FlexView Terms of Use and Services
By using the SHYFT FlexView software and FlexView technology, any of our websites, applications, and/or services, you agree to these Terms of Use. The website Privacy Policy and is incorporated by reference into these Terms of Use.
About Us
SHYFT Power Solutions (“we”, “us” or “our”) is an energy technology company that provides energy metering and billing solutions through Flexview software, integrated third-party software and integrated energy meter technology.
We are an independent contractor for all purposes, providing this software, applications and our services on an independent service provider basis. We do not have control or assume the liability or legality for the products or services that are paid for with our service.
This Terms of Use is an agreement between you and SHYFT Power Solutions (hereinafter referred to as “SHYFT”). It details SHYFT’s obligations to you. It also highlights certain risks of using the services, and you must consider such risks carefully as you will be bound by the provision of this Agreement through your use of this website or any of our services.
Privacy Policy
SHYFT Power Solutions is committed to managing your Personal Information in line with global industry best practices. You can read our Privacy Policy to understand how we use your information and the steps we take to protect your information.
Age Restriction
Our website and services are not directed to children under 18. We do not knowingly transact or provide any services to children under 18.
Acceptable Use Policy
You are independently responsible for complying with all applicable laws related to your use of our software, applications, and services.
Disclaimers
SHYFT understands the importance of delivering safe and reliable solutions to You and endeavors to do so. We try to keep SHYFT FlexView available at all times, bug-free and safe; however, you use it at your own risk, understanding that SHYFT cannot guarantee the absence of bugs or interruption in service.
Our software, applications, and services are provided “as it” without any express, implied, and/or statutory warranties (including, but not limited to, any implied or statutory warranties, fitness for a particular use or purpose, title, and non-infringement of intellectual property rights). Without limiting the generality of the foregoing, SHYFT Power Solutions makes no warranty that our software, applications, and services will meet your requirement or that our software or application will be uninterrupted, timely, secure, or error-free. No advice or information, whether oral or written, obtained by you through our software, applications, or from SHYFT Power Solutions, its parents, subsidiaries, or other affiliated companies, or its or their supplies (or the respective officers, directors, employees, or agents of any such entities) (Collectively, “SHYFT Parties”) shall create any warranty.
Limitation of Liability
In no event will any of the SHYFT Parties be liable for (A) any indirect, special, consequential, punitive, or exemplary damages or (B) any damages whatsoever in excess of the amount of erroneous transactions or five thousand United States Dollars (US$5,000.00) dollars, whichever is lesser (including without limitation, those resulting from loss of revenues, lost profits, loss of goodwill, loss of use, business interruption, or other intangible losses), arising out of or in connection with SHYFT’s software, applications or services (including without limitation, use, inability to use, or the results fo use fo SHYFT’s software, applications or services) whether such damages are based on warranty, contract, tort, statute, or any other legal theory.
Exclusions
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent that any SHYFT Party may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of the SHYFT’s Party's liability shall be the minimum permitted under such applicable law.
Applicable Law
These Terms of Use shall be interpreted and governed by the laws currently in force in the Federal Republic of Nigeria if You are incorporated and operating in Nigeria. For all other users, these Terms of Use shall be interpreted and governed by the laws of the United States of America in the State of Texas.
Legal Disputes
We shall make an effort to settle all disputes amicably and promptly. If You are a Nigerian entity, any dispute arising out of this Terms of Use, which cannot be settled by mutual agreement/negotiation within 6 (six) months shall be referred to arbitration by a single arbitrator at the Lagos Multi-Door Courthouse (“LMDC”) and governed by the Arbitration and Conciliation Act, Cap A10, Laws of the Federal Republic of Nigeria. The arbitrator shall be appointed by both of us (we and you). Where both of us are unable to agree on the choice of an arbitrator, the choice of arbitration shall be referred to the LMDC. The findings of the arbitrator and subsequent award shall be binding on both of us. Each of us shall bear our respective costs in connection with the Arbitration. The venue for the arbitration shall be Lagos, Nigeria. All other disputes will be addressed in the State of Texas, United States of America.
Severability
If any portion of these Terms of Use and Service is held by any court or tribunal to be invalid or unenforceable, either in whole or in part, then that part shall be severed from these Terms of Use and Service and shall not affect the validity or enforceability of any other part in this Terms of Use and Service.
By signing up as a customer of FlexView and registering for a Power Service Provider Account with SHYFT FlexView, any of our websites, applications, and/or services, you are deemed a Power Service Provider and agree to the terms of this agreement (the “Agreement”).
