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POWER ANALYTICS CORPORATION
DESIGN BASE Xi LICENSE
PLEASE READ THIS LICENSE (“LICENSE”) BEFORE DOWNLOADING THE POWER ANALYTICS CORPORATION’S DESIGN BASE Xi PRODUCT (DEFINED BELOW).
SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THIS IS A LEGAL LICENSE BETWEEN YOU AND POWER ANALYTICS CORPORATION. BY CLICKING “AGREE”, CHECKING THE BOX, OR BY DOWNLOADING, USING OR COPYING ANY PART OF DESIGN BASE Xi, YOU ARE AGREEING ON YOUR OWN BEHALF AND/OR ON BEHALF OF YOUR COMPANY TO ALL OF THE TERMS AND CONDITIONS STATED BELOW. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS LICENSE, YOU CANNOT USE DESIGN BASE Xi. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD AND USE DESIGN BASE Xi AND CLICK “DISAGREE”.
NOTE: You understand and agree that this License is only for Your use solely and exclusively and cannot be used, sold and/or distributed except as specifically provided for by this License or by a separate License between You and Power Analytics Corporation. Power Analytics Corporation reserves the right to, in its sole discretion, refuse admission of any person or entity to this Licensing Program or any other Power Analytics program.
DESIGN BASE Xi LICENSE TERMS AND CONDITIONS
This License is effective on date upon which this License is activated by (1) clicking the “AGREE” button at the end of the text of the terms and conditions of this License, and by (2) clicking the “SUBMIT” button on the last page after supplying (a) the Licensee Information requested and (b) payment of the initial License Fee by approved credit card or bank funds transfer (the “Effective Date”), This License is between Power Analytics Corporation, a Delaware corporation with a principal place of business at 8521 Six Forks Road Suite 110, Raleigh, North Carolina 27615 (“PA”) and the individual or entity identified in the Licensee Information submitted as described above (“You” or “Licensee”). Upon acceptance by PA, Licensee will be provided a DBXi Licensee Identification Number (“License ID”).
Whereas, PA provides software, applications, analytics and financial settlements services to businesses and entities (“Market Licensees”) that are involved in the generation, acquisition, measurement, control, transmission, sale, provisioning and delivery of electric power and the associated hardware, software, systems, methods and services that enable such operations and transactions; and
Whereas, PA has established a DBXi Licensing Program to provide PA’s DesignBase Xi ™ product (“DBXi”) and/or other PA products and/or services to Licensees under limited use terms as set forth in this License; and
Whereas, Licensee wishes to participate in the DBXi Licensing Program to use DBXi exclusively for its own use, and intends to be bound by the terms of this License.
The Parties, therefore, for good and valuable consideration, the receipt of which is hereby acknowledged, agree as follows:
- Definitions. Whenever used in this License, terms shall mean the following:
“Application” means one or more software programs and/or content for Licensee’s owned products, including Grid Elements, or services, including integration developed by Licensee for specific use with the DBXi™ product, including any updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of Applications.
“Authorized Users” means Licensee and its employees, agents and contractors who (a) have a demonstrable need to know or use the DBXi (b) agree, in writing, to be bound by the provisions of this License, and (c) to the extent any such individuals will have access to PA Confidential Information, each has a written and binding non-disclosure License with Licensee to protect the unauthorized use and disclosure of PA Confidential Information.
“DBXi” means the PA DesignBaseXi™ Product and includes the DesignBase Xi software (excluding source and object code), tools, utilities, sample or example code, database tables, export and import connectors, and/or Application Programming Interfaces (“APIs”), Service Oriented Architecture (“SOA”) interfaces, documentation, interfaces, simulators, libraries, data, files, content, data, and other materials provided by PA, whether on disk, print or electronic documentation, in read only memory, or any other media or in any other form, and includes any Updates that may be provided by PA to Licensee pursuant to this License.
“Documentation” means any technical or other specifications or documentation that PA may provide to Licensee for use in connection with DBXi.
