Last Updated August 22, 2022
SOFTWARE AS A SERVICE
This Agreement was last updated on August 11th, 2022.
“Affiliate” means, with respect to any entity, any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
“Order” means the purchase order or other written document (electronic or otherwise) provided or accepted by Us that addresses your rights to access the Services and the Fees payable with respect thereto.
“Services” means the online sustainability and energy efficiency, intelligence, reporting and analytics applications and platform provided by Us via http://app.buildee.com and/or other designated websites and any corresponding support services provided by Us.
“Term” means the term of your subscription to or authorized access of the Services.
“Third-Party Applications” means online Web-based applications and offline software products that are provided by third parties and that may interoperate with the Services.
“User” means any individual who uses the Services on Your behalf or through Your accounts or passwords, whether authorized or not.
“We,” “Us” or “Our” means simuwatt, Inc. d/b/a buildee.
“You” or “Your” means the individual accessing the Services and the company or other legal entity for whom or on behalf of which such person is accessing the Services.
“Your Data” means the data or information submitted by Users to, by, or through, the Services.
- USE OF THE SERVICES
2.1. Use of the Services. During the Term, You may access and use the Services on the terms and conditions set forth in this Agreement.
2.2. Usage Limitations. The Services may be subject to other limitations as We may specify from time to time.
2.3 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and all applicable laws and government regulations.
You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent, or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services, Third-Party Applications, or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services, Third-Party Applications, or their related systems or networks.
2.4 Modification of Services. Except as otherwise agreed in writing, We reserve the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to You. You agree that We will not be liable to You or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
2.5 Payment. Subscription pricing and other service fees for accessing the Services (collectively, “Fees”) shall be as stated in Your Order or at purchase, sign-up, or other opt-in, and, except as otherwise agreed in writing, may be modified from time to time in Our sole discretion. Fees (and any applicable taxes) paid are non-refundable and We may assess interest on unpaid Fees and taxes from the due date until the date paid at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Fee or tax is overdue, We may suspend provision of the Services, until the overdue amounts have been paid in full. You agree to pay all costs incurred by Us in collecting overdue Fees, taxes, and interest, including reasonable attorneys’ fees.
2.6 Grant of License. You hereby grant to Us the right and license to use Your Data and any and all other information submitted by you to the Site or through the Services. You represent and warrant that you have the right to share Your Data and any information provided to the Site or through the Services, including under any applicable laws. You hereby represent and warrant that Your Data and any other information you provide to the Site or through the Services does not infringe, misappropriate, or otherwise violate any copyright, trademark, or other intellectual property right, right of privacy, right of publicity, or any other right of any entity or person; and that no such information is unlawful, libelous, defamatory, obscene, pornographic, or profane, or could constitute or encourage conduct that would be considered a criminal offense.
- THIRD-PARTY PROVIDERS
3.1. Acquisition of Third-Party Products and Services. Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider, even if accessed or transmitted through the Service. We do not warrant or support third-party products or services, including Third-Party Applications, whether or not they are designated by Us as “certified” or otherwise.
3.2. Third-Party Applications and Your Data. We are not responsible for any disclosure, modification or deletion of Your Data resulting from any access to such data or information by Third-Party Application providers.
- PROPRIETARY RIGHTS
4.1. Reservation of Rights; Intellectual Property. Subject to the limited rights expressly granted hereunder, we reserve all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, on, incorporated in, or related to Our website(s) (the “Site”) and Services are owned by Us or Our suppliers, partners, or Affiliates. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. There are no implied licenses granted under this Agreement.
4.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Site or the Services, (iii) copy, frame or mirror any part or content of the Site or the Services, other than copying or framing on Your own internal networks or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Site or the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Site or the Services.
4.3. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including any Users, relating to the operation of the Services, and we are under no obligation to treat such feedback as confidential.
5.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes of a Disclosing Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
5.3. Protection of Your Data. Without limiting the above, We shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data.
5.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.5 Aggregated Data. Notwithstanding the foregoing, any aggregate and/or deidentified data not linkable to a particular household, person, or account (“Aggregate Data”), regardless of how such Aggregate Data is collected or created, shall not be considered Confidential Information and We may use, reproduce, sell, publicize, or otherwise exploit such Aggregate Data in any way and without any compensation or remuneration to You.
