Contracts
Platform Terms of Service
Effective October 2nd 2024
DownloadTable of Contents
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component (“Connect”) or obtained via file upload and/or document scanning.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Connected Meter” shall mean a Client’s or End User’s utility meter account, device or algorithm that records consumption of a commodity (e.g., electricity, water, gas) and is connected via API, permissioned access or Connect or obtained via file upload and/or document scanning.
- “Connected Meter Data” shall mean utility meter interval usage data collected from Connected Meters used for monitoring, billing or other purposes.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://arc-legal.arcadia.com/#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally or (ii) use the Platform Services internally as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to End Users, and use the End User Connected Account Data, End User Connected Meter Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, Client is also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between Client and the Processor. Arcadia is not a party to the Processor Terms and is not liable to Client in respect thereof. By accepting this Agreement and the Processor Terms Client is agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). Arcadia reserves the right to change the Processor, subject to the terms of Arcadia's agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared by Authorized Users but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional Authorized Users to access the Platform Services. Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to (a) perform rate limiting on API requests to ensure that all customers experience the same level of service and (b) temporarily suspend service in the event a Client’s API usage is having a detrimental impact on Platform stability.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features, Connected Account Data, and Connected Meter Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand Features or Connected Account Data or Connected Meter Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data and Connected Meter Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and (iii) to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data, Connected Account Data, and Connected Meter Data. For Platform Services including the collection and processing of Utility Endpoint Data or Connected Account Data or Connected Meter Data from entities such as electric, gas, and other utility providers (“Providers”), Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data and Connected Account Data and Connected Meter Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data or Connected Account Data or Connected Meter Data for any Provider that does not have such a website, or to provide Utility Endpoint Data or Connected Account Data or Connected Meter Data for a given Provider if such Utility Endpoint Data or Connected Account Data or Connected Meter Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data or Connected Meter Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data/Connected Meter Data from the latest backup of such Connected Account Data/ Connected Meter Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data/Connected Meter Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA OR CONNECTED METER DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA OR CONNECTED METER DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data and Connected Meter Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and Connected Meter Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data and Connected Meter Data. For the purposes set forth in this Agreement, Client is responsible for ensuring that a) Client or its End Users are authorized to provide Client/End User data to Arcadia, and b) Arcadia is authorized to collect the Connected Account Data and Connected Meter Data on behalf of the Client or its End Users. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data, Connected Meter Data, and any other Client/End User data provided to Arcadia (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data, Connected Meter Data, and any other Client/End User data provided to Arcadia. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users.
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership.
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid. All Fees listed on an Order exclude applicable tax. Applicable taxes will be determined based on the location where the services are delivered and will be included on the invoice. Client will be responsible for payment of any applicable tax included on the invoice in addition to the Fees listed on the Order.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Collections. If Client defaults in the prompt payment of any amount due under this Agreement, Client will be responsible, and will promptly reimburse Arcadia for, all costs of collection, including reasonable attorney fees, court costs, and collection agency fees and costs, incurred in connection with the collection of delinquent balances. Arcadia may use the services of debt collection agencies, consumer reporting agencies, and other remedies as allowed by law to collect any unpaid balances on Client’s account.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data and Connected Meter Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, THE CONNECTED METER DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions), Section 4 (Client Obligations), or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. If Arcadia reasonably believes the Services might infringe a third party's intellectual property rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Arcadia does not believe the foregoing remedies in this Section 10.5 are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- Term and Termination.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an account. Client will be deemed to have received any email sent to the email address then associated with Client's account when Arcadia sends the email, whether or not Client actually receives the email. To give Arcadia notice under this Agreement, Client must email Arcadia at legal@arcadia.com with a copy of Client's notice by certified mail, return receipt requested, to: Arcadia Power, Inc., Attn: Legal, 5600 S Quebec St D320 Greenwood Village, CO 80111.
- Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Each party may, without the prior consent of the other party, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers (each a “Force Majeure Event”), such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN NEW YORK, NEW YORK, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in New York, New York. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 2.5, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective October 1st 2024 to October 2nd 2024
DownloadTable of Contents
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component (“Connect”) or obtained via file upload and/or document scanning.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Connected Meter” shall mean a Client’s or End User’s utility meter account, device or algorithm that records consumption of a commodity (e.g., electricity, water, gas) and is connected via API, permissioned access or Connect or obtained via file upload and/or document scanning.
- “Connected Meter Data” shall mean utility meter interval usage data collected from Connected Meters used for monitoring, billing or other purposes.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://arc-legal.arcadia.com/#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally or (ii) use the Platform Services internally as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to End Users, and use the End User Connected Account Data, End User Connected Meter Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, Client is also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between Client and the Processor. Arcadia is not a party to the Processor Terms and is not liable to Client in respect thereof. By accepting this Agreement and the Processor Terms Client is agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). Arcadia reserves the right to change the Processor, subject to the terms of Arcadia's agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared by Authorized Users but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional Authorized Users to access the Platform Services. Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to (a) perform rate limiting on API requests to ensure that all customers experience the same level of service and b) temporarily suspend service in the event a Client’s API usage is having a detrimental impact on Platform stability.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features, Connected Account Data, and Connected Meter Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand Features or Connected Account Data or Connected Meter Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data and Connected Meter Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and (iii) to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of Utility Endpoint Data or Connected Account Data or Connected Meter Data from entities such as electric, gas, and other utility providers (“Providers”), Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data and Connected Account Data and Connected Meter Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data or Connected Account Data or Connected Meter Data for any Provider that does not have such a website, or to provide Utility Endpoint Data or Connected Account Data or Connected Meter Data for a given Provider if such Utility Endpoint Data or Connected Account Data or Connected Meter Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data or Connected Meter Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data/Connected Meter Data from the latest backup of such Connected Account Data/ Connected Meter Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data/Connected Meter Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA OR CONNECTED METER DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA OR CONNECTED METER DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data and Connected Meter Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and Connected Meter Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data and Connected Meter Data. For the purposes set forth in this Agreement, Client is responsible for ensuring that a) Client or its End Users are authorized to provide Client/End User data to Arcadia, and b) Arcadia is authorized to collect the Connected Account Data and Connected Meter Data on behalf of the Client or its End Users. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data, Connected Meter Data, and any other Client/End User data provided to Arcadia (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data, Connected Meter Data, and any other Client/End User data provided to Arcadia. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users.
