TERMS OF SERVICE
This agreement is between SPERE POWER LLC, a Texas limited liability company, on behalf of itself and its Affiliates (collectively, SPERE POWER), and the Customer agreeing to these terms (Customer), and is effective as of the date of the last signature below. Affiliate means any direct or indirect subsidiary of SPERE POWER LLC. SPERE POWER LLC enters into this agreement on behalf of itself and its Affiliates that provide any portion of the Service, and is responsible for their performance under this agreement.
1. SOFTWARE SERVICE.
This agreement and the applicable order provide Customer access to and usage of a web-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service). SPERE POWER may perform the Service directly or through its Affiliates and subcontractors, and remains responsible for the performance of the Service under this agreement regardless of which entity provides any portion of it. Orders may be issued by, and invoices
may be rendered by, SPERE POWER LLC or any of its Affiliates, and each such order is governed by this agreement.
2. USE OF SERVICE.
a. Detailed Description of Platform, Monitoring and Demand Response Service. The Platform, Monitoring Service and Demand Response Service is further described at this link sperepower.io and is incorporated into this agreement for all purposes
.b. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between SPERE POWER and Customer (Customer Data). Customer represents and warrants to SPERE POWER that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this agreement. During the term of an order, Customer grants SPERE POWER the right to use the Customer Data to as necessary to properly provide, maintain and enhance the Service and create Analytical Data. During the term of an order form, Customer may export its Customer Data as allowed by functionality within the Service.
c. Analytical Data. SPERE POWER grants Customer a non-exclusive perpetual license to use the Analytical Data.
• As part of the Service, SPERE POWER will process the Customer Data using SPERE POWER’s proprietary models and other technology to provide, among other things: provide reports, notifications, energy savings, usage, and alerts; and monitoring activity and action; data and information (Analytical Data).
• SPERE POWER retains information regarding the on-premise equipment, location and utility meter data, provided by Customer, as part of the Analytical Data.
• SPERE POWER retains all right, title and interest to the Analytical Data.
d. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is responsible for its access control policies and administration of access rights to its account within the Service, the acts and omissions of its users, and the legality and accuracy of Customer Data; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify SPERE POWER promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical guide and applicable law.
e. SPERE POWER Support. SPERE POWER must provide Customer support for the Service under the terms
of SPERE POWER’s Customer Support Policy (Support), which is located at _______.
f. Third-Party HVAC Equipment Internet Access. The Service requires interoperation with specific
third-party equipment located at the Customer’s premises, including but not limited to internet-connected HVAC systems (Equipment with Internet Access). The Customer acknowledges that full-Service functionality depends on uninterrupted access to this Equipment and its application programming interfaces. The Customer retains sole responsibility for securing such access, maintaining necessary rights, and paying all fees related to the Equipment with Internet Access for the purposes of this Agreement.
3. SERVICE LEVEL AGREEMENT AND WARRANTY.
g. Availability Warranty. SPERE POWER warrants to Customer that SPERE POWER will maintain the availability of the Service as provided in the chart below (excluding maintenance outages, outages beyond SPERE POWER’s reasonable control, third party services, and outages that result from any Customer technology issues).
Credit for Availability Warranty.
Less than 99% = 3% of monthly fee for each full hour of an outage (beyond the warranty) *
CUSTOMER’S EXCLUSIVE REMEDY AND SPERE POWER’S SOLE OBLIGATION FOR ITS FAILURE TO MEET THIS WARRANTY WILL BE FOR SPERE POWER TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES SPERE POWER OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.
h. Warranty. SPERE POWER warrants to Customer that: (i) SPERE POWER will not materially decrease the overall security of the Service; (ii) the Service will perform materially in accordance with its technical documentation; and (iii) SPERE POWER will neither materially decrease the overall functionality of the Service nor the scope of Support.
i. DISCLAIMER. SPERE POWER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE SPERE POWER TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, SPERE POWER DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT (I) THE SERVICE MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED, AND (II) SPERE POWER IS NEITHER RESPONSIBLE NOR LIABLE FOR ANY THIRD PARTY SERVICE ISSUES.
