JANiiT™ FlexSim Terms and Conditions
This Agreement (the “Agreement”) is by and between Maplewell Inc. having its principal place of business located at 1919 14th Street Suite 700 Boulder, CO 80302 (“Maplewell” or “Licensor”), and the Subscriber ( “Subscriber” or “Licensee”), collectively referred to herein as “the Parties”.
Recitals
WHEREAS the Parties have agreed that Subscriber will simulate Maplewell’s Energy Management System (“JANiiT™”) within a simulated battery environment before project construction and commissioning, and the Parties wish to provide for certain events and contingencies that may arise from that testing, herein referred to as a “Simulation” or "Simulations";
THEREFORE the Parties, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, having agreed now evidence that agreement in the following terms and conditions.
1. Effective Date. This agreement is made as of start of the subscription date (Effective Date) between Subscriber and Maplewell, which shall be the date upon which Subscriber accepts these terms and conditions by clicking the Subscribe button in accordance with the Plan options listed at app.maplewell.io/, and accepting JANiiT™ FlexSim Terms and Conditions. Maplewell reserves the right to make changes to these terms and conditions at any time.
2. Licensed Software. Software made available to the Subscriber by Maplewell for use hereunder is solely for the purpose of conducting simulations and is not to be used for any other purpose or allowed to be accessed by any unauthorized third party. THE LICENSED SOFTWARE IS PROVIDED WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED. Maplewell retains all rights, title and ownership to the Licensed Software. Subscriber agrees not to modify or reverse engineer the Licensed Software without the prior written consent of Maplewell.
3. License Grant. MAPLEWELL grants to Licensee a non-exclusive, non-transferable terminable JANiiT™ FlexSim license to use the MAPLEWELL ENERGY MANAGEMENT SYSTEM, also known as "JANiiT", solely for battery simulation and project development use subject to the terms and conditions herein.
4. Payment and Fees. Licensee shall pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable pursuant to the fees charged and agreed to when the Subscribe button was actuated on a particular Plan option. The initial charges will reflect the Maplewell Plan chosen. Payments must be made Net 30 unless otherwise mutually agreed upon. All payment obligations of Licensee are non-cancelable, and all amounts paid are nonrefundable (except as expressly set forth in this Agreement or in any the applicable Plan details). Customer is responsible for paying for all licenses ordered for the entire Term, whether or not such licenses are actively used.
5. Ownership, Trade Secrecy. Licensee agrees that the software is the sole property of MAPLEWELL and includes valuable trade secrets of MAPLEWELL. Licensee agrees to treat the software as Confidential Information and will notwithout the express written authorization of MAPLEWELL i) demonstrate, copy, sell or market the software to any third party; ii) publish or otherwise disclose information relating to performance or quality of the software to any third party; or iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the software or any portion thereof.
6. WARRANTY DISCLAIMERS. LICENSED SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF SOFTWARE REMAINS WITH LICENSEE. IN NO EVENT SHALL MAPLEWELL BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF MAPLEWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Indemnification. Subscriber agrees that Maplewell and its employees and agents shall have no liability in connection with the Licensed Software or its use. Licensee agrees to waive all claims against Maplewell, its employees or agents, and to indemnify, defend and hold Maplewell, its affiliates, employees and agents harmless from damages for any loss, claim, injury, liability or the like, which may arise from Licensee's use of the system. MAPLEWELL SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND WHATSOEVER, WHETHER DIRECT OR CONSEQUENTIAL, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFIT, HOWSOEVER THE SAME MAY ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT AND WHETHER IN CONTRACT OR CAUSED DIRECTLY OR INDIRECTLY BY ANY NEGLIGENCE OR OTHER ACT OF MAPLEWELL IN CONNECTION WITH THE SUPPLY, USE OR POSSESSION OF THE SYSTEM.
8. Improvements, Inventions. In partial consideration for receiving the Licensed Software for simulation testing, Licensee agrees to notify MAPLEWELL of all problems and ideas for enhancements or improvements which come to Licensee’s attention during the period of this Agreement. Licensee shall promptly disclose any invention, or improvement to the Licensed Software arising hereunder to Maplewell, whether patentable or not. Any invention arising hereunder madeeither solely or jointly with Maplewell by the Subscriber as determined under the Federal common law of patent inventorship shall be the exclusive property of Maplewell. Maplewell shall be responsible for any expenses relating to the patenting of any inventions. Subscriber shall cooperate in filing any patent applications covering the inventions.
