Terms and Conditions
Software User AgreementThis Software User Agreement ("Agreement") is made as of the date that SolBid provides Company access to it’s software Platform, (the “Effective Date”) by and between SolBid, Inc., a Massachusetts corporation (“SolBid”) and the company ("Company”). Each may be referred to as a “Party” and collectively as the “Parties”.
- SolBid promotes, markets and sells, and provides ancillary services, for behind-the-meter commercial and industrial renewable energy projects, including, but not limited to PV solar energy systems, inclusive of electrical engineering, structural engineering, and procurement of PV system equipment (“Services”). Some of the Services are provided via an online service using proprietary software (“Platform”). The Platform consists of websites and software used for project design, estimating, proposal generation, and tracking.
- The Company wants to use the Platform to generate project designs, estimates and proposals for SolBid’s Services either for the Company or for Customers of the Company. Such proposals may entail SolBid selling the Services directly to the Company’s Customers, or may entail the Company purchasing Services from SolBid directly.
Terms and ConditionsThe Recitals, all exhibits, and the Platform terms of service available at www.solbid.com are incorporated into, and made part of, this Agreement by reference.
- License to Use the Platform
- Grant of License. During the term of this Agreement, SolBid grants the Company the non-exclusive, non-transferable, and not sub-licensable, license to use the Platform, limited to Company’s internal use. Such license includes the right to use manuals, handbooks, and guides relating to the Platform provided by SolBid to Company, either electronically or in hard copy form, or as available at www.solbid.com (collectively the “Documentation”).
- User Restrictions.
Company shall not use the Platform for any purposes beyond uses stated in this Agreement, Company
shall not at any time, directly or indirectly, and shall not permit any user to:
- copy, modify, or create derivative works of the Platform or Documentation, in whole or in part;
- rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part;
- remove any proprietary notices from the Platform or Documentation; or
- use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. SolBid reserves all rights not expressly granted to the Company in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Company or any third party any intellectual property rights or other right, title, or interest in, or to, the Platform and all intellectual property associated with the Services and Platform.
- Aggregated Statistics.
Notwithstanding anything to the contrary in this Agreement, SolBid may monitor Company's use of the
Platform and collect and compile data and information related to Company's use of the Platform in an
aggregate and anonymized manner, including to compile statistical and performance information related
to the provision and operation of the Platform (“Aggregated Statistics” All rights, title, and interest in
Aggregated Statistics, and all related intellectual property rights belong to and are retained solely by
SolBid. Company acknowledges that SolBid may compile Aggregated Statistics based on Company data
input into the Platform. Company agrees that SolBid may:
- make Aggregated Statistics publicly available in compliance with applicable law, and
- use Aggregated Statistics to the extent and in the manner permitted under applicable law.
- Company Responsibilities.
- Company is responsible and liable for all uses of the Platform and Documentation resulting from access provided by SolBid, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Company is responsible for all acts and omissions of its employees, contractors, or agents, and any act or omission by them that would constitute a breach of this Agreement if taken by Company. Company shall use reasonable efforts to make all users of the Platform aware of this Agreement's provisions and shall cause its users to comply with such provisions.
- Company Control and Responsibility.
Company has and will retain sole responsibility for:
- its information, data, and other content, in any form or medium, including data that is collected, downloaded, or otherwise received, directly or indirectly, from Company via the Services or the Platform [or that incorporates or is derived from the Processing of such information, data, or content by or through the Services, including its content and use;
- its information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party
- its security and use of the Services and the Platform.
- Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the Parties:
- SolBid has and will retain sole control over the operation, provision, maintenance, and management of the Services and Platform; and
- Company has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the its information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services, and sole responsibility for all access to and use of the Services and Platform by Company and any person using the Services or Platform under the license granted by this Agreement, including any:
- information, instructions, or materials provided by any of them to the Services or Platform;
- results obtained from any use of the Services or Platform; and
- conclusions, decisions, or actions based on such use.
