SCOPE 5, INC. STANDARD TERMS AND CONDITIONS, Version 200608
These Standard Terms and Conditions (“Terms”) constitute a legal agreement between Scope 5, Inc. (“Scope 5”) and the person or entity (“Customer”) executing a written ordering document that references these Terms (a “Service Order”), and govern access to and use of Scope 5’s online environment (the “Service Website”), cloud-based services provided by Scope 5 through or in connection with the Service Website (the “Cloud Services”), and Scope 5’s proprietary software applications (“Tools”) (collectively, the Service Website, Cloud Services and Tools are referred to as the “Service”). By executing a Service Order, you agree to all the terms and conditions set forth in these Terms. In the event of any conflict between these Terms and the provisions of a Service Order, the provisions of the Service Order shall govern. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such company or entity to these Terms, in which case the terms “you” and “Customer” as used below shall refer to such company or entity. If you do not have such authority, or if you do not agree with these Terms, you should not execute a Service Order. If you have elected to purchase professional services from Scope 5 (“Professional Services”), as described in a separate written statement of work (“SOW”), these Terms also apply to the provision and use of the Professional Services. In the event of any conflict between these Terms and the provisions of a SOW, the provisions of the SOW shall govern. As used herein, the term “Parties” means Scope 5 and Customer collectively, and “Party” means Scope 5 or Customer individually.
These Terms are effective as of the effective date set forth in the Services Order and shall remain in effect for the subscription period set forth in the Service Order unless earlier terminated as provided herein.
- SERVICE DESCRIPTION AND SCOPE: The Service allows Customer to efficiently and accurately capture and store data relating to Customer’s resource consumption and conservation, and provides the ability to plan, track, report, and analyze that data. The Service supports participation by multiple users and allows Customer to track the users’ engagement, action and communication. The maximum number of Concurrent Authorized Users of the Service, and the maximum number of Standard Trackers enabled for the Service are specified in the Service Order. An “Authorized User” means an employee, agent or independent contractor of Customer that is authorized by Customer to access and use the Services. “Concurrent Authorized Users” means Authorized Users who use the Service at the same time. A “Standard Tracker” means a feature of the Service that monitors the usage of a Customer resource, such as electricity, natural gas, machinery, or a vehicle.
- LICENSE: Subject to the terms and provisions herein, Scope 5 hereby grants to Customer and its Authorized Users, during the Term, a non-exclusive, non-transferable license to: (a) access and use the Service Website solely for purposes of entering data, modifying data, creating and modifying Standard Trackers and Custom Resources; (b) view and manage the reports, charts and dashboards provided as part of the Service (“Reports”); and (c) install and use the Tools solely in connection with Customer’s use of the Service.
- PROFESSIONAL SERVICES: If Customer has elected to purchase Professional Services from Scope 5, the Parties shall enter into a separate, written SOW describing the Professional Services to be performed and setting forth other applicable terms and conditions, including without limitation, Professional Services fees and payment terms, Customer responsibilities, milestones and Deliverables (if any). “Deliverables” means any reports, analyses, inventories, or other work products, tangible or intangible, to be delivered by Scope 5 to Customer as set forth in a SOW. Scope 5 will have no obligation to provide Professional Services, and Customer shall have no obligation to pay for Professional Services, unless and until a SOW has been executed by both Parties.
- INTELLECTUAL PROPERTY: The Service involves valuable patent, copyright, trademark, trade secret or other intellectual property rights of Scope 5 and its suppliers. No title to or ownership of the Service, or any portion thereof, or any associated proprietary rights, is transferred to Customer or any Authorized User, and Scope 5 and its suppliers and licensors, reserve all right, title and interest in and to the same, including in cases where a Customer pays Scope 5 to add functionality already on our roadmap to the product (“Roadmap Acceleration”).
SCOPE 5 RESPONSIBILITIES:
- AVAILABILITY: Scope 5 will use commercially reasonable efforts to make the Service and Service Website available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Scope 5 shall give at least 8 hours prior notice via the Service Website and/or by email) and which will be scheduled to the extent practicable during the weekend hours from 6:00 PM Friday to 3:00 AM Monday, Pacific Time); or (b) any unavailability caused by circumstances beyond Scope 5’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Scope 5’s employees), Internet service provider failures or delays, or denial of service attacks.
- CUSTOMER DATA: Customer grants to Scope 5 the nonexclusive right to use the materials, data and information (“Customer Data”) provided by Customer in the course of using the Service. Scope 5 acquires no title or interest from Customer in or to such materials, data and information under this purchase, including any intellectual property rights therein.
