The terms and conditions set forth below (the “Agreement”) apply to all licenses to the Geli Software and subscriptions to the Geli Services purchased by you or otherwise provided to you by Geli or a Geli Reseller (defined below).

THIS IS AN AGREEMENT BETWEEN YOU AND GELI. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING THE GELI SOFTWARE AND/OR GELI SERVICES, YOU AGREE TO THE TERMS OF 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU,” “YOUR” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE GELI SOFTWARE OR GELI SERVICES.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. 1. DEFINITIONS

 

Customer Data” means all data or information submitted by or on behalf of Customer or its Users to the Geli Services, including performance data collected by the Geli Software from the Target System.

Documentation” means user guides and manuals for the Geli Software and Geli Services that Geli makes generally available to its customers, including online and in-app help, as updated from time to time by Geli.

“Geli” means Growing Energy Labs, Inc.

 

Geli Services” means Geli’s web-based monitoring, maintenance, and management services for the Geli Software as embedded in the Target System, as identified in an Order Form between Customer and Geli, or between Customer and Reseller, as applicable, and including any corrections, patches, bug fixes, enhancements, updates or other modifications thereto that Geli or Reseller makes available to Customer.

Geli Software” means object code versions of the Geli Energy Operating System software (Geli EOS), device drivers and one or more or Geli’s proprietary software applications identified in an Order Form between Customer and Geli, or between Customer and Reseller, as applicable, including any corrections, patches, bug fixes, enhancements, updates or other modifications thereto that Geli or Reseller makes available to Customer.

“Geli Technology” means Geli Services, Geli Software and Documentation.

Order Form” means a document for placing orders for the licenses to the Geli Software and subscriptions to the Geli Services that are entered into between Customer and Geli, or Customer and Reseller, as applicable.

Reseller” means, to the extent applicable, the authorized Geli reseller from which Customer purchased licenses to the Geli Software and/or subscriptions to the Geli Services.

“Subscription Term” means the period identified in an Order Form between Customer and Geli, or between Customer and Reseller, as applicable, during which Customer is authorized to use or access the Geli Services pursuant to the terms set forth in this Agreement, and renewals thereof, unless earlier terminated as set forth herein.

“Target System” means the energy system(s) owned, licensed, sold or managed by Customer as identified in an Order Form between Customer and Geli, or between Customer and Reseller, as applicable.

User” means an individual or entity that is authorized by Customer to use the Geli Software and/or access and use the Geli Services, and who has been supplied an identification and password by Customer.

 

  1. LICENSE GRANTS

2.1  Software License. Subject to the terms and conditions of this Agreement, Geli grants to Customer a non-exclusive, non-transferable, license to install and use, and authorize its Users to use, in object code format only, the Geli Software specified in the applicable Order Form(s), solely as embedded in the Target System, along with its accompanying Documentation, subject to the terms, conditions and restrictions set forth in this Agreement. Customer may install one (1) copy of the Geli Software on the Target System. Except for a reasonable number of copies for archival or back-up purposes, Customer shall have no right to copy the Geli Software. All titles, trademarks and copyright and restricted notices shall be reproduced on all such copies.

2.2  Provision of the Geli Services. Subject to the terms of this Agreement and the applicable Order Form and/or SOW, Geli grants to Customer a non-exclusive, non-transferable license, solely during the applicable Subscription Term, to access and use and authorize its Users to access and use the Geli Services and their accompanying Documentation, solely in support of the Target System, subject to the terms, conditions and restrictions set forth in this Agreement.

2.3 Reservation of Rights. The Geli Technology is licensed and not sold. The licenses to the Geli Technology granted in this Agreement are effective until terminated in accordance with the terms of the applicable Order Form(s), and shall automatically terminate if Customer fails to comply with this Agreement, whether Geli or Reseller provides Customer with notice or not. Upon termination, Customer will cease use of all Geli Technology and to the extent practicable delete all Geli Technology in its possession or control. Except for the limited rights expressly granted to Customer hereunder, Geli reserves all rights, title and interest in and to the Geli Technology and underlying software, and any corrections, bug fixes, enhancements, updates or other modifications thereto, including all related patent, copyright, trade secret, trademark and other proprietary rights therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Any references to “sale” or “purchase” of the Geli Software, Geli Services, or Documentation, shall be deemed to mean “license” in accordance with the terms contained in this Agreement. Geli reserves all rights not expressly granted to Customer in this Agreement. All Geli Technology provided to the U.S. Government are provided with the commercial license rights and restrictions described in this Agreement.  Further, all Geli Technology provided to the U.S. Government are provided with Restricted Rights as provided for in FAR 52.227-19 (DEC 2007) and DFARS227-7202 or their successors, as applicable.

2.4  License Restrictions. Except as otherwise expressly provided in this Agreement, Customer shall not (a) sell, rent, lease, republish, display, license, sublicense, assign or otherwise transfer or distribute copies of the Geli Technology or any portion thereof, (b) create or prepare derivative works based upon the Geli Technology, (c) frame, scrape, link to or mirror any content forming part of the Geli Services, (d) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Geli Technology, (e) interfere with or disrupt the integrity or performance of the Geli Technology or the data contained therein, (f) attempt to gain unauthorized access to the Geli Technology or related systems or networks, (g) copy, reproduce, modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise derive or attempt to derive the source code for the Geli Software or Geli Services, access the Geli Technology in order to build a competitive product or service, copy any ideas, features, functions or graphics of the Geli Technology, or allow a third party to do so, (h) use the Geli Technology to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates third-party privacy rights, or (i) use the Geli Technology except as expressly permitted hereunder. No third-party software that is provided with the Geli Software shall be used independently from the Geli Software.

