Last Updated: February 24, 2022
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING PROVIDER’S EQUIPMENT AND/OR SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD IMMEDIATELY CEASE ACCESSING OR USING THE EQUIPMENT AND/OR SERVICES.
- Overview. These Terms govern your use of the Equipment and Services. Your purchase of Equipment is governed by the Order pursuant to which you purchased the Equipment and the equipment warranty (“Equipment Warranty”) available at https://redaptive.com/equipment-warranty, which is incorporated herein by reference.
“API” means the application programming interface that allows a software application to interact with the Platform.
“API Key” means a digital credential issued by Provider that enables access to and use of the API.
“Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to these Terms and the Order.
“Documentation” means the developer documentation or other written or online materials that Provider may make available from time to time regarding the API.
“Equipment” means Provider’s proprietary metering equipment as further defined in the Order.
“Firmware” means the firmware installed on or otherwise embedded in the Equipment by or on behalf of Provider, including updates.
“Force Majeure” means any event or circumstances beyond the reasonable control of and without the fault or negligence of the party claiming Force Majeure. It will include, without limitation, failure or interruption of the operation of the Equipment or the performance of the Services due to: an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out; explosion; fire; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; wind; drought; epidemic; pandemic; the binding order of any governmental authority; the failure to act on the part of any governmental authority (provided that such action has been timely requested and diligently pursued); unavailability of electricity from the utility grid (but not to the extent that any such availability of any of the foregoing results from the failure of the party claiming Force Majeure to have exercised reasonable diligence); and failure of equipment not utilized by or under the control of the party claiming Force Majeure.
“Order” means the Order Form entered into by and between Customer and Provider or a Reseller.
“Platform” means Provider’s proprietary software-as-a-service platform that provides reporting and data analytics with respect to energy usage using data from the Equipment.
“Provider IP” means 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 Equipment, Firmware, API, Documentation and Platform.
“Provider Materials” means the Equipment, Platform, API (and any software development kit Provider may make available for the API) and/or Services specified in the Order. For the avoidance of doubt, Provider Materials includes any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Equipment, Platform, and/or Services (other than Customer Data).
“Reseller” means an authorized reseller of Provider.
“Services” means Provider’s provision of the Platform and Support Services pursuant to the Order.
“Term” means the period of time defined in the Order, and during which these Terms will apply, with the exception of the sections which will survive the expiration, or termination of the Order, as detailed in these Terms.
- Use of Equipment, Platform and Firmware.
- Access and Use. During the Term and subject to Customer’s compliance with these Terms, Provider grants to Customer a non-exclusive, non-transferable (except as set forth below), limited license to: (a) allow Authorized Users to access the Platform and use the information and data made available thereon, (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, and (c) use the Firmware as installed on the Equipment, in each case, solely in accordance with the Terms and for Customer’s internal business purposes. 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 Order. Customer agrees that its purchases of Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features of the Services. From time to time, Provider may, in its sole discretion, make available Upgrades to a Service. Nothing in these Terms obligates Provider to make Upgrades available to Customer as part of the Service or otherwise unless specifically included in the Order. For purposes of these Terms, “Upgrades” means certain additions, enhancements, new modules, and other upgrades that include new features and substantial increases in functionality to a Service that Provider makes available for a fee.
- Communication Issues. Customer acknowledges and agrees that (i) 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 (ii) Provider will not be liable or responsible for the unavailability of the Platform to the extent due to (A) any act or omission by Customer or any Authorized User, (B) Customer’s delay in performing, or failure to perform, any of its obligations under these Terms; (C) Customer’s or its Authorized Users’ internet connectivity; (D) Force Majeure; (E) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other component not supplied by Provider pursuant to these Terms; (F) any scheduled downtime of the Platform; or (G) any Suspension.
- Restrictions on Use. Customer will not use the Platform, API, Firmware, Equipment, or other Provider Materials for any purposes beyond the scope of the rights granted in these Terms or the Order. 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, Equipment, Firmware, or other Provider Materials, in whole or in part; (ii) 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, Firmware, or other Provider Materials, or any content, data, or information made available thereon, or provide an API Key to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, Equipment, Firmware, or other Provider Materials, in whole or in part (except to the extent permitted by applicable law); (iv) remove, alter, or obscure product identification, copyright, or other proprietary rights notices embedded within, or on, the Platform, Equipment, Firmware, or other Provider Materials; (v) write or develop any program based upon the Platform, Equipment, Firmware, or other Provider Materials, or, to the fullest extent permitted by applicable law, otherwise use any portion of the Platform, Equipment, Firmware, or other Provider Materials in any manner for the purpose of developing, distributing, or making accessible products or services that compete with any portion of any of the foregoing; (vi) use the Platform, Equipment, Firmware, or other Provider Materials 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; (vii) access the API in a fraudulent manner, including by using any digital credentials not issued to Customer by Provider; or (viii) 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.
