Terms & Conditions

GOBY SOFTWARE AS A SERVICE TERMS AND CONDITIONS

Scope of This Agreement. The terms and conditions in this document comprise the agreement under which Goby will (a) provide Subscriber access to the Software, and (b) provide other services for Subscriber’s use of the Software. ACCESSING OR USING THE SOFTWARE OR THE SERVICES INDICATES SUBSCRIBER’S AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING.

1. Definitions. Capitalized terms not elsewhere defined in this Agreement will have the following meanings:

1.1 “Agreement” means the terms and conditions in this document governing Goby’s provision of access to the Software and its provision of the Services to Subscriber.

1.2 “Confidential Information” means all non-public information disclosed by one party to the other in connection with this Agreement which the disclosing party marks as confidential or which the receiving party should reasonably know to be the confidential information of the other party.

1.3 “End User” means Subscriber’s employees who are authorized to access and use the Software in accordance with this Agreement.

1.4 “Goby” means Goby Inc.

1.5 “Services” means services that Goby will provide to Subscriber to enable Subcriber’s use of the Software.

1.6 “Service Confirmation” means the written documentation, once accepted by Goby, that describes Goby’s provision of the Software and the Services to Subscriber.

1.7 “Software” means that certain hosted software that Goby will provide to Subscriber, and which is described in an applicable Service Confirmation.

1.8 “Subscriber” means the entity identified in the applicable Service Confirmation as authorized to access and use the Software, as well as that entity’s End Users.

1.9 “Subscriber Data” includes all non-public data collected, used, processed, stored, or generated as the result of Subscriber’s use of the Software and receipt of the Services.

2. License for Use. Goby hereby grants to Subscriber a limited, revocable, non-exclusive, non-transferable license to use and access the Software solely for Subscriber’s internal business functions, and not on behalf of any third party. Upon launch, Goby shall issue user IDs and passwords to Subscriber’s End Users. Subscriber solely is responsible for protecting and controlling the use of its user IDs and password information, which it will not share with any third party. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Goby. Subscriber may not (a) reverse engineer, dissemble, or decompile any part of the Software, except to the extent required to obtain interoperability with other independently created or procured software or as specified by law, and in each instance only with Goby’s prior written consent; nor may Subscriber (b) distribute, sell, sub-license, or otherwise transfer any part of the Software except as provided herein. Subscriber agrees that it shall not receive any ownership right, title, or interest in the Software, nor any patent, copyright, trade secret, trademark, or other intellectual property rights therein. Goby reserves all rights in the Software and the Services which it does not expressly grant to Subscriber under this Agreement. In no event will Subscriber permit access or use of the Software by a number of End Users in excess of the maximum number of End Users set forth in the applicable Service Confirmation.

3. Term and Termination; Renewals. This Agreement is legally binding as of the effective date shown on any Service Confirmation or amendment thereto, and may be terminated only as follows:

3.1 Immediate Termination Rights. Either party may terminate this Agreement or any Service Confirmation upon the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings.

3.2 Thirty (30) Day Termination Rights. Either party may terminate this Agreement or any Service Confirmation upon thirty (30) days advance written notice if either party materially breaches any duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after the breaching party’s receipt of written notice.

3.3 Termination for Convenience. The extent to which either party may terminate for convenience is contained within the Service Confirmation.

Upon the expiration or termination of this Agreement, provided that Subscriber is not in material breach of this Agreement and has made a written request to Goby within 10 days following the effective date of termination, Goby shall make available to Subscriber for export a copy of Subscriber Data (defined below) in .CSV format. If Subscriber requires a different format, Goby reserves the right to charge for such extraction formatting. Goby may delete all Subscriber Data after 10 days following the effective date of termination of this Agreement. Upon termination of this Agreement, all licenses to access and use the Software, and to receive the Services, will likewise terminate, and Subscriber will immediately thereafter discontinue all such access and use. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.

4. Fees; Billing. Subscriber shall pay Goby the fees as further described in the Service Confirmation. All invoices shall be due and payable to Goby within thirty (30) days of the invoice. Though not customary or expected, from time to time Subscriber may request Goby personnel to travel or incur other expenses in furtherance of this Agreement. Subscriber will reimburse Goby for all such expenses as Goby may invoice Subscriber in accordance with this section.

