Contractor User Agreement

Terms and Conditions

You (sometimes referred to herein as “User”) are being granted access to the password protected portions of the energyefficientequity.com website (the “Platform,” as further defined below) as a result of a written agreement between your employer (or client) (herein “Contractor”), and Energy Efficient Equity (“FortiFi,” as further defined below). This User Agreement (“Agreement”) applies to your use the services and applications accessible through the Platform. By clicking on the “Accept” button or using the Platform, you signify your agreement with the following terms and conditions of use without limitation or qualification. If you do not agree to all of the terms of this Agreement, click the “Do Not Accept” button. FortiFi, its subsidiaries and affiliates (collectively referred to herein as "FortiFi") are providing access and use rights to the Platform to you as an accommodation to Contractor. Accordingly, FortiFi may at any time revise these conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the then-current terms and conditions of use to which you are bound.

Grant of Access/Restrictions on Use of Materials

FortiFi hereby grants to Contractor a limited, revocable, non-exclusive, personal and nontransferable and non-sublicensable right and license to access and use the Platform pursuant to the terms of this Agreement. Except as otherwise permitted by FortiFi in writing, no materials from www.fortifi.com or any application, mobile app, website owned, operated, licensed or controlled by FortiFi (collectively, the “Platform”) may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way. You may download material found on the Platform only for the approved uses specified in this Agreement. You may not distribute, modify, transmit, reuse, report or use the content of the Platform for any purpose that is not explicitly stated in this Agreement, including the text, documents, images, audio and video, without FortiFi’s prior written permission.

FORTIFI MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE PLATFORM. FORTIFI DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED.

Trademarks and Copyrights

The Platform and all its content including, all technology, software, other copyrightable material, trademarks, service marks, trade names, logos, and icons are proprietary to FortiFi. Except for the right to use as set forth in the section above captioned “Grant of Access/ Restrictions on Use of Materials,” nothing contained on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any technology, software, copyrightable material or trademark displayed on the Platform without the prior written permission of FortiFi or its licensors.

Images displayed on the Platform are either the property of, or used with permission by, FortiFi. The use of these images by you, or anyone else authorized by you, is prohibited unless specifically permitted herein. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

User Credentials

Access to the Platform requires the usage of a Login I.D. and associated password. If you have a Login I.D. and password (“Access Methods”), you may access the Platform only through use of such Access Methods and you are responsible for keeping your Access Methods confidential and for the activities which occur in connection with their usage and as such should take steps to protect them from being lost, stolen or misused. If you become aware of any unauthorized use of, loss or theft of your Login I.D. and password, immediately inform a representative of FortiFi. Without limiting FortiFi’s rights under the section captioned “Term & Termination,” you acknowledge that, in FortiFi’s discretion, FortiFi may deny your access to the Platform if FortiFi has reason to believe that the Access Methods have been lost, stolen or compromised, you are violating any of the terms of this Agreement or pose a threat to the Platform or any user thereof.

Representation of User

User warrants and represents that:

  • User is an employee of Contractor.
  • User is legally eligible to work in the United Sates.
  • User has and is current and in good standing with respect to, all governmental approvals, licenses, permits, certifications, inspections consents and franchises necessary to continue to conduct business contemplated with FortiFi.
  • User has read and understood the Supporting Documents described in this Agreement.
  • Information provided to FortiFi has been examined and is true and correct.
  • User is not in violation of any applicable statute, regulation or ordinance of any government entity, or of any agency thereof, which could reasonably be expected to have a materially adverse effect to FortiFi.
  • There are no judicial or administrative actions, suits or proceedings pending or, to the best of User’s knowledge, threatened against or affecting User or Contractor.

Approved Uses of Site

User may use Site to:

  • Present FortiFi financing options, documents, disclosures and other collateral to Property Owners conducting business with Contractor.
  • Submit applications for financing.
  • Guide Property Owners through the FortiFi financing process.
  • Present financing documents to Property Owners for Property Owner approval.
  • Manage and track pipeline of projects being financed by FortiFi.
  • Manage User’s account and preferences.
  • Manage Contractor’s account and preferences.

