LICENSE AND USER AGREEMENT TERMS
Read this license and user agreement carefully (the agreement or license terms). By clicking yes, I agree to this agreement via a web link or by accessing the Geli ESyst service (ESyst), you, as the customer and/or end user (customer), agree to be bound by this agreement with growing energy labs, inc. (Geli or company) (each individually a party and collectively the parties). If you do not enter into this agreement, you will not receive access information to ESyst. If you do not agree to these terms, you agree not to attempt to access or use ESyst.
For purposes of these License Terms, the definitions set forth below shall be applicable:
- Authorized User or You means you, as an individual, or Customer, including Customer’s members, officers, directors, employees, agents, installers, lead generation providers, deal closers, contractors, financing parties or investors who are acting within the scope of a fiduciary, employment, contractual or agency relationship with Customer.
- Back End Code means the Software application-specific source code, proprietary databases, and information. This includes, but is not limited to, the machine code, object code, high level languages and executable graphical representations of Software systems, database schemas, field definitions, table relationships, workflow management, application and system methodologies, interface coding and integrations with third party services.
- Customer Usage Data means any Customer data or information collected by Geli in the course of the Customer’s use of the Software or the Platform, including, but not limited to, Customer data or information used for selecting the components of the energy storage system.
- Device means an electronic computer apparatus including, but not limited to, a desktop, a laptop, an electronic handheld information device including a portable data assistant (PDA), smartphone, and tablet, and the like.
- Documentation means Company’s user guides and manuals relating to the Software and Platform, including on-line and in-app help, as updated and amended from time to time.
- Geli ESyst means the online design tool that aids developers in right-sizing and selecting components for energy storage and microgrid systems.
- Marks means Geli ™, Geli ESyst ™, and other trademarks and/or service marks (whether registered or not), graphics, logos, button icons, scripts, company name, and/or trade dress owned by Geli in the United States and/or other countries.
- Intellectual Property means all works of authorship, algorithms, application programming interfaces (APIs), apparatus, concepts, data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not trademarked, protected by copyright, patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogans), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.
- Password means a unique code created by an Authorized User to gain licensed access to the Platform.
- Platform means Company’s proprietary application Software and/or website, including all widgets, apps, modules, functions, features, or products otherwise generally made available by Company to its customers and/or affiliates, and all technology resources and infrastructure (e.g., hardware, third party software, etc.) used to support such items and the Software.
- Software means the complete software application comprising Front End Code and Back End Code for using the Geli Platform’s Software solution, Geli ESyst, for optimizing energy storage sizing analysis, project design, component selection, and cost savings analysis, and any Software Updates made available by Geli from time to time.
- Software Updates means any and all updates, supplements, add-on components, enhancements, customizations, revisions, modifications, future releases, and any other changes to the Software.
- Subscription means the level of access for Authorized Users for duration of their use of the Product.
- Use means use of the Platform and/or Software, including use of the Front End Code, the User Name and Password to access and Use the Back End Software through the Website.
- User Name means a unique personal identifier created by an Authorized User to gain licensed access to the Website to Use the Software.
- Website means the website that provides the Software.
2. GRANT OF LICENSE
Subject to the terms and conditions of these License Terms, Geli hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable and non-sublicensable license to Customer to Use, or to have any Authorized User Use, in the United States of America, the Geli ESyst (inclusive of any applicable Software Updates) strictly in accordance with this Agreement and solely for Customer’s internal business use to the extent necessary to access and Use the Platform and not for any other commercial purpose. Geli reserves the right to change, modify, update, or adapt the Software and to correct any errors, inaccuracies, or omissions at any time, and without notice to Customer.
3. SCOPE OF PERMITTED USE
- Customer may use the Software, or allow Authorized Users to use Geli ESyst, in accordance with these
- Customer acknowledges that Geli licenses Geli ESyst for use with: (1) operating environments (Website, servers, cloud services, and operating systems) supported and/or controlled by Geli; or (2) operating environments compatible with those supported and/or controlled by Geli. Geli makes no claims, guarantees, representations, or warranties as to what environments and Devices are compatible with supported operating environments for the Software.
