Terms of Service Agreement
The Terms of Service Agreement (the “Agreement”) is made and entered into by and between David Energy Systems, Inc. a Delaware Corporation with its principal place of business at 880 3rd Avenue, New York, NY (“DES”), and the entity named in the Service Order as the address set forth in the Service Order (“Customer”) (collectively “the Parties” and individually each a “Party”) agree to the following terms and conditions as follows:
“DES Gateway” shall mean the DES website, interface, portal, and applications through which Authorized Users of Customer may access the DES Services and, as applicable, related DES Software or other services.
“Authorized User” shall mean an employee, consultant, independent contractor, representative or member entity of Customer, and identified by Customer as such, who i) has received a valid password and login ID from DES or from Customer’s User Administrator (as defined herein) to access and utilize DES Services though an DES Gateway and ii) has accepted and agreed to the terms of this Agreement.
“DES Hardware” means one or more DES supplied proprietary monitoring devices, including any related hardware, software and materials used in connection with the DES Services in support of such DES Hardware.
“DES Services or Services” shall mean certain DES energy assessment, reporting, management and monitoring services, including but not limited to monitoring of the EcoGenesis SmartGrid®, as contracted for in the Service Order.
“DES Software” shall mean DES proprietary and licensed software module(s) in the delivery of the DES Hardware and DES Services.
2. DES Services
DES agrees to provide the DES Services to Customer for its internal business processes on a non-exclusive, non-transferable, non-assignable basis during the Term. Such Services will be provided to Customer by means of authorized access to the DES Gateway. To enable Customer to use the DES Services, and upon Customers payment of all applicable Services fees, DES grants to Customer, during the Term, a personal, non-exclusive, non-sublicenseable, non-transferable and non-assignable license for Authorized Users solely to access and execute the DES Services through the DES Gateway strictly for the benefit of Customer’s internal business operations.
“Customer” shall mean the party or parties, including but not limited to, subsidiaries, affiliates, or a member entity as may be limited or authorized in the Service Order.
“Transaction Data” shall mean the Customer’s energy usage data and other information that will be collected by the DES Hardware or as provided by Customer during the Term of the DES Services.
“Term” shall mean the duration of DES Services as mutually agreed by the Parties in writing.
“DES Properties” means DES owns or is an authorized licensee for all intellectual property used for purposes of providing the DES Software, DES Hardware and the DES Services under these terms, whether developed prior to the commencement of the DES Services or anytime thereafter.
3. Customer Obligations.
Customer will be responsible for designating an employee or other person (“User Administrator”) who shall be responsible for facilitating Customer’s review of reports, logs, and other auditing information provided through the DES Gateway. Customer will be responsible for maintaining the confidentiality and security of passwords and login IDs and all activities that occur under these IDs. DES reserves the right to terminate any login ID which DES reasonably believes may have been used by an unauthorized third party or by any user or individual other than the Authorized User to whom such login ID and password was rightfully assigned.
Customer is also responsible for maintaining the required hardware, software, Internet connections and other resources necessary for Customer and Authorized Users to access the DES Services through the DES Gateway. It shall be Customer’s sole responsibility, at Customer’s sole cost and expense, to make appropriate arrangements with DES or other third party with respect to required access to Customer’s premises, systems, subsystems, and internet connection to install DES Hardware and maintain the DES Except for hardware provided by DES, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the DES Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
For purposes of this Agreement, Customer’s premises shall include all site locations and premises where Customer’s equipment or other facilities are located, whether owned, leased or otherwise used by Customer, individually or on a shared basis. Customer shall allow DES, or its authorized representative, reasonable access to the premises and use of Equipment, space, and electricity at no charge, as necessary, to provide the DES Services. Customer shall be responsible for all security and controls to the premises and the DES Hardware located there and the Equipment. Customer also agrees not to allow liens to be placed on any DES Equipment (herein defined) located at Customer’s premises provided by DES. If a lien is placed on any DES Equipment, Customer agrees to cause such lien to be immediately removed, at Customer’s sole expense, or if Customer fails to timely remove such lien, DES may cause such lien to be removed at Customer’s sole expense.
