Cloud Services Terms of Use

 

Last Updated: [X] September 2023

 

Thank you for your interest in dcbel LLC (together with our affiliates, “dcbel,” “we,” “our,” or “us”) and our products and services. These Cloud Services Terms of Use are a legally binding contract between you and dcbel (“Agreement”) regarding your purchase or use of the Cloud Services.

 

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

 

BY CREATING AN ACCOUNT, USING OR OTHERWISE ACCESSING THE CLOUD SERVICES, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR PURCHASE OR USE OF THE CLOUD SERVICES, YOU AGREE TO BE BOUND BY, THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE, INCLUDING DCBEL’S PRIVACY POLICY (AVAILABLE AT [LINK]) AND OUR GENERAL TERMS AND CONDITIONS (AVAILABLE AT [LINK]) (“General Terms”). If you are not eligible or do not agree to THIS AGREEMENT, THEN YOU MAY NOT PURCHASE, and you do not have our permission to use, the CLOUD SERVICES. YOUR PURCHASE AND USE OF THE CLOUD SERVICES, AND OUR PROVISION OF THE CLOUD SERVICES TO YOU, CONSTITUTES AN AGREEMENT BY DCBEL AND BY YOU TO BE BOUND BY THIS AGREEMENT.

 

ARBITRATION NOTICE AND CLASS ACTION WAIVER. Except for certain kinds of disputes described in Section 17 of the General Terms, you agree that disputes arising under this Agreement (including any dispute arising from your purchase or use of the Cloud Services) will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND DCBEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. (See Section 17 of the General Terms.)

 

1.                 Overview. Capitalized terms used and not defined in this Agreement have the respective meanings assigned to them in the General Terms. In addition to the General Terms, this Agreement applies to, and governs, your lease of, access to, and use of Platform Offerings.

 

2.                    Cloud Services.

 

1.              Access and Use. Subject to and conditioned on your compliance with the terms and conditions of this Agreement and the General Terms, we hereby grant you, during the Service Term (as defined below), a non-exclusive, non-transferable right to access and use the Cloud Services ordered by you, solely for use by you in accordance with the terms and conditions herein. Such use is limited to your personal, internal use.

 

2.              Additional Features/Functionality.  Certain features or functionality that are made available to you through, or offered in connection with, the Cloud Services may be subject to your payment of an additional fee.  We reserve the right to determine pricing for the Cloud Services (including any parts or components thereof) and for any other features or functionalities made available through the Cloud Services.

 

3.              Suspension. We may, directly or indirectly, suspend, terminate, or otherwise deny your access to, or use of, all or any part of the Cloud Services, without incurring any resulting obligation or liability, if: (a) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires us to do so; (b) we believe, in our sole discretion, that: (i) you have failed to comply with any material term of this Agreement, or accessed or used the Cloud Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instructions or requirements provided by us; (ii) you are, or are likely to be involved in, any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Cloud Services; or (c) you fail to make any payment for the Cloud Services when due and such failure continues for thirty (30) days following notice thereof. This Section does not limit any of our other rights or remedies, whether at law, in equity, or under the General Terms or this Agreement.

 

4.              Changes. We reserve the right, in our sole discretion, to make any changes to the Cloud Services that we deem necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of our services to our customers; (ii) the competitive strength of or market for our services; or (iii) the Cloud Services’ cost efficiency or performance; or (b) to comply with applicable law.

 

5.              dcbel Materials. dcbel has and will retain sole control over the operation, provision, maintenance, and management of the dcbel Materials.  For purposes of this Agreement, “dcbel Materials” means the Cloud Services, related documentation, and dcbel Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by us in connection with the Cloud Services or otherwise comprise or relate to the Cloud Services or dcbel Systems.

 

3.                    Service Term.

 

1.              Term.  The service term commences on the date that the Cloud Services are first made available to you and shall continue for the term specified in your Order, unless earlier terminated (“Initial Term”). The Initial Term will automatically renew for additional successive terms, equal in length to the Initial Term, unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term,” and, together with the Initial Term, the “Service Term”). 