5. Non-Payment. Goby may (i) immediately suspend Subscriber’s access to the Software and all related services until payment is received by Goby if payment, or any portion thereof, is past-due by more than ten (10) business days; or (ii) terminate this Agreement if such non-payment continues for more than thirty (30) days following written notice. Such remedies are in addition to any legal or equitable remedies available to Goby. Payments more than 30 days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less.

6. Taxes. Fees, costs, and expenses described herein or on any Service Confirmation do not include any sales, use, personal property, duty, levy, or similar governance charge, value added or good/services taxes. Goby may include applicable taxes as separate items on Subscriber’s invoice, and Subscriber shall be responsible to pay and/or reimburse Goby for all taxes unless Customer has provided adequate evidence of exemption upon execution of this Agreement. If withholding of taxes is required, Subscriber shall remit such taxes in accordance with applicable law, gross up the applicable payment amounts so that Goby receives the full amount of fees invoiced, and provide Goby with applicable evidence of withholding.

7. Warranty Disclaimer. EXCEPT AS PROVIDED HEREIN, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. GOBY MAKES NO WARRANTY THAT ACCESS TO THE SOFTWARE OR THE AVAILABILITY OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT WILL GOBY BE LIABLE FOR ANY DELAY IN FURNISHING ACCESS TO THE SOFTWARE OR THE AVAILABILITY OF THE SERVICES. SUBSCRIBER’S EXCLUSIVE REMEDY AND GOBY’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH ABOVE WILL BE FOR GOBY TO RESTORE ACCESS TO THE SOFTWARE OR, AS APPLICABLE, RE-PERFORM THE SERVICES.

8. Subscriber Data. Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in Subscriber Data is reserved by Subscriber. Subscriber hereby grants to Goby a nonexclusive, worldwide, fully-paid, royalty free, license to use the Subscriber Data to the full extent necessary to provide access to the Software and to perform the Services, including a license to collect, copy, process, modify, store, generate, and display Subscriber Data. Subscriber represents that it has the right to provide Subscriber Data to Goby and will provide Subscriber Data to Goby in compliance with applicable legal requirements, and authorizes Goby to access Subscriber Data to provide quality assurance, perform software maintenance, and deliver customer service and technical support. Further, Subscriber agrees that non-identifying, aggregate building data is essential to Subscriber’s receipt of the Services, and thus hereby grants to Goby a perpetual, worldwide, fully-paid, royalty-free, irrevocable license to use and disclose this anonymous data to improve the Software or Services, develop new solutions, understand actual energy usage and general industry trends, develop white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to Goby’s business. Goby shall not sell, rent, transfer, or otherwise disclose or make available non-public Subscriber Data for the benefit of anyone other than Subscriber without Subscriber’s prior written consent. Goby may, however, make certain offers for relevant ancillary services to Subscriber. This Section shall survive the termination of this Agreement.

9. Confidentiality. Each party may be exposed to the other party’s Confidential Information in the course of each party’s performance under this Agreement. Each party, on behalf of itself and its employees, contractors and agents (collectively, “Representatives”), agrees not to, except as set forth below or as required by applicable law or regulation, use or disclose Confidential Information during or after the term without the prior written consent of the other party. To protect Confidential Information, each party agrees to: (i) limit dissemination of Confidential Information to only those Representatives with a “need to know” in connection with this Agreement; (ii) advise each Representative who receives Confidential Information of the confidential nature of such information; and (iii) have appropriate agreements, policies and/or procedures in place with such Representatives sufficient to enable compliance with these confidentiality obligations. Nothing in this section will prohibit either party from disclosing Confidential Information to that party’s professional advisors who are bound by a duty of confidentiality at least as restrictive as set forth in this Agreement. Subscriber acknowledges that Goby may receive Confidential Information of Subscriber from the applicable utility and/or supplier, through data collected through the Software or otherwise, which may be used or disclosed by Provider as necessary for performance of this Agreement. This Section shall survive termination of this Agreement for a period of two (2) years.

