PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING AND USING THE SUBSCRIPTION SERVICES (DEFINED BELOW).
Aurora Solar is willing to provide the Subscription Services to you, on a software as a service basis, only upon the condition that you accept all the terms contained in this Agreement. By clicking on the checkbox marked “Accept Terms” on the registration, log-in or similar page or by accessing or using the Subscription Services, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not accept this Agreement and you may not use the Subscription Services.
1.1 “Customer Data” means all data and information input or submitted by you or Authorized Users (defined below) into the Subscription Services.
1.2 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.3 “Service-Generated Output” means any reports, drawings, images, documentation or other files or data that are generated by or through the Subscription Services and provided by or made available by Aurora Solar to you.
1.4 “Subscription Services” means Aurora Solar’s cloud-based solar installation design software and any and all related tools and other materials provided by or made available by Aurora Solar to you.
2. SUBSCRIPTION SERVICES
2.1 Authorized Users. You may select individuals (employees or independent contractors) to access and use the Subscription Services and you will obtain separate credentials, e.g., user IDs and passwords, from Aurora Solar for such individuals (each, an “Authorized User”). You will at all times be responsible for all actions taken under an Authorized User’s account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. You are responsible for the security of each Authorized User’s credentials and will not share (and will instruct each Authorized User not to share) such credentials with any other person or entity or otherwise permit any other person or entity to access or use the Subscription Services.
2.2 Provision of Subscription Services. Subject to your compliance with the terms and conditions of this Agreement including any payment due, Aurora Solar will provide you with the Subscription Services, and hereby grants you and your Authorized Users a non-exclusive, non-transferable, worldwide license to: (a) access and use the Subscription Services solely for your internal business purposes and solely by no more than the number of Authorized Users for which you have paid the applicable fees (“Fees”), and (b) reproduce and distribute to your solar clients or prospective solar clients a reasonable number of copies of any Service-Generated Output relating to such client, provided that you not modify, created derivative works of, publicly display or perform, or remove any identifying legend or marking from such Service-Generated Output. Aurora Solar will process your payment upon submission or renewal of your order and will accept your order upon verified payment. Aurora Solar reserves the right to change our prices and/or our Subscription Services at any time prior to accepting your order. You are responsible for paying any applicable taxes, duties or tariffs relating to your order, except taxes on Aurora Solar’s income. All payments shall be made in United States Dollars.
2.3 Subscription Services Restrictions. You shall not attempt to interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). You shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. You shall not: (a) copy, modify or distribute any portion of the Subscription Services, except as expressly provided for Service-Generated Reports in Section 2.2 above; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; or (c) transfer any of your rights hereunder. You may not access or use (or permit a third party to access or use) the Subscription Services for purposes of monitoring the availability, performance or functionality of the Subscription Services or for any other benchmarking or competitive purposes.
2.4 Acceptable Use Policies. You acknowledge and agree that Aurora Solar does not monitor or police communications or data transmitted through the Subscription Services and that Aurora Solar shall not be responsible for the content of any such communications or transmissions. You and your Authorized Users shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You and your Authorized Users shall not use the Subscription Services to transmit any bulk unsolicited commercial communications. You shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles. You acknowledge that the Subscription Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. You shall not use, and the above license does not extend to the use of, the Subscription Services for such purposes or under such circumstances.
2.5 Data Maintenance and Backup Procedures. In the event of any loss or corruption of Customer Data, Aurora Solar will use commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Aurora Solar’s third party hosted services provider. Aurora Solar will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. AURORA SOLAR’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 2.5 WILL CONSTITUTE AURORA SOLAR’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA IN CONNECTION WITH THE SUBSCRIPTION SERVICES.
