HOSTED LICENSE AND SERVICES AGREEMENT
(RESEARCH AND NON-COMMERCIAL USE)
This Hosted Software License and Services Agreement (“Agreement”) is by and between WattTime Corporation, a California nonprofit corporation having its principal place of business at 490 43rd Street, Unit 221, Oakland CA 94609 (“WattTime”) and “Licensee”. This agreement becomes effective on the date of electronic acknowledgement associated with setting up the Licensee account (the “Effective Date”).
WHEREAS WattTime is the developer and provider of the WattTime proprietary products, emissions data, application programming interfaces, tools, and associated documentation, as referenced herein (together, the “WattTime Data”), and associated services related to hosting and making available the WattTime Data to Licensee (the “Services”); and
WHEREAS Licensee desires to access and use the WattTime Data as hosted by WattTime in connection with a research or non-commercial purpose (“the Purpose”).
NOW THEREFORE, in consideration of the premises and the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1. Access and Use.
1.a. Data License. Subject to the terms and conditions of this Agreement, WattTime hereby grants Licensee a non-exclusive, non-transferable license, without the right to sublicense to (i) access and use the WattTime Data and Services through a Licensee-provided internet connection to download the WattTime Data; and (ii) use the WattTime Data internally solely to the extent required to fulfill the Purpose.
2. Restrictions.
2.a. Restrictions: The licenses granted to Licensee herein, and WattTime’s obligation to perform the Services hereunder, are expressly subject to the following limitations:
2.a.i. Licensee shall not, and shall not permit any third party to, alter, remove, or conceal any copyright, trademark or other proprietary notice or disclaimer in the WattTime Data.
2.a.ii. Except as expressly set forth herein, Licensee shall not, and shall not permit any third party to, rent, lease, sublicense, sell, assign, or otherwise transfer the Software. Except for use of the WattTime Data to fulfill the Research Purpose as expressly permitted herein to an End User, Licensee shall not, and shall not permit any third party to, use the Software or the WattTime Data directly or indirectly to provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider. Licensee shall not, and shall not permit any third party to, copy, distribute, sell, or otherwise make available the Software, the WattTime Data, or any other WattTime-supplied content other than as expressly permitted in this Agreement
2.a.iii. Nothing in these restrictions shall be held to prevent Licensee from publishing their scholarly results obtained from the WattTime Data provided the WattTime Data itself is not disclosed or directly re-distributed.
2.a.iv. Licensee may not use the WattTime Data for any commercial application such as to develop competing products or generate profit from the results of any works associated with the Purpose.
2.a.v. Licensee shall not (i) modify, copy, translate or create derivative works of the Software or (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software, other than (A) as permitted by applicable law or (B) to the extent required by license agreements applicable to third-party software incorporated into the WattTime Data, if any. No licenses are granted by WattTime except as expressly set forth in this Agreement.
2.a.vi. Licensee agrees to notify WattTime promptly in writing of the existence of any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction, or other unauthorized use of the Software of which Licensee becomes aware.
2.a.vii. Licensee shall comply with all applicable laws relating to its use of the WattTime Data.
2.b. Acceptable Use. Licensee agrees to comply with any and all acceptable use policies, security and operational requirements and other restrictions as specified in the documentation, as may be adjusted by WattTime from time to time during the Term.
2.c. No Support. This Agreement does not grant Licensee any right to any maintenance or technical support services, including without limitation any support, enhancement, modification, bug fix or update to the Services, or the WattTime Data, and WattTime is under no obligation to provide or inform Licensee of any such updates, modifications, maintenance, or services.
3. Termination
3.a. Termination for Convenience. WattTime may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the Licensee.
3.b. Post-Termination Rights. Except as explicitly set forth elsewhere in this Agreement, the foregoing rights of termination will be in addition to any other legal or equitable remedies that the terminating party may have. Notwithstanding anything in this Agreement to the contrary, the termination or expiration of this Agreement shall not relieve either party of its obligations incurred before the date of termination, including, without limitation, the obligations set forth in Sections 2, 3, and 6 through 9.
3.c. Obligations Upon Termination. Upon termination, each party will, except as expressly permitted hereunder, cease use of and immediately return to the other party all copies of Confidential Information of the other party; and
4. Limited Warranty.
4.a. Corporate Power; Due Authorization; Binding Agreement. Each party is duly organized and validly existing under the laws of the state of its formation and has full power and authority to enter into this Agreement and to carry out the provisions hereof. This Agreement is a legal and valid obligation binding on each party. The execution and delivery of this Agreement by each party does not conflict with any agreement, instrument, or understanding, oral or written, to which it is a party or by which it may be bound and does not violate any law or regulation of any court, governmental body, administrative agency, or other agency having jurisdiction over it.
4.b. No Warranty. WattTime offers no warranty for the WattTime Data or Services.