10. Indemnification. Goby, at its sole expense, agrees to indemnify Subscriber, its Representatives, and its and their respective parent, subsidiaries, and affiliates and each of their respective officers, directors, shareholders, and employees and each of their respective successors and assigns against any cost, claim, liability or expense (including, without limitation, reasonable attorneys’ fees) finally awarded arising out of, relating to or associated with (A) the negligence or willful misconduct of Goby or any of its Representatives; or (B) a claim that the Software or Services infringes any U.S. copyright, trademark, or trade secret. Goby will pay reasonable legal fees as incurred and such damages or costs as are finally awarded against Subscriber or agreed to in settlement for such claim provided that Subscriber gives Goby (i) prompt written notice of any such claim or threatened claim; (ii) sole control of the defense, negotiations and settlement of such claim; and (iii) full cooperation in any defense or settlement of the claim. The foregoing indemnification obligations shall not apply to the extent that any such claims or damages result from goods, software or services provided by a party other than Goby, or to the extent they are caused by the acts or omissions of Subscriber. If the Software becomes or is likely to become the subject of any third party intellectual property infringement claim or action, Goby may, at its sole option, either: (i) replace such Software with an equally suitable solution free of infringement; (ii) modify or obtain a license for the Software so it no longer infringes on any rights; or (iii) after Goby has demonstrated its good faith efforts to achieve the foregoing without success, terminate this Agreement or the affected Service Confirmation. This section sets forth Subscriber’s exclusive remedy for any claims of intellectual property infringement relating to the Software or the Services.

11. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GOBY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL GOBY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE, EXCEED THE FEES PAID OR PAYABLE FOR THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT.

12. Relationship between Subscriber and Goby. In no event shall Goby or its affiliates, directors, employees and agents (collectively, the “Goby Indemnified Parties”) be responsible or liable for payment of any service provider bill of Subscriber or any amount Subscriber may owe to any utility or other supplier. To the fullest extent permitted by law, Subscriber shall defend and indemnify, at its own expense, any third party claim against the Goby Indemnified Parties, that arise due to any allegation that the Goby Indemnified Parties are responsible for payment of any bill of Subscriber or a portion thereof, or any other amounts due by Subscriber to any provider. In connection with the foregoing indemnification obligations, Subscriber shall pay reasonable legal fees as incurred and such damages or costs as are incurred by Goby or agreed to in settlement for such claim. The parties agree that Goby is acting as an independent contractor and under no circumstances will any of the employees of Goby be deemed the employees of Subscriber for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.

13. Governing Law. Governing Law and Choice of Forum. This Agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions. Both parties agree that any claim or dispute between them must be resolved exclusively by a state or federal court located in Cook County, Illinois. Both parties agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of litigating all such claims or disputes, and hereby waive all claims of forum non conveniens.

14. Implementation and Support. Subscriber agrees to provide to Goby the contact, billing and usage data, and facility information as is required by Goby to support the Software and provide the Services. Subscriber shall designate a data contact for each property shown in any Service Confirmation as the person responsible for providing data that is not directly available from Subscriber suppliers. Subscriber acknowledges that inaccurate or out of date data could adversely affect its overall reporting metrics. Goby makes no representation or warranty as to the accuracy of the data it receives, and it will presume all data received is accurate.

15. Ownership of Feedback and Suggestions. If Subscriber provides Goby with any suggested improvements to the Software or the Services (“Suggestions”), then Subscriber also hereby assigns to Goby all right, title and interest in and to all intellectual property rights associated with or embodied within such Suggestions, regardless of whether Subscriber has designated the Suggestions as Confidential Information.

16. Further Assurances and Actions. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances so each party may properly accomplish its obligations and responsibilities hereunder.

17. Force Majeure. Goby shall not be liable for delays or any failure to provide the Software or perform the Services due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.

18. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

19. Assignment. Subscriber may not assign its rights or delegate its obligations under this Agreement without Goby’s prior written consent. Goby may assign its rights or delegate its obligations under this Agreement. Any purported assignment in violation of this section will be void.

20. Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by either (a) personal service; (b) United States certified mail, return receipt requested, postage prepaid to the addresses appearing in the Service Confirmation; or (c) email notification, provided that recipient confirms receipt via return email. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and mailed notice shall be deemed effective on the third day following its placement in the mail addressed to the addressee.

21. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and Goby as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties.

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