Software License Agreement - Updated November 1, 2018 THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE AND ACCESS TO ENERGYPRINT SOFTWARE APPLICATION AND/OR DATABASES (“APPLICATION”). BY ACCEPTING THIS AGREEMENT, YOU ARE AGREEING TO ALL OF THE TERMS OF THIS AGREEMENT. ACCEPTANCE MAY BE ELECTRONIC, THROUGH YOUR USE OF THE APPLICATION, OR OTHER AGREEMENT THAT REFERENCES THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. 1. Services. Your use and access to the Application are subject to the terms and conditions of the separate agreement pursuant to which the service was purchased which terms and conditions are incorporated into this Agreement. You agree to limit Your use to that which is granted under the specific purchase agreement between You and EnergyPrint. You have a unique User ID for Your exclusive use of the Application. You create Your own secure password, and it may not be shared with any other person. To protect Your account, keep Your password confidential and use passwords with sufficient complexity so as not to be easily guessed. You are responsible for the activity that happens on or through Your User ID. Do not use Your EnergyPrint password on third-party applications. If You learn of any unauthorized use of Your password or the Application, please contact us immediately. Your use and access to the Application is conditioned on payment for all fees due and payable under to EnergyPrint. 2. EnergyPrint Support. EnergyPrint will provide basic customer support to the Application during regular business hours at no additional charge. You are responsible for providing computer access to the web-based Application and support services do not extend to Your computer and internet access. EnergyPrint will use commercially reasonable efforts to make the Application available 24/7, 365 days a year except for planned downtime. EnergyPrint will make reasonable efforts to schedule planned downtime outside of an ordinary work day. 3. Use and Restrictions. You agree to use reasonable efforts to prevent unauthorized use of the Application from parties who are not subscribed users. You agree to comply with the current minimum web browser technical requirements for use of the Application. EnergyPrint will make commercially reasonable efforts to support the current and most previous versions of Chrome, Firefox, Internet Explorer, Edge, and Safari. You may not reverse engineer or attempt to extract the source code of any Application. You may not (i) copy, modify, distribute, sell, or lease any part of the Application, (ii) create derivative works based on the Application, (iii) reverse engineer the Application, (iv) remove, obscure, or alter any legal notices, or (v) access the Application in order to (a) build a competitive product or service, (b) copy any features, functions or graphics of the Application. 4. Information Provided by You. The Application allows You to add or upload information to the Application. If You use this ability, You agree to the following additional terms. You warrant and represent that You own or otherwise control all of the rights to Your content including, without limitation, all the rights necessary for You to provide, post, upload, input or submit the content. You may not publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information. You may not upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, without limitation, copyright or trademark laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consent to do the same. You may not upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another. You may not falsify or delete any copyright information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded. EnergyPrint has no obligation to review or edit information You add to the Application. EnergyPrint reserves the right to remove any content it determines in its sole discretion is not suitable for the Application. 5. Proprietary Rights - Reservation of Rights. You are granted a limited, non-transferable license, without the right to sub-license, to access the Application through a web interface supplied by EnergyPrint and to run the Application strictly and only in accordance with the terms of this Agreement. EnergyPrint reserves all rights, title and interest in and to the Application, including all related intellectual property rights, all patent rights, all copyright in any aspect of the Application, including web user interfaces and displays, all moral rights (none of which are waived) and all rights to trademarks, trade names or trade dress appearing in or through the use of the Application or its web interface. No intellectual property or other rights in the Application are granted to You beyond the right to use the Application in accordance with this Agreement and subject to Your compliance with the terms hereof. 6. Ownership of Data. EnergyPrint’s use, comparison, benchmarking and analysis of energy data is an essential part of the Application. All data collected by EnergyPrint and/or entered into the Application belongs to You and is authorized for use by EnergyPrint for purposes of operating its energy benchmarking program and providing services hereunder. Such uses may include, for example, without limitation, compilations, comparisons, benchmarking, studies, publications, reports or uses deemed pertinent for the Application's purposes. EnergyPrint's right to use and exploit energy data as set forth above shall survive termination of this Agreement and no data will be removed or extracted from the Application or any other locations without EnergyPrint’s written consent to the same. EnergyPrint will use de-identified data whenever possible and always when disclosing comparative data to other users, unless it has your express consent to such disclosure. For example, Your buildings may be compared to another user’s properties, but when viewing the data the other user will not be able to determine which properties are Yours, and the same will be true with respect to Your ability to identify the owners of other properties. EnergyPrint does maintain the confidentiality of Your private information pursuant to its Privacy Policy. 