BRACTLET IS PLEASED TO OFFER ITS SERVICE OFFERINGS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF SERVICE (“TERMS OF SERVICE”):
Bractlet provides a software analytics platform useful for building performance and energy consumption monitoring, analysis, and reporting; and identification, evaluation and implementation of building optimization and upgrade projects. Bractlet’s platform includes three product tiers: (a) Benchmark – utility bill management, performance benchmarking, and ESG reporting, (b) Analytics – building performance monitoring, performance issue notifications, and data visualizations, and (c) Simulation – building simulation and performance baseline creation, building optimization and upgrade project identification, evaluation, and implementation support services (collectively the “Products”). To uphold the quality and reputation of Bractlet and its Platform and Subscription Services, Owner’s use thereof is subject to these Terms of Service. If Owner or its authorized users are found to be in violation of any terms of these Terms of Service at any time, as determined by Bractlet, in its reasonable discretion, Bractlet may warn Owner, suspend the affected Service, or terminate Owner’s access and/or use of the Platform. These Terms of Service are incorporated by reference as if set forth in full into each Subscription Order entered into between Owner and Bractlet with respect to each Building. These Terms of Service and the Subscription Order are collectively referred to as this “Agreement” and all capitalized terms shall have the meanings set forth below.
Please note that Bractlet may change the Terms of Service at any time, and, while Bractlet may send written notice of any such changes as required by applicable law, it is Owner’s responsibility to keep up-to date with and adhere to the posted Terms of Service. Any continued use of Bractlet’s Platform and Services following any such change constitutes Owner’s acknowledgement of such change and its agreement to follow and be bound by the modified terms and conditions, if any.
Electronic Signature Consent to These Terms of Service and other Transactions
Owner’s access and use of Bractlet’s Platform and Services may be managed through the User ID accounts set up on the Platform for each Building. Bractlet may rely on an electronic signature process as official authorization for the parties’ agreement as well as any changes to these Terms of Service or any transactions conducted between Owner and Bractlet. Owner and Bractlet each agree to conduct each transaction by electronic means and each party hereby states that electronic signatures shall have the same force and effect as original signatures with respect to these Terms of Service and all written agreements entered into between Owner and Bractlet. Owner may revoke approval of this electronic signature process at any time with prior written notice to Bractlet; however, this may result in Bractlet’s suspension or termination of the Services absent Owner’s acknowledgment of agreement or consent by other valid legal means.
1. BRACTLET SERVICES.
1.1 Platform and Devices. Bractlet has developed its proprietary cloud-based, online platform, including data, databases, software applications, interfaces, scripts, portals, libraries, tools, code, processes, devices, equipment, routers and telecommunications services and other technology (the “Platform”) and proprietary building performance and energy consumption monitoring devices, including current transformers, power meters, gateways and repeaters (the “Devices”). The Platform and the Devices are designed to collect and process Building Information (as defined in Section 1.2) and Energy Data (as defined in Section 4.4.2); and to provide analytical tools for monitoring, evaluating and forecasting building performance, and identifying, evaluating, and implementing projects for optimizing building performance and upgrading its HVAC, lighting and building envelope-related infrastructure (the “Building Analytics”).
1.2 Service Offerings. Bractlet offers subscription services (including software application features and functionality) to Owner and its authorized users on a limited term basis (“Subscription Services”). Bractlet’s onboarding of the Subscription Services for a building varies per Product tier but includes: (a) collection of information related to building design, utilization and operations (collectively the “Building Information”); (b) installation of its data collection Devices (d) integration of Building systems and utility provider accounts with the Platform (e) mapping of collected data into the Platform (g) provisioning of access to the Platform to its customers (including Owner and its authorized users) (h) creation and calibration of a building simulation model and building performance baseline; and (i) preliminary identification and evaluation of projects to optimize building performance and upgrade its infrastructure (“Onboarding”). The Chart in the Subscription Order shows the location and address of each building owned or managed by Owner in which the Subscription Services will be provided and the Devices will be installed and connected to Owner’s equipment or systems (the “Building”), the applicable Product tier for the Subscription Services, the duration of the Subscription Services (the “Subscription Service Term”), the basis on which the Subscription Services are provided, and the fees due to Bractlet related to the Subscription Services and the Onboarding. The Subscription Services, the Onboarding and any support services for the Platform and the Devices made available by Bractlet to its customers are collectively referred to as the “Services” or the “Service Offering”.
1.3 Subscription Services.
1.3.1 Subscription Services Features. For each Building, the Subscription Services on a limited term basis will include the following features and functionality per Product tier:
220.127.116.11 Benchmark Features
(i) Utility bill collection, analysis, management, storage, and anomaly detection;
(ii) Benchmarking against other buildings in Owner’s portfolio on Bractlet’s platform and databases of comparable buildings;
(iii) Integration with and uploading of utility bill data and other information to ENERGY STAR Portfolio Manager, GRESB, and LEED for annual certification and historical performance tracking; and
(iv) Portfolio data aggregation, visualization and analytics in the case Owner has multiple buildings on Bractlet’s Platform.
