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 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.
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.