Restricted Uses of Site

User may NOT use Site for any purpose other than to conduct business with FortiFi according to the approved uses herein. Without limiting the foregoing, User may NOT: (i) send or upload to the Platform infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (ii) send, post, transmit or introduce any harmful code into the Platform; or (iii) interfere with or disrupt performance of the Platform. Further, User shall not: (A) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Platform available to any third party; (B) use the Platform in violation of applicable laws; (C) attempt to gain unauthorized access to the Platform or its related networks or software; (D) modify, copy or create any derivative works based on Platform; (E) reverse engineer, de-compile, disassemble or otherwise attempt to discover or replicate the computer source code of the Platform; (F) use, disclose or copy (except as specifically provided in this Agreement) any features, functions, interfaces, screenshots or graphics of the Platform or to otherwise create a product that competes with the Platform; (G) remove, obscure or alter any proprietary notices or labels on or in any portion of the Platform; or (H) create internet “links” to the Platform, or “frame” or “mirror” any content forming part of the Platform.

Official Representation

User may not make any representations implied or otherwise that User or Contractor is associated with or endorsed by a participating jurisdiction or government entity in connection with this Agreement.

No Endorsement

This Agreement shall not be construed as an endorsement of Contractor or User. FortiFi provides no endorsement whatsoever to Contractor or User, and you will not make any statement orally or in writing which implies any such endorsement.

Supporting Documents

Further supporting documentation can be found at https://www.fortifi.com/resources. Relevant files include:

  • Program Handbook
  • Sample Financing Documents
  • Consumer Protection Policy

Code of Conduct

In conjunction with the use of Site and performing all duties with respect to any business conducted or contemplated with FortiFi, User agrees to:

  • Treat Property Owners and the public respectfully, fairly and honestly at all times.
  • Perform its obligations in compliance with all Federal, State and local laws, rules and regulations, and not engage or be involved in any illegal, unethical or improper conduct.
  • Conduct its activities in conformance with FortiFi’s policies and procedures, with the highest standards of ethical and legal conduct.
  • Ensure that work is completed in a workmanlike manner with care, guided by prudent judgment and good business practices.
  • Understand and have a practical working knowledge of the laws and regulations applicable to the Program and work performed in connection with the Program.
  • Keep all Property Owner information confidential.

Repurchase

User understands that Contractor has agreed to repurchase any assessment originated by Contractor that a) does not meet the Programs eligibility criteria as described in the Program Handbook, b) was levied without the Property Owners consent or understanding, or c) was made with any breach of representations or warranties or other violation of this Agreement by Contractor, and that FortiFi, Contractor or both may pursue legal actions and seek damages against User if User is the cause of a repurchased Assessment.

Confidentiality

User may NOT use or disclose to any third party any information provided by FortiFi that is not available in the public domain (“Confidential Information”), except for use of such Confidential Information as required in connection with the performance of its obligations in this Agreement.

User will treat the Proprietary Information of FortiFi as secret and confidential, limit access to the Proprietary Information to those affiliated with Contractor, who require it in order to effectuate the purposes of this Agreement, and not disclose the Confidential Information to any other person without the prior written consent of FortiFi.

Term & Termination

User’s obligations hereunder shall commence on your acceptance of this Agreement. FortiFi may terminate User’s rights to access and use the Platform at any time, with or without notice and with or without cause. Upon such termination User shall no longer be entitled to access the Platform or utilize FortiFi software, or documentation provided through the Platform, and except as may be necessary for archival purposes related to projects completed by Contractor and paid by FortiFi in the Program, User shall destroy all information and materials obtained from the Platform and all related documentation, copies, and installations whether made under these terms or otherwise. User shall comply with any request to confirm such destruction in writing. User’s obligations hereunder shall survive such termination.

