IMPORTANT: PLEASE READ THESE TERMS CAREFULLY BEFORE ANY USE OF THE PENS SERVICE (DEFINED BELOW). BY USING THE PENS SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT PROCEED WITH THE REGISTRATION PROCESS OR USE THE PENS SERVICE.

This TRIAL Power Event Notification System (PENS) End User Subscription Agreement (“Agreement”) is entered into on the date Subscriber acknowledged and agrees to the Agreement during the PENS Trial subscription request (“Effective Date”). This Agreement is between Gridmetrics, Inc., a Delaware corporation (“Gridmetrics”), located at 858 Coal Creek Circle, Louisville, Colorado 80027-9750, USA, info@gridmetrics.io, and the subscriber identified by the Trial request and its Affiliates (“Subscriber”).  Gridmetrics and Subscriber are also referred to as a Party, or collectively the Parties.

Gridmetrics aggregates power sensor data from various power sources in the power distribution network, with a majority of the sensors having battery backup.  Gridmetrics then determines the population likely impacted by a power event (e.g., an outage) contained is a U.S. National Grid cell 1km x 1km, and provides to Subscriber a Power Event Notification including potential population impacted, and an Esri feature service (referred to as “PENS” or “PENS Data”, or collectively the “PENS Service”).

 

Subscriber’s use of the PENS Service is subject to the terms of this Agreement including all Exhibits, and Gridmetrics’ Privacy Policy (“Privacy Policy”) found at https://gridmetrics.io/privacy-policy and incorporated herein by reference.

1. PENS SERVICE

Subject to all terms of this Agreement, Gridmetrics shall provide to Subscriber the PENS Service during the Term solely in the manner enabled by Gridmetrics and in accordance with all applicable documentation. 

 

Subscriber is solely responsible for purchasing and configuring all hardware, software and communication services that may be necessary or desirable for your use of the PENS Service.

 

Subscriber hereby acknowledges that the PENS Service does not represent all geographic areas in the United States.  Subscriber further acknowledges that the PENS Service should NOT be considered a primary source of information for outages. The PENS Service is meant to aid in increasing confidence in decisions related to outage events. 

 

Support. Gridmetrics will make commercially reasonable efforts to provide the PENS Service, and to provide customer support during business office hours (8:00 AM to 5:00 PM, Mountain Time) for the Term of this Agreement. Gridmetrics reserves the right to modify, change, or discontinue the PENS Service at any time.  

 

Prohibited Use.  Subscriber acknowledges that use of the PENS Service is provided hereunder solely for Subscriber’s internal employees and contractors use and benefit, and for the purpose of providing data and services to Subscriber’s customers.  Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, sublicense or transfer the PENS Service, or use the PENS Service on a service bureau or time sharing basis; (ii) create derivative works based on the PENS Service, except for Subscriber’s own internal use, and for the purpose of providing data and services to Subscriber’s customers (e.g., in reports); (iii) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the PENS Data or PENS Service; (iv) scrape, export, store, or otherwise retain any copies of raw data delivered through the PENS Service, except for Subscriber’s own internal use, and for the purpose of providing data and services to Subscriber’s customers; (v) use the PENS Service to develop a competitive product or service offering; (vii) use the PENS Service outside of the United States; or (vii) use the PENS Service in a manner which violates or infringes any Applicable Laws, third party intellectual property rights, or third party privacy rights.  Gridmetrics may take any legal and technical measures to prevent the violation of this provision and to enforce this Agreement.

2. FEES. An initial trial period of thirty (30) days is provided free of charge (“Trial Period”).
3. TERM AND TERMINATION.

The Trial Period is for thirty (30) days unless extended by mutual agreement of the Parties (“Term”).

As this is a Trial Agreement only, either party may immediately terminate this Agreement with no further liability or obligation to the other Party, on written notice (email sufficing, to the email addresses associated with the Trial), with or without cause for any, or no, reason. 

