GRIDSMART® Technologies, Inc. End-User License Agreement
IMPORTANT – PLEASE READ CAREFULLY
This Agreement: This End-User License Agreement is entered into between GRIDSMART Technologies, Inc., a Delaware corporation (“GRIDSMART”) and You. This Agreement constitutes a legally binding agreement with respect to Your installation and use of the GRIDSMART Software (also known as the GRIDSMART client) and Your access to and use of the GRIDSMART Website, the GRIDSMART Products, the GRIDSMART Promotional Materials, the GRIDSMART Online Materials, the GRIDSMART Documentation and any other products or services from time to time offered by GRIDSMART (collectively, the “GRIDSMART Services”). You will be deemed to have accepted the terms and conditions set forth in this Agreement the first time You install the GRIDSMART Software or access or use any of the GRIDSMART Services. You may be required to affirmatively accept this Agreement on the GRIDSMART Website, but the failure to affirmatively accept this Agreement shall not limit the legally binding nature of this Agreement.
Electronic Signature(s): You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies
Table of Contents:
- License and Restrictions
- What You Should and Should Not Expect from GRIDSMART
- What GRIDSMART Expects from You
- Term; Termination; Updates
- Disclaimer of Warranties and Limitation of Liability
- Definitions; Interpretation.
1.1. Definitions. The defined terms set forth below shall have the following meanings:
“Affiliate” means any individual, corporation, limited liability company or other entity that directly or indirectly controls, is controlled
“Agreement” means this End-User License Agreement, as it may from time to time be updated or modified.
“Content” means published information or experiences, including without limitation, texts, sounds, images (static and moving), designs, graphics, photographs, drawings, performances, videos and any similar type of information, communication or material.
“Data” means all data collected through the GRIDSMART Products.
“Effective Date” means the date on which You download or install the GRIDSMART Software or access or use the GRIDSMART Services for the first time.
“GRIDSMART” shall have the meaning set forth in the first paragraph of this Agreement.
“GRIDSMART API” means the application program interface consisting of the set of routines utilized by the GRIDSMART Software to provide the GRIDSMART Software functionality for a given platform or operating system, the GRIDSMART API being included in or linked to the GRIDSMART Software as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof.
“GRIDSMART Documentation” means any documentation, electronic, hard copy or otherwise, provided by GRIDSMART.
“GRIDSMART Modules” means any and all GRIDSMART modules, as from time to time modified and created, including but not limited to
“GRIDSMART Online Material” means the GRIDSMART information, materials
“GRIDSMART Products” means any GRIDSMART products, including but not limited to cameras and processors.
“GRIDSMART Promotional Materials” means any and all trademarks, trade names, names, signs, logos, banners, and any other materials and Content, in whatever form, owned or used by GRIDSMART for the promotion of GRIDSMART, the GRIDSMART Software or the GRIDSMART Services.
“GRIDSMART Services” shall have the meaning set forth in the first paragraph of this Agreement. The term the GRIDSMART Services may include one, multiple or all of the services
“GRIDSMART Software” means the software distributed by GRIDSMART, including without limitation the GRIDSMART API, the GRIDSMART UI, the GRIDSMART Documentation, and all GRIDSMART Modules, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof.
“GRIDSMART Staff” means the officers, directors, employees
“GRIDSMART Website” means any and all elements, contents and the “look and feel” of the websites located at the URLs www.GRIDSMART.com, http://GRIDSMARTcloud.com/ and any other URLs from which the GRIDSMART Software can be accessed or used.
“GRIDSMART UI” means GRIDSMART Client, the user interface of the GRIDSMART Software.
“IP Rights” means (i) patents, pending patent applications, designs, trademarks and trade names (whether registered or unregistered), copyright and related rights, database rights,
“Password” means a code You select, which, in combination with the User ID, gives You access to Your User Account.
“User Account” means the account with a User ID and a Password that You create to download the GRIDSMART Software or to access or use of the GRIDSMART Services.
“User ID” means the identification code You selected, which in combination with the Password, gives access to Your User Account.
“You” means You, the end user of the GRIDSMART Software, also used in the form “Your” where applicable.
1.2 Interpretation. References to the singular include the plural and vice versa, and references to one gender include the other gender. Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- License and Restrictions.