7. Confidential Information. The term “Confidential Information” shall mean all proprietary information of EnergyPrint. Confidential Information expressly includes, without limitation, all information or material, whether conveyed orally or in written or electronic form, that has or could have commercial value in the business or prospective business of EnergyPrint, including, without limitation, all customer, user and subscriber lists, data, methods of doing business, technology, trade secrets, inventions, business plans, software methods or algorithms, financial information, contracts, records and other proprietary, confidential or other non-public information to its business, the proprietary, confidential and non-public nature of which information EnergyPrint desires to maintain, all notes, analyses, compilations, studies, interpretations or other documents based upon the foregoing. Confidential Information shall not include information that was in the public domain before disclosure or that becomes part of the public domain after disclosure through no action or fault of Your own. 8. Obligation to Maintain Confidentiality. You agree not to use EnergyPrint's Confidential Information during the term of this Agreement and thereafter for any purpose other than as permitted in the use of the Application. You will not disclose or provide any such Confidential Information to a third party, and You will take reasonable measures to prevent any such disclosures. This Agreement will not prevent You from disclosing Confidential Information to the extent required by a judicial order or other legal obligation provided You notify EnergyPrint of such action and allow EnergyPrint to seek a reasonable protective order. 9. EnergyPrint Warranties and Disclaimer. EnergyPrint warrants that the Application and related services will be provided using a commercially reasonable level of skill and care. EnergyPrint does not warrant that the Application will be error free. For any breach of such warranty, Your exclusive remedy shall be termination of the Agreement and Your use of the Application. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ENERGYPRINT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ENERGYPRINT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE APPLICATION WILL BE SECURE OR ERROR FREE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 10. Indemnification. You agree to defend EnergyPrint against any claims made or brought against EnergyPrint by a third party to the extent arising from or occurring as a result of (a) Your breach of the terms of this Agreement, (b) Your use of the Application, (c) Your negligence or willful misconduct, or (d) content You add to the Application. You will indemnify EnergyPrint for any damages including costs and reasonable attorney's fees incurred by EnergyPrint in connection with any such claims. EnergyPrint agrees to defend You against any claims of infringement made or brought against You by a third party to the extent arising from EnergyPrint’s Application (excluding content provided by You or third parties). 11. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ENERGYPRINT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE AMOUNT PAID BY YOU TO ENERGYPRINT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. IN NO EVENT SHALL ENERGYPRINT BE LIABLE FOR ANY DAMAGES CAUSED BY ANY VIRUSES, TROJAN HORSES OR OTHER SIMILAR CODE, OR ANY DENIAL-OF-SERVICE ATTACKS OR ANY UNAUTHORIZED ACCESS TO YOUR SYSTEM BY UNRELATED THIRD PARTIES. 12. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ENERGYPRINT BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 13. Term and Termination. Your Use of the Application will terminate upon termination of the underlying Agreement. EnergyPrint reserves the right to suspend or terminate Your access and use of the Application at any time upon Your violation of the terms and conditions of this Agreement. 14. Force Majeure. EnergyPrint shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, act of terrorism, shortages of materials or supplies, or any other cause beyond the control of EnergyPrint. 15. EnergyPrint Contacts. Any notice required under this Agreement should be provided to: Contact Name: Kelly Larson Company: EnergyPrint, Inc. Delivery Address: PO Box 14377 St. Paul, MN 55114 Phone: 651-357-9100 Fax: 651-357-9001 Email: info@energyprint.com All notices shall be in writing and deemed given upon (i) the day of personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending confirmed facsimile, or (iv) the first day after sending by e-mail. 16. Governing Law; Consent to Jurisdiction. This Agreement will be governed by and construed in accordance with the domestic laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule. You agree that any action of any kind by any party against another party arising as a result of this Agreement may only be brought in the state and federal courts of competent jurisdiction of Ramsey County, State of Minnesota, and You hereby submit to the exclusive jurisdiction and venue of such courts for all such purposes. In relation to jurisdictions that do not recognize exclusive jurisdiction and venue clauses, You agree not to contest the jurisdiction of the courts specified above and not to assert any other jurisdiction or venue. 17. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT. 18. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. 19. Waiver. EnergyPrint’s failure to enforce any provision of this Agreement at any time does not impact its ability to enforce the provision or any other provision at any other point in time. 20. Relationship of Parties. EnergyPrint and You are independent parties to this Agreement and nothing in this Agreement or otherwise will result in the parties being deemed to be part of a joint venture, partners, employees-employers, or agents and principals. 21. Entire Agreement. This Agreement and any other related agreements created by EnergyPrint cross referencing this Agreement shall constitute the sole and entire agreement of the parties with respect to the subject matter hereof and supersede any prior oral or written promises or agreements. 22. Amendments to Agreement. EnergyPrint reserves the right to amend this Agreement. Any Amendment will be provided in writing and subject to Your acceptance which may be electronic and will be presumed upon Your continued use of the Application. Amendments will not apply retroactively and will become effective no sooner than fourteen (14) days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If You do not agree to the modified terms for a Service, You should discontinue Your use of that Service. 23. Export Regulations. You are advised that the Application and related documentation are subject to the U.S. Export Administration Regulations. You agree not to export, re-export, import, or transfer the Application or the documentation contrary to U.S. or other applicable laws, whether directly or indirectly, or assist or facilitate others in doing any of the foregoing. You represent and warrant that (i) neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked, or denied Your export privileges, (ii) You are not a government end user, and (iii) You are not located in, a resident of, or a citizen of, Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods. You agree not to use or transfer the Application for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
