Last updated on July 1, 2019
These terms of constitute a legally binding agreement (the “Agreement”) between Station A, Inc. (“Company”) and Subscriber (defined below). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use and receive access to certain Services (defined below) as identified in one or more Order Forms (defined below).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) ANY SERVICES (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“SUBSCRIBER”); AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUBSCRIBER AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
“Authorized Users” means Subscriber, its affiliates and its and their respective employees or contractors authorized by Subscriber to use the Services.
“Documentation” means Company-provided user documentation, in all forms, relating to the Services (e.g., user manuals, online help files).
“Services” means Company’s proprietary web-based platform, which enables finding efficient energy solutions for commercial properties.
“Scope Limitations” means the limitations on Subscriber’s use of the Services specified on the Order Form for those Services.
This Agreement sets forth the terms and conditions on which Company makes available to Subscriber Services expressly identified in an order form, statement of work, or other ordering document (e.g., a web-based order process) that (a) is signed by the parties (including via electronic means) and (b) expressly references and incorporates this Agreement (each, an “Order Form”). Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement.
An Order Form may reference one or more additional documents that contain terms relevant to particular Services (each, an “Addendum”). Each Addenda is deemed incorporated into the applicable Order Form.
Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will continue for the “Initial Order Form Term” specified in such Order Form. Upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Form Term or such other length of Renewal Term period as stated on the Order Form (the Initial Order Form Term and each Renewal Term, if any, collectively, the “Order Form Term” of such Order Form), unless a party has given the other party notice of non-renewal at least 30 days before the end of the Initial Order Form Term or then-Current Renewal Term, as applicable. Termination of this Agreement will terminate all Order Form Terms then in effect unless otherwise specified on the applicable Order Form.
Any conflict between an Order Form, an Addendum, or the body of this Agreement (the “Master Terms”) will be resolved according to the following order of precedence: (1) the Order Form; (2) the Addendum; and (3) the Master Terms.
Subject to the terms and conditions of this Agreement, Company grants to Subscriber a limited, worldwide, enterprise-wide, non-exclusive, non-transferable (except as permitted in Section 9.2) right during the term of this Agreement to allow the Authorized Users to use the Services solely in connection with Subscriber’s internal business operations. Subscriber’s right to use the Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations. To avoid doubt, as to Services licensed on a per-seat basis, the credentials registered in connection with that licensed seat and the seat itself may only be used by the single Authorized User Subscriber has assigned to that seat and may only be reassigned if that individual ceases to be an Authorized User.
Subject to the terms and conditions of this Agreement, Company grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 8.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
Company will not be required to provide any support services in connection with the Services. Subscriber may contact customer support at email@example.com if Subscriber is encountering any problems using the Services, or to request other support services. Any requests for additional support services may involve additional fees to be agreed to by the parties, and can be accepted or rejected in Company’s sole discretion.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Services or Documentation; use the Services to provide services to third parties (e.g., as a service bureau); provide any data, information, or reports obtained through the Service to any third party, or to anyone other than an Authorized User or Subscriber’s customers solely for the customers’ use as part of the products or services Subscriber provides to those customers; allow anyone other than an Authorized User to use the Services, or allow more Authorized Users than designated in your account; circumvent or disable any security or other technological features or measures of the Services; use any tool or process that accesses the Services in a manner that degrades the Services; nor access the Services programmatically or by automatic process.
If Subscriber registers on Company’s website for a free trial, Company will make the applicable Service(s) available to Subscriber on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Subscriber registered to use the applicable Service(s), or (b) the start date of any Services subscriptions ordered by Subscriber for such Service(s) on a paid basis, or (c) termination by Company in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Subscriber will use the Services and Documentation in compliance with all applicable laws and regulations.
Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Company in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Company Services or Documentation.
Company grants to Subscriber a limited right to use the Services and Documentation under this Agreement. Subscriber will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Company reserves to itself all rights to all Company technology, including the Services, Documentation, and any Company Services usage data collected or obtained by Company, such as improvements to the Services that are developed based on Subscriber usage of the Services, not expressly granted to Subscriber in accordance with this Agreement. Certain portions of the Services may be available under open source licenses from other sources. Nothing in this Agreement restricts Subscriber’s ability to obtain and use any applicable software from any third-party sources.
If Subscriber provides any feedback to Company concerning the functionality and performance of the Services (including identifying potential errors and improvements), Subscriber hereby assigns to Company all right, title, and interest in and to the feedback, and Company is free to use the feedback without payment or restriction.