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid. All Fees listed on an Order exclude applicable tax. Applicable taxes will be determined based on the location where the services are delivered and will be included on the invoice. Client will be responsible for payment of any applicable tax included on the invoice in addition to the Fees listed on the Order.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Collections. If Client defaults in the prompt payment of any amount due under this Agreement, Client will be responsible, and will promptly reimburse Arcadia for, all costs of collection, including reasonable attorney fees, court costs, and collection agency fees and costs, incurred in connection with the collection of delinquent balances. Arcadia may use the services of debt collection agencies, consumer reporting agencies, and other remedies as allowed by law to collect any unpaid balances on Client’s account.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data and Connected Meter Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, THE CONNECTED METER, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions), Section 4 (Client Obligations), or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. If Arcadia reasonably believes the Services might infringe a third party's intellectual property rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. If Arcadia does not believe the foregoing remedies in this Section 10.5 are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an account. Client will be deemed to have received any email sent to the email address then associated with Client's account when Arcadia sends the email, whether or not Client actually receives the email. To give Arcadia notice under this Agreement, Client must email Arcadia at legal@arcadia.com with a copy of Client's notice by certified mail, return receipt requested, to: Arcadia Power, Inc., Attn: Legal, 5600 S Quebec St D320 Greenwood Village, CO 80111.
- Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Each party may, without the prior consent of the other party, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers (each a “Force Majeure Event”), such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN NEW YORK, NEW YORK, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in New York, New York. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 2.5, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective January 17th 2024 to October 1st 2024
DownloadTable of Contents
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component Connect.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://arc-legal.arcadia.com/#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“End Users”)), and (ii) use the End User Connected Account Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, Client is also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between Client and the Processor. Arcadia is not a party to the Processor Terms and is not liable to Client in respect thereof. By accepting this Agreement and the Processor Terms Client is agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). Arcadia reserves the right to change the Processor, subject to the terms of Arcadia's agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional authorized users to access the Platform Services (“Authorized Users”). Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features and Connected Account Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Connected Account Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (“Usage Data”) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of utility data (“Utility Endpoint Data”) from entities such as electric, gas, and other utility providers (“Providers”) and its delivery as a data feed, Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data for any Provider that does not have such a website, or to provide Utility Endpoint Data for a given Provider if such Utility Endpoint Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data from the latest backup of such Connected Account Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users (“Complaint”).
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Collections. If Client defaults in the prompt payment of any amount due under this Agreement, Client will be responsible, and will promptly reimburse Arcadia for, all costs of collection, including reasonable attorney fees, court costs, and collection agency fees and costs, incurred in connection with the collection of delinquent balances. Arcadia may use the services of debt collection agencies, consumer reporting agencies, and other remedies as allowed by law to collect any unpaid balances on Client’s account.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions) or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. (a) If Arcadia reasonably believes the Services might infringe a third party's intellectual property rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. (b) If Arcadia does not believe the remedies in Section 10.5(a) are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an account. Client will be deemed to have received any email sent to the email address then associated with Client's account when Arcadia sends the email, whether or not Client actually receives the email. To give Arcadia notice under this Agreement, Client must email Arcadia at legal@arcadia.com with a copy of Client's notice by certified mail, return receipt requested, to: Arcadia Power, Inc., Attn: Legal, 5600 S Quebec St D320 Greenwood Village, CO 80111.
- Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Arcadia may, without the prior consent of Client, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF WASHINGTON, DC, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN WASHINGTON, DC, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in Washington, D.C. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 25, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective January 9th 2024 to January 17th 2024
DownloadTable of Contents
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component Connect.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://arc-legal.arcadia.com/#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“End Users”)), and (ii) use the End User Connected Account Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor. Arcadia is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional authorized users to access the Platform Services (“Authorized Users”). Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features and Connected Account Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Connected Account Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (“Usage Data”) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of utility data (“Utility Endpoint Data”) from entities such as electric, gas, and other utility providers (“Providers”) and its delivery as a data feed, Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data for any Provider that does not have such a website, or to provide Utility Endpoint Data for a given Provider if such Utility Endpoint Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data from the latest backup of such Connected Account Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users (“Complaint”).
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions) or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. (a) If Arcadia reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. (b) If Arcadia does not believe the remedies in Section 10.5(a) are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an Account. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email. To give Arcadia notice under this Agreement, you must email us at legal@arcadia.com with a copy of your notice by certified mail, return receipt requested, to Arcadia Power, Inc.
Attn: Legal
5600 S Quebec St D320
Greenwood Village, CO 80111 - Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Arcadia may, without the prior consent of Client, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF WASHINGTON, DC, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN WASHINGTON, DC, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in Washington, D.C. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 25, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective December 19th 2023 to January 9th 2024
DownloadTable of Contents
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component Connect.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“End Users”)), and (ii) use the End User Connected Account Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor. Arcadia is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional authorized users to access the Platform Services (“Authorized Users”). Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features and Connected Account Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Connected Account Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (“Usage Data”) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of utility data (“Utility Endpoint Data”) from entities such as electric, gas, and other utility providers (“Providers”) and its delivery as a data feed, Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data for any Provider that does not have such a website, or to provide Utility Endpoint Data for a given Provider if such Utility Endpoint Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data from the latest backup of such Connected Account Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users (“Complaint”).