- Suspension. Notwithstanding anything to the contrary in these Terms, 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: (i) Provider reasonably determines that (A) there is a threat to or claim on any of the Provider IP or Provider Materials; (B) Customer’s or any Authorized User’s use of the Provider Materials disrupts or poses a security risk to the Provider Materials, to any other customer or vendor of Provider, or to Provider’s information technology systems and networks used to provide or deliver the Provider Materials; (C) Customer, or any Authorized User, is using the Provider Materials for fraudulent or illegal activities; (D) 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 (E) Provider’s provision of the Platform, API, or Equipment to Customer or any Authorized User is prohibited by applicable law; (ii) 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 any of the Provider Materials; or (iii) Customer fails to make any payment due under an Order as and when due (any such suspension described in subclause (i), (ii), or (iii), 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.
- Support Services. During the Term, with respect to the Platform, Provider will use commercially reasonable efforts to (i) facilitate remote troubleshooting guidance to help resolve functionality issues and (ii) provide availability within 30 days to Customer ((i) and (ii) collectively, the “Support Services”), provided that Customer is not otherwise in breach of these Terms. All Support Services will be initiated by Customer via email to email@example.com, which will be replied to from the hours of 7:00 AM PST until 7:00 PM PST on business days. Provider may notify Customer in writing of changes to the email or hours of operation from time to time. A case will be opened, and Provider will be obligated to provide the Support Services after Provider has confirmed that the Customer has provided Provider with all reasonably necessary information, including, but not limited to: Customer’s name, location at which Equipment is installed, Customer point of contact, phone number, email address, and description of the issue.
- Customer Responsibilities. Customer is responsible and liable for all uses of the Equipment, API and Platform resulting from access provided by Customer or Customer’s use, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users as if such acts or omissions were by Customer itself, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer.
- Equipment Installation, Modification and Uninstallation. EQUIPMENT INSTALLATION, MODIFICATION, AND UNINSTALLATION MAY ONLY BE PERFORMED BY, OR ON BEHALF OF, PROVIDER OR THE RESELLER FROM WHOM CUSTOMER PURCHASES THE EQUIPMENT UNLESS OTHERWISE AGREED TO IN WRITING BY PROVIDER. All installation, modification, or uninstallation of Equipment performed by any entity other than Provider (or a Provider subcontractor), must be performed by licensed electricians, suitably qualified, with the proper skill, licenses, approvals, consents, training and background to install, modify or uninstall the Equipment in a competent and professional manner and pursuant to the standards and procedures set forth in the applicable Equipment manual, or any other instructions provided by Provider.
- Export Regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of any data from the Equipment and/or Platform outside the U.S.
- Term and Termination. These Terms and the license granted hereunder automatically terminate at the end of the Term, unless earlier terminated under this section. Provider may terminate these Terms at any time if Customer fails to comply with any term(s) hereof. This right to terminate applies accordingly if Provider or the Reseller from whom Customer made its purchase does not receive timely payment for the Equipment and/or Services. Upon termination of these Terms, the license granted hereunder will terminate and Customer must stop all use of the Equipment and/or Services. Rights and obligations under sections of these Terms that, by their nature should survive, will survive termination, as well as obligations for payment. Any such termination by Provider will be without prejudice to any other right or remedy Provider may have under these Terms or at law or in equity. No such remedy of Provider will be exclusive of any other remedy.
- Disclaimer. Except as expressly set forth in these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any right, title, or interest in or to the Provider Materials, Provider IP, or any other technology or intellectual property rights. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, THE PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER MATERIALS, OR ANY EQUIPMENT OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Indemnity. You are responsible for Your, and Your Authorized Users’ use of the Equipment and/or Services. Provider is not responsible for any personal injury, death, property damage, or other harm or losses arising from or relating to Your, or Your Authorized Users’ use of the Equipment and/or Services. Customer will defend, indemnify and hold harmless Provider and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Provider Entities”) from and against any claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Customer’s or its Authorized Users’ use of, or misuse of, the Equipment and Services; (b) any bodily injury, death, or damage to real or tangible personal property caused by the acts or omissions of Customer or its personnel or any third party acting on Customer’s behalf (including, without limitation, in connection with installation, modification, and/or uninstallation of Equipment) (c) Customer’s violation of any portion of these Terms; or (d) Customer’s or its Authorized Users’ violation of any third party right, including any intellectual property right or publicity, confidentiality, other property or privacy right, through use of the Equipment or Services. Provider reserve the right, at its expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with Provider’s defense of those claims.
- Limitation of Liability. Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PROVIDER OR ITS AFFILIATES OR SUBSIDIARIES BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR CONTINGENT DAMAGES ARISING FROM OR RELATING TO THE SERVICES OR EQUIPMENT, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PROVIDER’S AND ITS AFFILIATES’ AND SUBSIDIARIES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THE EQUIPMENT AND SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER OR PROVIDER’S RESELLER FOR THE EQUIPMENT AND/OR SERVICES GIVING RISE TO THE LIABILITY IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PROVIDER DISCLAIMS ALL LIABILITY OF ANY KIND OF PROVIDER’S LICENSORS AND SUPPLIERS.
