IMPORTANT READ CAREFULLY: This End-User License Agreement (this “EULA”) is a legal agreement between you and Utiliflex, LLC (“Utiliflex,” “we” or “us”) regarding the terms with respect to the license of Utiliflex’s software platform, which includes a consumer prepayment and billing application for the electric utility business named Juice and related software code and programs (collectively, the “Software Products”), associated media, printed materials and “online” or electronic documentation (collectively, the “Documentation”) and certain integration code and software for the Software Products (the “Integration Software” and collectively with the Software Products, the “Utiliflex Software”). YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING OR OTHERWISE USING THE UTILIFLEX SOFTWARE OR ANY PART THEREOF. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE UTILIFLEX SOFTWARE OR ANY PART THEREOF.
You are agreeing to this EULA because you have entered into a statement of work or a service agreement with us or you have issued us a purchase order that we have accepted (in either case, a “Statement of Work”). The Statement of Work is incorporated into this EULA and, unless the context indicates otherwise, all references to this EULA herein include the Statement of Work. As used in this EULA, “you, “your” and similar words mean the utility, business or other organization that is a party to the Statement of Work with us.
Grant of License
We hereby grant to you a limited, non-exclusive and, non-transferable license to use the Software Product’s machine readable form of computer program code (“Object Code”), as it is from time to time updated, modified or corrected by us (the “Software Product Object Code”). You are permitted to use the Software Product Object Code only for services in the geographical area that is defined by your electric utility business operations (the “Territory”). You are not permitted to use the Software Product Object Code for services outside of the Territory. Except as expressly set forth in a Statement of Work, this license is made to only you and you are not permitted to sub-license, assign or otherwise transfer it to any person.
We hereby grant to you a limited, non-exclusive and non-transferable license to use the Integration Software, as it is from time updated, modified and corrected by us. You are permitted to use the Integration Software only in connection with the Licensed Products within the Territory and not for any other purposes. Except as expressly set forth in a Statement of Work, this license is made to only you and you are not permitted to sub-license, assign or otherwise transfer it to any person.
Limitations
Except as expressly set forth in Section 1, this EULA and the licenses granted hereunder does not transfer to you, any of your customers or any other third parties any right, title or license to our proprietary and/or intellectual property rights in and to the Utiliflex Software, in whole or in part, or its Object Code or human readable form of computer program code and related system documentation (including all comments and any procedural code such as job control language) (collectively with the Object Code, the “Software Code”) or in or to any of our trademarks, copyrights, patents, trade secrets or trademarks embodied therein or used in connection therewith.
You agree to as soon as practically possible notify us of any actual or suspected infringement of all or any part of the Utiliflex Software or the Documentation. You agree that you will use the Utiliflex Software and the Documentation only for your own business. Further, that you shall not permit any parent, subsidiary, affiliated entity or third party to use the Utiliflex Software or the Documentation unless pursuant to a separate agreement between us and any such parent, subsidiary, affiliated entity or third party.
Solely to enable you to use the Software Products, you may make archival copies of the Software Product Object Code, provided that the copy shall include our copyright and any other proprietary notices required by us. You shall have no other right to copy, in whole or in part, any Software Code. Each copy of the Software Product Object Code, or any part thereof, made by you is and shall be our exclusive property.
You agree that only we or our authorized agents shall have the right to alter, maintain, enhance, customize or otherwise modify all or any part of the Utiliflex Software. Further, that we shall not be responsible for any malfunction, error or failure of the Software Products or the Integration Software resulting from any alteration, maintenance, enhancement, customization or modification performed by you or any unauthorized third party. You agree that you shall not disassemble, decompile, reverse engineer, reverse assemble, reverse compile, recompile or make extracts from the Utiliflex Software or the Software Code or create any Derivative Works or similar methods therefrom or from the Documentation or permit others to do so. A “Derivative Work” means a work which is based upon one or more preexisting work(s), such as a revision, modification, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted, and which, if prepared without authorization by us of the preexisting work, would constitute a copyright infringement.
You specifically agree that each of the terms and conditions of this Section 2 are material and that your failure to comply with these terms and conditions shall constitute sufficient cause for us to immediately and without notice terminate any Statement of Work. The presence of this subsection shall not be relevant in determining the materiality of any other provision or breach of this EULA by either party.
Ownership
You acknowledge and agree that we own all proprietary rights, including patent, copyright, trade secret, trade name, trademark, service mark, logo and other proprietary rights, in and to the Utiliflex Software, the Software Code and all components thereof, the Documentation and any corrections, bug fixes, enhancements, Derivative Works, updates or other modifications, including custom modifications, of or to the Utiliflex Software, the Software Code, the Documentation or any components thereof, whether made or created by us, you or any third party, jointly or separately (the “Utiliflex Intellectual Property”). Except as expressly agreed by us in a signed writing, all rights in and to the Utiliflex Intellectual Property are expressly retained by us. Except as expressly set forth herein, no license or right related to the Utiliflex Intellectual Property shall be deemed to be assigned, granted or otherwise transferred to you, any of your customers or any other third party.
