IMPORTANT: READ CAREFULLY

The following are the terms and conditions for use of the Arcus’s products and services including without limitation Arcuspower.com, Nrgstream.com, Nrgstream Trader, Nrgstream Xtractor, Pwrstream, Crbnstream and other services which may be offered from time to time by Arcus Power Corp. (referred to as “Arcus”) for use with your Arcuspower and Nrgstream account login name (each feature individually and collectively referred to as the “Service”).

Your use of the Service from Arcus constitutes your acceptance of the following terms and conditions and your Agreement to abide by them.

This is a legal Agreement between you, the end user, and Arcus Power Corp. By using the Service, you are agreeing to be bound by the terms of the Agreement. You, the single user, are granted a nonexclusive license to use this software and service under the terms stated in this Agreement. This license allows a single person to use this software.

THE SOFTWARE, THE SERVICE AND ACCOMPANYING DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.

PRIVACY : It is Arcus’s policy to respect the privacy of its members. Arcus will not monitor, edit, or disclose any personal information about you or your use of the Service, including its contents, without your prior permission unless Arcus has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of Arcus; (3) enforce the Terms of Service; or (4) act to protect the interests of its members or others. Arcus does provide certain user information in aggregate form to third parties, including its advertisers, for demographics. In addition, your Internet Protocol address is transmitted with each message sent from your account.

You agree that Arcus may access your account, including its contents, as stated above or to respond to service or technical issues.

INFORMATION DISCLAIMER : The information contained in the Service is compiled for the usage of Arcus customers and is furnished by various third party publishing sources. Arcus distributes this information without responsibility for accuracy. All information is accepted by the Arcus customer on the condition that errors in transmission or content shall not be made the basis for any claim, demand or cause for action. The information and data is obtained from sources believed to be reliable, but we do not guarantee its accuracy. Neither the information, nor any opinion expressed, constitutes a solicitation of the purchase or sale of any securities, futures, or options.

LINKED SITES DISCLAIMER : This web site links users to sites not maintained by Arcus. Users are advised that any use of a linked web site is solely at their risk. Arcus cannot and does not make any warranties or representations with respect to any information available through these links and disclaims any opinions expressed on such web sites. Links to other web sites or references to products, services or publications other than those of Arcus do not imply the endorsement or approval of such web sites, products, services or publications by Arcus.

PARTICIPATION IN PROMOTIONS OF ADVERTISERS: Any dealings with Advertisers on the Service or participation in promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and the Advertiser or other third party. Arcus shall not be responsible or liable for any part of any such dealings or promotions.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ARCUS POWER CORP. OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ARCUS INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ARCUS’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR CANADIAN $5.00. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

As a condition of your use of the Service, you warrant to Arcus that you will not use the Service for any purpose that is unlawful or prohibited by these terms, conditions, and notices.

If any provision of this Agreement is found void, invalid or unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms.

CUSTOMER LICENSE AGREEMENT – TERMS AND CONDITIONS –

These Terms and Conditions, along with the written information included in the Customer’s Agreement for the Arcus Product (defined below) govern the relationship between the Customer and Arcus Power Corp. (“Arcus“) respecting the Arcus Product.

WHEREAS the Customer wishes to use the Arcus Product to assist in managing electricity costs;

AND WHEREAS Arcus has agreed to provide the Arcus Product to be used in accordance with this Agreement;

NOW THEREFORE IN CONSIDERATION of the premises and the mutual covenants contained in this Agreement, the Parties hereto agree as follows:

ARTICLE 1

DEFINITIONS AND INTERPRETATIONS

1.1 For the purposes of this Agreement, the following words and terms have the following meanings:

1.1.1 “Agreement” means these Terms and Conditions along with the Customer Agreement;

1.1.2 “Arcus Product” means the electricity cost management tools (including Arcus’ web dashboard), all data from such tools, and all communications and data received from Arcus in connection with electricity cost management;

1.1.3 “Customer” means the Customer identified in the Customer Agreement;

1.1.4 “Customer Agreement” means the written terms specific to the relationship between the Customer and Arcus, and which may identify the following: Customer, Customer contact information, description of Arcus services to be provided, structure of License Fee(s) for the Arcus Product, payment method and payee, interest rate for overdue accounts, term and any applicable renewals, conditions for renewals, identification of Site(s) for use of the Arcus Product, and any other relevant information;

1.1.5 “License Fee(s)” means the license fee or such other arrangements as are identified in the Customer Agreement for use of the Arcus Product;

1.1.6 “Parties” means the Customer and Arcus, and “Party” means the applicable one of them; and

1.1.7 “Site(s)” means the Customer’s metered electricity end-use site(s) identified in the Customer Agreement.

