Last Updated: January 30, 2023
A. License. For Systems using Software which includes Provider’s proprietary software-as a service platform that provides reporting and data analytics with respect to energy usage using data from metering devices (“Platform”) and/or API (“API”), Provider grants to Customer a non-exclusive, non-transferable (except as set forth below), limited license to (a) allow Customer’s employees consultants, contractors and agents who are authorized by Customer (“Authorized Users”) to access the Platform and use the information and data made available thereon and (b) access the API, including indirectly by means of a software development kit made available by Provider, but only using an API Key issued to Customer. Provider will provide to Customer the necessary passwords to allow Customer and its Authorized Users to access the Platform and Customer will be responsible for the information technology infrastructure and systems needed for it and its Authorized Users to access the Platform. The total number of Authorized Users will not exceed the number set forth in the Schedule, or as otherwise agreed to in writing by the parties, and subject to any appropriate adjustment of any fees payable to Provider for access to the Platform. From time to time, Provider may, in its sole discretion, make available Upgrades to the Platform. Nothing herein, or otherwise in the agreement between the parties, obligates Provider to make Upgrades available to Customer as part of the System or otherwise. For purposes of these T&Cs, “Upgrades” means certain additions, enhancements, new modules, and other upgrades that include new features and substantial increases in functionality of the Platform.
B. Communication Issues. Customer acknowledges and agrees that (a) Provider does not control the transfer of data over communications facilities, including the internet, and that access to the Platform may be subject to limitations, delays, and other problems inherent in the use of such communication facilities, and (b) Provider will not be liable or responsible for the unavailability of the Platform to the extent due to (i) any act or omission by Customer or any Authorized User, (ii) Customer’s delay in performing, or failure to perform, any of its obligations under these T&Cs or the agreement between the parties, (iii) Customers’ or its Authorized Users’ internet connectivity; (iv) Force Majeure; (v) failure, interruption, outage, or other problem with any software, hardware, system, network facility, or other component not supplied by Provider pursuant to the agreement between the parties, (vi) any scheduled downtime of the Platform; or (vii) any Suspension.
C. Data Validation. To correctly calibrate its metering devices, Provider must be allowed to validate meter data against Customer’s utility bill. Provider cannot ensure, and shall have no liability with respect to, proper installation and meter data accuracy if Provider is unable to validate meter data against a Customer utility bill.
D. Restrictions on Use. Customer will not use the Platform for any purposes beyond the scope of the rights granted in Section A. above. In addition to the restrictions stated in the written agreement between Provider and Customer, Customer will not at any time, directly or indirectly, and will not allow any Authorized Users or any third party to: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer or otherwise make available (other than to Authorized Users) the Platform, access to the API, or any content, data, or information made available thereon, or provide an API Key to any third party; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform (except to the extent permitted by applicable law); (d) remove, alter, or obscure product identification, copyright, or other proprietary rights notices embedded within, or on, the Platform; (e) write or develop any program based upon the Platform, or, to the fullest extent permitted by applicable law, otherwise use any portion of the Platform in any manner for the purpose of developing, distributing, or making accessible products or services that compete with any portion of the foregoing; (f) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other proprietary right of any person, or that violates any applicable law; (g) access the API in a fraudulent manner, including by using any digital credentials not issued to Customer by Provider; or (h) circumvent or otherwise interfere with any authentication or security measures of the Platform or API, or otherwise interfere with or disrupt the integrity or performance of the Platform.
E. Suspension. Provider may temporarily suspend Customer’s and any Authorized User’s access to all or any portion of the Platform and disable any API Key issued to the Customer if: (a) Provider reasonably determines that (i) there is a threat to or claim on any Redaptive IP (defined below), software or the Platform, (ii) Customer’s or any Authorized User’s use of the Platform disrupts or poses a security risk to the Platform, any other customer or vendor of Provider, or to Provider’s information technology systems and networks used to provide or deliver the Platform; (iii) Customer, or any Authorized User, is using the Platform for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Provider’s provision of the Platform or API to Customer or any Authorized User is prohibited by law; (b) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Platform or API; or (c) Customer fails to make any payment due to Provider as and when due (any such suspension described in subclause ((a), (b), or (c), a “Suspension”). Provider will use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the API and Platform, as applicable, following any Suspension. Provider will use commercially reasonable efforts to resume providing access to the API and Platform as soon as reasonably possible after the event giving rise to the Suspension is cured to its reasonable satisfaction. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Suspension.
F. Intellectual Property Ownership. As between the Parties, Provider will own and retain all right, title and interest in and to (a) any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, that are owned or otherwise controlled by, or licensed or otherwise made available to, Provider, including as embodied in the Provider metering equipment (and any firmware installed on or otherwise embedded in the metering equipment), Software (as defined in the agreement between the parties), API, and Platform (“Redaptive IP”), and all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with the Redaptive IP, and (c) all intellectual property rights related to any of the foregoing. As between the parties, any and all Redaptive IP are the sole and exclusive property of Provider or its licensors and Customer will not acquire any ownership interest in any Redaptive IP under this Agreement. Except as expressly set forth herein, nothing herein grants any right, title or interest in or to (including any license under) any Redaptive IP, whether expressly, by implication, estoppel, or otherwise.