Hohm Energy, Spark Plaid Energy (Pty) Ltd, (“Hohm Energy”) End user license agreement (“EULA”)

  • Important-read carefully before operating this software: this end-user license agreement (“EULA”) for Hohm Energy (“software”) is a legal and binding agreement between you and Hohm Energy and the subsidiary or affiliate of Hohm Energy (“Hohm Energy”) that distributed this version of the software under thisEULA. “You” are a person or legal entity wishing to use the software. This EULA governs your use of all of the software distributed or delivered hereunder.“software” means all computer software, associated media, any printed materials and any accompanying “online” or electronic information provided to you here under. By clicking on the “accept” button or by downloading, installing, copying, breaking any seal on, or otherwise using the software, you acknowledge that you have read this EULA and agree to be bound by its terms.

  • If you do not agree to the terms and provisions of this EULA, if applicable, click the “cancel” button and do not download, install, copy, or otherwise use the software; if you have already broken the seal or paid for this software or equipment on which the software is installed, and do not agree to the terms and conditions of the EULA, please return the software and equipment and any accompanying items to Hohm Energy within thirty (30) days of the date of purchase for a full refund of amounts paid. If these terms are considered an offer, acceptance is expressly limited to these terms.

  • The software is owned by Hohm Energy and is licensed (and not sold) to you.

  • Grant of license. Subject to the terms of this EULA, Hohm Energy grants you, and you Accept, a world-wide, perpetual (subject to the termination rights herein), non-exclusive, sub-licensable, non-transferable (except as set for thin this EULA), license to use the one copy of the software, solely for your internal use.

    • You must reproduce on any copy all copyright notices and any other ownership,Confidentiality or proprietary legends that are on the software and/or its documentation.

    • You may not rent, lease, sublicense or authorize all or any portion of the software to be copied onto any other medium except as may be expressly permitted herein. You may, however, transfer all your rights to use the software to another person or legal entity provided that: (a) you also transfer this agreement, the software and all other software or hardware bundled or preinstalled with the software, including all updates and prior versions, to such person or entity, and (b) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions upon which you legally purchased a license to the software, and (c) Hohm Energy consents in writing to such transfer. You agree to indemnify and hold Hohm Energy harmless from any costs or damages (including reasonable attorneys’ fees) arising out of a failure to inform the receiving party of the terms and conditions of this agreement. Notwithstanding the foregoing and if applicable, Hohm Energy software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.

    • You may not copy, reverse-engineer, decompile, or disassemble the software, orOtherwise remove it from the accompanying equipment on which it was delivered, or otherwise reduce the code of the software to a human perceivable form, except and only to the extent that the restriction of such activity is prohibited by applicable law, and it is essential to do so in order to achieve interoperability of the software (or equipment) with another software program, and you have first requested Hohm Energy to provide the information necessary to achieve such interoperability and Hohm Energy has not made such information available. Hohm Energy has the right to impose reasonable conditions and to request a reasonable fee before providing such information. You may not alter or remove any of Hohm Energy’s trademarks, copyright notices or other proprietary legends affixed to or otherwise contained on or within the software. d. You may not electronically transfer the software from one computer to another over a network. You may not modify, adapt or translate the software or create derivative works based on the software.

    • You may not electronically transfer the software from one computer to another over a network. You may not modify, adapt or translate the software or create derivative works based on the software.

    • You agree not to use or attempt to use the software for any fraudulent, unlawful, Harassing or abusive purpose, or so as to damage or cause risk to our business, reputation, employees, customers, facilities, or to any person.Improper uses include, but are not limited to:

      • Violating any applicable law or regulation.

      • Posting or transmitting content you do not have the right to post or transmit.

      • Posting or transmitting content that infringes a third party's Trademark, patent, trade secret, copyright, publicity, privacy, or other right.

      • Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, tortious, threatening, obscene, hateful, abusive, harmful or otherwise objectionable as determined in our sole discretion;

      • Attempting to intercept, collect or store data about third parties without their knowledge or consent.

      • Deleting, tampering with or revising any material posted by any other person or entity.

      • Sending or attempting to send unsolicited messages, including without limitation, promotions or advertisements for products or services,"pyramid schemes", "spam", "chain mail" or"junk mail".