Indemnity

User agrees to defend, indemnify and hold FortiFi and its directors, officers, members, partners, principals, employees, agents and representatives harmless from any and all claims, liabilities, costs and expenses, including, without limitation, all consequential damages and attorneys’ fees and other related costs and expenses, arising in any way from (i) User’s use of the Platform, in whole or in part, or (ii) User’s breach or violation of law or any provisions of this Agreement. Notwithstanding the foregoing, FortiFi reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, and in such case, User agrees to cooperate with any such defense; provided that such assumption of the defense shall not limit User’s obligation to indemnify FortiFi (and its directors, officers, members, partners, principals, employees, agents and representatives) as provided above. This Section shall survive termination of this Agreement.

Waiver

FortiFi’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. All waivers must be in writing to be effective.

Assignment

User may NOT assign this Agreement or any of its rights or obligations under this Agreement.

Injunctive Relief

User acknowledges and agrees that any violation of the terms of this Agreement may result in irreparable injury and damage to FortiFi that may not be adequately compensable in money damages, and for which FortiFi will have no adequate remedy at law. User, therefore, consents and agrees that FortiFi may obtain injunctions, orders, or decrees as may be reasonably necessary to ensure compliance with the terms of this Agreement. User waives any requirement of the posting of a bond that may apply for issuance of any injunctions, orders, or decrees. This Section shall survive termination of this Agreement.

Severability

Each and every section of this Agreement shall be construed as a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof to certain circumstances shall be declared invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is declared invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Governing Law/Entire Agreement

The Terms of this Agreement shall be governed and construed in accordance with the laws of the State of California, without giving effect to the conflicts of laws rules thereof, and the federal laws of the United States applicable thereto. Subject to the “Arbitration” section of this Agreement that follows, any suit, action or proceeding arising out of or related to this Agreement shall be instituted in the State of California, City of Los Angeles.

Without limiting the right of FortiFi to modify this Agreement as set forth in the introductory paragraph of this Agreement, or the applicability of the documents described in the section above captioned “Supporting Documents,” this Agreement sets forth the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.

Arbitration

FortiFi and the User each agree that any and all controversies, claims, or disputes between itself, on the one hand, and the other party or the other party’s officers, directors, employees, representatives, attorneys or agents, on the other hand, whether brought on an individual, group, or class basis, arising out of, relating to, or resulting from this Agreement or the termination of this Agreement, including any alleged breach of this Agreement, but excluding claims for injunctive or other equitable relief brought by FortiFi, shall be subject to binding arbitration under the Arbitration Rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Code”) and pursuant to California law. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL ON ANY DISPUTE OR CLAIM COVERED BY THIS AGREEMENT.

The User and FortiFi agree that any arbitration will be administered by the American Arbitration Association (“AAA”), and that the neutral arbitrator will be selected in a manner consistent with AAA National Rules for the Resolution of Contract Disputes (the “AAA Rules”). The AAA Rules in effect at the time of the claim or dispute is arbitrated will govern the procedure for, and administration of, the arbitration proceedings between the Parties, except as expressly set forth herein. The User and FortiFi agree that the arbitrator shall have the power to decide any motions brought to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The User and FortiFi also agree that the arbitrator shall have the power to award any remedies available under applicable law, except the Contractor and FortiFi agree that any provisional relief sought by either party shall not be subject to arbitration, as agreed upon herein, and any party seeking such relief can pursue such relief in a court of law. If any arbitration, legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party shall be entitled to recover attorneys’ fees and other costs in that action or proceeding, in addition to any other relief to which she or it may be entitled. All the costs of the arbitration proceeding, including attorneys’ fees and costs, shall be paid as the arbitrator awards in accordance with applicable law.

The User and FortiFi each agree that it may petition a court for provisional relief, including injunctive relief, as permitted by the Code, including, but not limited to, where either the User or FortiFi alleges or claims a violation of this Agreement.

Notices

All Notices hereunder shall be delivered electronically.

to FortiFi: notices@fortifi.com
to User: at email address provided in user account

Limitation of FortiFi’s Liability

Your access and use of the Platform is provided as an accommodation to Contractor. Accordingly, FortiFi shall not be liable for any personal obligation, obligation to advance funds, costs, expenses, losses, damages, indemnifications, claims or actions, of any kind or under any theory, under or by reason of this Agreement or your use of or inability to use the Platform.