2.5  Customer Data. As between Geli and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data except for the right expressly granted herein. Geli shall have the right to access and use the Customer Data to perform its obligations in accordance with the terms of this Agreement, to respond to service or technical problems, confirm compliance with the terms of this Agreement, otherwise at Customer’s direction or request, and as otherwise expressly permitted in this Agreement. In addition, Customer grants Geli a non-exclusive, royalty-free, fully-paid up, transferable, irrevocable, perpetual, worldwide, right and license (with right to sublicense) to make, have made, sell, have sold, use, import, export, execute, reproduce, distribute, modify, adapt, publicly display, publicly perform, make derivative works of, and disclose Customer Data provided that any use or disclosure of such Customer Data outside of Geli and its Affiliates shall be solely in De-Identified form. “De-Identified” data shall mean Customer Data that has been anonymized to remove personal information of any individual and identifiers of any entity (such as name and address).

2.6  Feedback. Geli shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Geli Technology any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Geli Software and/or Geli Services.

  1. RESPONSIBILITIES OF CUSTOMER. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data, and the means by which Customer acquired Customer Data. Customer shall be solely responsible for the security of the Target System, including the Geli Software as embedded in the Target System, and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Geli Services. Customer will notify Geli promptly of any unauthorized access or use of the Geli Services. Customer shall comply with all laws applicable to its and its Users’ use of the Geli Technology. Customer is responsible for its Users’ compliance with this Agreement. Without limiting the generality of the foregoing, Customer acknowledges that the distribution and use of the Geli Technology may be subject to U.S. export control laws and regulations. Customer will not export or re-export, directly or indirectly, any Geli Technology, to any destination for any use that is restricted by U.S. export control laws and regulations including, without limitation, to any party that is involved in sensitive or unguarded nuclear activities, or activities related to chemical or biological weapons or missiles, unless Customer first obtains the required authorizations from the U.S. Department of Commerce or other appropriate governmental agencies. Customer shall not use the Geli Technology to operate or control any inherently dangerous application, or to control any safety related system or in any safety related application, and Customer shall indemnify and hold Geli harmless from any and all claims, liability, costs, damages and losses arising out of or related to use of the Geli Technology in violation of this restriction. For example and not by way of limitation, the Target System must include its own failsafe devices to the extent the Target System includes components that present risk of fire, corrosion, etc.
  2. CONFIDENTIALITY. Customer shall treat the Geli Software (both object and source code), Geli Services, and Documentation and all related technical information, as the Confidential Information of Geli. Customer may use Confidential Information solely to exercise its rights and fulfill its obligations hereunder. Customer shall instruct and require all of its employees, agents, and contractors who have access to the Confidential Information to maintain the confidentiality of the Confidential Information, and Customer shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Customer would exercise to safeguard the confidentiality of its own confidential property. Customer shall not disclose the Confidential Information, or any part or parts thereof, except on a “need to know” basis to those of its employees, agents, contractors and auditors who are bound to confidentiality obligations at least as protective of the Confidential Information as those set forth herein. Customer may disclose Geli’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law, provided, however, that unless legally prohibited from doing so, Customer will notify Geli of the obligation to make such disclosure in advance of the disclosure so that Geli will have a reasonable opportunity to object to such disclosure. Geli shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin any breach or threatened breach of the confidentiality protections hereunder, it being specifically acknowledged that any other available remedies are inadequate.
  1. DISCLAIMERS OF WARRANTY, LIABILITY AND SUPPORT. THE GELI TECHNOLOGY IS FURNISHED TO CUSTOMER “AS IS” WITHOUT WARRANTY OF ANY KIND. NEITHER GELI NOR ITS SUPPLIERS WARRANT THAT THE GELI TECHNLOGY WILL MEET CUSTOMER’S REQUIREMENTS, OR ACHIEVE ANY PARTICULAR RESULTS, OR THAT THE OPERATION OF THE GELI TECHNLOGY WILL BE UNINTERRUPTED OR ERROR FREE. NEITHER GELI NOR ANY OF ITS SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WHERE CUSTOMER HAS PURCHASED LICENSES TO THE GELI SOFTWARE OR SUBSCRIPTIONS TO THE GELI SERVICES FROM A GELI RESELLER, SUPPORT FOR THE GELI TECHNOLOGY, IF ANY, IS PROVIDED TO CUSTOMER BY RESELLER AND IS NOT PROVIDED TO CUSTOMER BY GELI OR ITS SUPPLIERS. IN NO EVENT SHALL GELI HAVE ANY LIABILITY TO CUSTOMER, ITS USERS OR OTHER THIRD PARTIES FOR ANY LOSS OF PROFITS, REVENUES, OR DATA, OR FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT GELI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. GENERAL. Customer shall not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Geli, such consent not to be unreasonably withheld or delayed. Any attempt to transfer its rights or obligations under this Agreement in breach of this section shall be void and of no effect. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with California law, without regard to conflict of law provisions. The application of Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Jurisdiction and venue for any dispute arising from or related to this Agreement shall be in the courts of San Francisco, California, U.S.A., and Customer consents to the exclusive jurisdiction and venue of such courts. The prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. This Agreement constitutes the entire agreement between Customer and Geli relating to the subject matter hereof, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter; provided however, if Customer has entered into a separate written agreement signed by an authorized representative of Geli that expressly provides that click-through terms and conditions shall not apply to Customer’s licenses to the Geli Software and subscriptions to the Geli Services, the terms of such signed agreement shall supersede the terms of this Agreement. Sections 2.3, 2.4, 2.5, 2.6, 3, 4, 5, and 6 shall survive any termination or expiration of this Agreement. Section headings are for convenience only, and will not be used to interpret this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Updated April 11, 2017