- SCOPE 5 RESPONSIBILITY FOR CUSTOMER DATA: Scope 5 will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. We will not (a) modify Customer Data; (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer; or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
- SECURITY: Scope 5 will provide unique password(s) to Customer for use by Authorized Users in accessing and using the Service Website. Scope 5 will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Service. However, Scope 5 does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and Scope 5 does not warrant secure operation of the Service or that such security technologies will be able to prevent third party disruptions of the Service.
- REPAIRS AND MODIFICATIONS: Scope 5 reserves the right from time to time to perform repairs or make modifications to the Service and add or withdraw products or services therefrom and such repairs, modifications, additions and withdrawals may affect or limit Customer’s usage of the same.
- RETURN OF CUSTOMER DATA. Upon termination for any reason and by either party, at any time during the Term and up to thirty (30) days following such termination and upon written request by the Customer, Scope 5 will make available to the Customer all of the Customer’s data in the form of Customer downloadable electronic files in a suitable standard format, such as CSV file(s). After such thirty (30) day period following such termination, Scope 5 will have no obligation to maintain any Customer data and shall thereafter warrant the deletion and destruction of all Customer data in Scope 5’s possession. Scope 5 agrees that if it receives a request from any third-party, including any governmental agencies, in the form of a subpoena or other format, requesting access to or reproduction of Customer Data, or any other Customer Confidential Information, Scope 5 shall promptly inform Customer, as legally permissible, and cooperate with Customer in responding to the subpoena. To the extent any Customer Data is stored on a third-‐party server or storage device, Scope 5 warrants that the above protections relating to third-party requests for Customer Data will apply to such third-party servers or storage devices and their respective owners.
- CUSTOMER DATA: Customer is responsible for entering its Customer Data into the Service, and Customer shall be responsible for the maintenance of the Customer Data it supplies. Customer represents to Scope 5 that it will take commercially reasonable precautions against viruses, Trojan horses, and comparable elements being contained in the Customer Data which could harm the systems or software used by Scope 5 to provide Service.
- RESTRICTIONS AND LIMITATIONS: Customer will not directly or indirectly, (a) enable any personnel other than Authorized Users to access and use the Service; (b) modify or create any derivative work based upon the Service; (c) grant any sublicense or other rights to the Service; (d) reverse engineer, disassemble or decompile any part of the Service or attempt to discover or recreate the source code to any part of the Service; or (e) engage in or permit any use, possession, knowledge, viewing, inspection, examination, copying, disclosure or other activity involving any of the Service that is not expressly authorized herein, or otherwise in writing by Scope 5.
- COMPLIANCE WITH LICENSE: Customer will comply with the limits of the license herein, in particular with the maximum number of Concurrent Authorized Users and Standard Trackers utilized in the Service. Customer will allow and enable Scope 5 to monitor such compliance, and to utilize information concerning Customer’s use of the Service to improve Scope 5’s products and services.
- REPORTS: Customer may use the Reports in connection with its use of the Services without limitation except for the requirement that the Customer will preserve the Scope 5 legend and brand indicating the Reports are the result of utilizing the Service.
- SECURITY: Customer is responsible for maintaining the confidentiality of password(s) provided by Scope 5, and for all activities that occur under its password. Customer will immediately notify Scope 5 of any unauthorized use of its password(s) or any other breach of the Service Website security known to Customer.
- CREDIT AND FINANCIAL CONDITION: If Scope 5 in its sole discretion does not approve Customer’s credit, Scope 5 reserves the right to cancel the Service and/or any commitments to provide service or products. In the event of Customer’s bankruptcy or insolvency or in the event any proceeding is brought against Customer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, reserving any and all other rights, Scope 5 will be entitled to cancel any outstanding order during the period allowed for filing claims against the estate and will be paid for its cancellation charges.
- PRICES: Prices are subject to change or withdrawal without notice. All products and services customized to the Customer’s specifications which require deviations to the Service (or to any other products) are subject to an additional charge. Customer agrees that payment for the Service is neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Scope 5 regarding future functionality or features.
- TAXES: Unless otherwise specified, all prices are stated without any applicable excise, sales, use, value, added, or other tax imposed upon the production, sales and/or delivery of these products. Any such taxes, when applicable, will be charged as separate additional items on invoices, unless valid exemption certificates are in the possession of Scope 5 before the date of shipment.
- PAYMENT: All orders are subject to approval of credit. All bills are due and payable in full prior to first use of the Service, unless prior approval of terms are made. Past due accounts will be subject to finance charges of 1-1/2% per month, 18% per annum on all overdue balances. If payment is not to be in cash, Customer will execute a financing statement, security agreement, lease, and any other documents reasonably requested by Scope 5.