18.104.22.168 Analytics Features
(i) All the features in Benchmark described in Section 22.214.171.124;
(ii) Building and equipment performance monitoring for comfort, safety, and energy consumption;
(iii) Performance issue notifications; and
(iv) Building comfort; equipment operation and weather data visualization.
126.96.36.199 Simulation Features
(i) All the features for Benchmark and Analytics described in Section 188.8.131.52 and Section 184.108.40.206, respectively;
(ii) Collection and storing of Building Information relating to the Building’s design, utilization and operations;
(iii) Maintenance and calibration of building simulation model and building performance baseline for analyzing and forecasting building performance and energy consumption;
(iv) Identification and evaluation of building performance optimization and upgrade projects, including estimated and actual performance, savings, implementation costs, investment returns;
(v) Project implementation support services including project specifications, bid evaluation, commissioning support and return verification; and
(vi) Capital plan, budget and lease support services.
1.3.2 Subscription Services Onboarding. For each Building, the Subscription Services Onboarding will include the following activities per Product tier:
220.127.116.11 Benchmark Onboarding
(i) Bractlet will meet with Owner to collect information related to the building utilities, including account login information, and ESG reporting practices;
(ii) Bractlet will integrate with Building’s utility providers’ web-based portals and map collected data to the Platform to facilitate automated bill collection; and
(iii) Bractlet will integrate the Platform with ENERGY STAR Portfolio Manager to facilitate data upload and performance tracking.
18.104.22.168 Analytics Onboarding
(i) All the Onboarding activities for Benchmark described in Section 22.214.171.124;
(ii) Bractlet will meet with Owner to collect Building Information related to the Building’s building automation system (BAS) and to gain an understanding of the Building’s HVAC system; and
(iii) Bractlet will install its gateway device and integrate with the Building’s BAS, subject to the prior approval of the Owner, and map the trended BAS points to the Platform to provide information on the Building’s comfort and equipment operation.
126.96.36.199 Simulation Onboarding
(i) All the Onboarding activities for Benchmark and Analytics described in Section 188.8.131.52 and Section 184.108.40.206, respectively;
(ii) Bractlet will meet with Owner to collect Building Information related to the Building’s design, utilization and operation including (a) design drawings, (b) floor plans, (c) stacking plans, (d) equipment specifications, configuration, and operational data, (e) property condition assessment, project feasibility, and energy audit reports (f) the Building’s capital plan, and (g) other information required for Bractlet to create and calibrate a highly predictive simulation model for the Building;
(iii) Bractlet will install its power meter devices in the Building, subject to the prior approval of Owner, to capture data on the operation and energy consumption of select equipment in the Building necessary for Bractlet to calibrate the simulation model created for the Building to be highly predictive. Bractlet will map data collected from its power meters to the Platform to provide information on equipment operation and energy consumption;
(iv) Bractlet will use the Building Information and data collected from the Building’s BAS and its installed power meters to create and calibrate a predictive simulation model and building performance baseline for forecasting building performance and energy consumption which incorporates the unique attributes of the Building’s design, utilization, operation, and geographic location; and the impact of weather; and
(v) Bractlet will conduct an initial identification and evaluation of building performance optimization and upgrade projects, including estimated savings, implementation costs, and investment returns. The resulting analysis will be accessible by Owner in the Platform.
220.127.116.11 Other Onboarding Provisions
(i) For each Product, Bractlet will test the operation of the deployed Devices (as applicable), the collection and mapping of the Energy Data into the Platform, and the functionality of the features of the Subscription Services. Upon Bractlet’s completion of testing, the Subscription Services via the Platform will be made available to Owner and its authorized users for access and use.
(ii) Bractlet will use commercially reasonable efforts to implement the Onboarding activities set forth for each Product in a timely manner, which performance is dependent upon Owner’s requirements set forth in this Agreement and any delay in delivery of such Owner requirements (including without limitation Building Information) will result in Bractlet’s delayed delivery of the Subscription Services.
1.3.3 Access and Use.
18.104.22.168 Bractlet will permit Owner and its authorized users to: (i) access and use the Subscription Services via the Platform; (ii) view or generate Building Analytics for the management of the Building and Owner’s internal business use; and (iii) export Energy Data in .csv or other Bractlet‑approved data format via a Bractlet-approved data feed to Owner’s own database at its own expense; provided that Owner’s interface, export and processing of such data does not materially impede or impair the operation and functionality of the Subscription Services and the Platform. Such access is provided to Owner and its authorized users only with respect to the Building(s) specified in the Chart in the Subscription Order during the Subscription Service Term.
22.214.171.124 Owner and its authorized users may disclose the Energy Data and outputs from the Building Analytics to Owner’s employees, Building personnel, advisors, brokers, contractors, consultants, engineers, financing sources, existing and prospective investors, service providers, existing and prospective tenants, and prospective buyers solely for any purpose related to the Building and the Owner’s internal business activities, including Building operations, management reporting, project evaluation and implementation, investor communications, tenant communications, leasing activities, and the financing and sale of the Building (and not for reverse-engineering or resale to others).