3. OWNERSHIP. As between Aurora Solar and you, Aurora Solar owns all worldwide right, title and interest in and to the Subscription Services including all Intellectual Property Rights therein. As between you and Aurora Solar, you own all worldwide right, title and interest in and to all Customer Data and Aurora Solar will not obtain any ownership rights or interests in such data. You hereby grant and will grant to Aurora Solar a non-exclusive, royalty-free, worldwide, transferable (in whole or in part), sublicensable (through multiple tiers of sublicenses) license to: (a) use the Customer Data as is reasonably necessary to provide the Subscription Services hereunder for the term of this Agreement and (b) archive and perform analytics on the Customer Data and to distribute, publicly display or perform or otherwise use the results of the same provided such results are in an aggregated form that does not personally identify an individual person, and this license in subsection (b) is irrevocable and perpetual, and (c) to list on its website or in other informational or promotional material your business name (first name and last initial if you are an individual), city, state, country and website address to identify you as an Aurora Solar customer, and this license in subsection (c) shall be perpetual unless and until Aurora Solar receives written notice from you revoking such license. The parties agree that the use of the other’s name as provided for in subsection (c) and any goodwill arising therefrom shall inure to the owner of such name, and upon request, Aurora Solar will provide specimens of its usage and take corrective action as reasonably necessary to protect any trademark or other rights therein. To the extent you provide suggestions or feedback to Aurora Solar about its Subscription Services or Service-Generated Output (collectively, “Feedback”), you hereby irrevocably assign and will assign to Aurora Solar all right, title and interest you may have in and to such Feedback, and to the extent such assignment is not valid or complete, you hereby grant and will grant to Aurora Solar an exclusive, royalty-free, fully-paid, transferable (in whole or in part), sublicensable (through multiple tiers of sublicenses), worldwide, irrevocable and perpetual license under all Intellectual Property Rights to use and practice such Feedback in any manner, and irrevocably waive and agree to never assert any claim against Aurora Solar, its directors, officers, shareholders, employees or successors in interest relating to such Feedback.
4. NO WARRANTY; DISCLAIMER. THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. AURORA SOLAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AURORA SOLAR OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. AURORA SOLAR DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR- FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Subscription Services (including Service-Generated Output) and for conclusions drawn from such use. Aurora Solar will have no liability for any claims, losses, or damages caused by errors or omissions in any Customer Data provided to Aurora Solar by you or any results or Service-Generated Output produced by the Subscription Services based upon Customer Data. You acknowledge and agree that the results and Service-Generated Output produced by the Subscription Services based upon the processing of Customer Data are estimates only, that Aurora Solar does not guarantee that these estimates will match actual measurements taken at a given site, that Aurora Solar does not guarantee the accuracy of any engineering designs or plan-sets or customer proposals based on the results or Service-Generated Output produced by the Subscription Services, and that the Subscription Services shall not be deemed a substitute for an actual in-person analysis conducted at a given site. Aurora Solar cannot and will not be liable for third-party criminal intrusions into our Subscription Services, despite our efforts to prevent the same.
5. YOUR OBLIGATIONS
5.1 Cooperation and Assistance. As a condition to Aurora Solar’s obligations hereunder, you shall at all times: (a) provide Aurora Solar with good faith cooperation and assistance and make available such information, facilities, personnel and equipment as may be reasonably required by Aurora Solar in order to provide the Subscription Services, including, but not limited to, providing Customer Data, security access, information, and software interfaces to your business applications; (b) provide such personnel assistance and other personnel, as may be reasonably requested by Aurora Solar from time to time; and (c) carry out in a timely manner all other of your responsibilities set forth in this Agreement
5.2 Enforcement. You will ensure that Authorized Users comply with the terms and conditions of this Agreement. You will promptly notify Aurora Solar of any suspected or alleged breach of this Agreement and will cooperate with Aurora Solar with respect to: (a) any investigation by Aurora Solar of any suspected or alleged breach of this Agreement; or (b) any action by Aurora Solar to enforce the terms and conditions of this Agreement. Aurora Solar may suspend or terminate any Authorized User’s access to the Subscription Services without prior notice to you in the event that Aurora Solar reasonably determines that such Authorized User has breached this Agreement or violated the terms and conditions of any other agreement between Aurora Solar and such Authorized User pursuant to which such Authorized User is permitted to access and use the Subscription Services. You shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
5.3 Customer Data Representations. You represent and warrant to Aurora Solar that: (a) you have all rights, power and authority that are necessary for your collection, use and processing of the Customer Data as contemplated by this Agreement; and (b) your use and provision of Customer Data to Aurora Solar pursuant to this Agreement will not breach any agreement between you and any third party or violate any applicable local, state or federal laws, regulations, orders or rules.
5.4 Telecommunications and Internet Services. You acknowledge and agree that you and your Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. You are solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Aurora Solar shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
6.1 Indemnification by Aurora Solar. Subject to Section 6.6, Aurora Solar shall defend any suit or action brought against you to the extent that it is based upon a third party claim that Aurora Solar, through the Subscription Services, as provided by Aurora Solar to you pursuant to this Agreement, has knowingly infringed any U.S. copyright or misappropriated any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by you.