Change of Information
In the event that you change any information provided to us at registration, including your business name, address, financial institution, mode of payouts, or where a corporate restructuring occurs, you agree to notify us within 14 days of such change. We may be unable to respond to you if you contact us from an address, telephone number, or email account that is not registered with us.
Representation and Warranties
You represent and warrant to SHYFT that:
You have full power and authority to enter into, execute, deliver, and perform this Agreement;
You are duly organized, authorized, and in good standing under the laws of the Federal Republic of Nigeria or any state, region, or country of your organization and are duly authorized to do business in all other states, regions, or countries in which your business operates.
Account Security
You agree not to allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, SHYFT will not be liable to you for losses or damages. You will also take all reasonable steps to protect the security of the personal electronic device through which you access SHYFT software, application or services (including, without limitation, using PIN and/or password-protected personally configured device functionality to access SHYFT’s Services and not to share your device with other people).
Data Compliance and Security
We acknowledge that you own all your customers’ data. You hereby grant SHYFT a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display your customers’ data (as may be permitted by applicable law) for the following purposes:
providing and improving our services;
internal usage, including but not limited to, data analytics and metrics so long as individual customer data has been anonymized and aggregated with other customer data;
complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and
any other purpose for which consent has been provided by your customer.
Software License
We hereby grant you a revocable, non-exclusive, non-transferable license to use SHYFT’s software, applications, website, and other software applications (the “Software”) in accordance with the documentation accompanying the Software. This license grant includes all updates, upgrades, new versions, and replacement software for your use in connection with SHYFT’s services. If you do not comply with the documentation and any other requirements provided by SHYFT, then you will be liable for all resulting damages suffered by you, SHYFT, and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.
FlexView Meter Use and License
You may have our FlexView smart energy meter (the “Meter”) and its accompanying software (together the “Equipment”) deployed for your business needs, either through the payment of an upfront purchase fee for the Meter or by opting to lease the Meter for a fixed period. Where you opt for an upfront or installments purchase of the Device, ownership will pass to you upon the payment completion of the purchase fee; however, SHYFT will charge fees on the maintenance of the Equipment on your behalf as well as for the license to use the accompanying software.
Where on the other hand, you subscribe to lease the Meter, we hereby grant you a revocable, non-exclusive, non-transferable license to use the Equipment in accordance with all accompanying documentation which sets out the substantial terms by which your rights, obligations, and use, of our smart energy meter, will be governed. This license grant includes all updates, upgrades, new versions, and replacements of the Equipment for your use in connection with the energy metering service. If you do not comply with the documentation and any other requirements provided by SHYFT Power Solutions, then you will be liable for all resulting damages suffered by you, SHYFT Power Solutions, and any third parties. Unless otherwise provided by applicable law, you agree not to alter, disassemble or otherwise tamper with the Equipment without our prior written authorization. Upon expiration or termination of this Agreement or any accompanying documentation, you will immediately return the Equipment to SHYFT. You also agree that you would handle the Device with reasonable care and skill and that SHYFT reserves the right to decommission and recall such Device for any reason; following which you shall ensure the immediate return of the Device. SHYFT always reserves the right to review the applicable fees for either the Device or the software license.
You agree to ensure that only your employees, contractors, agents, or other parties working on your behalf ("Authorized Users") will use the Equipment and that such Authorized Users are notified of the terms and conditions of this Licence and any accompanying documentation prior to using the Equipment. You will also ensure that all use of the Equipment by such Authorized Users is in accordance with the terms of the Agreement or any accompanying documentation.
Equipment Warranties
Standard Warranty. Customers who have purchased Kamstrup meters directly from SHYFT shall be covered by a 24-month warranty from the date of delivery unless an extended warranty has been agreed upon. The warranty shall cover any defects in workmanship or materials. If any defect is found within the warranty period and duly notified to SHYFT, You shall return the defective products to SHYFT. SHYFT shall subsequently, at its sole discretion, either repair the products returned, refund the price or make a replacement delivery, provided that the defects found in the products are covered by the warranty. SHYFT shall assume ownership of any parts replaced. The cost of returning products repaired or replaced under warranty shall be borne by SHYFT. However, if the defect resulted from any of the cases mentioned in Clause 17.3, Kamstrup shall be entitled to charge its usual rates for repaired or replaced products, plus a reasonable fee for work performed in investigating the claimed defect. In such a case, You will bear the return costs in respect of the repaired or replaced products.
If SHYFT fails to remedy a defect in the Kamstrup meter per Clause 17.1 within a reasonable period, you are entitled to the price of the defective product. You will not be entitled to any other remedies.