4. PAYMENT.
j. Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If SPERE POWER has the legal obligation to pay or collect taxes for which Customer is responsible under this section, SPERE POWER will invoice Customer and Customer will pay that amount unless Customer provides SPERE POWER with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service,
which orders are governed by the terms of this agreement.
k. Nonpayment. Any invoiced amount not received by SPERE POWER by the due date may accrue interest at the lower rate of 1.5% per month or the maximum rate permitted by law. In addition, if an invoiced amount is 10 days or more past due, SPERE POWER may suspend Service and Support until the amount is paid in full.
5. MUTUAL CONFIDENTIALITY.
l. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that isdesignated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). SPERE POWER’s Confidential Information includes, without limitation, the Service, pricing information, and the Mobile Software (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.
m. Protection of Confidential Information. Recipient must use the same degree of care that it uses toprotect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement. Recipient may disclose Confidential Information to its Affiliates and to its and their employees, contractors, and professional advisors who need that access for purposes consistent with this agreement and who are bound by obligations of confidentiality
at least as protective as those in this agreement. Recipient remains responsible for any breach of this agreement by its Affiliates and their personnel.
n. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. PROPERTY.
o. Reservation of Rights. SPERE POWER and its licensors are the sole owners of the Service and the Mobile Software, including all associated intellectual property rights, and they remain only with SPERE POWER. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Mobile Software. SPERE POWER reserves all rights that are not expressly granted in this agreement.
p. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) disassemble, decompile or reverse engineer the Service or any part thereof, the Mobile Software , or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service by any means whatsoever; or (vi) access the Service or use the Mobile Software to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. SPERE POWER may suspend Service to Customer if SPERE POWER believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, SPEREPOWER will work with Customer to address the issue and restore Service as quickly as possible.
q. Mobile Software. All mobile app software provided by SPERE POWER with the Service (Mobile Software) is licensed to Customer as follows: SPERE POWER grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the technical documentation, solely with the Service.
r. Statistical Information. SPERE POWER may compile statistical information related to the Service and may make such information publicly available, provided that such information does not identify Customer Data, Customer or any of its equipment and there is no means to re-identify Customer Data, Customer or its equipment. SPERE POWER retains all intellectual property rights in such information.
7. TERM AND TERMINATION.
s. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
t. Term of Orders. The term of each order must be specified in the order.
u. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
v. Effect of Termination. If this agreement is terminated for SPERE POWER’s breach, SPERE POWER will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Following any termination of this agreement, each party will destroy all of the other party’s property or data that it holds.
8. LIABILITY LIMIT.
w. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, SPERE POWER IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
x. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR SPERE POWER’S INDEMNITY OBLIGATIONS, SPERE POWER’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY, EXCEPT THAT THE ABOVE LIMITATION DOES NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS FOR THE SERVICE. THE FOREGOING LIMITATIONS APPLY ON AN AGGREGATE BASIS TO SPERE POWER LLC AND ITS AFFILIATES, AND TO ANY CLAIM AGAINST ANY OF THEM ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE NUMBER OF CLAIMS OR ENTITIES INVOLVED.
9. INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
y. SPERE POWER will defend or settle any third-party claim against Customer to the extent that such claim alleges that SPERE POWER technology used to provide the Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies SPERE POWER of the claim in writing, cooperates with SPERE POWER in the defense, and allows SPERE POWER to solely control the defense or settlement of the claim. Costs. SPERE POWER will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, SPERE POWER-negotiated settlement amounts agreed to by SPERE POWER, and court-awarded damages. Process. If such a claim appears likely, then SPERE POWER may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If SPERE POWER determines that none of these are reasonably available, then SPERE POWER may terminate the Service and refund any prepaid and unused fees. Exclusions. SPERE POWER has no obligation for any claim arising from: SPERE POWER’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by SPERE POWER. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SPERE POWER’S
SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
z. If a third party claims against SPERE POWER that (i) any part of the Customer Data is unlawful or provided without authorization to SPERE POWER, or (ii) arises out of Customer’s use of the Service (except for infringement issues covered by (a) above or SPERE POWER’s breach of this agreement), Customer must indemnify, defend and hold SPERE POWER, and its Affiliates, harmless against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees incurred or suffered by SPERE POWER, provided that SPERE POWER promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND FORUM.