Throughout the term of any order for the DES Services or DES Hardware, DES may replace or alter the DES Equipment used to provide the DES Services, so long as the basic technical parameters of the DES Services are not altered. Customer shall not rearrange, move or repair DES Equipment or its underlying service provider’s equipment located at Customer’s premises without DES’s prior written consent. Customer shall notify DES of any major changes to energy-use or climate-related assets, major degradations of its Equipment or any systems or subsystems of which Customer is aware, any planned (or actual) increases in use or occupancy which may have a substantive impact on the energy use or consumption of its properties.
4. Ownership & Proprietary Rights
DES owns or is an authorized licensee for all intellectual property used for purposes of providing the DES Services under this Agreement, whether developed prior to the commencement of this Agreement or anytime thereafter (“DES Properties”). All right, title and interest (including, without limitation, all copyright, patent, trade secret, trademark and other intellectual property rights) in and to the DES Properties (including the DES Software) and any corrections, updates, adaptations, release notes, enhancements or copies of the foregoing shall remain or vest exclusively with DES. Customer remains the owner of the data that it provides, and, upon full payment by Customer to DES, the results and reports provided by DES under this Agreement. DES shall own and retain all right, title and interest in and to the DES Services, all data collected pursuant thereto, aggregated, derived and modified. No rights or licenses are granted except as expressly set forth herein.
5. Confidential Information
Each party (the “Receiving Party”) agrees that all products, software, inventions (whether patentable or not), algorithms, designs, trade secrets, know-how, ideas, product development plans, information pricing and discounts, and all business, technical and financial information it obtains from the other (the “Disclosing Party”) are the confidential property of the Disclosing Party and its suppliers (“Confidential Information”). Except as expressly and unambiguously allowed herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
The Receiving Party’s nondisclosure obligation will not apply to information that was publicly known at the time of the Disclosing Party’s communication thereof to the Receiving Party or becomes publicly known thereafter through no fault of the Receiving Party; was in the Receiving Party’s possession free of any obligation of confidence at the time of the Disclosing Party’s communication thereof to the Receiving Party; is rightfully obtained by Receiving Party from third parties authorized to make such disclosure without restriction; or is identified by Disclosing Party as no longer proprietary or confidential. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the Disclosing Party’s remedies at law for a breach by the Receiving Party of its obligations under this provision will be inadequate and that Disclosing Party will be entitled to equitable relief (including, without limitation, provisional and permanent injunctive relief) in addition to any other remedies.
Without limiting the foregoing, Customer hereby agrees not to provide or disclose any DES Confidential Information, documentation or any information regarding DES Services to any DES competitors. The obligations set forth in this provision shall survive any termination of this Agreement. Customer agrees and acknowledges that the Transaction Data shall not constitute Confidential Information as defined herein. Customer shall redact any Confidential Information that could be contained therein, including, but not limited to personally identifiable information and sensitive personal information as such terms are used in information security and privacy laws, prior to providing the same to DES. Customer shall indemnify and hold DES harmless for any and all claims relating to any breach of confidentiality of the Transaction Data. Customer further consents that DES may utilize the Transaction Data in any manner and at any time during or after the Term of the Agreement.
Except as otherwise expressly set forth in this Agreement, Customer agrees that it will not, without the prior written consent of DES, directly or indirectly (a) transfer, assign, lease, loan, resell for profit, distribute or otherwise grant any rights in the Agreement or the DES Services, DES Software, or DES Hardware, in any form to any third party, including commercial time-sharing, rental or service bureau use; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the DES Services, DES Software or DES Hardware; or (c) copy, modify, translate, or create derivative works based on the DES Services, DES Software or DES Hardware. Customer is responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and Authorized Users’ conduct shall be imputed to Customer.
Customer shall not cause or allow any third party or unlicensed user or computer system, other than an Authorized User, to access or use the DES Services or DES Software. Customer shall not introduce any infringing or otherwise unlawful data or material or any virus, spyware, malware or disabling code into the into DES Software, systems or environment, nor shall Customer remove, obscure or alter any intellectual property right or confidentiality notices or legends appearing in or on any aspect of the DES Services.
7. Injunctive Relief
The Parties agree that in the event of any breach or threatened breach of this Agreement; the non-breaching Party may suffer an irreparable injury, such that no remedy at law will afford that Party adequate protection against or appropriate compensation for such injury. Accordingly, in addition to remedies available at law, the Parties hereby agrees that the non-breaching Party shall be entitled to seek specific performance as well as such injunctive relief as may be granted by a court of competent jurisdiction.