9. Modeling Use Only. Information generated by the Simulation is for evaluation of possible commercial scenarios that contain numerous assumptions and depends wholly on the underlying energy prices, tax rates, battery type and capacity, and numerous other assumptions unique to the specific project being modeled. Licensee agrees that the outcomes of the simulations are not a guarantee of financial outcomes, but are only as accurate as the information inputs. Licensee hereby grants to Licensor a limited license to access and use the simulation results for commercial evaluation purposes that do not conflict with Licensee's business purposes for the Simulation.
10. Termination.
a. Either Party may terminate the Simulation at any time and for any reason with thirty (30) days advance written notice to the other Party.
b. Effect of Expiration or Termination. Upon expiration or termination of this Agreement or a related Simulation, the licenses shall end simultaneously. Subscriber shall dispose of all tangible embodiments, and render inaccessible or useless all electronic embodiments, of Confidential Information and data provided under this Agreement or the applicable Software, except that Subscriber may retain one (1) copy for legal archival purposes.
11. Confidentiality. Upon termination or completion of a Simulation, the Licensee agrees to allow Maplewell to continue to access any Simulation-related data and information, for its own internal non-commercial purposes. The Simulation data shall be treated as Confidential Information hereunder. The Subscriber may retain a copy of all Simulation data for its records and subject to the following, may use such data for its own purposes and programs of research. Subscriber agrees to keep confidential any Maplewell confidential and proprietary information supplied to it in writing by Maplewell, or generated during the Simulation during the course of testing performed by Subscriber (Confidential Information). This obligation extends for a period of two (2) years after the term of this Agreement. Such Confidential Information will not be included in any published material without prior review and approval by Maplewell.
The obligations of this Section shall not apply to:
a. information which is or becomes known publicly through no fault of Subscriber;
b. information learned by Subscriber through a third party entitled to disclose it;
c. information developed by Subscriber independently of information obtained from Maplewell as shown by contemporaneous written records;
d. information already known to Subscriber before Maplewell’s disclosure as shown by witnessed prior written records; or
e. information required to be disclosed by law, to comply with government regulations, subpoenas or court orders, provided Maplewell receives adequate notice of such demand and provided Subscriber makes any such disclosure under an order protecting the confidential nature of proprietary information.
12. Independent Contractors. The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a partnership, joint venture, principal-agent relationship or other jointrelationship, and neither party will have the right, power or authority to bind or create any obligation, express or implied, on behalf of the other party.
13. Representations and Warranties. The Subscriber represents and warrants that the Subscriber has not entered or will not enter into any agreement that would in any way conflict with or compromise performance under this Agreement.
14. Choice of Laws. This Agreement will be governed by the laws of the State of Colorado without giving effect to anychoice of law rule that would cause the application of the laws of any jurisdiction other than those of the State of Colorado to the rights and duties of the parties.
15. Dispute Resolution. Any controversy or claim relating to this Agreement (other than claims for injunctions and otherequitable relief pending the outcome of such controversy or claim) will be settled by arbitration, in accordance with thethen-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration may be entered in any court having jurisdiction.
16. Severability. If any term, provision, covenant or condition of this Agreement is held by a tribunal of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will remain in full force and effect and will in no way be affected, impaired or invalidated, and the invalid, void or unenforceable provision will be deemed replaced by a provision that most nearly reflects the intent of the parties in entering into this Agreement.
17. Waiver. Failure by either party to enforce any right or provision of this Agreement will not be construed to be a waiverof any prior, concurrent or subsequent breach of such right or provision or any other right under or provision of this Agreement, and will not affect the validity of this Agreement or any part hereof or the right of either party to enforcesuch right or provision thereafter.
18. Non-exclusivity. Each party acknowledges that nothing in this Agreement will preclude the other party from offering any products or services.
19. Assignment. Neither Party has the right to assign its rights or obligations under this Agreement without the prior written consent of the other Party; provided however, that (i) either Party may assign this Agreement and all of its rights and obligations hereunder, without such consent, to an entity that acquires all or majority of the shares or assets of such Party (or the business or assets to which this Agreement pertains) whether by merger, consolidation, reorganization, acquisition, sale, license or otherwise, and (ii) each Party may assign this Agreement and all of its rights and obligations hereunder, without such consent, to an Affiliate if the assigning Party remains liable and responsible for the performance and observance of all of the Affiliate’s duties and obligations hereunder. This Agreement shall be bindingupon and inure to the benefit of the successors and permitted assigns of the Parties to the extent necessary to carry out theintent of this Agreement. Any assignment not in accordance with this Section shall be void.