126.96.36.199 Bractlet will assign each authorized user employed or retained by Owner with a User ID used to authenticate and verify the authorized user’s right to access and use the Subscription Services via the Platform. Owner will be responsible for ensuring the security and confidentiality of all User IDs and authorized user’s compliance with the terms of this Agreement. Owner acknowledges that it will be fully responsible for all liabilities incurred through use of any User ID (whether lawful or unlawful) and that any transactions completed under a User ID will be deemed to have been lawfully completed by Owner. Owner will contact Bractlet in writing if the employee or contractor designated as an authorized user is no longer employed or engaged by Owner, including the information needed to designate a new authorized user and to issue a new User ID.
1.3.4 Devices. During the Subscription Services Term, Bractlet will maintain and, as necessary, replace the Devices installed in the Building. Upon the expiration of the Subscription Services Term or the termination of this Agreement, Bractlet will be entitled to remove, or cause to be removed, the Devices from the Building.
1.3.5 Support. During Bractlet’s business hours of the Subscription Service Term, the following support services will be provided to Owner:
- User interface features and functionality support;
- Infrastructure support services for the Platform, including monitoring, backups, server maintenance, and patching for the applications, databases and operating systems;
- Non-critical support services via e-mail at email@example.com; and
- Remote troubleshooting and, as needed, repair and replacement of any malfunctioning Devices installed at the Building.
1.4 Performance of the Services. Bractlet will follow and comply with all federal, state and local government laws, rules, regulations, codes, ordinances and orders applicable to its performance of the Services rendered under this Agreement. Bractlet may use any means necessary and appropriate to perform the Services under this Agreement; provided, however, that in no event will Bractlet take any action that may subject either it or Owner to civil or criminal liability. Unless specified in this Agreement, Bractlet will furnish, at its own expense, all resources, personnel, equipment, tools, and supplies necessary for the performance of the Services. Bractlet will comply while on-site at the Building facilities with Owner’s on-site safety policies and procedures provided in writing in advance by Owner.
1.5 Additional Services. Any services requested by Owner outside of the scope of Services described in this Agreement (“Additional Services”) will be performed by Bractlet on a case by case basis at time and materials at Bractlet’s hourly rate of $250 (the “Hourly Rate”), including without limitation, (i) additional Onboarding services (including Platform design, implementation and reconfiguration) performed after initial Platform implementation at the Building, (ii) all services performed in addition to the Subscription Services (e.g., after hours support or dedicated personnel, as available), and (iii) the deployment of additional Devices or any material changes to existing Devices after initial Platform implementation at the Property. Owner agrees to pay Bractlet for all such services (and related travel and expenses) performed outside the scope of the Services, which have been authorized under this Agreement or otherwise agreed upon in writing by Owner.
2. FEES FOR SERVICES.
2.1 In consideration for performance of the Services, Owner agrees to pay Bractlet the Onboarding fee and Subscription Service fees and other charges for the Services in U.S. dollars in the amounts set forth in the Chart in the Subscription Order. The Onboarding fee is due at the execution of this Agreement. The first annual Subscription Fee will be due upon the execution of this Agreement, with additional Subscription Fees due at the beginning of each subsequent 12-month year of the Subscription Services Term. All annual fees and the Onboarding fee are non-refundable. Owner will pay any and all undisputed amounts due for fees and charges within thirty (30) days of receipt of Bractlet’s invoice. Any payment not received within thirty (30) days after the invoice date will accrue interest at a rate equal to the lesser of 1.5% per month or the highest rate permitted by applicable law.
2.2 Owner will pay Bractlet on a time and materials basis at the Hourly Rate based on the documented time of the applicable Bractlet employee for any Additional Services. Such fees will be invoiced and due and payable within 30 days from the date of performance.
2.3 Unless otherwise specified in this Agreement, Owner will be responsible for all taxes, levies, and fees to the extent due from any governmental authority arising out of the performance of the Services, excluding taxes based on Bractlet’s net income or personal property. Bractlet will be responsible for all insurance premiums, workmen’s compensation, unemployment, withholdings, employee benefits and all other fees and assessments associated and with respect to Bractlet’s employees performing such Services and will hold Owner harmless on account thereof.
3. OWNER OBLIGATIONS TO PROVIDE ASSISTANCE.
3.1 Owner will cooperate, and cause its Building contractors, electricians, engineers and service providers to cooperate with Bractlet in the performance of the Services (including the Bractlet’s deployment and maintenance of the Devices) and to timely provide Bractlet true and complete copies of all Building Information, and such other necessary files, documents, building systems, and other information and assistance required for Bractlet to provide the Services (including the deployment and maintenance of the Devices). Bractlet will request any Building Information or assistance sufficiently in advance of the time that it requires a response in order to facilitate Owner’s timely response to the requests. All Building Information will be provided an electronic file format specified by Bractlet for use in the Platform. Bractlet reserves the right to charge for time and materials at Hourly Rate in order to convert any Building Information into the proper format.