8. Disclaimers of Liability
- DES DOES NOT MAKE AND HEREBY DISCLAIMS THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE DES SERVICES OR DES HARDWARE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, OR THAT ALL DEFECTS IN WILL BE CORRECTED. TO THE FULL EXTENT PERMITTED BY LAW, DES DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS. ALL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS. CUSTOMER’S USE OF THE DES SERVICES AND/OR DES HARDWARE IS AT CUSTOMERS OWN RISK. DES IS NOT LIABLE FOR ANY RELIANCE UPON ANY SERVICE OR FOR ANY DECISION MADE BY CUSTOMER.
- NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, WHETHER IN AN ACTION IN CONTRACT OR TORT INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A NON-PAYMENT BREACH BY CUSTOMER, EACH PARTY’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED IN THE AGGREGATE OF THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE IMMEDIATELY PRECEEDING TWELVE (12) MONTH PERIOD. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Indemnification by DES.
DES, at its expense, shall defend, indemnify and hold Customer harmless from and against any loss, damages or liability from any claim, suit or proceeding (collectively, a “Claim”), to the extent arising out of, or related to, the use by Customer of the DES Software in strict accordance with this Agreement and alleging infringement of a United States patent issued on or before the Effective Date or a copyright or trade secret right of any third party; provided that Customer: (i) promptly notifies DES of such Claim when known; (ii) provides DES with full control of the defense and settlement of each such Claim; (iii) cooperates with DES in such defense and settlement, and (iv) does not settle any such Claim or suit without DES’ prior written consent. Customer may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that DES shall continue to have sole control of such defense or settlement.
If any portion of the DES Software becomes, or in DES’ opinion is likely to become, the subject of a claim of infringement, DES may, at its option: (a) procure for Customer the right to continue using the DES Software; (b) replace the DES Software with non-infringing services which do not materially impair the functionality of the DES Services; (c) modify the DES Software so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused fees actually paid by Customer to DES for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the DES Software, DES Services and DES Hardware. Notwithstanding the foregoing, DES shall have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the DES Software not in accordance with this Agreement; or (ii) any use of the DES Software in combination with other products, equipment, software or data not supplied by DES if the DES Software without such combination does not infringe. This provision states the sole and exclusive remedy of Customer and the entire liability of DES with respect to infringement claims and actions.
10. Indemnification by Customer
Customer, at its expense, shall defend, indemnify, and hold DES harmless to the extent any Claims relate to or arise from Customer’s failure to i) redact any Confidential Information, personally identifiable information or sensitive personal information from the Transaction Data, ii) proper use of the DES Software, DES Services and DES Hardware as intended or, iii) for any unlawful purposes provided that DES: (i) promptly notifies Customer of such Claim when known; (ii) provides Customer with full control of the defense and settlement of each such Claim; (iii) cooperates with Customer in such defense and settlement, and (iv) does not settle any such Claim or suit without Customer’s prior written consent. DES may participate in the defense and settlement of any Claim with counsel of its choice at its own expense provided that Customer shall continue to have sole control of such defense or settlement.
11. Payment Terms and Service Fees
Customer shall pay DES the Service fees (inclusive of all Monthly Recurring Service Fees and Charges) and/or expenses, as set forth in the Service Order. If Customer disputes the charge of any invoice, it must notify DES no later than five (5) days from the invoice date. Invoices not paid by the due date shall be considered delinquent and shall, in addition to the monthly late payment fee, accrue interest from the due date until paid at a rate equal to the lesser of 1-1/2% per month or the maximum rate allowed by Applicable Law. All payments will be satisfied by Customer by company check or electronic fund transfers. Customer shall be liable to reimburse DES for any and all expenses incurred associated with collection efforts for any delinquent invoice, inclusive of collection agency fees, reasonable attorney fees and costs, including court costs. Customer shall be responsible for all sales taxes, use taxes, withholdings and any other taxes and charges of any kind imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding only Federal and State taxes on DES’ gross income.