4. NEGATIVE COVENANTS
Customer shall not:
- Assign, sell, resell, distribute, sublicense, loan, rent, lease, sublease, transfer, or otherwise commercially exploit the Platform including any reports or other information generated by Geli ESyst, except as specifically permitted by this Agreement or written permission of Geli. Customer shall not transfer or convey to any third parties the information obtained in any report or analysis provided by Geli ESyst.
- Translate, modify, alter, adapt, decompile, or disassemble Geli ESyst to create derivative or separate works or products based on the Platform and Software.
- Reverse engineer the Platform, Software, or its content.
- Copy any Front End Code, Documentation, or Subscription access credentials provided by Geli, or related data or information.
- Share Subscription access credentials such as the User Name or Password with anyone not in privity with this Agreement (other than an Authorized User).
- Remove, alter, cover, or obfuscate any notice of Geli copyright, patent, trademark, or other proprietary right placed on, displayed by, or pertaining to the Software or the printable analysis reports provided by the Software.
- Post or publish obscene, explicit, threatening, libelous, or otherwise unlawful, dishonest, inaccurate, or tortuous material relating to the Software, the Platform or Geli.
- Intentionally interfere with or disrupt the integrity or performance of the Software, the Platform or the Website either manually or through the use of any mechanism including, but not limited to, viruses, worms, trojan horses, built-in, or user-driven destruction mechanisms.
- Use the Platform for any application, product, service, or material that constitutes, promotes or is used in connection with: spyware, adware, viruses, worms, defects, Trojan horses, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (spam), multi-level marketing proposals, hate materials, hacking, surveillance, interception, descrambling equipment, libelous, defamatory, harassing, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories.
- Attempt to hack into the Platform or otherwise gain unlicensed access to or make an unauthorized download of any part of the Platform.
- Use or misuse the Software, Documentation, Website, and/or Marks, except as provided in these License Terms.
- Knowingly block, electronically or otherwise, the transmission of data required for compliance with these License Terms, unless required by applicable law.
- Frame (divide the browser display area into separate sections, each of which constitutes a different web page) any web page served by Geli servers.
- Enable or permit the disclosure of Platform content other than as authorized under these License Terms.
- Use, copy, distribute or modify the Platform content in any service bureau or timesharing business.
- Use robots, spyders, scraping or other technology to access or use the Platform content or any Websites or Geli services to obtain any information beyond what Geli provides to Customer in these License Terms or otherwise in writing.
- Knowingly create an application that may be used to violate any Geli policy or applicable law.
- Have Customer’s application or Customer’s use of the Platform:
- be false, inaccurate or misleading;
- infringe on any third party’s copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy;
- violate any law, statute, ordinance, contract, regulation or generally accepted practice in all relevant jurisdictions (including without limitation those governing trade and export, financial services, consumer protection, unfair competition, antidiscrimination or false advertising);
- be defamatory, trade libelous, threatening or harassing;
- contain any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or
- create liability for Geli or cause Geli to lose (in whole or in part) the services of Geli’s ISPs or other suppliers.
- Provide any data or information to Geli unless Customer represents and warrants that it is accurate and Customer has all rights necessary to provide such data or information to Geli, and for Geli to use it.
- Provide access to the Platform to any third party, including any Customer related company unless otherwise an Authorized User.
- Use the Platform in connection with, or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of, dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials (e.g. Nazi memorabilia), goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories.
- Use the Platform in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with the agreements between Geli and Customer.
- Use the Platform in a manner that exceeds reasonable request volume as determined by Geli, constitutes excessive or abusive usage, or use an unreasonable amount of bandwidth as determined by Geli, or use the Platform in a manner that adversely impacts the stability of Geli’s servers or adversely impacts the behavior of other applications using the Platform of Geli’s Website or web services.
- Attempt to cloak or conceal Customer’s identity when using the Platform.
- Remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to data accessed or provided through the Platform.