Payment Terms
You agree that you will pay all taxes, duties and levies of any governmental entity, other than our income taxes. You also agree that any amounts of any invoice that are overdue shall accrue interest at one and one half percent per month (or the highest permissible rate, if less) and that you shall be responsible for and pay all costs of collection, including reasonable attorney’s fees and expenses, in the event any invoice requires collection efforts.
Integration and Installation
We will make our software installations regarding the Software Products and the Integration Software on your (or your third-party provider’s) designated servers in accordance with, and subject to, the specifications and system requirements set forth in the Statement of Work and such other specifications and system requirements from time to time provided by us (collectively, the ”System Requirements”). The installation will be made by remote access or at the location designated by you, as we determine. We will not be responsible for any malfunction, error or failure of the Utiliflex Software that are the result of your failure to satisfy the System Requirements.
You agree to provide us such information about your (or your third party provider’s) systems that we may request for the purpose of creating the Integration Software. As reasonably requested by us, you will, or will cause your third party providers, at your or their sole expense, to provide us the technical information and support necessary to achieve integration between the systems.
Termination
This EULA or any Statement of Work may be terminated immediately: (a) by either party, in the event of a material breach of this EULA or any Statement of Work by the other party that remains uncured for thirty (30) days after written notice of the alleged material breach; provided, however, that your failure to comply with Section 2 may result in our immediate termination without notice or a right to cure such failure; (b) by us, in the event of a payment default by you that remains uncured for five (5) days after written notice thereof; (c) by either party, in the event the other party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against the other party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other party; or (d) by a written agreement executed by the parties.
When a Statement of Work or this EULA is terminated or expires, (a) you shall pay us all amounts due and payable under the applicable Statements of Work through to the date of such termination or expiration and such payment shall be due upon receipt of our invoice, (b) you shall immediately return to the us all copies of the Software Code and any Documentation and any and all materials related thereto and (c) you shall immediately remove or permit us to remove all Software Code from your (and/or any of your third-party providers’) servers and back-up servers and, in the event that such removal is performed by you, certify to us in writing that such removal has been completed. You covenant and agree that you shall following termination or expiration of the applicable Statements of Work not retain any copies of the Software Code, any Documentation or any other materials related thereto.
Confidential Information
During the course of this EULA, information that is confidential or proprietary to one party (“Disclosing Party”) may be disclosed to the other (“Receiving Party”), including but not limited to certain confidential, proprietary and trade secret business or technical information (“Confidential Information”). Confidential Information shall be information that is marked and designated as “Confidential” or information that under the circumstances and due to its nature should be construed as confidential. Confidential Information shall not include information that the Receiving Party can demonstrate: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the Receiving Party; (b) is approved for release by written authorization of the Disclosing Party; or (c) is disclosed pursuant to the lawful requirement of a court or governmental agency after prompt prior written notice to the Disclosing Party. Neither party shall (i) make any disclosure of the Confidential Information to any party, except to employees of the Receiving Party who have need to know the Confidential Information for the purposes of carrying out the intent of this EULA or (ii) use the Confidential Information for any purpose, except in connection with the purposes of carrying out the intent of this EULA. This section shall survive the termination or expiration of this EULA for a period of five (5) years.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY ANY APPLICABLE LAWS, IN NO EVENT SHALL WE, OUR MEMBERS, OFFICERS, AGENTS, EMPLOYEES OR AFFILIATES (THE “UTILIFLEX GROUP”) BE LIABLE TO YOU OR ANY OTHER THIRD PARTY UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, RELIANCE, INCIDENTAL, ACTUAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUES, LOST OPPORTUNITIES, LOST ROYALTIES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOST SAVINGS OF ANY KIND, ARISING OUT OF OR RELATING TO THIS EULA, WHETHER YOU WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL ANYBODY IN THE UTILIFLEX GROUP BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS WE HAVE COLLECTED FROM YOU WITHIN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. YOU HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVES YOU OF AN ADEQUATE REMEDY HEREUNDER. Some states do not allow the exclusion of incidental or consequential damages, and therefore certain provisions hereof may not apply to you if you are located in one of those states. YOU AGREE TO ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR OR ANY THIRD PARTY’S USE OF THE UTILIFLEX SOFTWARE OR THE DOCUMENTATION.