2.1 License. Subject to the terms of this Agreement, GRIDSMART hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and revocable license to download, install and use the GRIDSMART Software on Your individual computer, phone or PDA for the sole purpose of Your individual use of the GRIDSMART Services and the applications provided by GRIDSMART and any other applications that may hereafter be made available to You by GRIDSMART. You are allowed to use the GRIDSMART Software in accordance with this Agreement and any Additional Terms and Conditions. If, and only if, you purchase the applicable GRIDSMART Module (as set forth on the GRIDSMART Website), GRIDSMART hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to access and use the Data for community, non-commercial purposes; provided that GRIDSMART reserves the right to revoke the immediately foregoing license upon Your use of the Data for commercial purposes, as determined by GRIDSMART in its sole discretion.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the GRIDSMART Software or any part thereof. You agree to safeguard and keep confidential Your User ID and Password and will not allow any person access to or use of the GRIDSMART Software or any GRIDSMART Services.
2.3 No Modifications. You agree that only GRIDSMART or its authorized agents shall have the right to alter, maintain, enhance, customize or otherwise modify the GRIDSMART Software. GRIDSMART shall not be responsible for any malfunction, error or failure of the GRIDSMART Software resulting from any alteration, maintenance, enhancement, customization or modification performed by You or any unauthorized third party. You shall not disassemble, decompile, reverse engineer, reverse assemble, reverse compile,
2.4 Third Parties. The GRIDSMART Software may be incorporated
2.5 Exclusive Ownership. Any and all IP Rights in and to the GRIDSMART Software, the GRIDSMART Services and the Data are and shall remain the exclusive property of GRIDSMART or its licensors (collectively, the “GRIDSMART IP”). Nothing in this Agreement shall transfer all or any part of the GRIDSMART IP to, or to vest all or any part of the GRIDSMART IP in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the GRIDSMART IP. GRIDSMART shall be entitled to declare any unauthorized use of the GRIDSMART IP a material breach of this Agreement. All title and IP Rights in and to any third party Content that is not contained in the GRIDSMART Software or the GRIDSMART Services, but may be accessed through use of the GRIDSMART Software or the GRIDSMART Services, is the property of the respective owners thereof and may be protected by applicable copyright or other intellectual property laws. You acknowledge that all Data from GRIDSMART Products will be transmitted to GRIDSMART.
2.6 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the GRIDSMART IP Rights or any other rights of GRIDSMART related to the GRIDSMART Software or the GRIDSMART Services, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
2.7 Use of GRIDSMART API.
2.7.1 You may use of the GRIDSMART API provided that: (i) You use the GRIDSMART API only in connection with the GRIDSMART Software, and (ii) You regularly monitor the GRIDSMART Website and any Additional Terms and Conditions to ensure that You are aware of any changes thereto. If any changes to the Additional Terms and Conditions are not acceptable to You, You agree to immediately stop using the GRIDSMART API, the GRIDSMART Software and, where applicable, the GRIDSMART Services.
2.7.2 Any use of the GRIDSMART API other than in accordance with this Agreement shall be subject to GRIDSMART’s prior written consent.
2.8 GRIDSMARTs Promotional Materials. You are not entitled to use any of the GRIDSMART Promotional Materials.
- What You Should and Should Not Expect From GRIDSMART.
3.1 Utilization of Your Computer. GRIDSMART Software may utilize the processor and bandwidth of the computer (or
3.2 New Versions of the GRIDSMART Software. GRIDSMART, in its sole discretion, reserves the right to add additional features or
3.3 Suspension. GRIDSMART may, in its sole discretion and to the maximum extent permitted by applicable laws, modify or discontinue or suspend Your ability to use any version of the GRIDSMART Software or the GRIDSMART Services, and/or disable any GRIDSMART Software or the GRIDSMART Services You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, at GRIDSMART’s discretion, are in breach of this Agreement, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
- What GRIDSMART Expects From You.
4.1 Lawful purposes. You will use the GRIDSMART Software, the GRIDSMART Products, the Data
4.2 Representations. You represent and warrant that You are authorized to enter into this Agreement. Furthermore, You represent and warrant that You will at any and all times satisfy Your obligations under this Agreement and comply with all laws, regulations
4.3 Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD GRIDSMART AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH PARTIES, IN CONNECTION WITH OR ARISING OUT OF YOUR (A) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN, OR (B) VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY, OR (C) USE OR MISUSE OF THE GRIDSMART SOFTWARE OR THE GRIDSMART SERVICES, OR (D) COMMUNICATIONS SPREAD BY MEANS OF THE GRIDSMART SOFTWARE OR THE GRIDSMART SERVICES.
