THESE TERMS (“AGREEMENT”) CONTROL YOUR (“YOU” OR “YOUR” OR “EVALUATOR”) ACCESS TO THE OPUS ONE SOLUTIONS ENERGY CORPORATION (“OPUS ONE”) OPUS ONE PRODUCTS. BY ACCESSING THE OPUS ONE PRODUCTS AND ITS CONTENT YOU AGREE TO THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS OR USE THE OPUS ONE PRODUCTS.
NOW THEREFORE, in consideration of the respective covenants and agreements of the parties contained herein and other such good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or under common control with Opus One or Evaluator, as the case may be, where “control” means the ownership of 50% or more of an entity.
“Cloud Environment” means the System installed and operating in an environment provided by or on behalf of Opus One.
“Confidential Information” means any information of Opus One, its affiliates or licensors that is disclosed to Evaluator or its Affiliates under this Agreement and that is designated in writing as confidential or that a reasonable party would understand to be confidential, by the nature of the information or the circumstances in which it is disclosed. The Opus One Products are Confidential Information.
“Derivative Work” means any modification or work that is derived from, based on or incorporates code or other intellectual property from the Opus One Products that, if created without a license to do so from Opus One, would infringe Opus One’s intellectual property rights.
“Disclosing Party” means the party disclosing Confidential Information under this Agreement.
“Documentation” means any software product user guides, manuals, and other documentation for the Opus One Products provided to Evaluator by Opus One under this Agreement, including any Updates.
“Effective Date” means the date you are granted access to the Opus One Products. .
“Evaluator Extensions” means any software developed by Evaluator or that consists of extensions to the Opus One Products created using the Opus One SDKs but is not a Derivative Work.
“Evaluator Software” means any software developed by or on behalf of Evaluator by a third party that interacts with Opus One Products via Opus One’s application programming interfaces but is not a Derivative Work.
“Receiving Party” means the party receiving Confidential Information under this Agreement.
“Regular Business Hours” means from 9:00 am to 5:00 pm Monday to Friday Eastern Time (other than holidays observed in Opus One time zone).
“Opus One Products” means collectively the Opus One Software, and Documentation.
“Opus One Software” means the object-code version of Opus One’s software program, GridOS Integrated Distribution Planning (including any related Opus One application programming interfaces), together with any Updates and Documentation.
“Opus One SDKs” mean the object-code versions of Opus One’s software development kits (including any related Opus One application programming interfaces), together with any related Updates and Documentation provided to Evaluator under this Agreement.
“System” has the meaning ascribed to such term in Section 2.1(a).
“Term” has the meaning ascribed to such term in Section 6.1.
“Update” means any upgrades to the Opus One Products, which may be made available by Opus One to Evaluator in Opus One’s sole discretion.
- SOFTWARE AS A SERVICE
2.1 Software as a Service. Commencing on the Effective Date, subject to the terms and conditions of this Agreement, Opus One shall deploy, manage and operate the Opus One Software and Opus One SDKs on the System in the Cloud Environment and provide access to and use thereof to Evaluator on a Software as a Service basis. In connection therewith, Opus One shall:
- provide all hardware and infrastructure internal to the Cloud Environment (the “System”), including but not limited to hardware, operating systems, file storage, firewalls, network, security, patching and deployment services;
- perform preventative maintenance of the System on a regular basis and as required by a third-party supplier;
- provide Opus One Software and data management and maintenance activities and product upgrades (not including any needed additional configuration),
- provide change management with respect to all infrastructure and application changes;
- monitor the availability of the Opus One Software in the Cloud Environment during Regular Business Hours; and
- conduct all scheduled maintenance of the Cloud Environment and Opus One Software to minimize disruption in Evaluator’s use of the Cloud Environment.
- EVALUATION AND TESTING RIGHTS GRANTED
3.1 Access and Use Grant. Subject to the terms of this Agreement, Opus One grants to Evaluator a non-exclusive, non-sublicenseable and non-transferable (except as otherwise expressly stated below) right to access and use the Opus One Products solely for internal evaluation purposes, for use by no more than one (1) user.