6.2 Exclusions. Notwithstanding the terms of Section 6.1, Aurora Solar will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) the combination, operation or use of the Subscription Services with equipment, devices, software or data (including without limitation Customer Data) not supplied by Aurora Solar, if a claim would not have occurred but for such combination, operation or use; or (b) your or an Authorized User’s misuse of the Subscription Services or use of the Subscription Services other than in accordance with this Agreement.
6.3 Injunction. If your use of the Subscription Services is, or in Aurora Solar’s opinion is likely to be, enjoined due to the type of claim specified in Section 6.1, then Aurora Solar may at its sole option and expense: (a) replace or modify the Subscription Services to make them non-infringing and of equivalent functionality; (b) procure for you the right to continue using the Subscription Services under the terms of this Agreement; or (c) if Aurora Solar is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and Aurora Solar’s obligation under this Agreement with respect to such Subscription Services and refund to you a pro-rata portion of the fees paid for the remaining term during which you would have had access to the Subscription Services.
6.4 Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF AURORA SOLAR AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. The parties acknowledge that Aurora Solar has entered into this Agreement in reliance upon the limitations of liability and the disclaimers of damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
6.5 Indemnification by You. You shall defend Aurora Solar, its officers, directors, shareholders, employees and successors in interest (collectively, “Aurora Solar Indemnitees”), from and against any action or suit brought against an Aurora Solar Indemnitee by a third party in connection with your or an Authorized User’s use of the Subscription Services (other than any claim for which Aurora Solar is responsible under Section 6.1) including but not limited to a claim that the Customer Data or your use of the Subscription Services infringe or misappropriate any Intellectual Property Rights or privacy rights of a third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Aurora Solar.
6.6 Conditions of Indemnification. As a condition to the parties’ respective obligations under this Section 6, the party seeking indemnification (the “Indemnitee”) will: (i) promptly notify the other party (the “Indemnitor”) of the claim for which it is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; and (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. The Indemnitee has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that the Indemnitee enters into without the Indemnitor’s prior written consent.
7. CONFIDENTIAL INFORMATION
7.1 Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Customer Data is your Confidential Information and the Subscription Services are Aurora Solar’s Confidential Information.
7.2 Exclusions. The obligations and restrictions set forth in Section 7.3 will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
7.4 Permitted Disclosures. The provisions of this Section 7 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
8. LIMITATION OF LIABILITY
8.1 Exclusion of Damages. IN NO EVENT WILL AURORA SOLAR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SUBSCRIPTION SERVICES OR THE SERVICE-GENERATED OUTPUT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT AURORA SOLAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 Total Liability. AURORA SOLAR’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED the total fees paid by YOU IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY HEREUNDER.
9. TERM AND TERMINATION
9.1 Agreement Term. This Agreement commences on the date you click on the checkbox marked “Accept Terms” or first access or use the Subscription Services whichever occurs earlier (“Effective Date”) and, unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the term specified in the applicable online order form (the “Initial Term”). For clarity, you acknowledge and agree that this Agreement applies to all of your usage of the Subscription Services, regardless if such checkbox was ever clicked or even if such use began prior to clicking such checkbox. This Agreement shall automatically renew for additional periods equal to the expiring term unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively referred to as the “Term”.
9.2 Termination for Breach. Either party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; provided that the cure period for any default with respect to payment shall be five (5) business days.
9.3 Effect of Termination. Upon the expiration or termination of this Agreement: (a) your and your Authorized Users’ right to access and use the Subscription Services will immediately terminate, and you and your Authorized Users will immediately cease all use of the Subscription Services; and (b) you will promptly destroy or return to Aurora Solar all of its Confidential Information in your possession or control. Aurora Solar may, but is not required to: (i) retain Customer Data after termination or expiration of this Agreement for the purpose of facilitating your reengagement of the Subscription Services, to derive anonymized statistics and/or for other internal business purposes related to the Subscription Services and (ii) destroy or otherwise dispose of any Customer Data in its possession.
9.4 Survival. The rights and obligations of Aurora Solar and you contained in Sections 2.2 (but solely with respect to your payment obligations) 2.3, 2.4, 2.5, 3, 4, 5.2, 5.3, 6, 7, 8, 9.3, 9.4, 10 and 12, will survive the expiration or termination of this Agreement.
10 . FORCE MAJEURE. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13. CONTACT INFORMATION
If you have any questions or concerns about this agreement, please contact us at:
Aurora Solar Inc.
434 Brannan Street
San Francisco, CA 94107
Last updated on: May 25, 2018