ARTICLE 2

LICENSE AND SERVICES

2.1

Arcus grants Customer a non-exclusive license to use the Arcus Product during the term of this Agreement at the Site(s) which the Customer has registered with Arcus and for which the Customer has paid the License Fee in accordance with the Customer Agreement (the “License”).

2.2

Only the registered Customer representative(s) for each Site may use the Arcus Product at any given time and the Arcus Product shall not be used by individuals that are not employees or contractors of the Customer. The Arcus Product or any portions thereof shall not be copied, duplicated, retained, re-created, or used after the Term or at any time where the Customer is not current in all License Fee obligations. The License is for direct use of the Arcus Product only through the portal provided by Arcus for that purpose.

2.3

The Arcus Product is provided by Arcus to Customer for the Customer’s use only, remains Arcus’ property, and is not be used for any purpose other than contemplated in this Agreement. Arcus may update or change the Arcus Product at any time.

2.4

Arcus may allow access to the Arcus Product only when the Customer has complied with all obligations under this Agreement including all payment obligations.

ARTICLE 3

FEES & BILLING

3.1

The Customer will pay the License Fee as it becomes due and in accordance with the terms in the Customer Agreement for the Arcus Product.

ARTICLE 4

OPERATIONAL MATTERS

4.1

All communications between the Parties with respect to the Arcus Product will be conducted by e-mail, telephone or in person and any telephone conversations may be recorded (the “Communications Protocol”).

ARTICLE 5

WARRANTY DISLCAIMER; LIMITATION OF LIABILITY

5.1

ALL DATA INCLUDED WITH THE ARCUS PRODUCT, INCLUDING WITHOUT LIMITATION ALL WEATHER DATA, IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  THE CUSTOMER AGREES AND ACKNOWLEDGES THAT ARCUS AND ITS SUPPLIERS ARE NOT LIABLE FOR THE EFFECTIVENESS OF THE ARCUS PRODUCT AND HAVE NO LIABILITY ARISING AS A RESULT OF ERRORS IN JUDGMENT, DATA, FORECASTING, OR SIMILAR WITH RESPECT TO THE ARCUS PRODUCT OR THE AVAILABILITY OR UNAVAILABILITY OF THE ARCUS PRODUCT AT ANY MOMENT OR FOR ANY PERIOD.

5.2

ARCUS AND ITS SUPPLIERS ARE NOT LIABLE FOR ANY DAMAGES, LOSSES, LIABILITIES, CLAIMS, COSTS (INCLUDING LEGAL COSTS AND REASONABLE STAFF COSTS), FINES AND PENALTIES WHICH ARE OF AN INDIRECT NATURE. ARCUS AND ITS SUPPLIERS ARE NOT LIABLE FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF PRODUCTION, LOSS OF EARNINGS, LOSS OF CONTRACT, COST OF CAPITAL, LOSS OF ANY USE OF ANY FACILITIES OR PROPERTY OPERATED OR OWNED BY ANY PERSON, AND ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER WHICH ARE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP CONTEMPLATED BY THIS AGREEMENT, OR THE ARCUS PRODUCT.

5.3

ARCUS’ AND ITS SUPPLIERS’ MAXIMUM LIABILITY IN CONNECTION WITH THIS AGREEMENT UNDER ANY CAUSE OF ACTION (INCLUDING CONTRACT, TORT, OR OTHERWISE) ARE, WITH RESPECT TO EVENTS RELATING TO ANY SITE, LIMITED TO THE AGGREGATE LICENSE FEE(S) RECEIVED BY ARCUS WITH RESPECT TO THAT SITE IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING ANY EVENT GIVING RISE TO LIABILITY, AND ARCUS’ MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE ARCUS PRODUCT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE LICENSE FEE(S) RECEIVED BY ARCUS PURSUANT TO THIS AGREEMENT FROM THE CUSTOMER IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING ANY EVENT GIVING RISE TO LIABILITY. ANY LIABILITY OF ARCUS WILL BE CONSIDERED A REDUCTION IN LICENSE FEE(S) IN THE SUBSEQUENT APPLICATION OF THIS PROVISION.