3.2 Restrictions on Use. Evaluator shall not, and shall not authorize or enable a third party to:
- use, reproduce, modify, lease, rent, permit concurrent use of, or distribute the Opus One Products other than as expressly permitted in this Agreement;
- make the Opus One Products available to any third parties;
- disassemble the Opus One Products or unbundle any software they contain;
- prepare or create Derivative Works;
- reverse engineer, decompile, or otherwise derive without authorization the source code of the Opus One Products (except and only to the extent these restrictions are expressly prohibited by applicable statutory law);
- transfer the Opus One Products from one computer to another over a network, except as otherwise permitted herein;
- remove or modify any proprietary notices from the Opus One Products; or
- disclose any results of any tests run on the Opus One Products.
3.3 Enforcement. Evaluator will reasonably cooperate with Opus One in any legal action taken by Opus One to prevent or stop unauthorized use, reproduction, modification, or distribution of the Opus One Products or any other violation of Opus One’s rights.
- CONSULTING AND SUPPORT SERVICES
No consulting services or technical support services will be provided by Opus One to Evaluator under this Agreement. All terms relating to the provision of any such services by Opus One to Evaluator will be set forth in a separate agreement between the parties.
- INDEPENDENT AUDIT
Opus One may have an independent auditor approved by Evaluator (which approval will not be unreasonably withheld) inspect the relevant records, books, networks, and equipment of Evaluator as necessary to verify Evaluator’s compliance with this Agreement. Any such inspection will be conducted in a manner that does not unreasonably disrupt Evaluator’s normal business operations. Evaluator will make such books, records, networks, equipment, and personnel and office available for such inspection during normal business hours. Opus One agrees to provide Evaluator no less than ten (10) days advance written notice of its desire to perform an inspection. Any such audit will be at Opus One’s expense, unless Opus One discovers a breach of this Agreement, in which case, Evaluator will reimburse Opus One for such expenses and Opus One will be able to seek all available remedies.
- TERM AND TERMINATION
6.1 Term. This Agreement will commence on the Effective Date and will continue for a period of sixty (60) days (the “Term”) unless terminated earlier as provided in this Agreement.
6.2 Termination for Default. Opus One may terminate this Agreement, by written notice to Evaluator, in the event Evaluator:
- breaches its obligations under Section 3.2 (Restrictions on Use) or Section 8 (Confidential Information);
- materially breaches any other term of this Agreement and fails to cure such breach within thirty (30) days following written notice from Opus One.
- Opus One may in its sole discretion terminate the Agreement with or without cause at any time by giving notice of termination to Evaluator
6.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, and unless otherwise agreed by the parties:
- any and all rights granted to Evaluator will terminate; and
- Evaluator will promptly destroy (or return if requested by Opus One) all copies of the Opus One Products and Opus One’s Confidential Information in Evaluator’s possession or control and, if requested by Opus One, provide a certificate stating that Evaluator has done so, signed by an officer of Evaluator. Evaluator will comply with all applicable export laws in connection with such delivery.
6.4 Survival. The parties’ rights and obligations under Sections 3.2 (Restrictions on Use), 5 (Independent Audit), 6 (Term and Termination), 7 (Disclaimers), 8 (Confidential Information), 9 (Proprietary Rights), 10 (Limitation of Liability), and 11 (General Provisions) will survive any termination or expiration of this Agreement.
ACCESS TO AND USE OF THE OPUS ONE PRODUCTS AND OPUS ONE CONFIDENTIAL INFORMATION ARE PROVIDED TO EVALUATOR “AS IS”. ON BEHALF OF ITSELF AND ITS LICENSORS AND THE OPUS ONE AFFILIATES, OPUS ONE DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND SUCCESSFUL SYSTEM INTEGRATION.
