CUSTOMER LICENSE AGREEMENT – TERMS AND CONDITIONS
These Terms and Conditions, along with the written information included in the Customer’s Agreement for the Arcus Product (defined below) govern the relationship between the Customer and Arcus Power Corp. (“Arcus“) respecting the Arcus Product.
WHEREAS the Customer wishes to use the Arcus Product to assist in managing electricity costs;
AND WHEREAS Arcus has agreed to provide the Arcus Product to be used in accordance with this Agreement;
NOW THEREFORE IN CONSIDERATION of the premises and the mutual covenants contained in this Agreement, the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1
For the purposes of this Agreement, the following words and terms have the following meanings:
1.1.1
“Agreement” means these Terms and Conditions along with the Customer Agreement;
1.1.2
“Arcus Product” means the electricity cost management tools (including Arcus’ web dashboard), all data from such tools, and all communications and data received from Arcus in connection with electricity cost management;
1.1.3
“Customer” means the Customer identified in the Customer Agreement;
1.1.4
“Customer Agreement” means the written terms specific to the relationship between the Customer and Arcus, and which may identify the following: Customer, Customer contact information, description of Arcus services to be provided, structure of License Fee(s) for the Arcus Product, payment method and payee, interest rate for overdue accounts, term and any applicable renewals, conditions for renewals, identification of Site(s) for use of the Arcus Product, and any other relevant information;
1.1.5
“License Fee(s)” means the license fee or such other arrangements as are identified in the Customer Agreement for use of the Arcus Product;
1.1.6
“Parties” means the Customer and Arcus, and “Party” means the applicable one of them; and
1.1.7
“Site(s)” means the Customer’s metered electricity end-use site(s) identified in the Customer Agreement.
ARTICLE 2
LICENSE AND SERVICES
2.1
Arcus grants Customer a non-exclusive license to use the Arcus Product during the term of this Agreement at the Site(s) which the Customer has registered with Arcus and for which the Customer has paid the License Fee in accordance with the Customer Agreement (the “License”).
2.2
Only the registered Customer representative(s) for each Site may use the Arcus Product at any given time and the Arcus Product shall not be used by individuals that are not employees or contractors of the Customer. The Arcus Product or any portions thereof shall not be copied, duplicated, retained, re-created, or used after the Term or at any time where the Customer is not current in all License Fee obligations. The License is for direct use of the Arcus Product only through the portal provided by Arcus for that purpose.
2.3
The Arcus Product is provided by Arcus to Customer for the Customer’s use only, remains Arcus’ property, and is not be used for any purpose other than contemplated in this Agreement. Arcus may update or change the Arcus Product at any time.
2.4
Arcus may allow access to the Arcus Product only when the Customer has complied with all obligations under this Agreement including all payment obligations.
ARTICLE 3
FEES & BILLING
3.1
The Customer will pay the License Fee as it becomes due and in accordance with the terms in the Customer Agreement for the Arcus Product.
ARTICLE 4
OPERATIONAL MATTERS
4.1
All communications between the Parties with respect to the Arcus Product will be conducted by e-mail, telephone or in person and any telephone conversations may be recorded (the “Communications Protocol”).
ARTICLE 5
LIMITATION OF LIABILITY
5.1
THE CUSTOMER AGREES AND ACKNOWLEDGES THAT ARCUS IS NOT LIABLE FOR THE EFFECTIVENESS OF THE ARCUS PRODUCT AND HAS NO LIABILITY ARISING AS A RESULT OF ERRORS IN JUDGMENT, FORECASTING, OR SIMILAR WITH RESPECT TO THE ARCUS PRODUCT OR THE AVAILABILITY OR UNAVAILABILITY OF THE ARCUS PRODUCT AT ANY MOMENT OR FOR ANY PERIOD.
5.2
ARCUS IS NOT LIABLE FOR ANY DAMAGES, LOSSES, LIABILITIES, CLAIMS, COSTS (INCLUDING LEGAL COSTS AND REASONABLE STAFF COSTS), FINES AND PENALTIES WHICH ARE OF AN INDIRECT NATURE. ARCUS IS NOT LIABLE FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF PRODUCTION, LOSS OF EARNINGS, LOSS OF CONTRACT, COST OF CAPITAL, LOSS OF ANY USE OF ANY FACILITIES OR PROPERTY OPERATED OR OWNED BY ANY PARTY, AND ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER WHICH ARE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP CONTEMPLATED BY THIS AGREEMENT, OR THE ARCUS PRODUCT.