If Customer fails to make any payment due hereunder, and fails to cure such breach within thirty (30) days after receiving written notice from DES, then DES may immediately upon written notice, terminate this Agreement (a “Nonpayment Breach”). In the event of termination by DES for a Nonpayment Breach, all Services fees through end of the Term shall become immediately due and payable (the “Termination Fee”) and Customer shall be obligated to make such payment even though DES will not continue to provide the DES Services in view of Customer’s non-payment. Unless otherwise stated herein, all Services fees paid are non-refundable. Customer agrees that the Termination Fee is intended, therefore, to establish liquidated damages and is not intended as a penalty. Upon termination of this Agreement for any reason, all licenses granted to Customer hereunder with respect to the DES Services, DES Software and DES Hardware shall automatically terminate and Customer shall immediately discontinue its use thereof. Further, Customer shall be liable for the return and the cost for any and all DES Hardware and any additional DES owned-equipment, in good, working condition, normal wear and tear accepted (collectively “DES Equipment”), within ten (10) business days of termination. Any DES Equipment not timely returned or returned damaged, Customer shall pay the greater of $1500.00 or the full replacement value for each DES Equipment item.
13. Obligations Upon Termination
Upon termination of this Agreement or expiration of its Term, the Parties shall work together in good faith to address any and all post-termination issues. Any and all unpaid Service fees and expenses incurred in connection with the DES Services prior to termination shall become immediately due and payable.
Each Party agrees to comply with all laws and regulations that are applicable to the business in which that Party transacts and in the performance of its obligations under this Agreement. Additionally, each Party agrees to cooperate with the other in its reasonable efforts to monitor and ensure compliance with all such applicable laws and regulations.
Any notice required or permitted to be given under this Agreement shall be given in writing and shall be delivered in person, via email communications with confirmation of receipt, or overnight mail or by certified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail or upon acknowledgment of receipt of confirmation receipt of delivery. Notices shall be sent to the respective Party at the addresses first set forth in the Agreement, or such other address as either Party may specify in writing.
16. Waiver or Delay
A waiver of a breach of any term of this Agreement must be in a writing signed by the waiving Party and shall not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. No failure or delay by either Party to enforce or take advantage of any provision or right under this Agreement shall constitute a subsequent waiver of that provision or right, nor shall it be a waiver of any of the other terms and conditions of this Agreement.
17. Force Majeure
If by reason of labor disputes, strikes, lockouts, riots, war, acts of terrorism, cyber attack, earthquake, fire or other major action of the natural elements, accidents, governmental restrictions, appropriation or other causes, including acts or omissions of third parties, beyond the reasonable control of a Party hereto (“Force Majeure Event”), either Party is unable to perform in whole or in part its obligations as set forth in this Agreement, then such Party shall be relieved of those obligations (other than the payment of money) to the extent it is so unable to perform and such inability to perform shall not make such Party liable to the other Party. Neither Party shall be liable for any loss, injury, delay or damages (other than failure to receive monies when due) suffered or incurred by the other Party due to the above causes. In the event of a Force Majeure Event exceeding 180 consecutive days, either Party shall have the right to terminate this Agreement upon 30 days written notice to the other Party with neither Party having any further obligation to the other Party upon such termination unless otherwise stated herein.
The provisions of this Agreement are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected or impaired thereby and shall nevertheless be binding between the Parties hereto. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the objectives of such provision or portion thereof within the limits of applicable law or applicable court decisions.
19. Governing Law
This Agreement shall be construed in accordance with and all disputes hereunder shall be governed by the laws of the State of New York without reference to that state’s choice of law provisions.
20. Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the P The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either Party except those expressly granted herein.
21. Counterparts and Effective Date
This Agreement may be executed as an original, via electronic signature, or accepted as a click-through through the DES Gateway, each of which shall be deemed an original, and in several counterparts, as applicable, all of which shall constitute one and the same instrument. The effective date of this Agreement shall the be latter of the date of the last signature of the Service Order or upon click through acceptance of these terms of service by Customer (the “Effective Date”).
22. Entire Agreement
This Agreement represents the entire agreement of the Parties and supersedes any prior or collateral agreements, communications or understandings between the Parties with respect to the subject matter hereof. This Agreement may not be modified except in a writing executed by duly authorized representatives of the P
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