3.2 Owner will provide Bractlet and its employees and subcontractors with physical and remote access to the Building at all times as reasonably requested by Bractlet for the limited purpose of (i) installing, owning, accessing, monitoring, maintaining, replacing and removing the Devices; (ii) performing the Services; and (iii) enforcing Bractlet’s rights set forth in this Agreement. Owner grants Bractlet the right of temporary use of certain areas of the Building for laydown, installation, staging and operations and maintenance, to provide the Services.
3.3 Owner will obtain and maintain any approvals from any landlord, mortgage holder or any other third party necessary for Bractlet to install the Devices and provide the Services. Bractlet, through an independent contractor, will install the Devices in specified locations within the Building(s), as determined by Bractlet in its reasonable discretion and approved by the Owner.
3.4 Owner will be solely responsible, at its own expense, for acquiring, installing and maintaining all telephone and ISP connectivity, hardware, software and other equipment as may be necessary for Owner and its authorized users to connect to, access, and use the Platform and the Services.
3.5 In the event of any change in the ownership or management of the Building by Owner, Owner will use commercially reasonable efforts to facilitate the transfer and assignment of each Subscription Order for the Services related to such Building to Owner’s successor in interest and make an introduction of Bractlet to the new owner and/or manager of the Building prior to the closing of the sale or transfer of the Building.
4. CONFIDENTIAL INFORMATION.
4.1 Definition. The term “Confidential Information” means all trade secrets and non-public data and information, which is marked or otherwise designated as “confidential” by the disclosing Party in writing at the time it is provided to the receiving Party or which is learned by observation or inspection or of the type or nature that a reasonable, prudent person would consider to be “confidential” if not so designated in writing. Confidential Information does not include any information that (i) was in the public domain at the time it was disclosed or used, (ii) becomes known from a source other than Owner or Bractlet, (iii) was independently developed by Bractlet (or Owner) without the benefit of the information received from Owner (or Bractlet), or (iv) was disclosed under legal process or other legal requirement. Confidential Information also will include any such confidential or proprietary information of a third party in the possession or control of the disclosing Party that may be disclosed to the receiving Party.
4.2 Confidential Information of Owner.
4.2.1 Unless requested by Owner, Bractlet will not, and will cause Bractlet’s employees, contractors and agents to agree not, to disclose to any person, other than as required by law or court order, Owner’s Confidential Information. If Bractlet is required by law (other than securities laws) or court order to disclose Owner’s Confidential Information, Bractlet will, prior to such disclosure, provide Owner with reasonable notice of such requirement, so that Owner can defend its rights against such disclosure. All Building Information will be treated as Owner’s Confidential Information from the date of delivery or initial disclosure subject to limited rights of use set forth in this Agreement.
4.2.2 Owner’s Confidential Information received by Bractlet will remain the exclusive property of Owner, and Bractlet will use Owner’s Confidential Information solely for the performance of the Services or as otherwise provided under this Agreement. Bractlet will use the same level of care to protect Owner’s Confidential Information from unauthorized use, dissemination or disclosure as it does its own confidential information of like nature, but in no event less than a reasonable standard of care.
4.3 Confidential Information of Bractlet.
4.3.1 Unless requested by Bractlet, Owner will not, and will cause Owner’s employees, engineers, contractors and agents to agree not, to disclose to any person, other than as required by law or court order, Bractlet’s Confidential Information. If Owner is required by law (other than securities laws) or court order to disclose Bractlet’s Confidential Information, Owner will, prior to such disclosure, provide Bractlet with reasonable notice of such requirement, so that Bractlet can defend its rights against such disclosure. All Bractlet Technology (as defined in Section 4.4.1) will be treated as Bractlet Confidential Information from the date of delivery or initial disclosure.
4.3.2 Bractlet’s Confidential Information received by Owner will remain the exclusive property of Bractlet, and Owner will use Bractlet’s Confidential Information solely for the access and use of the Services or as otherwise provided under this Agreement. Owner will use the same level of care to protect Bractlet’s Confidential Information from unauthorized use, dissemination or disclosure as it does its own confidential information of like nature, but in no event less than a reasonable standard of care. Owner acknowledges that Bractlet is in the business of providing building performance and energy management software for others and Bractlet’s processes are valuable trade secrets comprising Bractlet’s Confidential Information and the Devices are proprietary to Bractlet.