 

2.              Termination. In addition to any other express termination rights set forth in the Agreement, we may terminate the provision of Cloud Services, effective upon notice to you, if you: (1) fail to pay any amount when due hereunder and such failure continues for more than thirty (30) days after notice thereof; or (2) materially breach this Agreement and such breach remains uncured thirty (30) days after we provide you with notice of such breach. Upon any expiration or termination of the Service Term, all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate.

 

4.                    Limitation of Liability. 

 

To the fullest extent permitted by law, in no event will the dcbel Entities be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, loss of use or data, loss or diminution in value of assets or securities, damages for business interruption or any other intangible loss) arising out of or in any way relating to your access to, or use or receipt of, or your inability to access, use, or receive, the Cloud Services, or otherwise related to the subject matter of this Agreement (including, but not limited to, any damages caused by or resulting from reliance on any information obtained from any dcbel Entity, or from events beyond the dcbel Entities’ reasonable control, regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute, or any other legal or equitable theory, and whether or not any dcbel Entity has been informed of the possibility of such damages and regardless of whether such damages were foreseeable.

 

Except as expressly provided in the General Terms and to the fullest extent permitted by law, under no circumstances will the dcbel Entities’ joint, aggregate liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether the applicable claim is based on contract, tort, or otherwise, exceed the greater of the amount paid by you to dcbel under the applicable Order for the Cloud Services during the 12-month period immediately preceding the date of the final judgment with respect to such claim. FOR THE AVOIDANCE OF DOUBT, ANY LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE SUBJECT TO, AND WILL EXHAUST, THE LIMITATIONS OF LIABILITY SET FORTH IN THE GENERAL TERMS.   

 

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does appropriately allocate the risks between the parties under this Agreement. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section will apply even if any limited remedy fails of its essential purpose, and the foregoing shall constitute the dcbel Entities’ sole liability and obligation in respect hereof, regardless of the form of action, whether based in contract, tort (including negligence), statute, or any other legal or equitable theory.

 

To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge the dcbel Entities from and against, and covenant not to sue any dcbel Entity for, all claims you have or may have arising out of or in any way related to this Agreement.

 

5.                    Miscellaneous.

 

1.              General Terms. This Agreement, together with the Privacy Policy, General Terms,  and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between you and dcbel regarding your use, receipt, and purchase of the Cloud Services. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

 

2.              Governing Law. This Agreement, your receipt, access to, and use of the Cloud Services, and your Order for Cloud Services, are governed by the laws of the State of California without regard to conflict of law principles. You and dcbel submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for resolution of any lawsuit or court proceeding permitted under this Agreement.

 

3.              Business Forms. The terms in any purchase order, ordering document, or business form you provide to dcbel will not amend or modify this Agreement and are expressly rejected by dcbel; any of these documents are for administrative purposes only and have no legal effect.

 

4.              Force Majeure. We will not be liable to you for any failure to perform, or any delay in our performance of, any of our obligations under this Agreement or an Order for Cloud Services or for any delay in delivery of the Cloud Services that is caused by events outside our reasonable control, including any delay or lack of access due to an unforeseeable event, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of dcbel’s control (a “Force Majeure Event”).

 

5.              Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Professional Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Cloud Services or to receive further information regarding use of the Cloud Services.

 

6.              International Use. The Cloud Services are intended solely for users located within the United States. We make no representation that the Cloud Services are appropriate or available for use outside of the United States. Access to the Cloud Services from countries or territories or by individuals where such access is illegal is prohibited.

 

7.              Privacy Policy. Please read the dcbel Privacy Policy (available at https://www.dcbel.energy/privacy-policy/) carefully for information about how we collect, use, store and disclose your personal information. The dcbel Privacy Policy is incorporated by this reference into, and made a part of, this Agreement.