All warranties shall not apply in any of the following cases:
products that are defective or damaged by negligence or accident or by other circumstances beyond SHYFT’s reasonable control;
products that have been improperly stored, commissioned, installed, used, or maintained by you or a third party, or that has been used or maintained not in accordance with any instructions, manuals, specifications, or other documentation provided by SHYFT, or in the absence of such documentation, generally accepted industrial practices;
products that have been altered or repaired without following the documentation provided by SHYFT or without SHYFT’s written authorization;
products where any serial number or security seal has been removed or defaced;
excessive exposure to sunlight;
exposure to electromagnetic phenomena or other abnormal electrical interference, including without limitation unnatural magnetic fields, radiation or electro‐magnetic pulses or excessive electrical current, except to the extent permitted in the product specification;
data is read with equipment or systems which have not been approved by Kamstrup and/or SHYFT;
normal wear and tear products that are described as being experimental, developmental, prototype, or pilot; or
products that have been used for more than three days after the discovery of the defect, without due notice to SHYFT and/or against the advice of SHYFT.
Extended Warranty. Depending on your requirements and needs, you can choose to extend the coverage period up to 15 years, either with 100% coverage or with a a yearly reduction of the coverage for a reduced price. The cost of the Extended Warranty will be provided in your Invoice. Warranty coverage cannot be retroactive.
Trademark License
We hereby grant you a revocable, non-exclusive, non-transferable license to use SHYFT ’s trademarks used to identify our services (the “Trademarks”) solely in conjunction with the use of our Services. You agree that you will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to SHYFT (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising, and use of all of the Trademarks.
Intellectual Property
We do not grant any right or license to any SHYFT intellectual property rights by implication, estoppel, or otherwise other than those expressly mentioned in this Agreement. Each party shall retain all intellectual property rights, including all ownership rights, title, and interest in and to its own products and services, subject only to the rights and licenses specifically granted herein.
Publicity
You hereby grant SHYFT permission to use your name and logo in our marketing materials, including, but not limited to, use on our website, in customer listings, in interviews, and in press releases. Such Publicity does not imply an endorsement of your products and services.
Confidential Information
The parties acknowledge that in the performance of their duties under this Agreement, either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning each party’s services, know-how, technology, techniques, or business or marketing plans (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or (iv) is independently developed by the receiving party.As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties under this Agreement or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
Know Your Customer
You agree that you are solely responsible for verifying the identities of your customers, ensuring that they are authorized to carry out the transactions on SHYFT FlexView. You are also required to maintain information and proof of service or product delivery to your customer or end-users. Where a dispute occurs needing resolution, you may be required to provide SHYFT with these.
Customer Payments
We do not guarantee or assume any liability for transactions authorized and completed that are later reversed or charged back (see Chargebacks below). You are solely responsible for all reversed or charged-back transactions, regardless of the reason for or timing of the reversal or chargeback. SHYFT may add or remove one or more payment types or networks at any time. If we do so we will use reasonable efforts to give you prior notice of the removal.
Our Fees & Pricing Schedule
You agree to pay us for the software, applications, or services we render. Our Fees will be determined by the Invoice (“Invoice”) issued to you. We reserve the right to revise our Fees. In the event that we revise our fees, we will notify you within five days of such change and prior to your next Billing Cycle. The Software License automatically renews with each Billing Cycle unless expressly terminatd.
Payouts
Subject to the terms of this Agreement, SHYFT will send to your designated bank or card settlement account (“Bank Account”) all amounts settled and due to you from your transactions, minus our fees as stated in the Fee Schedule included in your Invoice, any Reversals, Invalidated Payments, Chargebacks, Refunds or other amounts that you owe to SHYFT under this Agreement (“Payout”) via a Payment Processor. If the Payout is insufficient to cover the amounts due, you agree that we may debit your Bank Account for the applicable amounts, and/or set-off the applicable amounts against future Payouts. Upon our request, you agree to provide us with all necessary bank account and related information and grant us permission to debit amounts due from your Bank Account.
While we will provide Transaction History in your FlexView Power Manager Dashboard, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your FlexView account as may be required for your business. SHYFT is not responsible for maintaining Transaction History or other records in a manner consistent with your record retention obligations.
Payout Schedule
Your Payout Schedule, which is the time it takes us to initiate a transfer to your Bank Account, settled funds from card transactions processed through a third-party Payment Processor. We reserve the right to change your Payout Schedule, suspend payouts to your Bank Account or initiate a Reversal should we deem it necessary due to pending disputes, excessive or anticipated excessive Chargebacks or Refunds, or other suspicious activity associated with your use of SHYFT FlexView, or if required by law or court order.