- WARRANTIES AND DISCLAIMERS
6.1 Disclaimer. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICES, INCLUDING ANY INFORMATION REGARDING THE ENERGY USAGE, CONDITION, OR OTHER TECHNICAL ASPECTS OF ANY BUILDING OR THE TERMS, CONDITIONS, OR BENEFITS OF ANY PROGRAM OR OFFERING OF ANY THIRD PARTY. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICES, AND ANY INFORMATION AVAILABLE THEREIN IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- MUTUAL INDEMNIFICATION
7.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by any third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the U.S. intellectual property rights of such third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
7.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by any third party arising out of Your use of the Services, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability and further provided that such settlement does not detrimentally affect our rights to and commercialization of the Services); and (c) provide to You all reasonable assistance, at Your expense.
7.3. Exclusive Remedy. This Section 7 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim for infringement or violation of intellectual property or other proprietary rights.
- LIMITATION OF LIABILITY
8.1 Waiver of Damages. WE SHALL NOT HAVE ANY LIABILITY WHATSOEVER, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE OR THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO RELIANCE BY ANY PARTY ON ANY CONTENT OR INFORMATION OBTAINED FROM OR THROUGH THE SITE OR USE OF THE SERVICES, OR THAT ARISES IN CONNECTION WITH MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM USERS, INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SITE OR SERVICES, OR VIRUSES, REGARDLESS OF THE CAUSE.
8.2 Maximum Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, THE SITE, OR YOUR USE OF THE SERVICES, FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF THE AMOUNT OF FEES PAID BY YOU TO US OVER THE PRECEDING 12 MONTHS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
8.3 Exclusions. The limitations in Sections 8.1 and 8.2 shall not apply to the parties’ respective indemnification obligations or a breach of Section 5.
- TERM AND TERMINATION
9.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the applicable User subscriptions granted in accordance with this Agreement have expired or been terminated and any account You have with Us is closed.
9.2. Termination. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Notwithstanding the foregoing, We may terminate this agreement for any reason or no reason, with 60 days written notice to the other party.
9.3. Surviving Provisions. 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 10 (Notices, Governing Law and Jurisdiction), and 11(General Provisions) shall survive any termination or expiration of this Agreement.
- NOTICES, GOVERNING LAW AND JURISDICTION, AND ARBITRATION
10.1. Manner of Giving Notice. We may send notices pursuant to this Agreement to You at the e-mail address we have on file for You, and such notices will be deemed received by You 48 hours after they are sent. You may send notices to Us pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received 72 hours after they are sent.
10.2. Agreement to Governing Law and Jurisdiction. This Agreement, and all claims or causes of action (whether in contract, tort, or statute) that may be based upon, arise out of, or relate to this Agreement, shall be governed by, and enforced in accordance with, the internal laws of the State of Colorado, including its statutes of limitations. Each party consents to the exclusive jurisdiction of the federal and state courts located in Denver, Colorado USA for any dispute not subject to arbitration, if any.
10.3. Dispute Resolution. Except in situations in which injunctive relief is necessary, if any dispute arises between the parties in connection with this Agreement, the parties shall first attempt to resolve the dispute through good faith negotiations between parties authorized to settle the dispute on behalf of the parties. If such negotiations fail to resolve the dispute within thirty (30) days, each party shall have the right to commence binding arbitration in accordance with this Agreement.
10.4. Arbitration. Any dispute between You and Us, our agents, employees, officers, directors, principals, successors, assigns, subsidiaries, or affiliates arising from or relating to this Agreement and its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement, including disputes about the validity, scope or enforceability of this arbitration provision (collectively, “Covered Disputes”) will be settled by binding arbitration in accordance with the rules of the American Arbitration Association by a single arbitrator appointed in accordance with said rules. The arbitration shall take place in Denver, Colorado USA and the arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will apply applicable law and the provisions of this Agreement and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The parties agree that any Covered Dispute hereunder will be submitted to arbitration on an individual basis only. Neither Us nor You are entitled to arbitrate any Covered Dispute as a class, representative, or private attorney action and the arbitrator will have no authority to proceed on a class, representative, or private attorney general basis. If any provision of the agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative or private attorney general arbitration).
10.5 NO CLASS ACTION. TO THE EXTENT ALLOWED BY LAW, YOU AND WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
10.6 NO TRIAL BY JURY. TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
- GENERAL PROVISIONS
11.1. Export Compliance. You represent and warrant that You are not named on any U.S. government list of persons or entities prohibited from receiving exports. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services and You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition, or restriction.
11.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5. Severability. 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 effect.
11.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
11.7. Entire Agreement; Modification. Your Order, This Agreement, and any other written agreement entered into by You and Us that expressly relates to the Services, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. We may revise and update this Agreement at any time, in Our sole discretion by posting an amended version at the Site. Your continued use of the Services after any changes to this Agreement will mean You accept those changes.
11.8. Force Majeure. Neither party will incur any liability to the other party resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences or forces beyond the reasonable control and without the negligence or other fault of such party.