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions) or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. (a) If Arcadia reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. (b) If Arcadia does not believe the remedies in Section 10.5(a) are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an Account. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email. To give Arcadia notice under this Agreement, you must email us at legal@arcadia.com with a copy of your notice by certified mail, return receipt requested, to Arcadia Power, Inc.
Attn: Legal
5600 S Quebec St D320
Greenwood Village, CO 80111 - Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Arcadia may, without the prior consent of Client, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF WASHINGTON, DC, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN WASHINGTON, DC, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in Washington, D.C. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 25, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective July 6th 2023 to December 19th 2023
DownloadTable of Contents
PLATFORM TERMS OF SERVICE
(Last Updated: July 6, 2023)
These Platform Terms of Service (the “Agreement”) are entered into by and between the Arcadia entity ("Arcadia"), and the entity identified as the Client (“Client”) each as set forth on the signature block of the Order executed by the parties, as of the date specified in such Order (“Effective Date”).
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://arc-legal.arcadia.com/#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component Connect.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“End Users”)), and (ii) use the End User Connected Account Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor. Arcadia is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional authorized users to access the Platform Services (“Authorized Users”). Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.
- Retained Rights; Ownership.
- Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features and Connected Account Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Connected Account Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
- Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.(c)
- From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://arc-legal.arcadia.com/#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (“Usage Data”) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of utility data (“Utility Endpoint Data”) from entities such as electric, gas, and other utility providers (“Providers”) and its delivery as a data feed, Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data for any Provider that does not have such a website, or to provide Utility Endpoint Data for a given Provider if such Utility Endpoint Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data from the latest backup of such Connected Account Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users (“Complaint”).
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions) or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. (a) If Arcadia reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. (b) If Arcadia does not believe the remedies in Section 10.5(a) are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an Account. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email. To give Arcadia notice under this Agreement, you must email us at legal@arcadia.com with a copy of your notice by certified mail, return receipt requested, to Arcadia Power, Inc.
Attn: Legal
5600 S Quebec St D320
Greenwood Village, CO 80111 - Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Arcadia may, without the prior consent of Client, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF WASHINGTON, DC, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN WASHINGTON, DC, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in Washington, D.C. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 25, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
PLATFORM TERMS OF SERVICE
(Last Updated: May 30, 2023)
These Platform Terms of Service (the “Agreement”) are entered into by and between the Arcadia entity ("Arcadia"), and the entity identified as the Client (“Client”) each as set forth on the signature block of the Order executed by the parties, as of the date specified in such Order (“Effective Date”).
- Definitions. Certain capitalized terms used in this Agreement, not otherwise defined elsewhere in this agreement, shall have the meanings set forth or cross-referenced below.
- “Account” means Client’s Platform account.
- “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
- “Arcadia Privacy Policy” means Arcadia’s Privacy Policy at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#arcadia-privacy-policy.
- “Authorized User” means an individual employee, agent or contractor of Client or a Participating Affiliate for whom Platform Services have been purchased, and who has been supplied user credentials for the Platform Services by Client or the Participating Affiliate.
- “Brand Feature” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by the respective party as of the Effective Date.
- “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.
- “Connected Account” shall mean a Client’s or End User’s utility account connected via permissioned access or the front-end component Connect.
- “Connected Account Data” shall mean utility statements, account metadata, consumption and billing data collected from Connected Accounts used, for example, to confirm the utility serving an End User, what tariff they are served under, their monthly billed consumption (kWh), their billing totals (utility, retail supplier and/or gas charges) and billing history.
- “Documentation” shall mean the documentation (as may be updated from time to time) in the form made generally available by Arcadia to its customers at https://docs.arcadia.com/reference/overview, https://developer.genability.com/, or https://developer.urjanet.com/, as applicable, for use with the Platform Services.
- “End User” shall mean any person, organization, or business entity that is a customer of the Client.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
- “Order” shall mean a document, signed by both parties identifying certain Services to be made available by Arcadia pursuant to this Agreement and referencing this Agreement. An Order may be an SOW.
- “Platform Services” shall mean web-based applications, application programming interfaces, and other services, tools and technology offerings provided by Arcadia as described at https://developers.arcadia.com/, https://developer.urjanet.com/, https://developer.genability.com/, and/or an applicable Order.
- “Professional Services” mean enhanced support services (e.g., configuration, data preparation, reporting) provided by Arcadia pursuant to an Order and/or an SOW.
- “Services” shall mean the Platform Services, Support Services and Professional Services.
- “SOW” shall mean a statement of work specifying Professional Services to be provided by Arcadia.
- “Support Services” means maintenance and support services for applicable Platform Services, as more fully described in the Support Services Policy.
- “Support Services Policy” means Arcadia’s support services policy for the applicable Platform Services at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#arcadia-support-services-policy. Arcadia reserves the right to reasonably modify the Support Services Policy during the Subscription Term. However, Arcadia agrees not to materially diminish the level of Support Services during the Subscription Term.
- “Utility Endpoint Data” shall mean third party data as may be made available to Client or End Users by Arcadia under this Agreement, including tariff and utility data, such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
- Orders; Access and Use.
- Services Use. During the Term Arcadia will provide the Services in accordance with this Agreement, Orders, and herein referenced URLs (including the Arcadia Privacy Policy), which are incorporated in this Agreement by reference. Subject to the terms and conditions contained in this Agreement, Arcadia hereby agrees that during the applicable Subscription Term, Client may (i) use the Platform Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“End Users”)), and (ii) use the End User Connected Account Data, Utility Endpoint Data, and other data provided via the Platform Services (the “Output”) solely in such Client Application for such use case. All use of the Services and Output must be only as provided in this Agreement, only in accordance with Arcadia’s applicable technical user documentation and subject to the applicable use case, Client Application, and business unit restrictions (if any). Arcadia may in its discretion modify, enhance or otherwise change the Services from time to time during the Subscription Term, provided that it does not materially diminish the functionality thereof.
- Payments and Utility Remittance. This Section 2.2 only applies if Client uses Arcadia’s Bundle Service as set forth on an applicable Order. Some Platform Services (branded as Bundle) may include integration with a payment processor (“Processor”) to facilitate payment of utility bills. Arcadia is not a bank, payment institution, or money services business. The Processor is Stripe Payments Canada, Ltd., which is a technical services provider and may offer the services as an agent of one or more financial institutions in the United States (each, a “Financial Services Provider”). The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by the Processor and any of the Financial Services Providers under a separate Stripe Connected Account Agreement, including the United States Stripe Services Agreement, and the Stripe Privacy Policy (collectively, the “Processor Terms”). By accepting this Agreement, you are also accepting and agreeing to be bound by the Processor Terms, which is the legal agreement between you and the Processor. Arcadia is not a party to the Processor Terms and is not liable to you in respect thereof. By accepting this Agreement and the Processor Terms you are agreeing to the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to change the Processor, subject to the terms of our agreement with the Processor. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail. To the extent necessary, Client expressly authorizes Arcadia to act as the Client’s limited agent for the purposes of remitting payment on the Client’s behalf to utilities. Client agrees that it will treat any payments received by Arcadia as Client’s agent as being received by the Client.
- Authorized Users. Accounts may not be shared but access may be reassigned to new users replacing former users who no longer require ongoing use of the Services. Depending on the subscription, Client may have the capability to permit additional authorized users to access the Platform Services (“Authorized Users”). Client is responsible for: (a) ensuring its employees, agents and subcontractors, including Authorized Users, comply with this Agreement; and (b) any breach of this Agreement by Client’s employees, agents or subcontractors (including Authorized Users).
- Brand Licenses. Subject to the terms and conditions of this Agreement, Client grants to Arcadia a non-exclusive, non-sublicensable, non-transferable right and license to use the Client Brand Features during the Term in accordance with such reasonable branding guidelines as Client may specify for the limited purposes of performing Arcadia’s obligations under this Agreement, including, without limitation, identifying the Services as "powered by" or "run on" Arcadia's Brand Features. Each party may refer to the other party's Brand Features in press releases or other promotional materials, provided, however, that such press releases or other promotional materials must be approved in advance by the other party, approval not to be unreasonably withheld. Client shall not remove, delete, or in any manner alter the Arcadia trademark or other intellectual property rights notices appearing on Platform Services as delivered to Client. Arcadia may identify Client as an Arcadia customer and use the Client Brand Features in connection with its customer lists and related marketing materials. Any use of a party's Brand Features will inure to the benefit of the party holding intellectual property rights to those Brand Features.
- Usage Restrictions. Client will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Platform Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of Arcadia; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any Arcadia infrastructure without express prior written permission from Arcadia. Arcadia retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.
- Retained Rights; Ownership.
(a) Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Brand Features and Connected Account Data, and Arcadia acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Connected Account Data not expressly granted by this Agreement. Arcadia further acknowledges that Client retains the right to use the Client Brand Feature and Client data for any purpose in Client’s sole discretion.
(b) Arcadia retains all right, title and interest in and to the (i) Platform Services, the related website and code, and all other software, hardware, technology, documentation, and data provided by Arcadia in connection with the Platform Services; (ii) all Aggregated Analytics (as defined below); and (iii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Arcadia during its performance under this Agreement. Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement and that Arcadia retains the right to use the foregoing for any purpose in Arcadia’s sole discretion. From time to time, Arcadia may update, enhance or modify functionality of the Platform Services, provided, however, that such updates, enhancements and modifications shall not materially degrade the functionality of the Platform Services. In the course of performing Professional Services, Arcadia may create new works of authorship (collectively “Work Product”). Subject to Client’s ownership interest in, and Arcadia’s obligations with respect to, Client’s Confidential Information (which will not under any circumstances be deemed to constitute Work Product), Arcadia shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Client pursuant to or in connection with the performance of Professional Services (“Work Product Deliverable”), Arcadia hereby grants to Client rights to use such Work Product Deliverable consistent with Section 2.1 above.
(c) From time to time, Arcadia may, in its sole discretion, invite Client to use, on a trial basis, sandbox, pre-release or beta features or functions that are not yet generally available (“Testing Services”). Testing Services are not part of the Platform Services, and Testing Services may be subject to additional terms and conditions, which Arcadia will provide to Client prior to use of the Testing Services. Such Testing Services and all associated feedback relating thereto will be considered Arcadia Confidential Information and subject to the confidentiality provisions in this agreement. Arcadia makes no representations or warranties that the Testing Services will function. Arcadia may discontinue the Testing Services at any time in its sole discretion. Arcadia will have no liability for any harm or damage arising out of or in connection with a Testing Service.
- Data
- Data Processing. If and to the extent Arcadia processes any Personal Data of Client, and laws applicable to Client require the execution of a written agreement governing such processing, the parties will comply with the Arcadia Data Processing Agreement (“DPA”) as mutually executed by the parties.
- Security. Arcadia shall use commercially reasonable physical, managerial, and technical safeguards as set forth at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#technical-and-organizational-security-measures.
- Analytics. The parties acknowledge and agree that Arcadia may use anonymized Connected Account Data (“Anonymous Aggregated Data”) and other data such as statistical and other information derived from or communicated to the Platform Services (including the Utility Endpoint Data) (“Usage Data”) (i) as necessary to perform the Arcadia Services; (ii) for research and development including without limitation to generate learnings, logs and data regarding the use of Arcadia’s products, services and technologies, in order to improve such products, services and technologies, and to create and distribute reports and other materials that include or are based on Anonymous Aggregated Data related to the provision of Services generally (“Aggregated Analytics”).
- Utility Endpoint Data. For Platform Services including the collection and processing of utility data (“Utility Endpoint Data”) from entities such as electric, gas, and other utility providers (“Providers”) and its delivery as a data feed, Client acknowledges and agrees that Arcadia’s ability to provide Utility Endpoint Data is predicated on the Provider having a website with bill data that is accessible using normal web traversal methods. The parties understand and agree that from time to time Providers make changes to their billing systems, web sites, and direct feed systems, and Arcadia will make commercially reasonable efforts to provide data to Client that is updated and accurate at all times. Notwithstanding the foregoing, Arcadia shall not be obligated to provide Utility Endpoint Data for any Provider that does not have such a website, or to provide Utility Endpoint Data for a given Provider if such Utility Endpoint Data is or becomes unavailable on the Provider’s website.
- Data Maintenance and Backup Procedures. In the event of any loss or corruption of Connected Account Data, Arcadia shall use its commercially reasonable efforts to restore the lost or corrupted Connected Account Data from the latest backup of such Connected Account Data maintained by Arcadia in accordance with any archival procedure described in an applicable Order. Arcadia shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Connected Account Data caused by any third party. ARCADIA’S EFFORTS TO RESTORE LOST OR CORRUPTED CONNECT ACCOUNT DATA PURSUANT TO THIS SECTION 3.5 SHALL CONSTITUTE ARCADIA’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CONNECTED ACCOUNT DATA.
- Communication with End Users As part of the provision of the Services, Arcadia may need to communicate with End Users from time-to-time including for purposes of securing user consents. Client hereby authorizes Arcadia to communicate with End Users as reasonably necessary in connection with the Services.
- Client Obligations.
- Connected Account Data. Client and/or its End Users shall be responsible for all changes to and/or deletions of Connected Account Data and the security of all passwords required in order to access the Services. Client shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Connected Account Data. Subject to the terms and conditions herein, Client grants Arcadia a non-exclusive, non-transferable right to use the Connected Account Data (i) to provide the Services and perform Arcadia’s obligations under this Agreement; (ii) to perform research and development to improve the Services; and (iii) to create Aggregated Analytics. Client shall be responsible for, and assumes the risk of any errors resulting from, the delivery, accuracy, completeness and consistency of all Connected Account Data. Client shall make available in a timely manner at no charge to Arcadia all content, graphic files, Client Brand Features or other information and resources of Client reasonably required by Arcadia for the performance of its obligations under this Agreement.
- Consumer Complaints. Client shall provide Arcadia with prompt written notification of any consumer complaints about the Services that are made to Client or to a regulatory authority by End Users (“Complaint”).
- Feedback. Client may voluntarily provide Arcadia with feedback in connection with the Services, but has no obligation to do so. Arcadia may use feedback for any purpose, including incorporating the feedback into, or using the feedback to develop and improve, Services without attribution or compensation, Arcadia will own all right, title and interest in and to such feedback, and Client hereby makes all assignments necessary to achieve such ownership).
- Assistance to Arcadia. If Arcadia performs Professional Services, Client shall, at its own expense, provide cooperation and assistance to Arcadia, including, without limitation, by means of access to, and use of, Client’s facilities, equipment, and information, as well as by means of assistance from Client’s personnel, to the limited extent any of the foregoing may be reasonably necessary to enable Arcadia to perform its obligations under this Agreement, including, without limitation, any obligations under an SOW.
- Fees And Expenses; Payments.
- Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.
- Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Arcadia’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to Arcadia free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Arcadia will be Client’s sole responsibility, and Client will, upon Arcadia’s request, provide Arcadia with official receipts issued by the appropriate taxing authorities, or such other evidence as Arcadia may reasonably request, to establish that such taxes have been paid.
- Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.
- Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify Arcadia within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by Arcadia within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.
- Confidential Information.
- Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
- Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a business need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; (v) notify the other party of any breach of this Section 6; and (vi) to return or destroy, pursuant to Section 11.5, all Confidential Information disclosed by the other party that is in its possession upon request of the disclosing party after termination or expiration of this Agreement.
- Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient without reference to or reliance upon the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to the extent required to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, if permitted by law, first have given written notice to the other party and cooperated with the disclosing party’s efforts (at disclosing party’s expense) to obtain a protective order or otherwise limit the disclosure.
- Terms of Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement (including, without limitation, the fees) shall be the Confidential Information of Arcadia and shall not be disclosed by the Client to any third party; provided, however, that the parties may disclose the terms and conditions of this Agreement, in confidence: (i) to attorneys, accountants, banks, and financing sources and other advisors with a business need to know; (ii) in connection with an actual or proposed merger, acquisition, or similar transaction; or (iii) if applicable, to referral partners.
- Equitable Relief. The parties expressly acknowledge that violation of this Section 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of this Section 6 by either party, the other party shall be entitled to seek preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith. Notwithstanding the foregoing, the remedies in Section 6.5 shall in no way be considered the exclusive remedies of a breach of this Section 6 by either party.
- Warranties.
- Platform Services Warranty. Arcadia warrants that during an applicable Subscription Term, the Platform Services will conform in all material respects to the standards set forth in the Documentation and the Order, as applicable. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy, shall be for Arcadia to correct any material non-conformity in the Platform Service.
- Services Warranty. Arcadia warrants that the Support Services and Professional Services will be performed in a professional, workpersonlike manner. Subject to this Agreement, Arcadia will provide Support Services to Client through the Platform Services and by email. Although resolution times are not guaranteed, Arcadia commits to respond to each request for Support Services from an Authorized User (each, a “Support Request”) in accordance with the Support Services Policy. In the event of a breach of the foregoing warranty, Arcadia’s sole obligation, and Client’s exclusive remedy shall be for Arcadia to re-perform the applicable Support Services and/or Professional Services.
- Compliance with Laws
- Personal Data. Each party shall comply with laws concerning the privacy and protection of personal data. Before any End User engages with the Client Application in a manner that uses the Services, the Client warrants that it will be solely responsible for providing all notices and obtaining all consents required under applicable law to enable Arcadia to process Connected Account Data in accordance with the Arcadia Privacy Policy. Client will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with the Arcadia Privacy Policy or (ii) interfere with any independent efforts by Arcadia to provide End User notice or obtain End User consent.
- FCRA. Client acknowledges and agrees that Arcadia is neither a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and may not be used as or in such. Client represents and warrants that it will not, and will not permit or enable any third-party to, use the Services (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Services (including Output) such that the Services (including Output) would be deemed “consumer reports” under the FCRA.
- Anti-bribery and Corruption. Each party shall comply with laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977.
- Export Control. Each party shall (a) comply with laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Client represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
- Disclaimers, Exclusions And Limitations Of Liability.
- Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTIONS 7 AND 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE UTILITY ENDPOINT DATA, THE CONNECTED ACCOUNT DATA, AND ALL OTHER DATA, MATERIALS, INFORMATION OR SERVICES PROVIDED BY ARCADIA ARE PROVIDED “AS IS,” AND ARCADIA DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ARCADIA DOES NOT WARRANT THAT THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OR ALL ERRORS WILL BE CORRECTED. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ARCADIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- Exclusions of Remedies; Limitation of Liability. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10.1 OF THIS AGREEMENT RELATED TO INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT WILL ARCADIA BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF ARCADIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF ARCADIA TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY INDEMNITY OBLIGATIONS OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO ARCADIA BY CLIENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9.2 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 9 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
- Indemnification.
- Arcadia Indemnification Obligations. Arcadia will defend Client and its Affiliates using the Services under Client’s Account and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from an allegation that any Service or any Arcadia Brand Feature, in each case used in accordance with the Agreement, infringes such third party's (a) patents issued as of the Effective Date, (b) copyrights, (c) trademarks, or (d) misappropriates such third party's trade secrets, in each case of (a)-(d) under any laws applicable to Arcadia in the United States.
- Client Indemnification Obligations. Client will defend Arcadia and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any legal proceeding filed by an unaffiliated third party to the extent arising from (a) the Client Application or Client Brand Features; or (b) Client's or an End User's use of the Services or Output in breach of Section 2.5 (Usage Restrictions) or Section 8 (Compliance with Laws).
- Exclusions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement, (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement, and (c) in the case of Arcadia or any of its Affiliates as the indemnifying party, any Services provided to Client free of charge.
- Conditions. Sections 10.1 (Arcadia Indemnification Obligations) and 10.2 (Client Indemnification Obligations) are conditioned on the following: (a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the legal proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s). If breach of this Section 10.4(a) prejudices the defense in the legal proceeding, the indemnifying party's obligations under Section 10.1 (Arcadia Indemnification Obligations) or 10.2 (Client Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice; (b) any indemnified party must tender sole control of the indemnified portion of the proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- Remedies. (a) If Arcadia reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Arcadia may, at its sole option and expense (i) procure the right for Client to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative. (b) If Arcadia does not believe the remedies in Section 10.5(a) are commercially reasonable, then Arcadia may suspend or terminate Client's use of the impacted Services.
- Sole Rights and Obligations. Without affecting either party's termination rights, this Section 10 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of intellectual property infringement or misappropriation of trade secrets.
- TERM AND TERMINATION.
- Term. The term of this Agreement will commence on the Effective Date and will continue until the date which is six (6) months after there are no active Orders or SOWs hereunder (the “Term”), unless earlier terminated in accordance with this Section 11. The term of the Order shall be set forth therein (the “Subscription Term”). As applied to any Order, the Term shall be coterminous to the Subscription Term.
- Termination for Breach. Either party may, at its option, terminate this Agreement or any Order or SOW in the event of a material breach by the other party. Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
- Suspension of Access. Arcadia may suspend access to any or all of the Services in the event any amount due under this Agreement is not received by Arcadia within ten (10) days after it became due.
- Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
- Effect of Termination. Upon any termination of this Agreement: (i) Client will immediately discontinue all use of the Services, the Application Documentation, and any Arcadia Confidential Information; (ii) Client will delete any Arcadia Confidential Information from Client’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Client will return to Arcadia or, at Arcadia’s option, destroy, all copies of Arcadia Confidential Information then in Client’s possession; (iv) each party will discontinue use of the other party’s Brand Features; (v) Client will promptly pay to Arcadia all current and future amounts due and payable hereunder; and (vi) Arcadia shall have no further obligation to provide any of the Services.
- Survival. The provisions of Sections 1, 2.5, 2.6, 5, 6, 9, 10, 11, and 12 will survive the termination of this Agreement.
- General.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
- Independent Contractors. In making and performing this Agreement, Client and Arcadia act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of, the other party.
- Notices. Arcadia may also provide any notice under this Agreement by sending a message to the email address associated with an Account. You will be deemed to have received any email sent to the email address then associated with your Account when we send the email, whether or not you actually receive the email.
To give Arcadia notice under this Agreement, you must email us at legal@arcadia.com with a copy of your notice by certified mail, return receipt requested, to
Arcadia Power, Inc.
Attn: Legal
5600 S Quebec St D320
Greenwood Village, CO 80111
- Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both parties.
- Assignment; Delegation. Client shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Arcadia, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Arcadia may, without the prior consent of Client, assign this Agreement in connection with any corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure the benefit of all permitted successors and assigns.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
- Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
- Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, terror, riot, fires, floods, pandemics, failure of public utilities or public transportation systems, governmental actions and requirements, or acts and omissions of Arcadia’s data suppliers, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.
- Governing Law; Waiver of Jury Trial. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF WASHINGTON, DC, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS LOCATED IN WASHINGTON, DC, AND THE PARTIES EXPRESSLY CONSENT TO PERSONAL JURISDICTION AND VENUE IN THOSE COURTS. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER.
- Dispute Resolution. In the event of any dispute arising out of or in connection with this Agreement or the transactions relating to its subject matter, the parties shall attempt to resolve such dispute by first entering into negotiations with the assistance of a mediator on a without prejudice basis. The mediator shall be appointed by agreement of the parties. If a dispute cannot be settled pursuant to the foregoing within a period of thirty (30) calendar days following appointment by the parties of the mediator, such dispute shall be settled by arbitration in Washington, D.C. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and, unless either party objects, in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary in this Section 12.11, the parties expressly acknowledge that violation of Sections 2.5, 2.6 or 6 may result in harm for which monetary damages would be an insufficient remedy; therefore, in the event of a breach or threatened breach of Section 25, 2.6 or 6, the other party shall be entitled to seek, without any requirement to first submit to mediation or arbitration, in any court having jurisdiction, preliminary and permanent injunctive relief to enforce the provisions hereof and shall be entitled to recover from reasonable attorneys’ fees incurred in connection therewith.
- U.S. Government End-Users. The Platform Services and Documentation constitutes “commercial items”, “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and Documentation. If Client or any Authorized User is using Services and Documentation on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Client and Client’s Authorized Users must immediately discontinue use of the Services and Documentation. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- Client Affiliates. Where an Affiliate of Client has not entered into an Order or other separate agreement directly with Arcadia, Client may authorize that Affiliate (each, a “Participating Affiliate”) to access and use the Platform Services under an existing Order between Arcadia and Client. In such cases, references to “Client” in the applicable Order and this Agreement will be deemed references to both Client and the Participating Affiliate, and Client and its Participating Affiliates will be jointly and severally liable for compliance with this Agreement and all Order Forms hereunder. As between Arcadia and Client, Client accepts full liability for the acts and omissions of its Participating Affiliates.
- Purchase Orders. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Client issues any purchase orders or similar documents in connection with its purchase of Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Client’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and Arcadia’s performance of this Agreement shall not amount to: (a) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (b) an amendment of this Agreement, nor (c) an agreement to amend this Agreement.
- Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the parties hereto, and no rule of construction or other inference or interpretation against any party shall be made or invoked respecting the authorship of this Agreement.
- Counterparts. This Agreement may be executed electronically and in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
- Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
Arcadia Privacy Policy
Effective July 6th 2023
DownloadTable of Contents
ARCADIA PRIVACY POLICY
(Last Updated: July 6, 2023)
This Privacy Policy describes how Arcadia Power, Inc. and our affiliates (collectively “Arcadia,” “we“, “us” or “our“) handle personal information that we collect through our websites, platform and mobile applications (collectively, the “Service”), through social media, in connection with our marketing activities and through other activities described in this Privacy Policy.
Arcadia provides Services to both business customers and direct to consumers. When we provide Services to our business customers, we may collect personal information on their behalf as their processor, and this Privacy Policy does not apply to such information that we process on behalf of our business customers while providing the Services to them. Our use of such information is restricted by our agreements with those business customers. If you have concerns regarding personal information that we process on behalf of a business, please direct your concerns to that business.
Table of contents
- Personal information we collect
- How we use your personal information
- How we share your personal information
- Your choices
- Other sites and services
- Security
- International data transfer
- Children
- Changes to this Privacy Policy
- How to contact us
- California Privacy Notice / Your California Privacy Rights
Personal information we collect
Information you provide to us. Personal information you may provide to us through the Service, through our marketing efforts, or otherwise includes:
- Account data, such as your first and last name, email address, physical address, phone number, and username and password that you provide when establishing an online account with us.
- Third party service account data, such as the username and password, account number, usage/billing data, payment history, account history, program participation data, utility usage data, and other data associated with your other accounts that you instruct us to connect to the Service, such as your utility company account.
- Communications that we exchange with you, including when you contact us with questions, feedback, or otherwise.
- Payment and transactional data needed to complete your orders on or through the Service (including name, payment card information, bank account number, billing information), and your purchase history.
- Research data, that you provide when you agree to participate in our surveys, promotions, or contents, such as your survey responses.
- Marketing data, such as your preferences for receiving our marketing communications, and details about your engagement with them.
- Other information not specifically listed here, which we will use as described in this Privacy Policy or as otherwise disclosed at the time of collection.
Third party sources. We may combine personal information we receive from you with personal information we obtain from other sources, such as:
- Data providers, such as information services and data licensors.
- Public sources, such as social media platforms.
- Marketing partners, such as companies that have entered into joint marketing relationships with us.