4.c. Limitation of Warranty. WATTTIME DISCLAIMS ALL WARRANTIES, EXCEPT THOSE SET FORTH IN THIS SECTION 4, CONCERNING THE SOFTWARE, THE WATTTIME DATA AND THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COURSE OF DEALING AND COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WATTTIME DOES NOT WARRANT THAT THE SOFTWARE OR THE WATTTIME DATA WILL BE FREE FROM BUGS, DEFECTS OR ERRORS, OR THAT THE SOFTWARE OR THE WATTTIME DATA WILL BE ACCESSIBLE WITHOUT INTERRUPTION. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY WATTTIME OR ANY OF ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY, AND HAS NOT RELIED, ON ANY SUCH ADVICE OR INFORMATION.
5. Limitation of Liability.
5.a. LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND EXCEPT FOR (I) A BREACH BY A PARTY OF ITS OBLIGATIONS UNDER SECTION 6 OR 8, (II) EACH PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 7, OR (III) A BREACH BY LICENSEE OF SECTIONS 2 OR 3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, FOR (A) ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNTS PAID TO WATTTIME HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM; (B) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF USE DAMAGES, LOST BUSINESS, OR ANTICIPATED PROFITS) , EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (C) ANY CLAIM ARISING FROM THE CONTENT OR APPLICATIONS OF A THIRD PARTY’S WEBSITE OR FROM THE CONTENT, SERVICES, OR MATERIALS PROVIDED TO WATTTIME BY A THIRD PARTY. IN NO EVENT WILL WATTTIME BE LIABLE FOR ANY CLAIM BROUGHT BY LICENSEE MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE OR REASONABLY SHOULD HAVE BEEN DISCOVERED.
5.b. Allocation of Risks. The provisions of this Section 5 allocate the risks under this Agreement between the parties, and the parties have relied on the limitations set forth herein in determining whether to enter into this Agreement. Monetary damages, as limited by this Section 5, shall be Licensee’s sole and exclusive remedy for any claim for which no exclusive remedy is provided herein, and Licensee’s sole and exclusive alternative remedy if any exclusive remedy provided herein is determined to fail of its essential purpose. Licensee will include provisions in any End User agreement disclaiming WattTime’s liability for indirect, incidental, consequential, punitive, special, and exemplary damages and limiting WattTime’s liability for direct damages to no greater than the amount actually received by WattTime in the twelve (12) months preceding the events giving rise to such claim that are directly related to such End User agreement.
6. Confidentiality
6.a. Confidential Information. “Confidential Information” is trade secrets, software made available hereunder (including without limitation the Software), the WattTime Data reports under this Agreement, products, financial statements, analyses, financial projections, business plans, marketing plans, listings, contractual obligations and terms thereof, components of intellectual property, designs, customers, finances, personnel data, and any other information of a secret, confidential, or proprietary nature relating to a party’s business, operations, projects, finances, technical, or promotional plans, including but not limited to any such information generated in the performance of work under this Agreement. Confidential Information does not include any information that (i) is or becomes generally known or available by publication, commercial use, or otherwise without breach of confidentiality; (ii) is lawfully obtained without obligation of confidentiality from a third party who has the right to make such disclosure; (iii) is released for publication by the disclosing party; or (iv) is independently developed by a party without access to the Confidential Information of the other party. Notwithstanding the above, without notice either party may disclose any Confidential Information to such party’s agents, attorneys, and other representatives, to any court of competent jurisdiction as reasonably required to resolve a dispute between the parties, or in connection with a financial, regulatory, or other audit.
6.b. Non-Use and Non-Disclosure. Each party agrees that, except as expressly permitted herein, it will not use, directly or indirectly, for its own benefit or for the benefit of a third party, and that it will not disclose, transfer, or in any way divulge, directly or indirectly, to a third party any Confidential Information of the other party, under any circumstances or by any means, without the prior written consent of the other party. Without limiting the scope of this duty, the parties agree to limit their internal distribution of Confidential Information to their board of directors, employees, and agents (where any such director, employee or agent has agreed in writing to abide by confidentiality restrictions at least as protective of such Confidential Information as those set forth herein), and to take reasonable steps to ensure that the dissemination is so limited. The actions or negligence of the parties’ directors, employees and agents shall be deemed to be the actions or negligence of the respective party with regard to the Confidential Information of the other party
6.c. Third Party Requests. Each party will report to the other party any attempt by a third party, including any third party purporting to exercise governmental authority by subpoena or otherwise, or through a discovery demand made in any legal, judiciary, or regulatory proceeding, to obtain data or gain access to the other party’s Confidential Information. Each party will notify the other party of any subpoenas or discovery demands issued to it arising out of or relating to this Agreement in a time sufficient to allow the other party to review the subpoena or discovery demand and respond by motion to quash or other applicable motion if necessary
6.d. Feedback. Each party may from time to time provide suggestions, comments, or other feedback to the other party regarding the other party’s current or future products and services (collectively, “Feedback”). Each party agrees that such Feedback, unless expressly marked as Confidential Information at the time of disclosure.”, shall not create any confidentiality obligation hereunder for or upon the receiving party or its suppliers. Except as otherwise provided herein or in a separate subsequent written agreement signed by authorized representatives of the parties agreeing to treat such Feedback as Confidential Information, each party agrees that the other shall be free to use, disclose, reproduce, license, or otherwise distribute any and all Feedback provided to it as it sees fit, without obligation or restriction of any kind on account of intellectual property or otherwise.