      • Using or attempting to use the software to send altered, deceptive or false source-identifying information.

      • Interfering or attempting to interfere with the access of Any user, host or network, including without limitation, sending a "virus" through the software, overloading, "flooding," "spamming," "crashing,"or "mail bombing"; or

      • impersonating or misrepresenting your affiliation with any person or entity.

    • If we suspect violations of any of the above, we may:

      • Institute legal action immediately, without prior notice to you terminate this EULA, and

      • Cooperate with law enforcement authorities in bringing legal proceedings against violators. You agree to reasonably cooperate with us in investigating suspected violations.

    • Hohm Energy disclaims any and all liability for any failure on its part to prevent such materials or information from being transmitted via the software.

    • All rights not expressly granted to you in this EULA are reserved by Hohm Energy and its Suppliers. No rights are granted by implication or otherwise.

    • Consent to use of data. You agree that Hohm Energy and its affiliates may collect and use Technical and related information, including but not limited to technical information about your device, system and application software and peripherals that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the software. Hohm Energy may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.

    • Termination. This EULA may be terminated by Hohm Energy upon notice and without further Action upon the breach of any of your obligations or the license rights granted to you under this EULA. Upon termination, all use of the software by you must cease and all rights granted to you under this EULA are terminated.Upon termination you hereby agree to return to Hohm Energy or to destroy all copies of the software in your possession or control within fourteen (14) days of such termination and certify the same in an affidavit to Hohm Energy upon request. This remedy is in addition to any other remedies available to Hohm Energy. Provisions contained in this EULA that expressly or by their sense and context are intended to survive the expiration or termination of this agreement shall so survive the expiration or termination including without limitation sections 1, 3, 4, and 7 through 10 hereof.

    • Proprietary rights. All rights, title, and proprietary rights in and to the software (including, but not limited to, any patents, trade secrets, trademarks, copyrights, images, Photographs, animations, video, audio, music, text, software code and “applets” incorporated into the software) are owned by Hohm Energy. The software is protected by copyright laws, international treaty provisions, and other laws. An act in violation of this EULA may also be a crime punishable by fine or imprisonment under applicable law. You understand that Hohm Energy may update or revise the software in its sole discretion but has no obligation to furnish any software updates or revisions to you.

      If you upgrade the software to a higher-numbered or later version of the software(e.g., from program 3.x to program 4.x) or to a comparable Hohm Energy software product including versions for different operating systems (“replacement software”), unless otherwise indicated in any end user license agreement accompanying such replacement software, this EULA is terminated to the extent it covers the replaced software and your rights in the replacement software will be governed by the end user license terms applicable to that replacement software. If any replacement software, or other software of Hohm Energy, is distributed to you without a separate end user license agreement, this EULA shall govern all your rights and obligations therein.

    • Compliance with laws. In the performance of the obligations under this agreement, you Shall at all times comply with the laws, regulations, and orders in effect and applicable to their performance hereunder. Without limiting the generality of the preceding sentence, you shall comply with applicable SouthAfrican laws and consent to the jurisdiction of the Gauteng High Court.

    • Disclaimer of implied warranties & duties.

      • To the maximum extent permitted by applicable law, Hohm Energy, its suppliers, and distributors provide the software and any (if any) support services related to the software (“support services”) without any express warranty or indemnity, and the software and support services are provided “as is” and “with all faults”. Hohm Energy Hereby disclaims all implied indemnities and warranties, including, but not limited to, any (if any) implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, or that the operation of the software will be accurate, virus-free, or will correspond to any documentation. Some jurisdictions Do not allow exclusions of an implied warranty, so the above exclusion may not fully apply to you, and you may have other rights that vary between jurisdictions.

      • No oral or written information or advice given by Hohm Energy, its dealers, distributors, agents or employees creates a warranty and you may not rely on any such information or advice.

    • Exclusion of incidental, consequential and certain other damages.

      • To the maximum extent permitted by applicable law, in no event shall Hohm Energy or its suppliers or distributors be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, revenues or confidential or other information, for business interruption, or loss of privacy), arising out of or in any way related to the use of or inability to use the software product or otherwise under or in connection with any provision of this EULA, (including Negligence),strict liability, breach of contract or under any other legal theory, and evenif Hohm Energy or any supplier has been advised of the possibility of such damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so The above limitations may not apply to you.