- Use the Platform in connection with, to obtain a quote for, to evaluate, or to promote any products, services, or materials that are in direct competition with the Platform, Software, or any other Geli product offerings. Notwithstanding the foregoing, Customer shall have the right to provide information regarding its use of the Platform to its customers so long as such customers agree to be bound by the confidentiality terms as set forth herein and/or in applicable terms as set forth in any non-disclosure agreement between Customer and Geli. In addition, Customer may not replicate or reverse engineer the Software, in whole or in part, to bundle any third party software with Geli ESyst or use Geli ESyst to design or size energy storage systems for use with any third party software if such use would require the Software to be reverse engineered, replicated or involve the usage of the underlying code of the Software in whole or in part.
Customer shall indemnify, defend and release Geli from any claims, losses or damages as a result of a violation of any of the foregoing acts by Customer, or any other acts of omissions by Customer.
- If Geli, in its sole discretion, believes that Customer has breached these License Terms, or that Customer has engaged in fraudulent activity, Geli may take any and all steps it deems appropriate, including issuing a warning, conducting an investigation, or suspending Customer’s Platform license.
- In addition to any other available remedies and given that monetary damages would not be a sufficient remedy for breach of this Agreement by Customer, Geli may, in its sole discretion, seek specific performance, or injunctive relief without posting a bond. In addition, Geli shall be entitled to its attorneys’ fees if Geli prevails.
- Geli will have the right, in its sole discretion, to directly enforce any term of these License Terms against any Authorized Users, including termination. Customer acknowledges and agrees that any act or omission by any Authorized Users amounting to a breach of these License Terms will be deemed a breach by Customer.
- If Geli determines that Customer is using the Platform in a volume inconsistent with the intention of Geli, Geli may impose or adjust the limit on the amount of bandwidth Customer may use or the number of transactions Customer may send or receive through the Platform; such fixed upper limits may be set by Geli at any time, at Geli’s reasonable discretion.
- Except with respect to any equitable or injunctive relief, the proper venue for which shall be San Francisco, California, the Parties agree that individual, final and binding arbitration is the exclusive means for resolving the claims outlined in this Agreement. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. This Arbitration Agreement is a waiver of all rights the Parties may have to a civil court action on any dispute over the material terms of this Agreement. Only an arbitrator, not judge or jury, may decide the dispute. The arbitrator has the authority to award any type of relief that could otherwise be awarded by a judge or jury. The venue for the arbitration shall be San Francisco County, California, and the parties agree to equally share the cost of the arbitration.
6. LOST, MISUSED, OR STOLEN ACCESS CREDENTIALS
If Customer or an Authorized User’s User Name and/or Password is stolen, or if Customer suspects any improper or illegal usage of its or any Authorized Users’ User Names and/or Passwords, Customer shall promptly notify Geli of such occurrence.
7. SOFTWARE USE COMPLIANCE AND MAINTENANCE
- Geli reserves the right to gather data on Software access and Use, including, but not limited to server IP addresses, Website access, and other information deemed relevant, to confirm that Customer and Authorized Users are using the Software in accordance with these License Terms.
- Geli may conduct maintenance on the Platform and the Website at any time with or without notice to Customer. Geli may change the method of access to the Platform at any time. It is in the best interests of both Customer and Geli that Geli maintain a secure and stable environment. In the event of degradation or instability of Geli’s system or an emergency, Geli may, in its sole discretion, temporarily suspend Customer’s access to the Platform under these License Terms.
8. PERMITTED USE OF CUSTOMER DATA
Any aggregated Customer Usage Data (excluding any data from the customers of Customer) shall belong exclusively to Geli. Additionally, Customer grants a limited, non-exclusive, royalty-free, worldwide license in all other data supplied by Customer to Geli which Geli may use for any of the following purposes, subject to applicable laws: (1) to evaluate and test the Software; (2) to understand Use of the Software and to make improvements thereto; (3) to respond to specific requests from Customer; and (4) to provide services and offerings to Customer (but not to the customers of Customer) from Geli or third parties, and to sell or transfer Customer-Specific Data to third parties, including but not limited to financiers, original equipment manufacturers (OEMs), distributors, and other companies. In addition to the forgoing, Customer grants Geli a royalty-free license to aggregate and analyze in an anonymized manner all data provided by Customer to Geli, including Customer Usage Data, which Geli may provide or sell to third parties except as otherwise provided herein.