LIMITATION OF WARRANTY
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN OR IN ANY EXHIBIT ATTACHED HERETO TO THE CONTRARY, THE UTILIFLEX SOFTWARE IS PROVIDED “AS IS” AND WE ARE NOT MAKING ANY WARRANTIES TO YOU REGARDING THE UTILIFLEX SOFTWARE OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF (1) MERCHANTABILITY, (2) FITNESS FOR A PARTICULAR PURPOSE, (3) EFFORT TO ACHIEVE PURPOSE, (4) COMPLETENESS, (5) QUALITY, ACCURACY, OR CURRENCY OF THIRD PARTY CONTENT, (6) NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, OR (7) AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED. YOU AGREE THAT ANY EFFORT BY US TO MODIFY THE UTILIFLEX SOFTWARE OR ANY OTHER PRODUCTS OR SERVICES SHALL NOT BE DEEMED A WAIVER OF ANY LIMITATIONS CONTAINED HEREIN AND THAT THE OUR LIMITATIONS OF WARRANTIES SHALL NOT BE DEEMED TO HAVE CAUSED THIS EULA TO HAVE FAILED ITS ESSENTIAL PURPOSE.
Miscellaneous
If a party to this EULA is rendered unable wholly or in part by a force majeure event to carry out its obligations under this EULA, other than its obligations to make payments hereunder, then the party affected by a force majeure event shall promptly give written notice to the other party explaining such event. Following such notice, the effective obligations of the party giving such notice shall be suspended only during the continuance of the force majeure event, provided it demonstrates continued due diligence in seeking a remedy to the cause of such event. The term “force majeure event” shall mean, acts of God, acts of public enemies, acts of terrorism, wars, blockades, insurrections, riots, epidemics, landslides, lightening, earthquakes, fires, storms, floods, washouts, civil disturbances, explosions, labor disputes, inability with reasonable diligence to obtain materials and any other cause not within the reasonable control of the party claiming a suspension hereof despite its due diligence.
Any information or notices required or permitted under this EULA shall be in writing and shall be deemed to have been sufficiently given if delivered to the address set forth on the signature page of the Statement of Work as follows: (a) on the date of personal delivery or transmission by electronic mail or (ii) four (4) days following the deposit of such notice with an overnight courier. Each party may notify the other party of an updated notice addresses by providing notice thereof in accordance with this section.
This EULA and each Statement of Work, together with all exhibits attached hereto and thereto, constitutes the entire understanding and agreement between us and you relating to the subject matter hereof and supersedes any and all prior agreements, whether written or oral, regarding said subject matter. No amendment, change, alteration or modification of this EULA or any Statement of Work shall be binding unless made in writing and signed by an authorized representative of us and you. If any portion of this EULA or any Statement of Work is determined to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other portion of this EULA.
You may not assign your rights, duties or obligations under this EULA to any person or entity, in whole or in part, and any attempt to do shall be deemed a material breach of this EULA unless we have provided prior written consent thereto in writing. We shall be entitled to assign our rights, duties or obligations under this EULA to any person or entity which acquires a majority voting equity interest in us.
This EULA is intended as a contract under and shall be construed and enforceable (both as to validity and performance) shall be interpreted and the rights and obligations of the parties shall be determined in accordance with the laws and procedures and provisions of the State of Tennessee, United States of America (other than conflict of law rules which might result in the application of the laws of any other jurisdiction). Each party hereby irrevocably consents and agrees that any legal action or proceedings brought under this EULA shall be brought in the United States District Court for the Eastern District of Tennessee, United States of America and, if jurisdiction does not lie, in the state courts in Chattanooga, Hamilton County, Tennessee, Unites States of America, and by execution and delivery of a Statement of Work, each party hereby (a) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under this EULA, (b) irrevocably agrees to be bound by any final judgment (after any appeal) of any such court with respect thereto, and (c) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law. In the event that any litigation or dispute resolution procedure is utilized to enforce the provisions of this EULA, the prevailing party in such action shall be entitled to the recovery of its reasonable attorneys’ fees and expenses, court costs, dispute resolution costs and expenses, expert witness fees and expenses and such other costs as are fixed by the court or other party serving to resolve such dispute.
You agree that you shall indemnify, defend and hold harmless (and promptly reimburse any legal or other expenses as and when incurred) each member of the Utiliflex Group (each an “Indemnified Person”) from and against any losses, claims, damages, liabilities, awards, settlements, expenses, fees and costs of any nature (“Losses”) to which any Indemnified Person may become subject arising out of, in connection with or related to this EULA, our engagement hereunder or the provision of the products and services contemplated by this EULA, except to the extent that any Loss is found by a court of competent jurisdiction that is no longer subject to appeal or review to have resulted primarily from such Indemnified Person’s gross negligence or intentional misconduct.
No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
The respective rights and obligations of the parties under Sections 2, 3 and 6-10 shall survive any termination or expiration of this EULA.
You acknowledge that we have set our prices and entered into this EULA in reliance upon the limitations of liability and damages and the limitations of warranties set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between us and you. You and we agree that such limitations shall not be deemed to have caused this EULA to fail its essential purpose.