“Derivative Works” means any revision, enhancement, modification, translation, abridgement, condensation, expansion, or extension related to DesignBase, DesignBase Xi, Paladin Platform, Applications integrated with PA’s Products. A Derivative Work also includes any compilation that incorporates a preexisting work related to any PA Product as currently sold, or revisions, enhancements and new products incorporated while this License is in force.
“FOSS” (Free and Open Source Software) means any software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and/or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL.
“Grid Elements” means any device that attaches or is connected to an electric grid of any type that has a function or participates in the operation of the electric power grid. Furthermore, Grid Elements may include but are not limited to the group consisting of: a sensor, a transmission reporting or control device, a distribution system reporting or control device, a power-consuming device, an appliance, any inductive device that consumes power, any resistive device that consumes power, a meter, a switch, a controller, a control device, a thermostat, a building control system, a security device, any type of supply device whereby electric power is supplied to an electric power grid and combinations thereof. Also, Grid Elements include any devices under the control of an energy management system (“EMS”) or SCADA system associated with the electric power grid. Active Grid Elements are any devices attached to or connected to an electric power grid with a function or participation that transmits, receives, transforms or processes messages and data over a network.
“Licensee” means any person(s) or entity who has executed a valid DBXi License.
“Intellectual Property” means all intellectual property and proprietary rights, including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, trade secrets and know how, for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.
“PA Confidential Information” means all non-public information disclosed by PA to Licensee in connection with this License that is identified or marked as “Confidential” if disclosed in writing, or is designated as being confidential at the time of disclosure, if disclosed orally or visually. PA Confidential Information will not include: (i) information that is generally and legitimately available to the public through no fault or breach of Licensee, (ii) information that is generally made available to the public by PA, (iii) information that is independently developed by Licensee without the use of any PA Confidential Information, (iv) information that was rightfully obtained from a third party who had the right to transfer or disclose it to Licensee, or (v) any FOSS included in the DBXi, if any, and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such FOSS.
“PA Product” means any proprietary product developed, owned or branded product, software application or service, or any part thereof, by PA or its affiliated companies.
“Term” means the period described in Section 6.
“Third Party Intellectual Property” means any Intellectual Property owned, in whole or in part, by any entity other than one of the Parties to this License or any of their owned or controlled affiliates and subsidiaries.
“Updates” means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the DBXi, or to any part of the DBXi.
“User Products” means Applications and other products or services, including Grid Elements developed, created or owned by Licensee and used to reproduce materials, produce product libraries, connect to third party applications, products, services, patented or proprietary materials, or collect data that may or may not be used in the reporting or operation of Grid Elements.
- General Provisions.
2.2 Limited Use License. Subject to the terms and conditions of this License, PA hereby grants Licensee a limited use, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to use DBXi in connection with the Licensee’s own purposes and to make and distribute a reasonable number of copies of the Documentation to Licensee’s Authorized Users.
2.3 Copies. Licensee agree to retain and reproduce in full the PA copyright, disclaimers and other proprietary notices (as they appear in the DBXi and Documentation provided) in all copies of the DBXi and Documentation that Licensee is permitted to make under this License.
2.4 Cooperation. PA retains all rights, title, and interest in and to the DBXi. Licensee agrees to cooperate with PA to maintain and protect PA’s ownership interests in the DBXi, and, to the extent that Licensee becomes aware of any claims or challenges relating to such ownership rights, Licensee shall promptly provide notice of any such claims to PA.
2.5 No Other Permitted Uses. Unless otherwise expressly permitted by PA in writing, Licensee agrees not to rent, lease, lend, upload to or host on any website or server, sell, or redistribute DBXi, in whole or in part, or to enable others to do so. Licensee agrees that it will not, and will not enable others, to copy (except as expressly permitted under this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, decrypt, or create Derivative Works of the DBXi or any services provided by the DBXi, or any part thereof. All licenses not expressly granted in this License are reserved and no other licenses, immunity or rights, express or implied are granted by PA, by implication, estoppel, or otherwise. This License does not grant Licensee any rights to use any trademarks, logos or service marks belonging to PA without PA’s written consent.