- CONFIDENTIAL INFORMATION
The Receiving Party will use the Confidential Information of the Disclosing Party only to perform its obligations or exercise its rights under this Agreement. “Confidential Information” means any information of the Disclosing Party, its Affiliates or licensors that is disclosed to the Receiving Party or its Affiliates under this Agreement and that is designated in writing as confidential or that a reasonable person would understand, by the nature of the information or the circumstances in which it is disclosed, to be confidential, but does not include information that (i) the Receiving Party independently develops without reference to the Disclosing Party’s Confidential Information, (ii) is or becomes public knowledge through no fault of the Receiving Party, (iii) the Receiving Party already knows at the time the Receiving Party receives the Confidential Information from the Disclosing Party, or (iv) the Receiving Party receives from a third party not subject to confidentiality obligations. The Opus One Products are deemed to be the Confidential Information of Opus One.
The Receiving Party will not directly or indirectly disclose or make the Disclosing Party’s Confidential Information available to any other party, except to such of its Affiliates, and to such of its, its Affiliates’ employees and professional advisers, who need it for the purposes set out in this Agreement and are legally bound to maintain the confidentiality of such Confidential Information. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any person to whom the Receiving Party has directly or indirectly disclosed such Confidential Information. Notwithstanding any provision in this Agreement, the Receiving Party will not disclose Confidential Information of the Disclosing Party to any of the Disclosing Party’s competitors.
The Receiving Party will protect the Confidential Information of the Disclosing Party with at least the same degree of care that it uses to protect its own information of similar confidentiality and value (but in any event, not less than a reasonable degree of care). The Receiving Party will notify the Disclosing Party in writing of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information of which the Receiving Party becomes aware, and assist the Disclosing Party in remedying such unauthorized use or disclosure.
Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information when required to do so by law, judicial body or government agency. Unless otherwise prohibited by law, the Receiving Party will give prompt, written notice, when possible, of any legal requirement that it disclose Confidential Information, and will disclose Confidential Information only to the extent required by law. The Receiving Party will use reasonable efforts to help the Disclosing Party prevent such disclosure of the Confidential Information and to help obtain confidential treatment therefor.
The Receiving Party acknowledges that any breach of this Section 8 may cause irreparable harm to the Disclosing Party for which monetary damages are an inadequate remedy. The Disclosing Party may seek an injunction or other equitable relief to restrain any such breach or the continuation thereof without showing or proving that it has sustained, or will sustain, actual damage.
Notwithstanding anything to the contrary, Opus One is hereby granted a non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up, worldwide, transferable license and right to generate Aggregated Anonymous Data (as defined below) and freely collect, use, copy, modify, create derivative works of, disclose and make available to third parties for their use and other exploitation, and otherwise exploit Aggregated Anonymous Data for any business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Opus One in connection with Evaluator’s use of the Opus One Software, but only in aggregate, anonymized form which doesn’t specifically identify Evaluator. Notwithstanding anything to the contrary in this Agreement, in no event may Evaluator provide, upload or submit to Opus One, through the Opus One Software or otherwise, any personally identifiable information, unless specifically requested by Opus One in each case, through a request separate and apart from this Agreement. If Evaluator provides Opus One with any such information, then Evaluator represents and warrants that it has all appropriate authorizations to provide such information to Opus One for use and handling in accordance with this Agreement.
Opus One alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Opus One Products or the Opus One Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Evaluator or any third party relating to the Opus One Products or Opus One Software, which are hereby assigned to Opus One. Evaluator will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
- PROPRIETARY RIGHTS
9.1 Opus One Ownership Rights. Opus One and its licensors retain all rights, including intellectual property rights and registrations, to the Opus One Products and Opus One’s Confidential Information. Evaluator will not acquire any rights, including without limitation intellectual property rights and registrations, in the Opus One Products or Opus One’s Confidential Information under this Agreement.
