS.
    2. ecobee may amend these TOS, or any provision thereof, with immediate effect at any time and without notice. Your use of Peak Relief following any such amendment (including those implemented as part of the release of an Update) will constitute Your agreement to the terms and conditions of these TOS in effect at the time of such use.

  17. TERMINATION; SUSPENSION AND AFTER TERMINATION
    1. ecobee reserves the right to reject, suspend or terminate Peak Relief or Your use of all or any portion of Peak Relief at any time and for any reason, in ecobee’s sole discretion. ecobee has no obligation to provide You with any notice of Your breach of these TOS, but ecobee may choose to provide notice, and an opportunity to cure such breach, in its sole discretion.
    2. The terms and conditions in these TOS will continue to apply to Your past use of Peak Relief, in the form in which it or they then-existed at the time of the subject use. Furthermore, termination, rejection and/or suspension shall not relieve You of any obligations arising or accruing prior to such termination, rejection or suspension, or otherwise limit any liability that You otherwise may have to ecobee.
    3. You may cancel Your use of Peak Relief at any time by disabling the feature in the menu of the ecobee mobile app, web portal or on the ecobee thermostat feature of Peak Relief. You may re-enable Peak Relief using the same menu options.
    4. Any provision hereof that by its nature is intended to survive the termination of these TOS will survive such termination.

  18. INDEPENDENT CONTRACTORS
    For all purposes, ecobee and You are independent contractors and neither of us will represent that we have authority to assume or create obligations on behalf of the other party.

  19. APPLICABLE LAW
    These TOS will be governed, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles.

  20. ARBITRATION; VENUE
    1. YOU AGREE THAT ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TOS, OR IN RESPECT OF ANY LEGAL RELATIONSHIP ASSOCIATED WITH OR DERIVED FROM THESE TOS, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION UNDER THE SIMPLIFIED ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, INC. THE ARBITRATION WILL TAKE PLACE IN TORONTO, ONTARIO, CANADA. THE LANGUAGE OF THE ARBITRATION WILL BE ENGLISH.
    2. TO THE EXTENT ARBITRATION AS DESCRIBED IN THIS SECTION IS PROHIBITED BY APPLICABLE LAW, THEN YOU AGREE THAT ALL CLAIMS WILL BE HEARD AND RESOLVED IN A COURT OF COMPETENT SUBJECT MATTER JURISDICTION LOCATED IN TORONTO, ONTARIO. YOU CONSENT TO THE PERSONAL JURISDICTION OF SUCH COURTS OVER YOU, STIPULATE TO THE FAIRNESS AND CONVENIENCE OF PROCEEDING IN SUCH COURTS, AND COVENANT NOT TO ASSERT ANY OBJECTION TO PROCEEDING IN SUCH COURTS.

  21. WAIVER OF CLASS ACTIONS
    YOU AGREE AND ACKNOWLEDGE THAT YOU MAY ONLY RESOLVE DISPUTES WITH ECOBEE IN CONNECTION WITH THESE TOS ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.

  22. WAIVER OF JURY TRIAL
    THE PARTIES EXPRESSLY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. IN THE EVENT ANY LITIGATION SHOULD ARISE BETWEEN YOU AND ECOBEE IN A SUIT TO VACATE OR ENFORCE AN ARBITRATION AWARD OR OTHERWISE, YOU AND ECOBEE WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE BE RESOLVED BY A JUDGE, AND AGREE TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.

  23. SEVERABILITY; ENTIRE AGREEMENT; WAIVER
    If any provision of these TOS are found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of these TOS shall remain in full force and effect. These TOS constitutes the entire understanding, and supersedes all other understandings, between You and ecobee concerning the subject matter hereof. No waiver of a right of a party under these TOS will be effective unless it is in writing and signed by the party waiving its right. A waiver of a right by a party (or failure by a party to enforce a provision of these TOS) will be effective only in the specific instance and for the specific purpose for which it is provided. No waiver will be deemed a waiver of any prior or subsequent default hereunder.

  24. ASSIGNMENT
    ecobee may assign or transfer these TOS in whole or in part at any time without Your consent. You may not assign these TOS or assign, transfer or delegate Your ecobee Account or any of Your rights or obligations under these TOS. Any purported assignment, transfer or delegation in violation of this provision is void from the outset.

  25. INTERPRETATION
    Headings are inserted for convenience of reference only and will not affect the construction or interpretation of the Agreement. Where the word “including” or “includes” is used herein, it means “including without limitation” or “includes without limitation”, respectively. The language used in these TOS are the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

  26. LANGUAGE OF THIS AGREEMENT
    It is the express wish of the parties that these TOS and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

  27. ACCEPTABLE USE POLICY
    YOU MAY NOT DO ANY OF THE FOLLOWING IN CONNECTION WITH PEAK RELIEF:
    • use Peak Relief for anything other than Your personal or internal purposes;
    • use Peak Relief for any purpose that is illegal, unsafe, or fraudulent or that infringes on any third party rights;
    • violate, remove, modify or obscure any copyright notices, trademark notices, or other proprietary notices or legends that are on or in any of Peak Relief;
    • use ecobee’s name, any ecobee trademark, logo or other proprietary information, or the layout and design of any of Peak Relief, without ecobee’s express written consent;
    • replicate the “look and feel” of Peak Relief;
    • modify Peak Relief or make derivative works based on Peak Relief;
    • decompose, decompile, reverse engineer, disassemble, or otherwise attempt to gain access to the source code of any part Peak Relief;
    • build a product or service using any similar ideas, features, functions or graphics of Peak Relief;
    • use Peak Relief to provide services for or on behalf of any third party, or commercially exploit Peak Relief in any way, including without limitation by framing or mirroring any portion of Peak Relief;
    • sell, resell, export, transfer assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute, redistribute, license, sublicense, publish, or otherwise make available any portion of Peak Relief;
    • use Peak Relief for purposes of monitoring its availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose;
    • gain, or attempt to gain, or permit any third party to gain, unauthorized access to Peak Relief, including through means not provided by ecobee;
    • use any security testing tools in order to probe, scan or attempt to penetrate or ascertain Peak Relief’s security, or to otherwise engage in denial of service attacks;
    • take any action that imposes, or may impose (in ecobee’s discretion) an unreasonable or disproportionately large load on, or otherwise disrupts, restricts, inhibits or impedes ecobee’s infrastructure;
    • interfere or attempt to interfere with the proper working of, or any activities conducted on or in Peak Relief; or
    • o systematically retrieve data or other content from Peak Relief to create or compile a collection, compilation, database, directory, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.