Without limiting the generality of this Section 7, Provider specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Equipment or Services, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs, or losses.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PROVIDER AND CUSTOMER. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Assignment. Neither the rights nor the obligations arising under these Terms are assignable by Customer, and any such attempted assignment shall be void and without effect. Provider may assign these Terms at any time without notice or consent.
- Confidentiality. Each party (the “Receiving party”) understands that the other party (the “Disclosing party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing party’s business, or any other information that should reasonably be considered to be confidential or proprietary given its nature or the context of its disclosure (“Confidential Information” of the Disclosing party). Confidential Information of Provider includes non-public information regarding features, functionality, and performance of the Equipment and Services. The Receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information (but in no event less than a reasonable degree of care) and (ii) not to use (except solely in performance of the Services or as otherwise permitted in these Terms) or divulge to any third person any such Confidential Information. The Disclosing party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving party can document (a) is or becomes generally available to the public other than as a result of a breach of this Section 9, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, provided that such third party is not and was not prohibited from disclosing such Confidential information, or (d) was independently developed without use of or reference to any Confidential Information of the Disclosing party, or (e) is required to be disclosed by law.
- Data Collection; Intellectual Property Ownership.
- Data Collection. Customer acknowledges that Provider or Provider’s subcontractors may collect information and raw data related to Customer’s energy usage from the Equipment, Firmware, and Platform, or that the Equipment, Firmware, and Platform may deliver certain information and raw data related to Customer’s energy usage to Provider or its subcontractors (“Customer Data”). Customer hereby grants Provider and Provider’s subcontractors a non-exclusive, irrevocable, perpetual, sublicensable, worldwide right to use, copy, distribute, display, perform and make derivative works of such data for any legitimate business purpose of Provider or Provider’s subcontractors, provided that any general public disclosure of such data will be done in a way such that Customer’s identity is not, and cannot through reasonable efforts, be determined.
- Intellectual Property Ownership. As between the parties, Provider will own and retain all right, title, and interest in and to (i) the Provider IP and Provider Materials, and all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with the Provider IP or Provider Materials, (c) any information or data that is collected or derived from the Equipment and/or Platform and any information or data that is provided to Customer as part of the Services (excluding the Customer Data), and (d) all intellectual property rights related to any of the foregoing. As between the parties, any and all Provider IP are the sole and exclusive property of Provider or its licensors and Customer will not acquire any ownership interest in any Provider IP under these Terms. Except as expressly set forth in these Terms, nothing in these Terms grants any right, title, or interest in or to (including any license under) any Provider IP, whether expressly, by implication, estoppel, or otherwise.
- External Communications. Customer authorizes Provider to use the name, corporate logo, trade name, service mark, or trademark of Customer to display on Provider’s website or other marketing materials.
- General Provisions.
- Choice of Law. The law of the State of California will govern these Terms without giving effect to conflict of laws principles.
- Arbitration and Attorneys’ Fees. Any dispute arising from or relating to these Terms will be conducted in the English language and arbitrated in San Francisco, California. The arbitration will be administered by JAMS Arbitration and Mediation services in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the parties agree, a mediator may be consulted prior to arbitration. The prevailing party in any dispute arising out of these Terms will be entitled to reasonable attorneys’ fees and costs. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the Terms and the Order and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in these Terms. Notwithstanding the agreement to arbitrate, each party may apply at any time to a court of competent jurisdiction for appropriate injunctive relief or for other interim or conservatory measures, and by doing so will not breach or waive the agreement to arbitrate or impair the powers of the arbitrator.
- Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Notices. Any notice to Customer may be provide by email to the address that Customer registered with Provider. Notwithstanding the foregoing, Provider may make changes to these Terms in accordance with Section 12.5.
- Changes to these Terms. Provider reserves the right to make changes to these Terms. Provider will post notice of changes to this page by updating the “Last Updated” date above. Customer should ensure that it has read and agreed with the most recent Terms when Customer uses the Equipment and Services. Continued use of the Equipment and Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE CHANGES TO THE TERMS, CUSTOMER SHOULD CEASE ACCESSING AND/OR USING THE EQUIPMENT AND SERVICES.
- Severability. If any provision of these Terms is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- Waiver. All waivers by Provider will be effective only if in writing. Any waiver or failure by Provider to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Third-Party Beneficiaries. If Customer agrees to these Terms in connection with Customer’s acquisition of Equipment from a Provider reseller, Customer acknowledges and agrees that Provider is an intended third-party beneficiary of these Terms, with an independent right of enforcement against Customer. Except as otherwise expressly provided in the previous sentence, these Terms and all rights hereunder and under the Order are intended for the sole benefit of the parties hereto and will not imply or create any rights on the part of, or obligations to, any other person.
- Relationship. Nothing in these Terms creates any agency, joint venture, partnership or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
- Survival. Any provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of these Terms, including but not limited to Sections 3.3, 6, 7, 9, and 12.
- Entire Agreement. These Terms, together with any other agreements expressly incorporated by reference in these Terms, is the entire and exclusive understanding and agreement between Customer and Provider regarding Customer’s use of the Equipment and Services.
Questions or Additional Information. If You have questions regarding these Terms, please contact Provider by emailing firstname.lastname@example.org.