In the event Customer fails to pay any amounts owed or otherwise breaches any term or provision herein, Scope 5 may, in addition to any other rights and remedies, suspend performance of the Service and restrict Customer access to the Service Website without any liability to Scope 5. In the event of suspension of performance of the Service or access restriction to the Service Website in accordance with the previous sentence, Customer will continue to be obligated to pay all amounts owed hereunder during such suspension until the breach is cured, all amounts are paid and the Service and access to the Service Website have been reinstated.
- WARRANTIES: Customer warrants that it has validly entered into this purchase and the terms and conditions herein; and that it has the legal power to do so.
Scope 5 warrants to Customer that (a) the Service will be functional and available for use as set forth herein, and (b) any Professional Services will be performed in a professional, workmanlike manner in accordance with the standards of the industry and consistent with the specifications set forth in the SOW. As Scope 5’s entire liability and Customer’s sole remedy, Scope 5 shall use commercially reasonable efforts to correct any Service that does not comply with the warranty in this Section 12. Customer must notify Scope 5 of such noncompliance within ten (10) days of their experience of the issue (“Service Defect”). In the event that Scope 5 is not able to correct a Service Defect within thirty (30) days following receipt of notice from Customer, Customer shall be entitled to terminate prior to the end of the Term without penalty and receive a pro rata refund of any paid but unused fees and charges.
THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SCOPE 5 AND THE REMEDIES OF CUSTOMER SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES OF SCOPE 5 AND ALL OTHER RIGHTS, CLAIMS, AND REMEDIES OF CUSTOMER AGAINST SCOPE 5, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY OR NONCONFORMITY IN THE SERVICE, REPORTS OR OTHER ITEMS OR SERVICES FURNISHED BY OR ON BEHALF OF SCOPE 5, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) CLAIM OF INFRINGEMENT OR MISAPPROPRIATION; OR (D) CLAIM IN TORT (WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY).
LIMITATIONS OF LIABILITY:
- SCOPE 5 WILL NOT UNDER ANY CIRCUMSTANCES, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF OR DAMAGE TO ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMER’S CUSTOMERS, ARISING OUT OF THE USE OF OR INABILITY TO USE SCOPE 5 PRODUCTS OR SERVICES, EVEN IF SCOPE 5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- SCOPE 5’S LIABILITY ON ANY CLAIM OF ANY KIND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM, OR CONCERNING THIS AGREEMENT AND THE SERVICES SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SERVICE WHICH GIVES RISE TO THE CLAIM, AND NO CLAIM MAY BE BROUGHT AGAINST SCOPE 5 MORE THAN ONE YEAR AFTER ANY CAUSE OF ACTION ACCRUES.
- THE LIMITATIONS OF LIABILITY WILL NOT APPLY TO (I) CUSTOMER’S VIOLATION OF SCOPE 5’S INTELLECTUAL PROPERTY RIGHTS OR CUSTOMER’S USE OF THE SERVICE OR SERVICE WEBSITE IN A MANNER NOT EXPRESSLY AUTHORIZED BY THE SOW; (II) EITHER PARTY’S BREACH OF CONFIDENTIALITY UNDER THE SOW; OR (III) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE SOW.
- GENERAL: No assignment, modification, amendment, rescission, waiver or other alteration or change will bind Scope 5 unless agreed to in a writing signed by Scope 5. This document contains the entire understanding and agreement of the Parties concerning the purchase in the Service Order. Any proposal, negotiation, representation, or promise not contained or referenced herein will not bind Scope 5.
- NO INFRINGEMENTS: In no event shall Scope 5 be liable to third parties for damages of any type arising out of Customer’s use of the Service. Customer furthermore represents and warrants to Scope 5 that any services performed by Scope 5 at Customer’s request on material supplied by Customer, are not in violation or infringement of any person’s statutory or common law copyright or other proprietary rights; and Customer agrees to indemnify Scope 5 from and against all liability, loss or damage, including reasonable counsel fees, resulting from a claimed violation or infringement of any person’s proprietary rights or any litigation based thereon, or from Customer’s use of the Service.
- LAW: Customer expressly agrees that this contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This contract shall be interpreted and governed by the laws of the United States and the State of Washington. In the event a court of competent jurisdiction determines that the internal or domestic laws of the State of Washington cannot be applied, then the domestic or internal laws of another state located in the United States which bears a reasonable relationship to the transaction shall apply.
- FORUM: The terms and conditions of this contract shall be adjudicated in the United States in a court in King County, Washington.