3.1 Consideration by Licensee. In addition to all other consideration set forth under this License, Licensee will pay PA:
DBXi: License Fee in the amount of $249 per month (without support) or $499 per month (with support), or
3.2 Consideration by PA. In accordance with all of the terms of this License, and in addition to other consideration set forth in this License, PA will provide Licensee with the following: (a) one copy of the DBXi together with the limited use license defined in section 2.2 of this License; (b) Updates and new versions of the DBXi when they become available.
3.3. Additional Services. PA may provide access to services related to Licensee’s use of DBXi in addition to those set forth in this License. Use of these services will require Licensee to accept additional terms and will be subject to additional fees. If Licensee elects to use such services in conjunction with the DBXi, Licensee’s use of such services will be subject to the additional terms and conditions included in a separate statement of work, to be negotiated between the Licensee and PA.
- Licensee’s Obligations
4.1 General. Licensee certifies that it will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by Licensee and Authorized Users in connection with the use of DBXi.
4.2 Use of the DBXi. As a condition to using the DBXi, Licensee agrees that it: (a) will only use the DBXi for the purposes and in the manner expressly permitted by this License and in accordance with all applicable laws and regulations; (b) will not use the DBXi for any unlawful or illegal activity, or other tortious, unlawful, or illegal act; (c) will not distribute DBXi absent a separate OEM License with PA; (d) will not violate, misappropriate, or infringe any PA or third party copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights and (e) will not, through use of the DBXi or otherwise, create any Application or other program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or by DBXi, or other PA software, services or technology, or enable others to do so.
4.3 Upgrades and Updates. PA, at its discretion, may make available future upgrades or updates applicable to the DBXi The PA upgrades and updates may not necessarily include all existing features or new features that PA releases. The terms of this License will govern any upgrades or updates provided; however, it is Licensee’s responsibility to ensure compatibility, testing, and qualification of any Applications that incorporate such upgrades or updates.
5.1 Obligations Regarding PA Confidential Information. Licensee agrees to use PA Confidential Information solely for the purpose of exercising its rights and performing its obligations under this License and agrees not to use PA Confidential Information for any other purpose, or for any third party’s benefit, without PA’s prior written consent. Licensee further agrees not to disclose or disseminate PA Confidential Information to anyone other than: (i) Authorized Users; or (ii) except as otherwise agreed or permitted in writing by PA. Licensee may disclose PA Confidential Information to the extent required by law, provided that Licensee takes reasonable steps to notify PA of such requirement prior to disclosure.
5.2 Information Submitted to PA Not Deemed Confidential. PA expressly disclaims any confidentiality obligations or use restrictions, express or implied, with respect to any information that Licensee may provide to PA in connection with this License, including information about Applications (such disclosures will be referred to as “Licensee Disclosures”). Such Licensee Disclosures will be non-confidential, absent a separate express written License to the contrary for specifically identified information. PA will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating Licensee.
5.4. Indemnification. To the extent permitted by applicable law, Licensee agrees to indemnify, defend and hold harmless PA, its directors, officers, employees, independent contractors and agents (“PA Indemnified Parties”) from any and all claims, losses, liabilities, damages, expenses and costs, including without limitation attorneys’ fees and court costs, incurred by PA Indemnified Parties as a result of Licensee’s breach of this License, any claims that Applications OR User :Products violate or infringe any third party intellectual property or proprietary rights, or any other claims of any type or nature related to or arising from the use of the DBXi, Applications, User Products or any rights owned in whole or in part by Licensee. In no event may Licensee enter into any settlement, compromise or other License with a third party that affects PA’s rights or binds PA in any way, without the prior written consent of PA.
- Term and Termination
6.1 Term. This License shall be in effect from the Effective Date in 30 day increments until termination in accordance with Section 6.2.
6.2 Termination. This License is effective until terminated (a) upon thirty (30) days prior notice by PA to Licensee for any reason or for no reason, (b) upon termination by the Licensee due to opt out of the automatic renewal by the Licensee, or by failure by the Licensee to pay, or (c) immediately and without notice from PA if Licensee fails to comply with any term(s) of this License. Sections 2.4, 2.5, 4.2, 5, 6.3, and 7 through 12 of this License shall survive termination of this License.