9. INTELLECTUAL PROPERTY
- Geli is the sole and exclusive owner of all right, title, and interest in and to the Website, Software and the Platform, and to all Intellectual Property rights embodied in or associated therewith, which is protected by United States intellectual property laws. Except for the rights granted this Agreement, Customer shall not acquire any express or implied right or interest in or to the Documentation, Marks, Platform, Software, Geli ESyst or Website, or any copies or portions thereof. Except where otherwise noted by Geli, all content compiled and displayed on the Website, such as text, photographs, brochures, advertising materials, Marks, images, digital downloads, and data compilations is the exclusive property of Geli. The Marks (whether registered or not) may not be used in any manner by Customer or the Authorized Users without written authorization from Geli. Except for the license granted herein, this Agreement shall not in any way transfer any Intellectual Property rights from Geli to Customer.
- Customer acknowledges and agrees that Customer shall not challenge, or assist anyone, directly or indirectly, in challenging, Geli’s intellectual property or other proprietary rights in the Software, Documentation, Website, Platform or Marks.
- In no event will Geli be precluded from: (1) discussing, reviewing, developing for itself; (2) having developed, acquiring, licensing or developing for third parties; or (3) marketing and distributing, materials; which are competitive with Customer’s applications or other products or services provided by Customer, irrespective of their similarity to Customer’s current products or products that Customer may develop.
- All rights with respect to the platform, software, and Geli ESyst not expressly granted by these license terms are reserved by Geli.
10. TERM AND TERMINATION
Upon termination of this Agreement, Geli shall have the right to immediately disable, with respect to Customer and the Authorized Users, the Password and User Name and block access to, and use of, the Software without further notice. Upon expiration or termination, Customer and Customer’s Authorized Users will immediately cease all use of the Software, Platform and Documentation, and will use commercially reasonable efforts to permanently erase, from Customer’s Devices’ computer memory, any Geli Intellectual Property.
11. COMPLIANCE WITH APPLICABLE LAW
Customer and Geli shall each at all times, comply with, and shall remain solely responsible for compliance with, all applicable laws.
12. DISCLAIMER OF WARRANTIES
Geli disclaims all warranties and conditions, express, implied or statutory, including without limitation the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. Geli does not represent or warrant that any Geli website, software, or platform will operate securely or without interruption. All logos, products and services provided by Geli hereunder are provided as is and as available. Customer acknowledges that it has not accepted these license terms in reliance upon any warranty or representation except those specifically set forth herein. Geli will have no consequential, special, indirect, exemplary, punitive or other liability, whether in contract, tort or any other legal theory, under these license terms, even if advised of the possibility of such liability and notwithstanding any failure of essential purpose of any limited remedy. In the event that the above is not enforceable, Geli’s aggregate liability under these license terms is limited to amounts paid or payable to Geli by customer for the license hereunder in the month preceding the claim.
13. LIMITATION OF LIABILITY
- In no event will Geli be liable for any lost data, lost revenue, lost profits, damage to reputation, business interruption, or any other indirect, incidental, consequential, special, punitive, exemplary or any similar type damages arising out of this agreement, the use or the inability to use the platform, or the provision of any support or services, even if Geli has been advised of the possibility of such damages.
- Except to the extent prohibited by law, in no event shall the liability of Geli to customer, whether in contract, tort (including active or passive negligence), breach of warranty, claims by third parties or otherwise, exceed the price paid by customer for Geli ESyst.
- The foregoing limitations shall apply even if the above-stated remedy or limited warranty fails of its essential purpose. because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to customer.
No delay in the performance of any obligation by either Party, excepting all obligations to make payment, shall constitute a breach of this Agreement to the extent caused by force majeure or other acts outside either Party’s control. If any portion of this Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application hereto, and Customer may not unilaterally amend any terms of this Agreement. The waiver of any provision herein by either Party shall not be deemed a waiver of any other provision or a subsequent waiver of the same provision. This Agreement constitutes the entire agreement between the Parties and supersedes any prior oral or written agreements.