These Terms and Conditions (“Terms”, together with an Order Form referencing these Terms, the “Agreement”), are entered into between BlocPower, LLC, a New York Limited Liability Company with offices located at 1623 Flatbush Ave #222, Brooklyn, NY 11210 (“BlocPower”), and the customer identified on the Order Form (“Customer”), and are effective as of the date that the Order Form is executed by both parties (the “Effective Date”).
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section in which they are first used.
1.1 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access BlocMaps, Instant Building Report, or other Software under this Agreement.
1.2 “Customer Content” means any content, data and information provided to BlocPower by or on behalf of Customer or its Authorized Users for use with the Services, including, without limitation, any Third Party Data Provider Data. Customer Content does not include Licensed Material or Resultant Data.
1.3 “Documentation” means the materials describing the use and operation of BlocMaps that are made available to Customer as written technical briefs or on https://blocmaps.blocpower.io/ or such other web page as BlocPower may designate to Customer from time to time.
1.4 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.5 “Licensed Material” means reports, results, materials, and documentation made available to Customer as part of the Services. Licensed Material does not include BlocMaps or any component thereof.
1.6 “Third Party Data Provider” means: a) a Third Party Data Provider or utility service or platform that provides or facilitates utilities such as electrical, gas, solar, wind, nuclear, or any other mode of building energy and is required to provide energy-related data and information to Customer (or its third party designees) by contract, permit, or other applicable ordinance, regulation, or law.
1.7 “Third Party Data Provider Data” means any data or other information made available to BlocPower by a Third Party Data Provider at the direction, or for the specific benefit of the Customer, even if BlocPower’s receipt of such information is governed by its own agreement with the Third Party Data Provider.
1.8 “Order Form” means an order form signed by both parties that references this Agreement.
1.9 “Professional Services” means professional services provided by BlocPower to Customer as described in any Order Form (as may be further described in any statement of work).
1.10 “BlocMaps” means the BlocPower software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface.
1.11 “Resultant Data” means statistics, data, insights, observations, analyses, ideas, and other information that does not identify any natural person and is derived from the categorization, modeling, or other processing of one (or more) data set(s), including, without limitation, data sets that include Customer Content and data of BlocPower’s other customers.
1.12 “Services” means any services provided by BlocPower to Customer under this Agreement as described in an Order Form, including, but not limited to, provision of BlocMaps and Professional Services.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), BlocPower will provide Customer with access to BlocMaps during the Term (as defined below). Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, BlocMaps, and notify BlocPower promptly of any such unauthorized use known to Customer.
2.2 Support Services. Subject to the terms and conditions of this Agreement, BlocPower will exercise commercially reasonable efforts to (a) provide support for the use of BlocMaps to Customer, (b) keep BlocMaps operational and available to Customer, in each case in accordance with its standard policies and procedures, and (c) provide the Service in accordance with the Service Level Terms set out in Exhibit A.
2.3 Hosting. BlocPower will, at its own expense, provide for the hosting of BlocMaps, provided that nothing in this Agreement will be construed to require BlocPower to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access BlocMaps from the Internet.
3. INTELLECTUAL PROPERTY
3.1 License Grant. Subject to the terms and conditions of this Agreement, BlocPower grants to Customer a non- exclusive, non-transferable (except as permitted under Section 13.6) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use BlocMaps in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of BlocMaps. Customer may permit Authorized Users to access and use the features and functions of BlocMaps as contemplated by this Agreement. Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by these individuals must only be for the sole benefit of Customer.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access BlocMaps, Licensed Material, or Documentation, except as expressly allowed in this Agreement; (b) modify, adapt, alter, or translate BlocMaps, Licensed Material (except as expressly provided in this Agreement), or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow the use of BlocMaps, Licensed Material, or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure, or organization) or nonpublic APIs of BlocMaps, except as required by law; (e) interfere in any manner with the operation of BlocMaps or the hardware and network used to operate BlocMaps; (f) modify, copy, or make derivative works based on any part of BlocMaps or Documentation; (g) access or use BlocMaps or Licensed Material to build a similar or competitive product or service; (h) attempt to access BlocMaps through any unapproved interface; or (i) otherwise use BlocMaps, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that BlocMaps will not be used, and is not licensed for use, in connection with any time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of BlocPower or its licensors on the Licensed Material or any copies.