5.4

THE CUSTOMER WILL INDEMNIFY ARCUS AND ITS SUPPLIERS FOR ALL USE OF THE ARCUS PRODUCT IN BREACH OR EXCESS OF THE PROVISIONS OF THIS AGREEMENT, INCLUDING USE BY ANY INDIVIDUAL OBTAINING ACCESS TO THE ARCUS PRODUCT OR ANY DERIVATIVE OF THE ARCUS PRODUCT THROUGH THE CUSTOMER OR AS A RESULT OF THE CUSTOMER’S ACTIONS OR OMISSIONS, AND ANY BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT. SUCH LIABILITY AND INDEMNITY WILL BE WITHOUT ANY DISCOUNT WHICH MIGHT OTHERWISE BE INCLUDED IN THE LICENSE FEE.

ARTICLE 6

CONFIDENTIALITY

6.1

The Arcus Product and all information in connection with it is confidential and the Customer shall not disclose it to any third party except: (i) as may be required to comply with any applicable law, order, regulation, ruling or accounting disclosure rule or standard, (ii) as may be obtained from a non-confidential source that disclosed such information in a manner that did not violate any obligation of confidentiality, or (iii) as may be furnished to the Customer’s Affiliates and to each of such Customer’s auditors, attorneys, advisors or lenders which are required to keep the information that is disclosed in confidence.

ARTICLE 7

MISCELLANEOUS

Entire Agreement

7.1

This Agreement is the entire agreement and understanding between the Parties with regard to the Arcus Product, and supersedes all prior agreements, correspondence, and representations of any kind.

No Waiver

7.2

Any Party may waive performance of any condition in writing to all other Parties, but such waiver of a condition shall not be considered a waiver of that condition for succeeding performance.

Notice

7.3

Notices to Arcus may be provided by registered mail or confirmed email to:

Arcus Power Corp.

1800, 330 5th Ave SW

Calgary, Alberta T2P 0L4

7.4

Notices to the Customer may be provided using the Customer’s contact information in the Customer Agreement, including by email.

Amendments

7.5

This Agreement may not be modified, altered, or amended except by an instrument in writing. This Agreement may be updated by Arcus with notice to the Customer, to be effective at the immediately following renewal or at the end of the Term, whichever occurs earliest.

Assignment

7.6

The Customer may not assign any part or all of its interest in this Agreement without Arcus’ written agreement. Arcus’ may assign this agreement to any party substantially carrying on a business providing the Arcus Product.

Enurement

7.7

This Agreement inures to the benefit of and be binding upon the Parties hereto and their respective trustees, successors, and assigns.

Severability

7.8

If any provision of this Agreement is deemed to be invalid, void, or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement, or covenant of this Agreement, and such other provision, agreement, or covenant shall remain in full force and effect.

Survival

7.9

The applicable provisions of this Agreement will continue in effect after termination or expiry hereof to the extent necessary, including but not limited to, providing for payments, limitation of liability and any indemnification obligations under this Agreement.

No Joint Venture, Partnership or Agency

7.10

Unless otherwise specifically provided in writing, the Parties understand that they are not partners, joint venturers, or agents of each other. No Party has the power to bind the other Party or Parties in any manner whatsoever.

Governing Law and Attornment

7.11

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, and the Parties irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Alberta sitting in Calgary.

These Terms and Conditions last updated March 24, 2020.

© 1998-2024 Arcus Power Corp. All rights reserved.

IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICE.

Should you have any questions concerning this agreement, please contact:
Arcus Power Corp. Suite 865, 401 9th Avenue S.W., Calgary, Alberta, T2P 3C5 Canada., or at:  info@arcuspower.com.

‍