4.4 Rights in Bractlet Technology, Devices, Building Information, Energy Data, and Building Analytics.
4.4.1 Bractlet Technology. The Parties acknowledge and agree that the right, title and interest in and ownership of all Bractlet Technology (including the Platform, the Building Analytics and the Subscription Services) are and will remain vested in Bractlet at all times (subject to any limited rights of access and use set forth in this Agreement) and for all purposes. Owner will not knowingly take any action to challenge, contest or other action inconsistent with Bractlet’s rights in and to the Bractlet Technology. For purposes of this Agreement and this Agreement, the term “Bractlet Technology” includes Bractlet’s proprietary inventions, works of authorship, materials, trade secrets, information and technology, and all intellectual property rights relating thereto, including without limitations, copyrights, hardware designs, algorithms, software, software and application programming interfaces, code, scripts, libraries, tools, configurations, GUI, and user-interface designs, architecture, documentation (both printed and electronic), network designs, know-how, trademarks, patents, copyrights, trade names, trade dress, methodologies, processes, works of authorship, trade secrets, confidential information, and any related intellectual property rights throughout the world (whether owned by Bractlet or licensed to Bractlet from a third party), used in the Services or incorporated into the Building Analytics, the Devices, the Platform or the Subscription Services, or any other reports, documentation or materials provided by Bractlet or generated from Owner’s or its authorized user’s access and use of the Platform, and any derivatives, improvements, enhancements, feedback, suggestions or extensions related to any of the foregoing, conceived, reduced to practice, or developed whether alone or jointly with others by Bractlet or Owner. The Bractlet Technology further includes all technology (including software, interfaces, configurations, code and scripts) that Bractlet developed prior to the rendering of the Services or in connection with its performance of similar services under other client engagements and that did not result from the Services specifically commissioned solely for use by Owner as specifically provided in this Agreement prior to creation.
188.8.131.52 Bractlet will retain all right, title and interest, including all personal property and intellectual property rights, in and to the Devices deployed in the Building. Nothing in the Agreement will be understood to cause Bractlet to assign its intellectual property rights in the Devices to Owner. In addition, nothing in the Agreement will cause a transfer of ownership in the Devices to Owner. The Devices will at all times retain the legal status of Bractlet’s personal property for Bractlet’s use to retrieve the Energy Data.
184.108.40.206 Devices will not be deemed to have attached or be deemed a part of, or fixture to, the Building and Owner will prevent such occurrence. Owner will not, without Bractlet’s prior written consent: (i) remove the Devices from the Building; (ii) assert or assume or attempt to assert or assume, any right, title, or interest or permit any third party to assert or assume any interest in a Device; (iii) transfer, sell, assign, pledge or otherwise dispose of a Device; (iv) cause, create, incur, assume or allow to exist any mortgage, pledge, lien, charge, security interest, encumbrance, or other claim or interest of any nature on or with respect to a Device. Owner is permitted to use the Devices for purposes of generating the Energy Data for the Platform (and not for resale or other commercial uses).
4.4.3 Building Information. The Parties acknowledge and agree that the ownership the Building Information is and will remain vested in Owner subject to the limited rights of access and use set forth in this Agreement for all purposes (except as otherwise provided in this Section 4). Owner represents that it owns or has sufficient rights in and to the Building Information to grant all rights of access and use and other license to Bractlet set forth in this Agreement. Owner further grants to Bractlet a non-exclusive, worldwide, transferable, perpetual, royalty-free, fully paid, irrevocable license to copy, distribute, modify, host, translate, use and create derivative works of the Building Information for the purposes set forth in this Agreement and in the performance of Subscription Services, including marketing, case studies, and aggregated data analysis on an anonymized basis, for its customers and in its business (including refining its technology and platform) without accounting or royalty to Owner. Bractlet’s services related to the Building Information are limited solely to collecting and incorporating the Building Information into the Platform to allow Bractlet to provide the Subscription Services. Any use and/or analysis does not include an evaluation of the adequacy or constructability of the Building Information. Bractlet is not a licensed architect or engineer nor a general contractor or consultant, and it will not be responsible for any errors or design defects in the Building Information. Owner remains responsible for all design fees due to any design professional or engineer retained during the preparation of the Building Information. Bractlet will not administer the Building Information on behalf of Owner. Bractlet will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the maintenance of the Building. Bractlet will not be responsible for Owner’s failure to install or maintain any Building equipment, materials or systems in accordance with the Building Information, third party manufacturer’s specifications or Owner’s policies and procedures.
4.4.4 Energy Data. The Parties acknowledge and agree that the ownership of Building-specific performance and energy consumption data collected and processed from the Building’s BAS and equipment by the Devices and from the Building’s utility providers (“Energy Data”) is and will remain vested in Owner subject to the limited rights of access and use set forth in this Agreement for all purposes (except as otherwise provided in this Section 4). Owner represents that it owns or has sufficient rights in and to the Energy Data to grant all rights of access and use and other license to Bractlet set forth in this Agreement. Owner further grants to Bractlet a non-exclusive, worldwide, transferable, perpetual, royalty-free, fully paid, irrevocable license to copy, distribute, modify, host, translate, use and create derivative works of the Energy Data for the purposes set forth in this Agreement and in the performance of Subscription Services, including marketing, case studies, and aggregated data analysis on an anonymized basis, for its customers and in its business (including refining its technology and platform) without accounting or royalty to Owner.