4.4 Utilization of Your Computer. If Your use of the GRIDSMART Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, You acknowledge and agree that Your license to use the GRIDSMART Software is subject to You obtaining consent from the relevant third party for such use. You represent and warrant that by accepting this Agreement and using the GRIDSMART Software, You have obtained such consent.
4.5 Export Restrictions. The GRIDSMART Software and the GRIDSMART Products may be subject to international rules that govern the export of software and hardware. You shall comply with all applicable international and national laws that apply to the GRIDSMART Software the GRIDSMART Products as well as end-user, end-use and destination restrictions issued by national governments. The GRIDSMART Software the GRIDSMART Products may not be exported or re-exported to or downloaded by any person in any countries controlled for
4.6 Government Users. The GRIDSMART Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the GRIDSMART Software or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
- Term; Termination; Updates.
5.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either GRIDSMART or You as set forth below. Any Additional Terms and Conditions that do not become effective on the Effective Date will be effective on the date on which they are accepted by You or You use the applicable GRIDSMART
5.2 Termination. You may terminate this Agreement at any time upon thirty days prior written notice to GRIDSMART. GRIDSMART may terminate this Agreement upon thirty days prior written notice to You. In addition, and without limiting any other remedies, GRIDSMART may immediately terminate this Agreement and Your access to and use of the GRIDSMART Software and the GRIDSMART Services if GRIDSMART reasonably believes that You (a) materially breach of this Agreement or any Additional Terms and Conditions, (b) create problems or actual or potential legal liabilities, (c) infringe on any third party’s IP Rights, (d) engage in fraudulent or illegal activities, (e) engage in other similar activities or (f) use the Data for commercial purposes in violation of Section 2.1 hereof. GRIDSMART shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to Your User Account. GRIDSMART reserves the right to cancel Your User Accounts if it has been inactive for more than one (1) year.
5.3 Consequences of Termination. Upon termination of this Agreement (a) all licenses and rights to use the GRIDSMART Software and the GRIDSMART Services shall immediately terminate; (b) You will immediately cease any and all use of the GRIDSMART Software and the GRIDSMART Services; and (c) You will immediately remove the GRIDSMART Software from all hard drives, networks
5.4 Updates and Modifications. GRIDSMART reserves the right to modify this Agreement and any of the Additional Terms and Conditions from time to time at its sole discretion. Any such change, update or modification will be effective immediately upon posting the modified version of this Agreement or any of the Additional Terms and Conditions on the GRIDSMART Website. GRIDSMART will provide no other notice to You. It is Your responsibility to review the GRIDSMART Website from time to time to ensure that You continue to agree with all of the terms and conditions applicable to the GRIDSMART Services. If you no longer agree to the terms and conditions applicable to the GRIDSMART Services after a modification, you must cease using the GRIDSMART Services.
- Disclaimer of Warranties and Limitation of Liability.
6.1 No Warranties: The GRIDSMART Software, the GRIDSMART Website, the GRIDSMART Promotional Materials, the GRIDSMART Online Materials, and the GRIDSMART Documentation (THE “materials”) ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER; GRIDSMART DOES NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE MATERIALS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. GRIDSMART FURTHER DOES NOT REPRESENT OR WARRANT THAT THE materials WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE, NOR DOES GRIDSMART WARRANT ANY RECEIPT OR TRANSMISSION FROM THE INTERNET MADE THROUGH THE GRIDSMART SOFTWARE OR IN CONNECTION WITH THE GRIDSMART SERVICES.
6.2 Your Own Risk: You acknowledge and agree that You will be using the GRIDSMART Software and the GRIDSMART Services at Your own risk.
6.3 No Liability: To the extent that any of the GRIDSMART SOFTWARE OR THE GRIDSMART Services are provided to You free of charge, YOU ACKNOWLEDGE AND AGREE THAT GRIDSMART, THE GRIDSMART STAFF AND THEIR RESPECTIVE AFFILIATES WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE GRIDSMART SOFTWARE OR THE GRIDSMART SERVICES.