3.3 Ownership. As between the parties, the Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to BlocPower in this Agreement are reserved by Customer. As between the parties, BlocMaps, Licensed Materials, Documentation, and Resultant Data, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of BlocPower and its suppliers. All rights in and to BlocMaps, Licensed Materials, Documentation, and Resultant Data not expressly granted to Customer in this Agreement are reserved by BlocPower and its suppliers.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, BlocPower grants Customer a non-exclusive, non-transferable (except as permitted under Section 13.6), non-sublicensable, royalty-free, and fully-paid license to use Licensed Material solely for Customer’s internal business purposes.
3.5 License to Customer Data; Resultant Data. Customer grants BlocPower a non-exclusive, worldwide, non- transferable (except as permitted under Section 13.6), non-sublicensable (except to permitted subcontractors under Section 13.10), royalty-free, and fully paid license to (a) use the Customer trademarks, service marks, and logos as required to provide the Services; (b) to use, host, store, create derivative works from, communicate, distribute, and publicly display the Customer Content as required to perform the Services and improve BlocMaps; and (c) analyze the Customer Content, combine Customer Content with other data, and create Resultant Data, including, without limitation, utilizing machine learning applications and other analytical methods. Customer acknowledges that the value of BlocMaps to Customer and BlocPower’s ability to provide it in accordance with this Agreement are contingent on BlocPower’s ability to operate and improve BlocMaps based on what it learns from the Resultant Data generated in the course of delivering BlocMaps to all BlocPower customers.
3.6 Open Source. Certain items of software may be provided to Customer with BlocMaps and certain Licensed Materials are subject to “open source” or “free software” licenses (“Open Source Material”). Some of the Open Source Material is owned by third parties. Open Source Materials are not subject to the terms and conditions of Sections 3.1 or 10. Instead, each item of Open Source Materials is licensed under the terms of the end-user license that accompanies such Open Source Materials. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end-user license for the Open Source Materials. If required by any license for particular Open Source Materials, BlocPower makes such Open Source Materials, and BlocPower’s modifications to that Open Source Materials, available by written request at the notice address specified below.
3.7 Third Party Products. Certain features and functionality of the Services may rely on third party data, software, or applications (“Third Party Products”). Third-Party Products may be subject to their own terms and conditions, which will be identified to the Customer in writing before they are incorporated into the Services. If Customer does not agree to abide by the applicable terms for any Third-Party Products, then Customer should not install or use the Third-Party Products or utilize any features or functionality of the Services that incorporate them.
3.8 Feedback. Customer hereby grants to BlocPower a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BlocPower products or services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Authorized Users, relating to the Services. BlocPower will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by BlocPower under this Agreement, Customer will pay to BlocPower the Fees. Except as otherwise provided in the Order Form, all Fees are billed at the end of the month due and must be paid within 30 days of the date of the invoice. Customer will reimburse BlocPower for documented expenses that are expressly provided for in an Order Form or SOW (defined below) or that have been approved in advance in writing by Customer. BlocPower reserves the right (in addition to any other rights or remedies BlocPower may have) to discontinue BlocMaps and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than 30 days overdue until all amounts are paid in full. If Customer believes that Company has billed Customer incorrectly, Customer must contact BlocPower no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Customer should direct inquiries to Company’s customer support department.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added, and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on BlocPower’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of BlocMaps to Customer. Customer will make all payments of Fees to BlocPower free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to BlocPower will be Customer’s sole responsibility. Customer will provide BlocPower with official receipts issued by the appropriate taxing authority, or such other evidence as BlocPower may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid by Customer when due will bear interest at the rate of 1.5% per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES
5.1 Licenses; Customer Content. Customer will obtain all third party licenses, consents, and permissions needed for BlocPower to use the Customer Content to provide the Services and exercise its rights under this Agreement. Customer is solely responsible for the accuracy, quality, integrity, legality, and reliability of all Customer Content.