6.e. Residuals. Notwithstanding anything herein to the contrary, either party may use Residuals for any purpose, including without limitation use in development, manufacture, promotion, sale and maintenance of its products and services; provided, that this right to Residuals does not represent a license under any patents, copyrights, or other intellectual property rights of the disclosing party. “Residuals” means any information retained in the unaided memories of the receiving party’s employees who have had access to the disclosing party’s Confidential Information pursuant to the terms of this Agreement. An employee’s memory is unaided if the employee has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.
6.f. Survival. The provisions of this Section 6 shall apply during the Term and for a period of three (3) years thereafter (except with regards to Confidential Information that consists of a trade secret, with regards to which the provisions of this Section 6 shall apply indefinitely).
7. Indemnification
7.a. By WattTime: Except where prohibited by law, WattTime will shall defend Licensee from any action based upon a claim that the WattTime Data used as licensed infringes any valid third party United States patent, copyright or trade secret or other proprietary secret and shall reimburse Licensee for all damages, costs and expenses (including reasonable attorneys’ fees) awarded against Licensee pursuant to any such actions, provided that: (a) Licensee notifies WattTime in writing within thirty (30) days of the claim (provided, that Licensee’s delay beyond such 30-day timeframe shall exculpate WattTime only to the extent WattTime is prejudiced by such delay); (b) WattTime has sole control of the defense (so long as WattTime is conducting such defense in good faith) and all related settlement negotiations (provided that any settlement shall be subject to Licensee’s consent, not to be unreasonably withheld); and (c) Licensee provides WattTime with the assistance, information and authority necessary to perform WattTime’s obligations under this Section 7. WattTime shall have no liability for any claim of infringement based on or resulting from (i) modification of the WattTime Data by any party other than WattTime or its licensors, or by WattTime or its licensors in accordance with Licensee’s designs, specifications, or instructions; (ii) use other than as granted or authorized under this Agreement; (iii) use of the WattTime Data in conjunction with hardware, software, or other products not provided by WattTime or its licensors or necessary for the operation of the WattTime Data; (iv) Licensee or an End User’s use of the Services or WattTime Data after WattTime’s notice that Licensee should cease use of the Services or WattTime Data due to a claim or allegation of infringement; or (v) any trademark or trade name infringement involving any marking or branding of Licensee
7.b. Options Relating to Actual or Alleged Infringement: If the Technology, Services, or the WattTime Data is held to infringe or is believed by WattTime to possibly infringe, WattTime shall have the option, at its expense, to (a) modify the Technology, Services, or the WattTime Data to be non-infringing; or (b) obtain for Licensee a license to continue using the WattTime Data. If WattTime determines it is not commercially reasonable to perform either of the above options, then WattTime may terminate the license for the WattTime Data and refund a pro rata portion of any fees prepaid to WattTime by Licensee for use of the WattTime Data after the date of such termination.
7.c. By Licensee: Except where prohibited by law, Licensee will defend and indemnify WattTime against (a) any third-party claim that any Licensee-provided software, technology, content, or specification, or the interface of the software to such Licensee-provided items, infringes a United States patent, copyright or trade secret of such party; and (b) any claim for representations made by Licensee regarding the Technology, Services, or WattTime Data, other than as expressly set forth in WattTime’s written documentation; for each of (a) and (b), provided that: (i) WattTime notifies Licensee in writing within thirty (30) days of the claim (provided, that WattTime’s delay beyond such 30-day timeframe shall exculpate Licensee only to the extent Licensee is prejudiced by such delay); (ii) Licensee has sole control of the defense (so long as Licensee is conducting such defense in good faith) and all related settlement negotiations (provided that any settlement shall be subject to WattTime’s consent, not to be unreasonably withheld); and (iii) WattTime provides Licensee with the assistance, information and authority necessary to perform Licensee’s obligations under this Section 7(c). Licensee will reimburse WattTime’s reasonable out of pocket expenses incurred in providing such assistance.
7.d. EXCLUSIVE REMEDY: THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF EACH PARTY, AND THE SOLE AND EXCLUSIVE REMEDY OF THE OTHER, WITH RESPECT TO ANY ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT HEREUNDER.