5.3
ARCUS’ MAXIMUM LIABILITY IN CONNECTION WITH THIS AGREEMENT UNDER ANY CAUSE OF ACTION (INCLUDING CONTRACT, TORT, OR OTHERWISE) IS, WITH RESPECT TO EVENTS RELATING TO ANY SITE, LIMITED TO THE AGGREGATE LICENSE FEE(S) RECEIVED BY ARCUS WITH RESPECT TO THAT SITE IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING ANY EVENT GIVING RISE TO LIABILITY, AND ARCUS’ MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE ARCUS PRODUCT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE LICENSE FEE(S) RECEIVED BY ARCUS PURSUANT TO THIS AGREEMENT FROM THE CUSTOMER IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING ANY EVENT GIVING RISE TO LIABILITY. ANY LIABILITY OF ARCUS WILL BE CONSIDERED A REDUCTION IN LICENSE FEE(S) IN THE SUBSEQUENT APPLICATION OF THIS PROVISION.
5.4
THE CUSTOMER WILL INDEMNIFY ARCUS FOR ALL USE OF THE ARCUS PRODUCT IN BREACH OR EXCESS OF THE PROVISIONS OF THIS AGREEMENT, INCLUDING USE BY ANY INDIVIDUAL OBTAINING ACCESS TO THE ARCUS PRODUCT OR ANY DERIVATIVE OF THE ARCUS PRODUCT THROUGH THE CUSTOMER OR AS A RESULT OF THE CUSTOMER’S ACTIONS OR OMISSIONS, AND ANY BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT. SUCH LIABILITY AND INDEMNITY WILL BE WITHOUT ANY DISCOUNT WHICH MIGHT OTHERWISE BE INCLUDED IN THE LICENSE FEE.
ARTICLE 6
CONFIDENTIALITY
6.1
The Arcus Product and all information in connection with it is confidential and the Customer shall not disclose it to any third party except: (i) as may be required to comply with any applicable law, order, regulation, ruling or accounting disclosure rule or standard, (ii) as may be obtained from a non-confidential source that disclosed such information in a manner that did not violate any obligation of confidentiality, or (iii) as may be furnished to the Customer’s Affiliates and to each of such Customer’s auditors, attorneys, advisors or lenders which are required to keep the information that is disclosed in confidence.
ARTICLE 7
MISCELLANEOUS
Entire Agreement
7.1
This Agreement is the entire agreement and understanding between the Parties with regard to the Arcus Product, and supersedes all prior agreements, correspondence, and representations of any kind.
No Waiver
7.2
Any Party may waive performance of any condition in writing to all other Parties, but such waiver of a condition shall not be considered a waiver of that condition for succeeding performance.
Notice
7.3
Notices to Arcus may be provided by registered mail or confirmed email to:
Arcus Power Corp.
1800, 330 5th Ave SW
Calgary, Alberta T2P 0L4
7.4
Notices to the Customer may be provided using the Customer’s contact information in the Customer Agreement, including by email.
Amendments
7.5
This Agreement may not be modified, altered, or amended except by an instrument in writing. This Agreement may be updated by Arcus with notice to the Customer, to be effective at the immediately following renewal or at the end of the Term, whichever occurs earliest.
Assignment
7.6
The Customer may not assign any part or all of its interest in this Agreement without Arcus’ written agreement. Arcus’ may assign this agreement to any party substantially carrying on a business providing the Arcus Product.
Enurement
7.7
This Agreement enures to the benefit of and be binding upon the Parties hereto and their respective trustees, successors, and assigns.
Severability
7.8
If any provision of this Agreement is deemed to be invalid, void, or unenforceable by any court having jurisdiction, such determination shall not invalidate, void, or make unenforceable any other provision, agreement, or covenant of this Agreement, and such other provision, agreement, or covenant shall remain in full force and effect.
Survival
7.9
The applicable provisions of this Agreement will continue in effect after termination or expiry hereof to the extent necessary, including but not limited to, providing for payments, limitation of liability and any indemnification obligations under this Agreement.
No Joint Venture, Partnership or Agency
7.10
Unless otherwise specifically provided in writing, the Parties understand that they are not partners, joint venturers, or agents of each other. No Party has the power to bind the other Party or Parties in any manner whatsoever.
Governing Law and Attornment
7.11
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein, and the Parties irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Alberta sitting in Calgary.
These Terms and Conditions last updated March 24, 2020.