4.4.5 Blind Data. The Parties acknowledge and agree that Bractlet will have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, analyze and commercially exploit any de-identified or aggregated data or any non-personally identifiable data or information that is not readily identifiable to the Building, the Owner or any particular individual, management (“Blind Data”) resulting from Owner’s and its authorized user’s use of the Services or otherwise generated from the collection, processing and/or use of the Energy Data. To the extent that any Blind Data is collected by Bractlet, such Blind Data will be solely owned by Bractlet and may be used by Bractlet for any lawful business purpose without a duty of accounting or royalty to Owner; provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data.
4.4.6 Building Analytics. While the Building Analytics may contain in whole or in part certain Energy Data, the content of the Building Analytics will disclose or incorporate certain trade secrets and other proprietary elements of Bractlet Technology. Bractlet will retain title and the ownership of the Building Analytics and all proprietary and intellectual property rights covering the Building Analytics (excluding the Energy Data referenced therein). Owner will have limited rights to access and use the Building Analytics set forth in this Agreement.
4.4.7 Similar Services. Owner acknowledges that Bractlet will enter into contracts with other customers who may or may not be within the same geographic territory as Owner’s business and/or the Building and that nothing in this Agreement will restrict or limit Bractlet from performing services similar in nature to the Services for any other person or entity in any industry both during and after the Subscription Service Term set forth in this Agreement.
4.5 Specific Enforcement. Each Party recognizes that the restrictions and covenants contained in this Section 4 are reasonable and necessary for the protection of the Party’s legitimate business interests, goodwill and the Parties’ respective Confidential Information. Each Party acknowledges that the breach or threatened breach of this Section can cause irreparable damages to a Party, and that in addition to and not in lieu of all other rights available at law or in equity, each Party will have the right to temporary and permanent injunctive relief to prevent the breach of this Section by the other Party, without posting of bond and proving actual damages. The non-breaching Party will be entitled to recover its costs and expenses, including reasonable attorneys’ fees, in enforcing its rights under this Agreement.
5. DISCLAIMERS AND LIMITATIONS ON LIABILITY.
5.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, THE DEVICES AND THE PLATFORM ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. BRACTLET MAKES NO REPRESENTATION AS TO THE INTEROPERABILITY OF THE DEVICES, PLATFORM OR SERVICES WITH ANY THIRD PARTIES’ SYSTEMS OR EQUIPMENT IN THE BUILDING. UNDER NO CIRCUMSTANCES WILL BRACTLET BE LIABLE FOR ANY DAMAGE OR LOSS RESULTING FROM A CAUSE OVER WHICH BRACTLET DOES NOT HAVE CONTROL, INCLUDING, WITHOUT LIMITATION, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATIONS LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, GENERAL INOPERABILITY OF THE INTERNET, UNAUTHORIZED ACCESS, THEFT, OPERATOR ERROR, SEVERE WEATHER, EARTHQUAKES, AND STRIKES OR OTHER LABOR PROBLEMS. BRACTLET MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON‑INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE OR COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAW. BRACTLET DOES NOT WARRANT THAT THE SUBPSCRIPTION SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. TO THE EXTENT BRACTLET MAY NOT AS A MATTER OF LAW DISCLAIM ANY WARRANTY, THE PARTIES AGREE THAT THE SCOPE AND DURATION OF ANY SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
5.2 IN ADDITION TO ANY OTHER LIMITATION OF LIABILITY OR DISCLAIMER SET FORTH IN THIS AGREEMENT, BRACTLET IS NOT A LICENSED ARCHITECT OR ENGINEER, AND BRACTLET WILL NOT BE RESPONSIBLE FOR CONTRACTOR SERVICES TO ALTER OR IMPROVE THE BUILDING OR EQUIPMENT IN ORDER TO IMPLEMENT ANY COST SAVINGS INITIATIVE OR RESULTING COST SAVINGS THEREFROM. BRACTLET PROVIDES A SOFTWARE ANALYTICS PLATFORM USEFUL FOR MAKING BUSINESS DECISIONS RELATED TO BUILDLING PERFORMANCE AND THE OWNER REMAINS RESPONSIBLE FOR ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE ON ITS ACCESS OR USE OF THE PLATFORM OR BUILDING ANALYTICS GENERATED FROM THE PLATFORM.
5.3 EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY OBLIGATIONS AND RIGHTS SET FORTH IN SECTION 4 OF THIS AGREEMENT AND ANY INDEMNIFICATION OBLIGATIONS REQUIRED UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS, LOST SAVINGS, LOST DATA, COMMERCIAL LOSS OR BUSINESS INTERRUPTIONS INCLUDING LOSS OR DELAY OF BUSINESS OPERATIONS OR OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
5.4 BRACTLET’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE PLATFORM AND THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE ONBOARDING FEES AND ANNUAL SUBSCRIPTION SERVICE FEES ACTUALLY PAID OR DUE TO BE PAID BY OWNER FOR THE SERVICES GIVING RISE TO THE CLAIM FOR, OR ALLEGEDLY CAUSING, THE DAMAGES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PROCEEDING THE LIABILITY HEREUNDER DURING THE TERM.