6.3 Effect of Termination. Upon the termination of this License, Licensee shall immediately cease all use of the DBXi and erase and destroy all copies, full or partial, of PA Confidential Information in both Licensee’s and Authorized Users’ possession or control. At PA’s request, Licensee will provide written certification of such destruction. PA will not be liable for compensation, indemnity, or damages of any kind or nature as a result of the termination this License in accordance with its terms. Termination of this License by PA will be without prejudice to any other right or remedy PA may have, now or in the future.
6.4 In the event PA terminates the License without cause before the end of the Term, and the Licensee has pre-paid for License and/or support rights, then Licensee shall be entitled to a refund of the unused portion of such pre-paid fees, calculated by multiplying the total fees paid by the number of days from the termination date to the end of the Term and dividing by the remaining days.
- Limitations of Warranties.
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT, USE OF THE DBXi AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE DBXi IS AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY IS WITH LICENSEE.
THE DBXi AND DBXi SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO DBXi AND DBXi SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
PA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, DBXi WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF DBXi WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DBXi SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT DBXi BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN DBXi WILL BE CORRECTED. INSTALLATION OF DBXi MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES AS WELL AS OTHER PA PRODUCTS OR SERVICES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PA OR A PA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY CONTRARY TO THE PROVISIONS OF THIS SECTION 7.
- Limitation of Liability.
IN NO EVENT SHALL PA BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA OR INFORMATION, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO LICENSEE’S USE LICENSEE’S APPLICATIONS OR USER PRODUCTS, OR THE INABILITY TO USE DBXi OR ANY THIRD PARTY SOFTWARE, APPLICATIONS, OR SERVICES IN CONJUNCTION WITH THE DBXi, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PA’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES (OTHER THAN THOSE REQUIRED BY LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE TOTAL AMOUNT OF $25,000.00.
- Consent to Use of Data.
PA and its agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about Licensee’s computer, system and application software, and peripherals. Licensee consents that all such information may be gathered and used to provide and improve PA’s products and services, facilitate the provision of software updates, product support, compensation to PA, and other services to Licensee (if any) related to DBXi, and to verify compliance with the terms of this License. PA may use this information to enable PA’s partners and third party developers to improve their software, hardware and services designed for use with PA products. PA may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to that partner’s or developer’s software, hardware and/or services, as long as the diagnostic information is in a form that does not personally identify Licensee.
- Export Control.
Licensees may not use or otherwise export or re-export the DBXi except as authorized by United States law and the laws of the jurisdiction(s) in which the DBXi was obtained. In particular, but without limitation, the DBXi may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
- Government Use.
The DBXi and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- General Legal Terms
12.1 Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of North Carolina. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
12.2 Complete License; Governing Language. This License constitutes the entire License between Licensee and PA relating to the use of the DBXi hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by PA.
This License may not be assigned, nor may any of Licensee’s obligations under this License be delegated, in whole or in part, by Licensee, by operation of law, merger, or any other means without PA’s express prior written consent and any attempted assignment without such consent will be null and void.
12.4 Relationship of Parties
This License will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Licensee and PA.
Any notices relating to this License shall be in writing. Notices will be deemed given by PA when addressed to Licensee at the address provided in the Licensee Information submitted to PA to activate this License and notices to PA will be deemed given by Licensee when addressed to Power Analytics Corporation, Attn: Licensee Development Program Office at 8521 Six Forks Road Suite 110, Raleigh North Carolina 27615 five business days after having been sent by first class or certified mail, postage prepaid. A party may change its email or mailing address by giving the other written notice as described above.
12.6 Waiver and Construction
Failure by PA to enforce any provision of this License shall not be deemed a waiver of future enforcement of that or any other provision. Section headings are for convenience only and are not to be considered in construing or interpreting this License.
12.7 Renewal of this License. This license will auto renew on a monthly basis unless the Licensee visits the Power Analytics website and opts out of the auto renewal.
LICENSEE HAS FULLY READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF THIS LICENSE:
To accept the terms and conditions, close this browser tab and check the box on the previous order checkout page.