    • limitation of liability and remedies.

      • Your only right or remedy with respect to any problems or dissatisfaction with the software is to deinstall and cease use of such software or equipment. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if such remedy fails its essential purpose.

    • General provisions.

      • Entire agreement.

        • This EULA contains the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements or understandings (oral or written). ii. Governing law; dispute resolution.

        • This EULA is governed by and shall be interpreted in accordance with the laws of the South Africa, without giving effect to any applicable choice of law principles. This EULA is not governed by the united nations convention on contracts for the international sales of goods, the application of which isExpressly excluded. Any dispute or disagreement arising between you and Hohm Energy in connection with this agreement, which is not settled within thirty(30) days (or such longer period as may be mutually agreed upon by the parties)from the date that either party notifies the other in writing that such dispute or disagreement exists, at the request of either party may be settled under the rules of the arbitration foundation of South Africa, by one (1) arbitrators, or such greater number as shall be agreed to by the parties, appointed in accordance with the rules and all of whom shall be experienced legal practitioners or experts familiar with the subject matter of the contract and/or the subject matter under dispute. The arbitration proceedings shall be conducted according to this agreement, in Johannesburg, South Africa. All such proceedings and all communications (whether written or oral) including, without limitation, any evidence submitted to the arbitral tribunal, shall be in the english language or shall be accompanied by a certified english translation.The arbitration resolution shall be final and binding upon the parties and judgment may be entered thereon, upon the application of either party, by any court having jurisdiction. Each party shall bear the cost of preparing and presenting its case; and the cost of arbitration, including the fees and expenses of the arbitrators, will be shared equally by the parties unless there solution otherwise provides. Nothing herein contained shall prevent eitherparty from approaching a court of competent jurisdiction for urgent interimrelief.

      • Amendment; waiver; severability.

        • This EULA may not be modified except by a written addendum issued by a duly authorized representative of Hohm Energy and published on Hohm Energy website.If any part of this EULA is found to be unenforceable or void, the remainder that part shall be limited or eliminated to the minimum extent necessary so that the remainder of this EULA shall otherwise stay valid and enforceable

      • Language. Any translation of this license is done for local requirements and convenience only. In the event of a dispute between the english and non-english versions, the english version of this EULA shall govern.

      If you have any questions about this EULA, please immediately contact Hohm at welcome@hohmenergy.com

      Protection of personal information (POPI) Disclaimer Spark Plaid Energy (PTY) LTD (trading as Hohm Energy)

      Whereby it is hereby recorded that Spark Plaid Energy Pty Ltd, trading as Hohm Energy, a Company duly incorporated in accordance with the Company Laws of the Republic of SouthAfrica, and having registration Number 2021/377005/07 (hereinafter referred to as “the Company”), which Company collects, stores and analyses the data collected from customers and/or relevant third parties:

      • Confirms that by accessing and/or utilising and/or contracting with theCompany, that you have read, understood and/or acknowledged that you have read all of the Company’s privacy terms and this Disclaimer, whereby you understand and/or acknowledge further that all information and/or data provided and/or collected and/or furnished to the Company, whether personal or otherwise, maybe used and/or processed and/or analysed by the Company and its duly authorised agents, and that such use and/ processing and/or analysis may include where necessary, the placement of such information in the public domain.

      • Confirms that by continuing to facilitate the provision and/or collection of such information, you specifically agree that the Company will utilise such information and/or data – irrespective of the nature of such information and/or data – as reasonably and lawfully required and/or necessitated by the Company.

      • Confirms that the Company shall use its best endeavours and take all foreseeable and/or reasonable precautions to ensure that the information and/or data so collected and/or stored by the Company, for the purpose provided to theCompany.

        It is further recorded that by submitting any information and/or data to theCompany, you consent to the collection and/or collation and/or processing and/or analyses and/or storing of such information and/or data in accordance with this disclaimer, and hold Hohm Energy, its agents and/or subsidiaries free from liability in the event of any loss and/or damages sustained by you in the event of any dissemination of the information and/or data furnished to the Company.