Any dispute arising out of or in connection with this agreement shall be decided by a single arbitrator under the Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Services (JAMS) or such other dispute resolution entity jointly agreed upon by the parties. Any arbitration hearing shall take place in Dallas, Texas. The decision of the arbitrator shall be final and binding, and the award may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs, in addition to an award of damages or other relief, if any
11. OTHER TERMS
aa. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
bb. No Assignment. Neither party may assign or transfer this agreement to a third party, except that the agreement and all orders may be assigned without the consent of the other party (i) as part of a merger or sale of all or substantially all of a party’s businesses or assets, not involving a competitor of the other party, or (ii) to an Affiliate of the assigning party, provided that the assigning party remains responsible for performance under this agreement.
cc. Export Compliance. The Service, the Mobile Software, and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
dd. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party.
ee. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control and whether foreseeable or not, including but not limited to natural weather events and disasters, labor disruptions, disruptions in the supply of utilities, and public Internet failures.
ff. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
gg. U.S. Federal Agency Entities. The Service was developed solely at private expense and is commercial computer software and related documentation within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto.
hh. No Additional Terms. SPERE POWER rejects additional or conflicting terms of a Customer’s form-purchasing document.
ii. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
jj. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
kk. Mobile Software. SPERE POWER may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. SPERE POWER does not warrant that the Mobile Software will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that SPERE POWER may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
ll. Feedback. If Customer provides feedback or suggestions about the Service, then SPERE POWER (and those it allows to use its technology) may use such information without obligation to Customer.
|
____________ (Customer)
|
SPERE POWER LLC (SPERE POWER)
|
|---|---|
|
Signature: |
Signature: |
|
Printed Name: |
Printed Name: |
|
Title: |
Title: |
|
Date: |
Date: |
|
Address:
|
Address:
|
EXHIBIT A - MOBILE SOFTWARE FROM APPLE APP STORE
The following applies to any SPERE POWER Mobile Software Customer acquires from the Apple App Store
(App Store Software):
a. Acknowledgment. This agreement is between SPERE POWER and Customer only, and not with Apple, and SPERE POWER, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
b. Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
c. Maintenance and Support. SPERE POWER is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. SPERE POWER and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
d. Warranty. SPERE POWER is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of SPERE POWER to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is SPERE POWER’s sole responsibility.
e. Product Claims. SPERE POWER and Customer acknowledge that SPERE POWER, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the Health Kit and Home Kit frameworks. This agreement does not limit SPERE POWER’s liability to Customer beyond what is permitted by applicable law.
f. Intellectual Property Rights. SPERE POWER and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
g. Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
h. Developer Name and Address. Company’s name is SPERE POWER LLC, address is, and the contact information ___________ to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed.
i. Third-Party Terms of Agreement. Customer must comply with applicable third-party terms of use when using the App Store Software (e.g., if the App Store Software is a VoIP application, Customer must not be in violation of its wireless data service agreement when using the App Store Software).
j. Third-Party Beneficiary. SPERE POWER and Customer acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.
EXHIBIT B - WEB SUPPORT & MAINTENANCE TERMS
|
Phone Support
|
[8AM] to [6PM] [CST] ([Monday-Friday]) (excluding company holidays)
|
|---|---|
|
Support Phone |
800/998-6996 |
|
Support Email |
support@spere.io |
|
Maintenance, |
Service maintenance, which includes maintenance releases, enhancements, new versions, additions, and modifications to the Service, that it |
RESPONSE TIME CHART
|
SEVERITY
|
DEFINITION
|
RESPONSE GOAL
|
DETAILS
|
|---|---|---|---|
|
Severity 1
|
Service substantially fails
to perform.
|
1 hour
|
(1) Trouble Ticket opened. |
|
Severity 2
|
Substantial degradation in |
2 hours
|
(1) Trouble Ticket opened. |
|
Severity 3
|
Minimal-to-no impact on |
3 days
|
Commercially reasonable efforts to include in next major release.
|