Disputes & Reversal
If you believe that an unauthorized or otherwise problematic transaction has taken place, you agree to notify us immediately, to enable us to take action either directly and/or with third-party payment service providers (“Payment Processors”) to help prevent financial loss.
All claims against SHYFT or Payment Processors related to payments should be made within 45 (forty-five) days after the date of such payment. It will be taken that you waive all claims against us, to the fullest extent of the law after the said period of time.
We may intervene in disputes between users and merchants concerning payments but have no obligation to do so.
Your transaction ID and/or transaction details will be required to resolve all disputes.
Notification of Errors
You agree to notify us immediately if any error is detected while reconciling transactions that have occurred using SHYFT FlexView. We will investigate and rectify the errors where verified. In the event that we notice any errors, we will also investigate and rectify such errors. Where we owe you money as a result of such errors, we will refund the amounts owed to you by a bank transfer to your Bank Account.
If a transaction is erroneously processed through your platform, report it to us immediately. We will investigate any such reports and attempt to rectify the errors by crediting or debiting your Bank Account as appropriate. Failure to notify us within 45 (forty-five) days of an error will be deemed a waiver of your rights to amounts owed to you due to an error.
Chargebacks
A Chargeback usually happens when a customer files directly with or disputes through his or her credit or debit card issuer a payment on their bill or with a Payment Processor. It may result in the reversal of a transaction. You may be assessed Chargebacks for (i) customer disputes; (ii) unauthorized or improperly authorized transactions; (iii) transactions that do not comply with Card Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious; or (iv) any reversals for any reason by the Card Network, the Payment Processor, or the acquiring or issuing banks. Where a Chargeback occurs, you are immediately liable for all claims, expenses, fines and liability we incur arising out of that Chargeback and agree that we may recover these amounts by debiting your Bank Account. Where these amounts are not recoverable through your Bank Account, you agree to pay all such amounts through any other means.
Reserves
In our sole discretion, we may place a Reserve on a portion of your Payouts by holding for a certain period, such portion where we believe there is a high level of risk associated with your business. If we take such steps, we will provide you with the terms of the Reserve, which may include the percentage of your Payouts to be held back, period of time, and any other such restrictions that SHYFT may deem necessary. Where such terms are changed, we will notify you with at least a 5-day notice. You agree that you will remain liable for all obligations related to your transactions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, Chargebacks, and other adjustments.
To secure your performance of this Agreement, you grant SHYFT a legal claim to the funds held in the Reserve as a lien or security interest for amounts payable by you.
Refunds and Your Services
You agree that you are solely responsible for processing and providing services your customers, tenants or end-users pay for. We are under no obligation to process or provide services or goods to your customers, provide refunds or returns of your products and services, or respond to your customers’ inquiries about returns of your products and services. You agree to submit all Refunds for returns of your products and services paid for through the Payment Processor to your customers per this Agreement.
Restricted Activities & Acceptable Use Policy
You are independently responsible for complying with all applicable laws related to your use of our software, applications and services. However, by accessing or using SHYFT FlexView, you agree to comply with the terms and conditions of our Acceptable Use Policy and are restricted from the activities specified in it which you can read on our Acceptable Use Policy page.
Indemnity
You agree to defend, indemnify, and hold SHYFT, its officers, directors, employees, agents, licensors, and suppliers harmless from and against any claims, actions or demands, liabilities and settlements, including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of this Agreement.
Updates, Modifications & Amendments
We may need to update, modify or amend our Terms of Use and Service as our technology evolves. We reserve the right to make changes to this Terms of Use at any time by giving notice to users on our website.
We advise that you check the website often, referring to the date of the last modification on the page. If a user objects to any of the changes to the Terms of Use and Service, the User must cease using our software, applications, and/or services immediately.
Miscellaneous
You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Assigning or sub-contracting any of your rights or obligations under these Terms of Use to any third party is prohibited. We reserve the right to transfer, assign or sub-contract the benefit of the whole or part of any rights or obligations under these Terms of Use to any third party.
Termination
Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) upon 90-day advance written notice to SHYFT; upon any such termination, (i) You will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such outstanding fees will become immediately due and payable.
Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order), and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of SHYFT in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If this Agreement is terminated by SHYFT in accordance with Clause 36.1, you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to SHYFT for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Survival. The following Sections will survive any termination or expiration of this Agreement: 5, 6, 18, 19, 20, 21 and 33, 34, 35, and 36.
This Terms of Use and Service supersedes all prior agreements and understandings, written or verbal, between SHYFT Power Solutions and its users unless expressly stated otherwise.
Last Modified April 25, 2023.