9.2 Evaluator Ownership Rights. Evaluator retains all rights, including intellectual property rights and registrations, to the Evaluator Extensions, Evaluator Software and Evaluator’s Confidential Information. Opus One has no ownership interest in and will not acquire any rights, including intellectual property rights and registrations in the Evaluator Extensions, Evaluator Software or Evaluator’s Confidential Information under this Agreement.
- LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND EXCEPT FOR BREACHES OF SECTION 8 (CONFIDENTIAL INFORMATION) NEITHER OPUS ONE NOR ITS AFFILIATES OR LICENSORS WILL BE LIABLE TO EVALUATOR UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, BUSINESS OR DATA, EVEN IF OPUS ONE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, OPUS ONE’S TOTAL LIABILITY FOR DAMAGES OR CLAIMS IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY USED, WILL NOT EXCEED ONE THOUSAND US DOLLARS (US$1,000.00).
- GENERAL PROVISIONS
11.1 Notices. All notices given under this Agreement shall be in writing, in English, and sent by email, nationally recognized overnight courier service or by registered or certified mail (return receipt requested) to the address of the recipient set out below (or to such other person or address as a party may designate by notice given in accordance herewith):
Notice to Opus One: Opus One
50 West Pearce Street, Unit 16, Richmond Hill, Ontario
Notice to Evaluator: As per the registration form.
Notices will be deemed to have been given when received.
11.2 Assignment. Evaluator may not assign or otherwise transfer this Agreement or its rights under this Agreement without Opus One’s prior written consent, such consent not to be unreasonably withheld and such attempted assignment or transfer in violation of this section is void. Opus One may freely assign or otherwise transfer this Agreement or its rights under this Agreement without Evaluator’s prior written consent. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
11.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create any agency, partnership, joint venture, or employment relationship between the parties. Neither party nor its licensees or agents has any authority to bind the other.
11.4 Governing Law; Consent to Jurisdiction. If the Customer business address entered on the registration page used for the software referenced in this Agreement is located in the United States: This Agreement will be governed by the laws of the State of New York, excluding its rules regarding conflicts of law; and Venue for any dispute hereunder shall be a court of competent jurisdiction located in New York, New York, and the parties irrevocably submit to the exclusive jurisdiction of such courts. If the Customer business address entered on the registration page used for the software referenced in this Agreement is located in Canada or in a region other than the United States: This Agreement will be governed by the laws of the Province of Ontario, excluding its rules regarding conflicts of law; and Venue for any dispute hereunder shall be a court of competent jurisdiction located in the City of Toronto, in the Province of Ontario and the parties irrevocably submit to the exclusive jurisdiction of such courts. Each party waives any right to jury trial in connection with any action or ligation in any way arising out of or related to this Agreement. The prevailing party in any dispute arising out of or related to this Agreement will be entitled to be reimbursed for all incurred reasonable legal costs and expenses.
11.5 Injunction. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement prevents either party from seeking injunctive relief in the appropriate or applicable forum.
11.6 Export Laws. Evaluator will not export, or re-export, directly or indirectly, any Opus One Product to any country in violation of the laws and regulations of any applicable jurisdiction, including the United States.
11.7 Approvals. Evaluator represents and warrants that Evaluator is not required to obtain approvals from any governmental entity to sign or perform under this Agreement, that Evaluator will comply with all laws while performing under this Agreement, and that Evaluator will not violate any intellectual property rights or other rights of any third party in exercising its rights under this Agreement.
11.8 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the invalid or unenforceable provision will be deemed modified so as to be valid and enforceable to the maximum extent permitted under applicable law. The parties agree to immediately negotiate in good faith a replacement for any such provision in order to preserve the interests of the parties to the extent permitted by law. A waiver by either party of any default or breach of a provision hereof shall not be binding upon a party unless the waiver is in writing and the waiver shall not affect such party’s rights with respect to any other or future default or breach.
11.9 Entire Agreement. This Agreement, together with the registration form constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements (including any previously executed confidentiality agreements) and all past courses of dealing or industry custom. The parties may not modify any term of this Agreement except in a writing signed by an authorized representative of each party.