5.5 EACH PARTY ACKNOWLEDGES THE ALLOCATION OF RISK SET FORTH HEREIN AND THAT THE PARTIES WOULD NOT HAVE EXECUTED THIS AGREEMENT AND THIS AGREEMENT WITHOUT THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY.
6.1 Indemnification of Owner. Bractlet hereby indemnifies and holds harmless Owner, its officers, partners, directors, agents and employees from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs and attorneys’ fees arising from any bodily injury or death of any person or damages to real and or personal property incurred by Owner or any third party resulting from the negligence or willful misconduct of Bractlet or its personnel or agents.
6.2 Indemnification of Bractlet. Owner agrees to indemnify and hold harmless Bractlet and its officers, partners, directors, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs and attorney’s fees, arising from any bodily injury or death of any person or damages to real and/or tangible property incurred by Bractlet or any third party resulting from the negligence or willful misconduct of Owner or its personnel or agents.
6.3 Indemnification Obligations. To receive the foregoing indemnities, the indemnified Party must notify the indemnifying Party in writing of a claim or suit promptly and provide reasonable cooperation (at the indemnifying Party’s expense for out-of-pocket expenses) and full authority to defend or settle the claim or suit.
7. Publicity. Bractlet will have the right to use Owner’s name and the name and location of the Building as a customer reference in its customer listings and its marketing materials to potential customers without the prior consent of Owner.
8.1 Term. This Agreement will commence on the Effective Date set forth in the Subscription Order and will continue in effect until completion of the Subscription Services Term unless earlier terminated in accordance with this Agreement.
8.2 Termination for Cause.
8.2.1 In the event of any breach of Section 4 or 6, the non-breaching Party may terminate this Agreement immediately. In the event that the other Party (i) materially breaches any other provisions of this Agreement or (ii) becomes insolvent or makes a general assignment for the benefit of its creditors, or a trustee or receiver is appointed for it or for any of its property, and such breach remains uncured after a period of thirty (30) days from receipt of written notice detailing the nature and extent of such breach, the non-breaching Party may, at its option, terminate this Agreement immediately, with further confirming notice.
8.2.2 In the event Owner (i) ceases to conduct business operations and/or vacates the Building, (ii) fails to hold possession of the Building, (iii) is prevented from granting Bractlet with access to the Building as required under this Agreement prior to the expiration of the Term, or (iv) changes ownership of the Building without an assumption of this Agreement, and such event remains in effect for a period of thirty (30) days, then Bractlet may terminate this Agreement immediately, without further confirming notice.
8.3 Termination for Convenience. Owner shall have the right to terminate this Agreement for convenience in the event of the sale of the Building by the Buyer by providing Bractlet with at least thirty (30) days prior written notice of intent to terminate and the effective date of termination.
8.4 Payment of Fees on Expiration or Termination. Upon any termination of this Agreement for cause or convenience, Owner shall pay Bractlet all annual Subscription Service fees then due and all Hourly Fees due for Additional Services rendered as of the date of termination. Upon Bractlet’s receipt of notice of Owner’s intention to terminate this Agreement or upon Bractlet’s written notice of Owner’s uncured breach of any term of this Agreement, such fees immediately shall become due and payable. However, in the event of Owner’s termination for cause, Owner may withhold all undisputed payments due pending dispute resolution for this Agreement so terminated.
8.5 Effect of Termination. Owner agrees that Bractlet’s obligation to maintain the Building Information and Energy Data processed or obtained in the course of performance of the Services will not extend beyond the later of any termination or non-renewal of this Agreement. Upon expiration or termination, Bractlet will promptly cease performing the Services and all authorized user access to the Platform will be immediately suspended. Within thirty (30) days of expiration or termination, Owner may request a text file copy of the Energy Data stored for use by Owner and its authorized users as of the effective date of termination in a standard electronic file format in an “as is and with all faults” condition. The obligations of the Parties under Sections 2, 3.5, 4, 5, 6, 8, 16, and 17 will survive expiration or termination of this Agreement for any reason.
9. RELATIONSHIP BETWEEN THE PARTIES. It is agreed that the relationship of Bractlet to Owner is solely that of an independent contractor. Bractlet is not and will not represent that it is an agent and/or employee of Owner and will have no power, express or implied, to bind Owner in any manner. Bractlet will make no representations or warranties whatsoever with regard to Owner including but not limited to any warranty or representation relating to the Building or any of Owner’s products or services in the Building, and will incur no liability, or expense nor make any commitments, on behalf of Owner.