SolBid reserves the right, in its sole discretion, to make any changes to the Services and Platform that it
deems necessary or useful to maintain or enhance:
- the quality or delivery of SolBid's services to Company; or
- the competitive strength of, or market for, the Services and the Platform; or
- the Services or Platform’s cost efficiency or performance; or
- to comply with applicable Law.
- Suspension or Termination of Services.
SolBid may, directly or indirectly, and by use of any other means, suspend, terminate, or otherwise deny
Company's, any Authorized User's, or any other Person's access to or use of all or any part of the
Services or Platform, without incurring any resulting obligation or liability, if:
- SolBid receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires SolBid to do so; or
- SolBid believes, in its sole discretion, that:
- Company has failed to comply with any term of this Agreement, or accessed or used the Services or Platform beyond the scope of the rights granted under, or a purpose not authorized under, or in a manner that does not conform to this, Agreement;
- has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities or
- this Agreement expires or is terminated.
- No Warranty. The Services, Platform, Documentation, and all related intellectual property are provided as-is and without any guarantee of any level of service. SolBid makes no representations or warranties and to the maximum extent permitted by law disclaims any implied warranties, such as merchantability or suitability for a particular purpose.
- Appointment To Solicit Customers
- Non-Exclusive Solicitation Appointment. During the term of this Agreement, SolBid grants the Company the non-exclusive right to solicit customers for the Services if they so desire, including the right to use the Platform. The Company understands that SolBid has software user agreements with more than one entity and that SolBid does not provide the Company with exclusive rights to solicit customers for the Services or use the Platform, and that two or more users of SolBid’s Services and Platform may compete for the same work using the Services and Platform.
- SolBid grants Company, a non-exclusive, non-transferable, and non-sublicensable license, to use all SolBid trademarks for the promotion, advertising, and sale, of SolBid’s Services, but for no other purpose. On expiration, or earlier termination, of this Agreement, Company shall promptly discontinue all use of all SolBid trademarks.
- Company grants SolBid, a non-exclusive, non-transferable, and non-sublicensable license, to use all SolBid trademarks for the promotion, advertising, and sale, of SolBid’s Services, but for no other purpose. On expiration, or earlier termination, of this Agreement, Company shall promptly discontinue all use of all Company trademarks for future promotion, advertising, and sales. However, SolBid shall be able to maintain use of any pre-existing advertisement or online use of the Company's trademark.
- Promotion and Marketing.
- The Company is not under any obligation to market, advertise, promote, or sell SolBid's Services.
- If the Company decides to market, advertise, or promote, the Services, Company shall do so in a manner that reflects favorably on the Services, and the good name, goodwill, and reputation, of SolBid.
- Company shall submit all SolBid-related promotional and marketing materials that were not provided by SolBid to SolBid for approval prior to use, including any SolBid provided materials that are modified by the Company.
- Company shall observe all reasonable directions and instructions provided by SolBid in relation to the marketing, advertising, and promotion of the Services.
- Both the Company shall not make any materially misleading, or untrue, statements concerning the other SolBid or the Services.
- Both the Company shall promptly notify SolBid of any complaint or adverse claim about SolBid or the Services.
- SolBid will use commercially reasonable efforts to make the Platform available, but is under no obligation to maintain any standard of service related to the Platform, or its usability, or availability.
- Expenses Each Party shall pay its own expenses related to its performance of its obligations, and related work, under this Agreement.
- SolBid Compensation
In return for the use of the Platform and Documentation, Company shall pay SolBid as stated in this Section.
- Fees. Company shall pay SolBid per Exhibit A: Software Use Fees.
- Equipment Purchase Exclusivity
- If Company uses the Platform, solely or in part, to generate a proposal for a commercial and industrial renewable energy project; and
- Within twenty four (24) months from the creation of that proposal the Company or the Company’s customer agrees to that proposal; then
- The Company or the Company’s Customer shall execute a Purchase and Services agreement with SolBid related to the Services and the purchase of all Equipment, as defined below.
- Equipment “Equipment” means solar photovoltaic panels, mounting systems, and electrical inverters.
- Exceptions and Right of First Negotiation and Last Refusal.
- If SolBid is unable to to provide a Purchase and Services agreement within a commercially reasonable time period, or the Purchase and Services Agreement contract value is more than ten (10) percent than the value provided within the proposal generated from the Platform, then Company may not be held to exclusivity per Section 4.2. and Company is free to procure the Equipment from another source. Company shall promptly notify SolBid that it intends to procure Equipment from another source pursuant to this section 4.4.
- Company will then give SolBid the right of first negotiation followed by the right of last refusal to supply the Equipment for the same price as any competing or alternative supplier. The right of first negotiation shall begin on the date that Company notifies SolBid that the condition in section 4.4.1 is met and continue for thirty (30) days, during which SolBid and Company shall negotiate with each other exclusively for the supply of the Equipment (“ROFN Period”). At the end of the ROFN period Company may begin negotiations with third parties for supply of the Equipment. If within one hundred twenty (120) days of the end of the ROFN Period (“ROLR Period”), Company receives any bona fide offers for supply of the Equipment, it shall promptly notify SolBid of the identity of the offeror and the material terms of the offer. If within fifteen (15) days of that notice, SolBid offers to supply the Equipment on the same material terms, Company shall accept that offer. Company shall notify SolBid per this section 4.4.2 of all such offers it receives during the ROLR Period,
- No Obligation to Agree The execution of an agreement related to the Services is at Company’s sole discretion.
- Company Compensation
Shall the Company sell SolBid services to a Customer in return for a commission from SolBid, SolBid shall pay
Company as stated in this Section.
- Company Commission from SolBid Services
- In the event that the Company sells SolBid’s Services to a Customer; and
- the sale is derived from a SolBid Approved proposal generated in the Platform by the Company; and
- the Customer of the Company executes the SolBid Purchase and Services Agreement; and
- SolBid accepts the Customer executed SolBid Purchase and Services Agreement; then
- SolBid shall pay the Company the commission amount, if any, as
added by Company to the
proposal in the Platform;
- following receipt of all customer project financing, engineering, utility, and local government approvals as necessary to complete SolBid’s Services; and
- following SolBid’s receipt of payment-in-full from the Customer per the SolBid Services agreement with the Customer; and
- The Company is, and has been, in material compliance with the terms of this Agreement.
- SolBid shall pay the commission to the Company within forty-five (45) days of the day on which SolBid receives final payment under the relevant SolBid Purchase and Services agreement.
- No Obligation to Agree Service Contract The execution of a SolBid Purchase and Services agreement with any Customer is at SolBid’s sole discretion.
- No commission shall be paid For any SolBid Purchase and Services agreement executed directly between SolBid and the Company. SolBid shall hold the Purchase and Services agreement with the Company for the amount, less any commission or margin that the Company may have added to the proposal in the Platform.
- Survival SolBid’s obligation to pay a commission to the Company under this Section 5 shall survive the termination or expiration of this Agreement for twenty four (24) months for any Commissions owed to Company by SolBid before such termination or expiration, so long as the Company is still in existence and did not substantially break the terms of this agreement.
- Company Commission from SolBid Services
- Limitation of Liability
- Waiver of Consequential Damages Except with respect to damages solely from third party claims related to this Agreement, and damages that result from the willful misconduct of a Party, neither Party nor its directors, officers, shareholders, partners, members, agents and employees subcontractors or suppliers shall be liable for any indirect, special, incidental, exemplary, or consequential loss or damage of any nature arising out of their performance or non-performance of their obligations under this Agreement, even if advised of such. For the avoidance of doubt, this waiver does not apply to damages, including lost profits, resulting from breaches of Sections 1, 2, 4, and 7.
- SolBid The maximum liability of SolBid to Company arising out of, under, or in connection with this Agreement, and any agreement executed or contemplated to be executed with this Agreement, or any course of conduct, course of dealings, statements (verbal or written), or actions of any Party to this Agreement is the total amount of the fees stated in Exhibit A paid by Company to SolBid in the twelve month period preceding the event giving rise to the claim and any commissions owed under Section 5.
The maximum liability of Company to SolBid arising out of, under, or in connection with this Agreement,
and any agreement executed or contemplated to be executed with this Agreement, or any course of
conduct, course of dealings, statements (verbal or written), or actions of any Party to this Agreement are
the greater of:
- the amount due to SolBid per Section 4.2 through 4.5, less the purchase price SolBid would have paid to obtain the Equipment at the time any claim for breach of this Agreement is made; or
- Exceptions This Section 6 shall not apply to damages from a Party’s fraud, gross negligence, or willful breach of this Agreement, or any related agreement between the Parties.
- Information and Confidential Information
- Confidential Information
- During the term of this Agreement the Parties may need to disclose information, including confidential information, to each other, to market the Services, and may include, but is not limited to, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow and other technical, financial, or business, information. Such information, which may be provided in written, encoded, graphic, or other tangible, form shall be deemed to be confidential and proprietary “Confidential Information” if it is marked confidential, so identified by the disclosing Party at the time of disclosure, or by its nature a reasonable person would consider confidential. Confidential Information shall be held in confidence by the recipient Party and used only for the marketing and provision of the Services, or otherwise in the performance of this Agreement. All information related to the design and operation of the Platform, and all software provided by SolBid, is Confidential Information.
- If a customer referred by Company to SolBid provided executes a SolBid Purchase and Services agreement, then that customer name and contact information is not Confidential Information of the Company.
- Each Party shall keep the other Party’s confidential information in trust and confidence and will not disclose the confidential information to any person or entity without the prior written consent of the Party disclosing the confidential information, or as necessary to perform this Agreement.
The obligation of non-disclosure and confidentiality shall not apply to any Confidential Information:
- previously known to either Party free of any obligation to keep it confidential; or
- that has been, or which becomes, publicly known, through no wrongful act of either Party; or
- which is rightfully received from a third party who is under no obligation of confidence to either Party; or
- which is independently developed by the recipient Party without resort to the Confidential Information that has been disclosed pursuant to this Agreement; or
- is required to be disclosed to comply with applicable law or regulation (including without limitation, securities law purposes) or with any requirement imposed by judicial or administrative process, or any governmental or court order.
- However, Confidential Information disclosed as per Section
7.2.5 shall be disclosed only to the
extent required, and if the recipient Party in each such instance, and before
- promptly notifies the other Party of a required disclosure, or upon receipt of a governmental or court order, and
- cooperates with the other Party in making, if available under applicable law, a good faith effort to obtain a protective order, or other appropriate determination, against or limiting disclosure, or use, of the Confidential Information, and at no cost to the recipient Party.
- No Reverse Engineering A receiving Party shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of a disclosing Party unless permitted in writing by that disclosing Party. In particular, The Company shall not modify, reverse engineer, decompile, copy, create other works from, or disassemble any software provided by SolBid, the Platform, or the Services.
- No Warranty Except as expressly agreed between the Parties, neither Party makes any representations or warranties as to the information they share, including its accuracy, and to the maximum extent permitted by law disclaims any implied warranties, such as merchantability or suitability for a particular purpose.
- Ownership Information disclosed by a Party under this Agreement shall remain the property of the disclosing Party. In particular, any design, proposal, or marketing materials obtained from the Platform or provided by SolBid are the property of SolBid.
- Survival Each Party’s obligations under this Section 7 shall survive for a period of two (2) years from the expiration or termination of this Agreement.
- Confidential Information
- Term and Termination The initial term of this Agreement is twelve (12) months from the Effective Date. It shall automatically renew on an annual basis unless one Party delivers a written non-renewal notice to the other Party before the end of the term. This Agreement may be terminated by either Party upon seven (7) days written notice to the other Party, and may be terminated by SolBid upon seven (7) days written notice to Company if the fees are not paid per Exhibit A.
- Independent Contractor Company is an independent contractor, and nothing contained in this Agreement shall be construed to make Company an employee of SolBid, or the Parties to be partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
- Changes to Agreement This Agreement contains the sole and entire agreement between the Parties related to its subject matter. This Agreement may only be modified in writing executed by both Parties. Should any provision of this Agreement be deemed illegal or otherwise unenforceable, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect.
- Each Party consents to receive all notices, requests, or statements required by this Agreement via email.
- Notice by email will be deemed to have been received when such e-mail is acknowledged by the recipient. Automated receipt responses generated by the recipient’s email system do not constitute receipt of such notice.
- If either Party fails to promptly acknowledge such email notification then Notice may be affected via Certified U.S. Mail, return receipt requested, or via hand delivery, or courier. Such Notice shall be effective five (5) days after mailing, if mailed, or on date of delivery if via hand delivery. Delivery shall be addressed to the addresses found on the signature page of this agreement, unless there has been a change in address by one of the parties and they have provided written notice.
- Legal - Governing Law and Jurisdiction This Agreement shall be governed by and construed under the laws of Massachusetts, without regard to its conflict of laws and provisions. In the event any action is brought to enforce any of the provisions of this Agreement, the Parties agree to exclusive in personam jurisdiction in the Superior Court for Suffolk County, Massachusetts, or in the United States District Court of Massachusetts, and agree that in any such action, venue shall be exclusively with those courts.
- JURY TRIAL WAIVER EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY TO THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH OF THE PARTIES FOR ENTERING INTO THIS AGREEMENT.
- Injunctive Relief The Parties agree that remedies at law may be inadequate to protect against any actual or threatened breach of this Agreement. In the event of any breach or threatened breach, either party shall have the right to apply for the entry of an immediate order to restrain or enjoin the breach and otherwise specifically to enforce the provisions of this Agreement in any court of competent jurisdiction, worldwide, over a Party or a Party’s assets. The Parties further waive any requirement that any Party furnish any bond or other security, and agree that to the extent a bond is required by law, it shall be one hundred dollars ($100.)
- Costs and Attorney Fees. The substantially losing party at any legal proceeding shall pay the substantially winning party's costs and fees, including reasonable attorney's fees. A “substantially winning party” means the net winner of any dispute, taking into account the claims pursued, the claims on which the pursuing party was successful, the amount of money sought, the amount of money awarded, and offsets or counterclaims pursued (successfully or unsuccessfully) by the other party. If a written settlement offer is rejected and the judgment or award finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle, the offeror is deemed to be the prevailing party from the date of the offer forward.
- Integration This Agreement is the complete agreement between the Parties regarding its subject matter, and supersedes any earlier agreements or oral or written understandings between the Parties.
- Electronic Acceptance
- By clicking “Approve” on the electronic SolBid Software Use Registration form, the Company is performing it’s electronic submission, which shall constitute a valid and binding mark, with the same force and effect as a physically signed original, Company agrees, acknowledges and consents to the terms of this Agreement and to the electronic delivery and acceptance thereof and all exhibits, documents, notices, updates, addenda and amendments related thereto, as well as any other documents to be delivered by SolBid during the Term of this Agreement. Company understands that it will need a valid e-mail address and access to the Internet, as well as the appropriate software and/or programs in order to access this Agreement electronically. or;
- By any user of the Company clicking “Login” on the SolBid website to gain access to the software, the Company is performing it’s electronic submission, which shall constitute a valid and binding mark, with the same force and effect as a physically signed original, Company agrees, acknowledges and consents to the terms of this Agreement and to the electronic delivery and acceptance thereof and all exhibits, documents, notices, updates, addenda and amendments related thereto, as well as any other documents to be delivered by SolBid during the Term of this Agreement. Company understands that it will need a valid e-mail address and access to the Internet, as well as the appropriate software and/or programs in order to access this Agreement electronically.
Exhibit A: Fees
- The “Fee” is for use of the Platform and Documentation for an elected payment period of either six (6) months or twelve (12) months from the Effective Date.
- The Fee Amounts will be listed and agreed to on the SolBid Software Use Registration form, and
- The Fee Amounts will be listed on the help.solbid.com website
- The subscription payment will be electronically auto-billed on the subscription cycle’s anniversary as elected by the company, unless otherwise the agreement is terminated in writing.
- If there is a stated Trial period on the SolBid Software Use Registration form, SolBid will postpone billing for the subscription period until after the Trial period ends.
- Any payments made are non-refundable.