5.2 Customer Warranty. Customer represents and warrants that the Customer Content and its use by BlocPower in accordance with this Agreement will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, or unlawful; (d) contain any viruses, worms, or other malicious computer programming codes intended to damage BlocPower’s systems, network, or data; and (e) otherwise violate the rights of a third party or applicable law.
5.3 Back-ups; Security. Customer will have the ability to export Customer Content out of BlocMaps for the Term of the relevant Order Form and thereafter in accordance with Section 11.4. Customer acknowledges that BlocMaps is not intended to serve as its data retention repository and that Customer is solely responsible for creating its own backup copies of any Customer Content at Customer’s sole cost and expense. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to or deletions of Customer Content by Customer and the security of all usernames, passwords, API keys, and other credentials in its possession required to access BlocMaps. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords where the passwords or access are provided by or taken from Customer (as opposed to BlocPower). If any Authorized User who has access to BlocMaps is no longer an employee of or engaged by Customer, then Customer will immediately delete access and otherwise terminate the Authorized User’s access to BlocMaps.
5.4 Third Party Data Provider Cooperation. Customer acknowledges that the performance of the Services (and value of the Services to Customer) may depend on BlocPower’s receipt of data or other information or cooperation from one or more Third Party Data Providers. Therefore, Customer shall be responsible for taking all actions reasonably required to ensure such Third Party Data Providers provide such data, information, or cooperation to BlocPower as is reasonably required for BlocPower to perform the Services, including, without limitation, requiring Third Party Data Providers to make available to BlocPower any and all data and information to which Customer is entitled in accordance with BlocPower’s then applicable data specifications, and without requiring BlocPower to pay any additional consideration to, or sign any agreement with, the Third Party Data Provider that would interfere with the provision of services or grant of licenses under this agreement. Customer acknowledges and agrees that (a) BlocPower shall have no liability for a Third Party Data Provider’s failure to provide such data, information, or cooperation or other action or omission, (b) BlocPower shall have no liability whatsoever related to Third Party Data Provider Data and BlocPower does not verify the accuracy or quality of Third Party Data Provider Data, and (c) a Third Party Data Provider shall in no event be construed as a BlocPower supplier, contractor, or agent even if BlocPower enters into a license or other agreement with the Third Party Data Provider to obtain data or information in furtherance of the Services.
6. PROFESSIONAL SERVICES.
6.1 Where the parties have agreed to BlocPower’s provision of Professional Services, parties will set out the details of the Professional Services in an Order Form or a statement of work signed by both parties (“SOW”). The parties will include in the Order Form or SOW, as applicable: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services subject to the terms regarding Customer’s rights to use the Service set forth in this Agreement and the applicable Order Form or SOW, but BlocPower will retain all right, title, and interest in and to any such work product, code or deliverables, and any derivative, enhancement, or modification thereof created by BlocPower as part of the Professional Services.
6.2 Freedom of Information Requests. BlocPower will cooperate with Customer’s requests to provide information that Customer requires to comply with its legal obligations under applicable freedom of information laws, provided that to the extent such cooperation exceeds the scope of Services specified in an Order Form, BlocPower will provide such cooperation as Professional Services pursuant to an SOW.
7. WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. BlocPower represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner and in substantial conformity with the Documentation. BlocPower’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for BlocPower to use commercially reasonable efforts to correct the reported non-conformity, or if BlocPower determines this remedy to be impracticable, either party may terminate the portion of the Services affected by the breach of warranty and Customer will receive as its sole remedy a refund of any Fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Term. The limited warranty set forth in this Section will not apply: (i) unless Customer makes a claim within 30 days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by use not in accordance with the Documentation, unauthorized modifications, or third-party hardware, software, or services, or (iii) to use provided on a no-charge, trial, or evaluation basis.
7.2 Disclaimer. BLOCPOWER DOES NOT AND CANNOT GUARANTEE ANY PARTICULAR RESULTS FROM USE OF THE SERVICES. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND NEITHER BLOCPOWER NOR ITS SUPPLIERS MAKES (AND THESE PARTIES HEREBY DISCLAIM) ANY OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NO INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. BLOCPOWER DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF BLOCMAPS WILL BE UNINTERRUPTED OR ERROR-FREE. BLOCPOWER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BLOCPOWER OR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, OR RELIABILITY OF THIRD PARTY DATA PROVIDER DATA.
8. LIMITATION OF LIABILITY
8.1 Types of Damages. EXCEPT WITH RESPECT TO A PARTY’S LIABILITY UNDER SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED 50% OF THE SOFTWARE FEES PAID BY CUSTOMER TO BLOCPOWER DURING THE 12 MONTHS PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL BLOCPOWER'S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. WHERE REQUIRED BY LAW, NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations specified in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1 Confidential Information. “Confidential Information” means any code, inventions, analysis methods and products, know-how, business, technical, and financial information, and any other nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that it discloses to the other party (the “Receiving Party”) and identifies as “confidential” or with a similar legend at the time of such disclosure or that the Receiving Party knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements to either of the foregoing will be considered Confidential Information of BlocPower.
9.2 Protection of Confidential Information. Except as expressly authorized in this Agreement, the Receiving Party will (a) hold in confidence and not disclose any Confidential Information to third parties and (b) not use Confidential Information for any purpose other than fulfilling its obligations, and exercising its rights, under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to personnel and contractors who have a need to know such information for the purpose of the performance of the Receiving Party’s obligations or exercising its rights under this Agreement, who have confidentiality obligations no less restrictive than those set forth in this Agreement, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information (i) to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law (including, without limitation, freedom of information laws) or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure to the extent permitted by law, cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order, discloses no more information that is legally required, and in the case of disclosure required by freedom of information laws, Customer agrees to afford all confidentiality protections available under applicable law to such Confidential Information of BlocPower prior to disclosing it pursuant to such laws, including, without limitation, by providing BlocPower notice of freedom of information requests for such Confidential Information, the opportunity to object to Customer’s disclosure thereof, and notice of Customer’s disclosure determinations; and (ii) to its attorneys, accountants, professional advisors, and actual or potential lenders, investors, or acquirers so long as such parties are bound by confidentiality obligations no less restrictive than those set forth in this Agreement.
10.1 By BlocPower. BlocPower will defend at its expense any claim brought against Customer insofar as the claim is by a third party alleging that BlocMaps infringes the third party’s patent, copyright, or trademark rights under applicable laws of any jurisdiction within the United States of America, and will indemnify and hold harmless Customer from and against any damages, expenses, and costs finally awarded against Customer or agreed in settlement by BlocPower (including reasonable attorneys’ fees and costs) resulting from such claim. If any portion of BlocMaps becomes, or in BlocPower’s opinion is likely to become, the subject of a claim of infringement, BlocPower may, at BlocPower’s option: (a) procure for Customer the right to continue using BlocMaps; (b) replace BlocMaps with non-infringing software or services that do not materially impair the functionality of BlocMaps; (c) modify BlocMaps so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of BlocMaps and Documentation. Notwithstanding the foregoing, BlocPower will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use of BlocMaps not in accordance with this Agreement or as specified in the Documentation; (ii) any use of BlocMaps in combination with other products, equipment, software, or data not supplied by BlocPower; (iii) any modification of BlocMaps by any person other than BlocPower or its authorized agents; or (iv) Customer’s settlement or admission with respect to any claim without BlocPower’s prior written consent (each an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of BlocPower, or any of its officers, directors, employees, shareholders, contractors, suppliers, or representatives, for infringement claims and actions.