10. ASSIGNMENT. Each Party will not assign, delegate, or subcontract any portion of its rights, duties, or obligations under this Agreement without the prior written consent of the other Party and any attempt to do so will be void; provided however that Bractlet may subcontract certain of the Services to be performed in connection with this Agreement, and either Party may freely assign this Agreement, including its rights and duties hereunder, to any successor in interest to the Building and/or all or substantially all of its business related to the Building in which the Services are provided as long as the assignee agrees in writing to assume all obligations of the assigning party under this Agreement and this Agreement. Notwithstanding anything to the contrary in this Agreement, Owner consents to Bractlet’s pledge or assignment of this Agreement as collateral for investment financing or merger or reorganization as long as Bractlet (or its successor in interest) continues to perform the Services in accordance with this Agreement.
11. INSURANCE. Bractlet will obtain and maintain at its expense commercial general liability (CGL) liability and worker’s compensation insurance with sufficient coverage limits to cover its obligations under this Agreement. All policies will be made with insurers licensed to do business in the jurisdiction where the Building is located. All carriers providing the insurance required herein will have a rating of A – VII or higher by AM Best’s rating service. Upon Owner’s request, Bractlet will provide Owner with a certificate of insurance and, with respect to the CGL policy coverage, name owner or any entity listed as an “owner” in this Agreement as an additional insured.
12. NOTICES. Any notice, request or demand regarding any alleged breach or termination of this Agreement by either party will be sent via first class certified mail, return receipt requested to (i) Owner to the attention of Owner’s designated representative set forth in the Subscription Order and (ii) to Bractlet to the attention of Bractlet’s designated representative set forth in the Subscription Order, each at the address specified in the signatory block of the Subscription Order. All other notices, requests, demands and communications related to this Agreement will be sent to the other party by a party in writing and will be deemed to have been duly given if emailed, personally delivered or mailed by certified or registered delivery international air mail, postage prepaid, to the email and physical addresses specified on the signatory page. Any such notice, request, demand or communication: (i) if personally delivered or emailed will be deemed to have been received on the date actually received; and (ii) if mailed by certified or registered delivery international air mail, postage prepaid, will be deemed to have been received on the earlier of the date actually received and the date ten (10) days after the same was posted (and in proving such it will be sufficient to prove that the envelope containing the same was properly addressed and posted).
13. FORCE MAJEURE. In the event that either Party hereto is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any Act Of God, fire, casualty, flood, war, failure of public utilities, injunction or any act, exercise, assertion or requirement of governmental authority, epidemic, destruction of facilities, insurrection, inability to procure labor or transportation, or any other cause beyond the reasonable control of the Party invoking this provision, and if such Party will have used its best efforts to avoid such occurrence and minimize its duration and has given reasonable written notice to the other Party, then the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence for so long as the delay of the affected Party’s performance does not exceed forty-five (45) days. If a failure or delay in performance by either Party excused under this section continues for a period of longer than forty-five (45) days, the other Party may immediately terminate this Agreement.
14. WAIVER. No waiver by any party of breach of any term hereunder will be construed as a waiver of any subsequent breach of that term or of any other term of the same or different nature. If any provision of this Agreement is held to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable.
15. SEVERABILITY. In the event that any of the provisions of this Agreement will be held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining portions of this Agreement will remain in full force and effect and construed so as to best effectuate the original intention of Bractlet and Owner in executing it.
16. ENTIRE AGREEMENT. THESE TERMS OF SERVICE AND THE SUBSCRIPTION ORDER CONTAIN THE ENTIRE AND INTEGRATED AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER SET FORTH THEREIN AND SUPERSEDES ALL PREVIOUS AGREEMENTS OF THE PARTIES, WHETHER ORAL OR WRITTEN, WITH RESPECT TO SUCH SUBJECT MATTER. TO THE EXTENT THAT THERE IS A CONFLICT BETWEEN THESE TERMS OF SERVICE AND THE SUBSCRIPTION ORDER, THE SUBSCRIPTION ORDER SHALL CONTROL. THESE TERMS OF SERVICE MAY NOT BE MODIFIED, ALTERED OR AMENDED EXCEPT BY A WRITING (INCLUDING A CHANGE ORDER) SIGNED BY EACH OF THE PARTIES. THERE ARE NO IMPLIED LICENSES UNDER THIS AGREEMENT, AND ANY RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED. THIS AGREEMENT WILL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR SUCCESSORS AND PERMITTED ASSIGNS.
17. GOVERNING LAWS; VENUE. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, excluding its conflicts of law principles and the intellectual property laws, regulations and treaties of the United States of America. Both parties submit to personal jurisdiction in the federal and state courts located in Travis County, Texas, and further agree that any and all claims and controversies arising out of this Agreement that cannot be amicably resolved by the parties will be brought solely and exclusively in a court in Travis County, Texas, irrespective of the location of the Building.
18. COUNTERPARTS. This Agreement may be signed in multiple counterparts, each of which will be deemed an original, but all of which will together constitute but one and the same instrument. An executed counterpart of this Agreement scanned as a portable document format (.pdf) and delivered via e-mail, will be sufficient to bind the Parties whose signature(s) appear thereon.