Company does not claim ownership of any data, text, files, information, or other content or materials (including without limitation any third party energy usage data) that Subscriber uploads on or through the Services (the “Data”). Subscriber represents and warrants that: (i) it owns the Data utilized by Subscriber on or through the Services or otherwise have the right to grant the rights and licenses set forth in this Section 3.9; and (ii) the use of the Data on or through the Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights. Subject to the terms and conditions of this Agreement, Subscriber grants to Company a limited, worldwide, non-exclusive, fully paid and royalty-free, non-transferable license to access and use the Data solely in connection with Company’s internal business operations. Furthermore, Company shall ensure that the Data is not accessible to any of its other subscribers.
Subscriber will pay Company the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. To avoid doubt, as to Services licensed on a per-seat may be subject to additional fees. If Subscriber wishes to license additional seats, Subscriber must contact Company, and the parties will negotiate in good faith as to an Order Form for such additional seats. Subscriber will provide Company with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Company. If Subscriber provides credit card information to Company, Subscriber authorizes Company to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Company will invoice Subscriber in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date for non-credit card payments. Subscriber is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
Other than net income taxes imposed on Company, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Subscriber will pay any additional Taxes as are necessary to ensure that the net amounts received by Company after all such Taxes are paid are equal to the amounts that Company would have been entitled to in accordance with this Agreement as if the Taxes did not exist.
This Agreement will remain in effect until terminated in accordance with this Section 5 (the “Term”).
Either party may terminate this Agreement for convenience immediately upon notice to the other party at any time that no Order Form is in effect.
Either party may terminate this Agreement or one or more Order Forms if the other party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Company may, without limitation to any of its other rights or remedies, suspend access to the Services under all Order Forms until it receives all amounts due.
If this Agreement is terminated for any reason, a) Subscriber will pay to Company any fees or other amounts that have accrued prior to the effective date of the termination, b) any and all liabilities accrued prior to the effective date of the termination will survive, and c) Subscriber will provide Company with a written certification signed by an authorized Subscriber representative certifying that all use of Services and Documentation by Subscriber has been discontinued.
Notwithstanding anything to the contrary herein, Sections 1, 2, 5.4, 6, 7, 8, and 9 will survive termination or expiration of this Agreement.
Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. COMPANY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICES OR RELIANCE ON ANY DATA OBTAINED THROUGH THE SERVICE.
Subscriber will defend Company from any actual or threatened third party claim arising out of or based upon Subscriber’s use of the Company Services or Subscriber’s breach of any of the provisions of this Agreement if: Company gives Subscriber prompt written notice of the Claim; Company grants Subscriber full and complete control over the defense and settlement of the Claim; Company provides assistance in connection with the defense and settlement of the claim as Subscriber may reasonably request; and Company complies with any settlement or court order made in connection with the Claim. Company will not defend or settle any claim without Subscriber’s prior written consent. Company will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
Subscriber will indemnify Company from and pay: all damages, costs, and attorneys’ fees finally awarded against Company in any Claim under Section 6.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of a Claim under Section 6.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 6.1.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO COMPANY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Company will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
Company may use the name, brand, or logo of Subscriber (or Subscriber’s parent company) solely for the purpose of identifying Subscriber as a licensee or customer of Company in a ‘customer’ section of Company’s website, brochures, or other promotional materials, or as part of a list of Company’s customers in a press release or other public relations materials. Any such limited use by Company shall include proper attribution to Subscriber or its parent company of any trademark or logo of Subscriber or its parent company, and shall in no way suggest that Company is affiliated with, or speaking on behalf of, Subscriber or Subscriber’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Subscriber shall require mutual approval in writing prior to public dissemination thereof.
Subscriber may not assign its right, duties, and obligations under this Agreement, including by change of control or operation of law, without Company’s consent. Company may assign this Agreement, including by change of control or operation of law, at any time without notice or consent. If Subscriber experiences a change of control other than an internal restructuring or reorganization: Subscriber will give written notice to Company within 30 days after the change of control; and (b) Company may immediately terminate the Agreement any time within 30 days after it receives that written notice.
Company may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Company remains responsible for all of its obligations under this Agreement.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party, as to Company, to 2912 Diamond Street, #359, San Francisco, CA 94131, and as to Subscriber, at the address provided when Subscriber registers for the Services and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 9.5. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
Except for the payment obligations in Section 3, neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California in connection with any action arising out of or in connection with this Agreement.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Company Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Company Services will immediately terminate.
This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Company may provide. No employee, agent, or other representative of Company has any authority to bind Company with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Company specifically agrees to such provision in writing and signed by an authorized agent of Company.
Any inquiries related to the Station A Terms of Service can be sent to firstname.lastname@example.org