4. OWNERSHIP AND PROPRIETARY RIGHTS; CONFIDENTIALITY.

Intellectual Property Ownership. This Agreement is a subscription agreement and not an agreement for license or sale. Subscriber acknowledges that Gridmetrics and its Data Suppliers have and shall retain exclusive ownership of all proprietary rights to the PENS Data and the PENS Service, including but not limited to the content, layout, functions, features, code, appearance, patents, copyrights and derivative works of the PENS Data or the PENS Service, trademarks, trade secrets, and other proprietary rights that form a part of, or are otherwise related to, the PENS Service and interface (collectively, the “Gridmetrics Intellectual Property”), throughout the world regardless of whether any such rights arise under the laws of the United States of America or any other state, country or jurisdiction. Subscriber does not and will not have any ownership rights in the Gridmetrics Intellectual Property or any part thereof, nor will it challenge Gridmetrics’ rights in and to the same.  For the avoidance of doubt, derivative works of the PENS Data and PENS Service does not include any derivative works of software, APIs, data, or modules not provided by Gridmetrics, any software that is merely linked (dynamically or statically) to the PENS Data or PENS Service, or any translations of the PENS Data or PENS Service for the purpose of making a product offered by Subscriber.

Feedback. If Subscriber or any of its employees or contractors sends or transmits any communications or materials to Gridmetrics suggesting or recommending changes to the Gridmetrics Intellectual Property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Gridmetrics is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby grants a worldwide, non-exclusive, assignable, royalty-free, sub-licensable (through multiple tiers), perpetual, irrevocable right and license to use, copy, distribute, transmit, reproduce, edit, modify, translate, and reformat such Feedback, in any media now known or hereafter developed, without compensation to Subscriber.  ANY SUCH FEEDBACK IS PROVIDED BY SUBSCRIBER “AS IS” AND SUBSCRIBER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH FEEDBACK.

5. LIMITATION OF LIABILITY.

Subscriber acknowledges that (i) the PENS Service is assembled by Gridmetrics from information provided by its Data Suppliers; (ii) Gridmetrics has no obligation to verify the accuracy of the PENS Data or PENS Service; and (iii) Gridmetrics is not liable for any inaccuracies contained in the PENS Data or PENS Service. GRIDMETRICS AND ITS DATA SUPPLIERS PROVIDE THE PENS SERVICE ON AN "AS IS" BASIS, AND MAKE NO EXPRESS OR IMPLIED WARRANTIES REGARDING PENS SERVICE, AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE.

Gridmetrics and its Data Suppliers, and their respective affiliates, officers, directors, employees, representatives and agents shall not be liable for any loss or damages of any kind, including, without limitation, loss or damages suffered by Subscriber or any third party as a result of non-delivery or as a result of any delay or interruption in the delivery of the PENS Service for any reason whatsoever. Neither Gridmetrics nor its Data Suppliers are responsible for the functioning or performance of the PENS Service.   NEITHER GRIDMETRICS NOR ITS DATA SUPPLIERS WARRANT THAT THE PENS SERVICE OR PENS DATA WILL MEET SUBSCRIBER’S NEEDS OR WILL BE ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR THE LIKE.

IN NO EVENT SHALL GRIDMETRICS OR ITS DATA SUPPLIERS BE LIABLE FOR DIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST-PROFIT DAMAGES.  IN NO EVENT SHALL THE LIABILITY OF GRIDMETRICS OR ITS DATA SUPPLIERS TO SUBSCRIBER, OR TO ANY THIRD PARTY, EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS.

6. INDEMNIFICATION.

Subscriber agrees to indemnify, defend and hold harmless Gridmetrics, its Data Suppliers, their affiliates, and its or their officers, directors, stockholders, shareholders, managers, members, partners, employees, agents, data providers, customers, successors and assigns from and against any and all liabilities, damages, expenses, settlements and costs (including reasonable attorneys’ fees) incurred or required to be paid by the foregoing, arising from or occurring as a result of: (a) any third-party claim arising from or related to any violation of this Agreement in Subscriber’s use of or access to the PENS Service provided by Gridmetrics hereunder; (b) any third-party claim arising from or related to Subscriber’s use or misuse, modification, copy, display, or sublicense of the PENS Service by Subscriber outside the scope of this Agreement; or (c) any third-party claim arising from or related to Subscriber’s violation of Applicable Laws.  Subscriber shall not, without Gridmetrics’ prior written approval, agree to any settlement of any claim that imposes a financial obligation, restriction on use of the PENS Service, or admission of liability on Gridmetrics or its Data Suppliers.