10.2 By Customer. Customer will defend at its expense any claim brought against BlocPower insofar as such claim is based on a claim by any third party arising from or relating to the Customer Data, the breach or alleged breach by Customer of Section 5.2 (Customer Warranties), or any Exclusion, and Customer will indemnify and hold harmless Customer from and against any damages, expenses and costs finally awarded against Customer or agreed in settlement by Customer (including reasonable attorneys’ fees and costs) resulting from such claim.
10.3 Procedure. The indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit. The indemnifying party will have sole control of the defense or settlement of any claim or suit. The indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11. TERM AND TERMINATION
11.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for the time period specified tin this Agreement, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of 1 year unless either party gives written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current term.
11.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and the breach remains uncured more than 30 days after receipt of written notice of the breach.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted under this Agreement will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to delete or return all Confidential Information of the other party, as set forth in the Section 9; notwithstanding the foregoing, for clarity, BlocPower is not obligated to delete or return Resultant Data; and (c) any amounts owed to BlocPower under this Agreement will become immediately due and payable. Sections 1, 3.3-3.8, 4, 5.3, 5.4, 7.2, 8, 9, 10, 11.3, 11.4, 12, and 13 will survive expiration or termination of this Agreement for any reason.
11.4 Data Extraction. For 60 days after the end of the Term, BlocPower will make Customer Content and Licensed Materials available to Customer through BlocMaps on a limited basis solely for Customer to retrieve the Customer Content and Licensed Materials, except to the extent Customer has instructed BlocPower to delete it. After this period, BlocPower may, but is not obligated to, destroy all copies of Customer Content and Licensed Materials in its possession.
At the request of BlocPower, the parties will issue a joint press release on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the press release in advance, but approval may not be unreasonably delayed or withheld. Customer hereby grants BlocPower a license to use Customer’s name and logo on BlocPower’s web site and in BlocPower promotional materials. Customer agrees that BlocPower may disclose Customer as a customer of BlocPower.
13.1 Governing Law and Venue. This Agreement and any related action will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts of New York, New York for any lawsuit filed there against Customer by BlocPower arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer must not export, report, or transfer, directly or indirectly, any U.S. technical data acquired from BlocPower, or any products utilizing such data, in violation of the United States or foreign export laws or regulations.
13.3 Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited.
13.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.6 No Assignment. Except as provided in this section and Section 13.10, neither party may assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations in this Agreement, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Either party may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, or other operation of law, without consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.7 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material, and Documentation.
13.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) or failure to perform any duties or obligations will not be considered a breach of this Agreement if the delay or failure is caused by a labor dispute, shortage of materials, fire, earthquake, flood, denial of service or other cyber-attack, diminishment of telecommunications or data networks or services, refusal of a license by a government agency, or any other event beyond the control of a party, provided that the party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.9 Independent Contractors. Customer’s relationship to BlocPower is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of BlocPower.
13.10 Subcontractors. BlocPower may use the services of subcontractors and permit them to exercise the rights granted to BlocPower in order to provide the Services under this Agreement, provided that BlocPower remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement and (b) for the overall performance of the Services as required under this Agreement.
13.11 Notices. All notices required or permitted under this agreement must be delivered in writing, if to BlocPower, by emailing email@example.com and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of the notice will also be sent in writing to the other party at the address listed on the Cover Page by courier or by a nationally-recognized express mail service. Each party may change its email address or address for receipt of notice by giving notice of the change to the other party.
13.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13.13 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matters of this Agreement and supersedes and merges all prior discussions between the parties with respect to these subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and BlocPower.