6.4 Limitation of Liability: IN NO EVENT SHALL GRIDSMART, THE GRIDSMART STAFF AND THEIR RESPECTIVE AFFILIATES BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE GRIDSMART SOFTWARE; ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE THE GRIDSMART SOFTWARE OR THE GRIDSMART SERVICES; OR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF; (I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING THE GRIDSMART SOFTWARE OR THE GRIDSMART SERVICES; (II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY GRIDSMART FOR ANY REASON; OR (III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE GRIDSMART SOFTWARE TO YOU. THE LIMITATIONS ON GRIDSMART ‘S LIABILITY SET FORTH IN THIS SECTION 6 SHALL APPLY WHETHER YOU OR GRIDSMART, THE GRIDSMART STAFF OR THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
6.7 Jurisdiction’s Limitations: As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such
- Confidential Information.
7.1 Confidentiality. You agree to hold in trust, keep confidential, not make use of and not disclose or reveal to any third party any Confidential Information of GRIDSMART, whether oral, written, machine-readable or
7.2 Confidential Information. For purposes of this Agreement, “Confidential Information” means any and all information and materials that are proprietary to GRIDSMART, the same having been developed or acquired through the expenditure of time, effort and/or money. “Confidential Information” shall not include knowledge, information, documents or materials which (i) have entered the public domain without a breach of this or any similar Agreement having occurred; (ii) You have obtained without a breach of this or any similar Agreement having occurred; (iii) is permitted to be disclosed You, without restrictions on such disclosure, with the prior written consent of GRIDSMART and/or third parties who may have provided such information under similar confidentiality provisions; (iv) GRIDSMART discloses to a third party without restrictions on disclosure; (v) are independently developed by You without the use of any Confidential Information and are not a breach of this or any similar agreement; or (vi) are commonly known in GRIDSMART’s industry.
8.1 Additional Terms and Conditions. You agree to comply with all Additional Terms and Conditions. If there is any contradiction between this Agreement and the Additional Terms and Conditions, then the Additional Terms and Conditions and shall take precedence.
8.2 Entire Agreement. The terms and conditions of this Agreement, including without limitation the Additional Terms and Conditions, constitute the entire agreement between You and GRIDSMART with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding this subject matter. Nothing in this section shall exclude or restrict the liability of either You or GRIDSMART arising out of fraud or fraudulent misrepresentation.
8.3 Partial Invalidity. If any provision of this Agreement or any part of a provision is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of this Agreement shall not be affected.
8.4 No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If GRIDSMART waives a breach of any provision of this Agreement it shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
8.5 Assignment. You are not allowed to assign this Agreement or any rights hereunder. GRIDSMART is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party
8.6 Applicable Law and Jurisdiction. This Agreement is intended as a contract under and shall be construed and enforceable (both as to validity and performance) shall be interpreted and the rights and obligations of the parties shall be determined in accordance with the laws and procedures and provisions of the State of Tennessee (other than conflict of law rules which might result in the application of the laws of any other jurisdiction). Each party hereby irrevocably consents and agrees that any legal action or proceedings brought under this Agreement shall be brought in the state or federal courts located in Hamilton County, Tennessee, and by execution and delivery of this Agreement, each party hereby (a) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under this Agreement, (b) irrevocably agrees to be bound by any final judgment (after any appeal) of any such court with respect thereto, and (c) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law.
8.7 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
8.8 Survival. Sections 1, 2.2-2.6, 4.1, 4.3, 5.3, 6, 7 and 8 of this Agreement, and any other provision of the Additional Terms and Conditions which are expressed to survive or operate in the event of
8.9 Force Majeure. In the event any party is rendered unable wholly or in part by a force majeure event (as hereinafter defined) to carry out its obligations under this Agreement, other than its obligations to make payments hereunder, then the party affected by force majeure event shall promptly give written notice to the other party explaining such event. Following such notice, the effective obligations of the party giving such notice shall be suspended only during the continuance of the force majeure event, provided it demonstrates continued due diligence in seeking a remedy to the cause of such event. As used in this paragraph, the term “force majeure event” shall mean, acts of God, acts of public enemies, acts of terrorism, wars, blockades, insurrections, riots, epidemics, landslides,
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS