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Aclima End User License

Last Updated July 2020

 

SUPPLEMENTAL TERMS FOR ENTERPRISE SERVICE USERS 

These Terms for Enterprise Service Users apply solely to users (“you” or “Enterprise Users”) of Aclima’s Enterprise Services, as further defined below (“Supplemental Terms”) who are not otherwise subject to a Services Agreement for the license and use of our Services. To the extent any provision of this set of Supplemental Terms conflicts with any agreement by and between any Customer and Aclima, the terms of that agreement shall supersede and be controlling. Other additional or different terms may apply to Enterprise Users of the Services of Aclima’s publicly available or community websites, APIs or Apps or use of other services (in this section, referred to as the “Self-Serve Services”). By purchasing, accessing, or using the Services, you confirm that:

  1. You will only use our Services for business and professional reasons (Services for Enterprise Users are not for use by or distribution to others or to consumers and may only be used for business and professional purposes);
  2. You accept and will comply with these Supplemental Terms; and
  3. You are responsible for ensuring that any Enterprise Users of our Services through your account are authorized users under your subscription or license, and employed or contracted by any party or entities or companies that you or your employer controls, owns, or is controlled by.

 

1. DEFINITIONS

We use capitalization for terms that have a special meaning in this Agreement. Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms:

“Access Period” means, with respect to each application of Aclima Software and any Data Product Module, the period of time specified above for which an Enterprise User is authorized to access such Aclima Software and Data Product Modules; such access may be for the term noted in an Order Form or a shorter or longer period of time. For all licenses of Aclima Software, the Access Period is defined as the expiration and may be set forth in the Order Form. For any Output Reports, the license shall be perpetual beyond the Access Period, provided that Enterprise User is otherwise in compliance with all other license terms and conditions of the Agreement.

“Aclima Datasets” means Data Product Modules consisting of the specific collections of data and information an Enterprise User is expressly authorized to access and/or download through Aclima Software under this Addendum.

“Aclima Software” means the web-based software application/s made available by Aclima hereunder that permits Enterprise Users to utilize various Data Product Modules, and includes, without limitation, any related documentation, data, code, and other materials made available by Aclima, as may be updated from time to time. The specific Aclima Software application(s) included under this Addendum is identified under the applicable Task Order.

“Capacity Limitations” means the usage limitations specified and defined in any Task Order with respect to an Enterprise User’s use of the Aclima Software or Data Product Modules. Such limitations may include seat or user limits for access to Aclima Software or limits regarding the quantity of data an Enterprise User is permitted to access or the number of queries or calls an Enterprise User is authorized to make with respect to a Data Product Module.

“Customer Datasets” means Data Product Modules representing collections of data and information provided by an Enterprise User, if applicable, that may be input into the Aclima Software. “Data Product Modules” means either the Aclima Datasets, Customer Datasets, or Third Party Datasets that the Enterprise User is expressly authorized to access and/or download through Aclima Software during the Term and subject to the terms and conditions of this Addendum including Access Period limitations. Data Product Modules may include range measurements, range-rate measurements, meta-data, and other data and information that an Enterprise User is authorized by Aclima to access and/or download through Aclima Software or by any other means specified in writing by Aclima. The applicable Data Product Modules are identified under the Task Order.

“Enterprise Services” means services included in Aclima’s Enterprise Services and any other Aclima products or services made available to you through an Order Form or an Online Order, but does not include: i) Aclima’s Professional Services; or ii) any Third-Party Services.

“Order Form” is a document that we issue and that is signed or otherwise agreed to by you, which describes the Enterprise Services you are purchasing, including the fees, the quantities purchased, and any other details specifically related to those services.

“Output Reports” means any static, fixed format reports containing or utilizing the Aclima Software and any Data Product Modules.

“Third Party Datasets” means any third party collections of data provided or sourced by either Aclima or the Enterprise User including public municipal/state/federal sources, hardware providers, and vetted third-party monitoring programs, provided that the sourcing party shall be responsible for the use of such Third Party Datasets in connection with Aclima Software.

“Third-Party Services” are services that are not provided by Aclima that you may access or use in connection with our Enterprise Services. They may include the extensions and applications available in the Aclima Software or those services specifically identified as “Partner Services”.

 

2. ACLIMA ENTERPRISE SERVICES

2.1. Enterprise Services: During the Term of any Order Form or agreement between us, we will: (a) make the Enterprise Services available to you in accordance with the applicable Order Form; and (b) host and serve the Enterprise Services in accordance with any service levels agreed upon by and between the parties.

2.2 Aclima Professional Services: If your Order Form includes professional services (such as account set-up, provisioning, or training) (“Aclima Professional Services”), these Terms also apply to and govern all Aclima Professional Services. 

2.3 Updates: Our Enterprise Services evolve constantly. So long as we do not breach the warranty set out herein, we may change our Enterprise Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.

 

3. YOUR RESPONSIBILITIES

3.1 Acceptable Use: You and your authorized Enterprise Users must comply with any Guidelines (published in these Terms and updated from time to time) and all applicable laws. If you or any of your authorized Enterprise Users do not comply with the Guidelines or any applicable laws, we may temporarily remove, suspend, or restrict your access to the Enterprise Services without prior notice. In any such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.

3.2 Account Information: You are responsible for the completeness, security, confidentiality, and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.

3.3 Affiliates: Your Affiliates may use the Enterprise Services that you purchase, subject to the quantities or other usage limits set out in your Order Form. If an Affiliate wishes to have a separate account or wishes to be billed separately for its use of the Enterprise Services, that Affiliate will need to sign a separate Order Form, which will form a separate contract between Aclima and that Affiliate, which will also be subject to this Agreement.

 

4. THIRD PARTY SERVICES

4.1 Third-Party Services: If you access or purchase a Third-Party Service, such as technology licenses, tools, or APIs, in order to access or use the Services or to use data found in or downloaded from the Services, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Services. We will not be liable for disclosure, use, changes to, or deletion of your data or for losses or damages you may suffer from access to your data by a Third-Party Service. We make no representation and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence, agreements or transactions with, any Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services.

4.2 Partner Services: Without limiting the generality of Section 4, if you purchase any Partner Services, you: (a) acknowledge and agree that we are acting solely as an authorized reseller for such Partner Services; and (b) expressly agree to be bound by the terms and conditions applicable to such services listed in these Terms of Service or as otherwise set out in the applicable Order Form.

 

5. LIMITED LICENSES

5.1 Scope of Licenses: Subject to an Enterprise User’s compliance with the Terms and Supplemental Terms, Aclima hereby grants to Enterprise User a limited, non-exclusive, non-sublicensable, non-transferable license during the Term to (i) access the Aclima Software, subject to the Capacity Limitations, (ii) use the Data Product Modules solely for its internal and technical business purposes including without limitation for assessment of accuracy and other metrics and benchmarking performance of the Aclima Software or any Output Reports against existing tools, datasets or sources, and for no other use or purpose, (iii) use the Output Reports for any business purposes, including without limitation the dissemination and publication for the Output Reports (or any portion thereof) to the general public; provided however that Enterprise User use the attribution language for such Output Reports as set forth below. For the avoidance of doubt, Enterprise User shall not distribute, publish, or otherwise make available to any third party the Aclima Datasets except that Enterprise User may share reports and presentations containing analyses or summaries that comprise the Output Reports as derived from the Data Product Modules for any non-commercial purpose; provided that Enterprise User shall not share or distribute portions or excerpts of the Data Product Modules themselves without Aclima’s prior written approval. Enterprise User represents and warrants that the execution, delivery and performance of this Addendum does not and will not conflict with any agreement, instrument, judgment, law, rule or regulation or understanding, oral or written, to which it is a party or by which it may be bound or subject.  For purposes of and with reference to the Terms or these Supplemental Terms, Enterprise User shall retain all right, title and interest in and solely to any Customer Datasets provided by Enterprise User, including all intellectual property rights therein. Enterprise User, not Aclima, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Datasets. Notwithstanding anything to the contrary, Enterprise User acknowledges and agrees that Aclima may internally use and modify Customer Datasets without limitation for the purposes of providing the Aclima Software, Data Product Modules and any support or consultation services to Enterprise User, including publication and distribution of any Aclima Community website services. Subject to Enterprise User’s compliance with these Terms, Aclima hereby grants to Enterprise User a perpetual, non-exclusive, non-sublicensable, non-transferable license to the Output Reports created by Aclima and delivered to Enterprise User during the Term, provided however that Enterprise User may not use or distribute such Output Reports for any commercial purpose whatsoever. To the extent Enterprise User publicly displays or shares the Output Reports or otherwise creates derivative works from such Output Reports, Enterprise User shall attribute the source of any Data Products Modules found in the Output Reports and affix such source attribution to the Aclima Software and Data Product Modules.

 

5.2 License and Use Restrictions: Except as expressly set forth in the Terms and these Supplemental Terms, Enterprise User shall not (and shall not permit any third party to), directly or indirectly: (i) rent, lease, distribute, pledge, assign, sell, license or otherwise transfer or encumber rights to or make available to any third party the Aclima Software or any incorporated Data Product Modules (including without limitation for the purpose of the third party distributing, commercializing or publishing any Data Product Modules); (ii) use the Aclima Software or Data Product Modules for the commercial benefit of a third party; (iii) remove or otherwise alter any proprietary notices or labels from the Aclima Software or the Data Product Modules or any portion thereof; or (iv) use the Aclima Software or the Data Product Modules to build or enable a commercial application or product that is competitive with any Aclima product or service; (v) exceed any Capacity Limitations or Term restrictions imposed by Aclima upon use of the Aclima Software or Data Product Modules; or (vi) use or provide the Aclima Software or any Data Product Modules as part of any service bureau, time sharing, software as a service or other similar means. Enterprise User is responsible for all of Enterprise User’s activity in connection with the Aclima Software and the Data Product Modules and shall be solely responsible for any breach of obligations in these Supplemental Terms by its employees, agents, and contractors. Enterprise User (a) shall use the Aclima Software and the Data Product Modules in compliance with all applicable local, state, national and foreign laws, treaties and regulations (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Aclima Software or the Data Product Modules in a manner that violates any third party intellectual property, contractual or other proprietary rights. Aclima may monitor Enterprise User’s use of the Aclima Software or Data Product Modules to improve Aclima’s products and services and to ensure Enterprise User’s compliance with this Addendum. Enterprise User expressly acknowledges that any breach of this Section 3 shall constitute a material breach of the Supplemental Terms, subject to Aclima’s immediate termination and Enterprise User’s immediate return or destruction of the Data Product Modules. In no event shall Aclima be liable for any data loss, loss profits or cost of procurement of substitute goods or services resulting from such return or destruction of the Data Product Modules.   

 

6. INTELLECTUAL PROPERTY

Enterprise User acknowledges and agrees that, notwithstanding anything to the contrary, the Aclima Software, Aclima Datasets and Data Product Modules, including any and all intellectual and proprietary rights therein, are and shall at all times remain the sole and exclusive property of Aclima, and to which Aclima grants no rights or licenses except those rights expressly and unambiguously set forth herein. 

6.1 Enterprise Services: Aclima retains all right, title, and interest in our Enterprise Services and all intellectual property contained therein. The Enterprise Services, the Aclima Software, Aclima Datasets, the Output Datasets and Data Product Modules are protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Aclima, we own and retain all rights in all intellectual property associated with such Services.

6.2 Feedback: Aclima welcomes your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential, provided we do not disclose that you are the source of any Feedback. If you provide Feedback, you grant Aclima a non-exclusive, worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free, fully paid-up license to use the Feedback for any purpose.

 

7. TERM AND TERMINATION

7.1 Term: These Supplemental Terms will commence effectiveness on the first day of the initial term set forth in any services agreement or on your Task Order or Order Form, and will continue in effect until the earlier of: (a) the expiration of all Task Orders or Order Forms applicable to you (including any renewal periods); and (b) the termination of the services (the “Term”).

7.2 Survival: Any provision, either by its terms or to give effect to its meaning, must survive and such other provisions that expressly or by their nature are intended to survive termination will survive the expiration or termination of any Order Form or Contract. 

 

8. FEES AND PAYMENT

8.1 Order Forms: The following terms apply to any purchase made by signing an Order Form:

  1. Fees. You will pay all fees as and when described in the Order Form(s) (the “Fees”).
  2. Invoicing. We will invoice you for the Fees in the currency set forth on the applicable Order Form. Unless otherwise stated on the Order Form, all undisputed invoices are payable within thirty (30) days of the invoice date.
  3. Late Payment. If any undisputed amounts invoiced are not received by Aclima by the due date, then, at our discretion, such charges may accrue late interest at the lower of: (a) the rate of 12% per year; or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon thirty (30) days’ written notice to you provided after the due date of any undisputed amount, we may suspend your access to the Enterprise Services if we have not received the amounts invoiced in full.
  4. Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value-added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (collectively, “Taxes”) associated with your subscription to the Enterprise Services, which for clarity does not include any taxes based on Aclima’s income. If we have the legal obligation to pay or collect Taxes for which you are responsible under this provision then the appropriate amount will be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. 

 

9. CONFIDENTIALITY, SECURITY AND DATA PROTECTION 

9.1 Confidential Information: Aclima and you may exchange “Confidential Information” in the course of your negotiation and use of our Enterprise Services. Aclima’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about your policies, personnel (including names and email addresses of your authorized Enterprise Users), or plans or strategies or business practices. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will 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) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient's possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.

9.2 Enterprise Security and Continuity Standards: During the Term, we will use commercially reasonable efforts to maintain the following “Enterprise Security Standards”:

  1. Security Practices. Aclima will implement and maintain industry standard security and data protection practices of comparable level to other companies of Aclima’s size and scope of operations; and
  2. Disaster Recovery and Business Continuity. Aclima has and will maintain a disaster recovery and business continuity plan.

 

10. ENTERPRISE SERVICES WARRANTIES, INDEMNITIES AND LIMITATIONS OF LIABILITY 

10.1 Mutual Warranties: Each of Aclima and Customer represents and warrants that (a) it has the power and authority to enter into agreements and to perform its obligations and duties hereunder; and (b) it will perform its obligations and duties and exercise its rights in compliance with all laws applicable to it.

10.2 Aclima Warranties: Aclima warrants that: (a) the functionality of the Enterprise Services will not be materially decreased during the term of the applicable Order Form; and (b) to its knowledge, the Enterprise Services do not contain any malicious code or viruses.

10.3 Indemnification by Aclima: Subject to Customer’s compliance with this provision, Aclima will defend Customer from and against any and all third-party claims that the use of the Enterprise Services as permitted hereunder directly infringes a valid U.S. or Canada patent or copyright or misappropriates a third party’s trade secret (a “Claim”) and will indemnify Customer for any damages awarded by final non-appealable judgment against, and for reasonable legal fees incurred by, Customer in connection with any such Claim.

Aclima will have no liability for any Claim to the extent it arises from:

  1. a modification of the Enterprise Services by or at the direction of any person other than Aclima;
  2. use of the Enterprise Services in violation of the Terms or Supplemental Terms or applicable law;
  3. use of the Enterprise Services after Aclima notifies Customer to discontinue use because of an infringement or misappropriation claim;
  4. the combination, operation, or use of the Enterprise Services with any other software, program, or device not provided or specified by Aclima to the extent such infringement would not have arisen but for such combination, operation, or use; or
  5. use of the Enterprise Services in a manner that is inconsistent with their intended use.

If the Enterprise Services or any part thereof have become, or in Aclima’s opinion are likely to become, the subject of any Claim, Aclima may at its option and expense:

  1. procure for Customer the right to continue using the Enterprise Services as set forth hereunder;
  2. replace or modify the Enterprise Services or applicable functionalities to make them non-infringing; or
  3. if options (a) or (b) are not reasonably practicable, terminate any agreement for the provisions of such Enterprise Services and refund to Customer any unearned Fees that Customer paid in advance for such Enterprise Services.

This provision sets forth Aclima’s sole liability (and Customer’s sole remedy) regarding infringement or misappropriation of third-party rights.

10.4 Indemnification by Customer: Were not otherwise prohibited by applicable statute, Customer will defend, indemnify, and hold harmless Aclima, its Affiliates, and its or their directors, officers, employees, agents, shareholders, successors and assigns from and against all claims, losses, damages, penalties, liability, and costs, including reasonable legal fees, of any kind or nature that are incurred in connection with or arising out of a third-party claim: arising from Customer’s breach of any of the Terms or these Supplemental Terms.

10.5 Indemnification Procedure: The indemnified party will: (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten (10) days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not enter into any settlement, compromise or consent to judgment with respect to any claim without the indemnified party’s prior written consent unless such settlement, compromise or consent to judgment unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.

10.6 Except as may be expressly provided in a separately negotiated enterprise services agreement, and not including customer’s obligation to pay all fees owed to Aclima hereunder, in no event will either party's aggregate liability to the other party for all claims of any kind, including any claims arising out of or related to this agreement, whether by statute, contract, tort, or under any other theory of liability, exceed the fees paid by any customer for the services subject to the claim during the six (6) month period immediately preceding the date on which the cause of action arose. The limitations of liability in this provision also apply to our affiliates and the directors, officers, employees, and agents of Aclima and our affiliates (the “Aclima Parties”) and to claims brought based on any cause of action, including breach of contract, tort (including negligence), statute or other legal or equitable theory.

10.7 Excluded Damages. To the maximum extent permitted by applicable law, in no event will either party, its directors, employees, agents, or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, or for loss of profits, goodwill or data or other intangible losses, that result from the use of, or inability to use, the enterprise services or any other aspect of this agreement.

Your exclusive remedy for any breach, interruption, or cessation of access or transmission to or from the services are set forth in herein. 

 

11. EXPORTS CONTROL(S)

The use of the services may be subject to import and export laws of the United States and other countries. You agree and acknowledge that you will comply with all import and export laws and regulations. Specifically, you warrant and represent that the services and/or related software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the US Treasury Department’s List or Entity List. As a registered user of the services, you warrant and represent that you are not located in any such country or on any such list. This assurance and communication shall survive termination of Services.