8. Intellectual Property.
8.a. General Ownership. This Agreement does not transfer from WattTime to Licensee any right, title, or interest in or to the WattTime Data, and except for the express licenses granted herein, as between the parties hereto, all right, title and interest in and to the WattTime Data and any customization, modification, or enhancement thereof, whether developed prior to, during, or after the term of this Agreement, will remain solely with WattTime and its licensors. Licensee hereby assigns to WattTime any right, title, and interest that Licensee may obtain in the WattTime Data, and any update, enhancement, or modification thereto.
8.b. Use of Names and Logos. Licensee may use the WattTime name and logo to the extent necessary to attribute the data to WattTime. Reference to WattTime does not create a sense of endorsement, sponsorship, or false association with WattTime or WattTime’s products and services.
9. Miscellaneous.
9.a. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
9.b. Assignment. This Agreement, and any rights or obligations in this Agreement, shall not be assigned by Licensee without the prior written consent of WattTime; provided, however, that Licensee may assign this Agreement upon notice to WattTime (a) to an affiliate as part of a corporate reorganization or (b) to a successor in interest to substantially all of the stock or assets of the party provided that such successor agrees in writing to be bound by the terms and conditions of this Agreement.
9.c. Governing Law; Dispute Resolution. This Agreement shall be governed by and interpreted under the laws of the State of California, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. Licensee hereby consents to the non-exclusive jurisdiction of any federal or state court located in San Francisco, California, and waives any objection that it has or may have in the future with respect to any of the foregoing. The parties expressly waive and exclude the application of the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods.
9.d. Notices. All notices, requests, demands, and other communications that are required or may be given hereunder shall be in writing and shall be deemed given or delivered when (a) emailed (b) delivered by hand, (c) mailed by prepaid express overnight mail service, such as “Federal Express” or similar mail service, or (d) mailed by first-class U.S. mail, return receipt requested, and in any case addressed to the respective party at its address set forth below, or at such other address as either party to this Agreement has designated by notice in writing to the other party as provided herein:
If to WattTime:
490 43rd Street, Unit 221
Oakland, CA 94609
Attention: Operations (operations@watttime.org)
Notices to Licensee will be sent to the email address used to create Licensee account and associated with acknowledgment of the terms and conditions herein.
9.e. Amendment and Waiver. This Agreement may only be amended, and any provision of this Agreement may only be waived, in a writing executed by both of the parties hereto, specifically setting forth such amendment or waiver, as the case may be. The failure of either party to enforce any provision of this Agreement shall not be construed to be a waiver of such a provision or the right of such party thereafter to enforce such provision or any other provision of this Agreement
9.f. Relationship of Parties. The parties agree that nothing contained in this Agreement shall be construed as creating any partnership, joint venture, agency, trust, or other association of any kind between the parties hereto.
9.g. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including without limitation act of God, accident, earthquake, fire, flood, hurricane, tornado, storm or other weather condition, war, terrorism, cyberterrorism, hacking, sabotage, riot, civil disorder, act or decree of any governmental body, power or network failure, lockout, strike or other labor disturbance, illness, death or any other natural or artificial disaster. In the event of any such failure or delay, the parties shall use commercially reasonable efforts to perform as soon as practicable.
9.h. Severability. The illegality, invalidity, or unenforceability of any part of this Agreement shall not affect the legality, validity, or enforceability of the remainder of this Agreement. If any part of this Agreement shall be found to be illegal, invalid, or unenforceable, this Agreement shall be given such meaning as would make this Agreement legal, valid, and enforceable to give effect to the intent of the parties.
9.i. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all other agreements, promises, representations, and negotiations, whether written or oral, between the parties regarding the subject matter of the Agreement. No amendment of this Agreement shall be valid or take effect unless it is in writing and signed by all the parties. Any Exhibits attached hereto form a material part of this Agreement and are incorporated herein by reference. Paragraph and other headings in this Agreement are for reference purposes only and do not affect the meaning of this Agreement.
9.j. Counterparts. The parties acknowledge that a party’s electronic signature or online acceptance (including by facsimile, PDF, or other image format) will be deemed binding acceptance of this Agreement, and any subsequent written documents, by such party.
9.k. Equitable Remedies. The parties acknowledge and agree that damages at law may be inadequate remedies for the breach of this agreement and, accordingly, agree that either party is entitled to injunctive or other equitable relief with respect to any such breach without the necessity of proving actual damages or posting a bond or other security. The rights set forth in this Section 9 (k) shall be in addition to any other rights that the parties may have at law or in equity.
Term: The Term of the Agreement shall commence as of the Effective Date and continue for twelve (12) months, unless otherwise terminated pursuant to this Agreement (“Term”).
Purpose: The license will be used exclusively for the purpose as identified in the online submission form and after it has been approved via the confirmation email sent by WattTime.