7. MISCELLANEOUS.

Dispute Resolution. Should a dispute arise between the Parties in connection with this Agreement, the dispute shall be finally settled under the Commercial Rules (Expedited Procedures) of the American Arbitration Association, by a single arbitrator appointed in accordance with such Rules. The seat of arbitration shall be Denver, Colorado, the language of the arbitral proceedings shall be English.  The expenses of the arbitration, including the arbitrators' fees, shall be shared equally among the Parties.  Each Party shall be responsible for its own attorneys' fees, including any witnesses. The arbitrators may grant such legal or equitable remedy or relief (including injunctive relief) that the arbitrators deem just and equitable, to the same extent that such remedy or relief could be granted by a State or U.S. Federal court; provided, however, that such remedy or relief is consistent with the remedies and limitations set forth in this Agreement.  The Parties shall keep confidential the fact of the arbitration, the dispute being arbitrated, and the decision of the arbitrators.  Notwithstanding the foregoing, the Parties may disclose information about the arbitration to persons who have a need to know, such as directors, trustees, experts, investors, insurers, legal counsel, and when required to disclose by applicable securities laws.

 

Amendments.  No amendment or modification hereof shall be valid or binding upon the parties unless made in writing and signed by both parties hereto.

 

Notices.  Any notice under this Agreement must be in writing, email with return receipt requested sufficing, to the email addresses identified in the signature block of this Agreement.

 

Waiver.  Any waiver by either party hereto of any breach of this Agreement shall not constitute a waiver of any subsequent or other breach.

 

Severability. If any provision of this Agreement is found for any reason to be unlawful, void, or unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.

 

Assignment.  Subscriber may not assign, transfer, or sublicense any of Subscriber’s rights or obligations under this Agreement without Gridmetrics’ prior express written consent. 

 

Parties. Nothing in this Agreement and its performance shall be construed as creating a joint venture, partnership or agency between Subscriber and Gridmetrics.

 

Export. The export of certain technical data from the United States of America and/or the re-export from foreign countries of technical data or direct products of technical data of United States of America origin, may be conditioned upon the issuance of an export license by the government of the United States of America.  Each Party represents that it will not export or re-export any technical data or direct products of technical data in furtherance of this Agreement unless and until it has complied, in all respects with the U.S. Export Control Regulations or other applicable export control regulations. Neither Party makes any warranty that an export license will be granted for such export or re-export, and neither Party shall have any liability for its inability to obtain such a license.  The Parties agree to consult with one another before attempting to obtain any such license in furtherance of this Agreement.

 

Governing Law.  Any disputes arising from or related to this Agreement shall be governed in accordance with the laws of the State of Colorado as applied to transactions taking place wholly within Colorado between Colorado residents without regard to its choice of law provisions. 

 

Entire Agreement.  This Agreement embodies the entire understanding of the parties with respect to the subject matter hereof and merges all prior discussions and agreement between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided herein.

 

8. DEFINITIONS.

 

The Parties hereby agree that capitalized terms used in this Agreement shall have the meanings assigned below:

           

“Affiliate” means any entity, joint venture, or other form of enterprise, domestic or foreign, including but not limited to subsidiaries that now or hereafter directly or indirectly control, are controlled by, or are under common control with, a Party (where control means direct or indirect control of more than 50% of the voting stock or decision-making authority).

 

“Applicable Laws” means, with respect to any Party, any federal, state, provincial or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority that is binding upon or applicable to such Party, as amended unless expressly specified otherwise, including without limitation those relating to data privacy, data security, data protection, and data breach notification.

 

“Data Suppliers” means the entities that provide power sensor data to Gridmetrics.

 

“Subscriber” is the individual or entity associated with the request for the PENS Trial.

 

END USER SUBSCRIPTION AGREEMENT