Automatic data collection. We, our service providers, and our business partners may automatically log information about you, your computer or mobile device, and your interaction over time with the Service, our communications and other online services, such as:
- Device data, such as your computer’s or mobile device’s operating system type and version, manufacturer and model, browser type, screen resolution, RAM and disk size, CPU usage, device type (e.g., phone, tablet), IP address, unique identifiers (including identifiers used for advertising purposes), language settings, mobile device carrier, radio/network information (e.g., WiFi, LTE, 3G), and general location information such as city, state or geographic area.
- Online activity data, such as pages or screens you viewed, how long you spent on a page or screen, the website you visited before browsing to the Service, navigation paths between pages or screens, information about your activity on a page or screen, access times, and duration of access, and whether you have opened our marketing emails or clicked links within them.
- Precise geolocation data, when you authorize our mobile application to access your device’s location.
Cookies and similar technologies. Like many online services, we use the following technologies:
- Cookies, which are text files that websites store on a visitor‘s device to uniquely identify the visitor’s browser or to store information or settings in the browser for the purpose of helping you navigate between pages efficiently, remembering your preferences, enabling functionality, helping us understand user activity and patterns, and facilitating online advertising.
- Local storage technologies, like HTML5 and Flash, that provide cookie-equivalent functionality but can store larger amounts of data, including on your device outside of your browser in connection with specific applications.
- Flash cookies, or locally-stored objects and HTML5 local storage, which are used on websites for purposes similar to cookies but allow storage of a larger amount of data about your activities and preferences across different services and sessions.
- Web beacons, also known as pixel tags or clear GIFs, which are used to demonstrate that a webpage or email was accessed or opened, or that certain content was viewed or clicked.
- Software development kits, or SDKs, which incorporate into our app third party computer code that allows our service providers or advertising partners to collect user data directly from the app for a variety of purposes, including to provide us with analytics regarding the use of the app, add features or functionality to our app, or to facilitate online advertising.
How we use your personal information
We use your personal information for the following purposes or as otherwise described at the time of collection:
Service delivery. We use your personal information to:
- provide, operate and improve the Service and our business;
- engage in direct-to-consumer marketing efforts;
- communicate with you about the Service, including by sending announcements, updates, security alerts, and support and administrative messages;
- understand your needs and interests, and personalize your experience with the Service and our communications; and
- provide support for the Service, respond to your requests, questions and feedback.
Research and development. We may use your personal information for research and development purposes, including to analyze and improve the Service and our business. As part of these activities, we may create aggregated, de-identified or other anonymous data from personal information we collect. We make personal information into anonymous data by removing information that makes the data personally identifiable to you. We may use this anonymous data and share it with third parties for our lawful business purposes, including to analyze and improve the Service and promote our business.
Marketing and advertising. We, our service providers and our third party advertising partners may collect and use your personal information for marketing and advertising purposes:
- Direct marketing. We may send you Arcadia-related direct marketing communications as permitted by law, including by email and text messages. You may opt-out of our marketing communications as described in the Opt-out of marketing section below. We (including our service providers on our behalf) may also engage in door-to-door marketing activities from time to time.
- Interest-based advertising. We may engage third party advertising companies and social media companies to display ads on our Service and other online services. These companies may use cookies and similar technologies to collect information about your interaction (including the data described in the automatic data collection section above) over time across the Service, our communications and other online services, and use that information to serve online ads that they think will interest you. This is called interest-based advertising. We may also share information about our users with these companies to facilitate interest-based advertising to those users on other online platforms. You can learn more about your choices for limiting interest-based advertising in the Advertising choices section below.
Compliance and protection. We may use your personal information to:
- comply with applicable laws, lawful requests, and legal process, such as to respond to subpoenas or requests from government authorities;
- protect our, your or others’ rights, privacy, safety or property (including by making and defending legal claims);
- audit our internal processes for compliance with legal and contractual requirements and internal policies;
- enforce the terms and conditions that govern the Service; and
- prevent, identify, investigate and deter fraudulent, harmful, unauthorized, unethical or illegal activity, including cyberattacks and identity theft.
How we share your personal information
We may share your personal information with the following parties and as otherwise described in this Privacy Policy or at the time of collection:
Third parties at your direction. Third parties when you direct us to, such as when we share your personal information with your local energy utility company to facilitate connecting the Service to your utility account.
Affiliates. Our corporate parent, subsidiaries, and affiliates, for purposes consistent with this Privacy Policy.
Service providers. Companies and individuals that provide services on our behalf or help us operate the Service or our business (such as hosting, information technology, cloud storage, payment processors, customer support, email delivery, online user analytics services, and marketing, including direct and door-to-door marketing activities).
Advertising partners. Third party advertising companies for the interest-based advertising purposes described above.
Marketing partners. Third party companies whose products and services you may be interested in. You can request to opt-out of this sharing by sending your request to privacy@arcadia.com.
Professional advisors. Professional advisors, such as lawyers, auditors, bankers and insurers, where necessary in the course of the professional services that they render to us.
Authorities and others. Law enforcement, government authorities, and private parties, as we believe in good faith to be necessary or appropriate for the compliance and protection purposes described above.
Business transferees. Acquirers and other relevant participants in business transactions (or negotiations for such transactions) involving a corporate divestiture, merger, consolidation, acquisition, reorganization, sale or other disposition of all or any portion of the business or assets of, or equity interests in, Arcadia or our affiliates (including, in connection with a bankruptcy or similar proceedings).
Please keep in mind that whenever you voluntarily make your personal information available for viewing by third parties or the public on or through our Service, that information can be seen, collected and used by others. We are not responsible for any use of such information by others.
Your choices
You have the following choices with respect to your personal information.
Access or update your information. If you have registered for a Service account, you may review and update certain account information by logging into the account.
Opt-out of marketing communications. You may opt out of marketing-related emails by following the opt-out or unsubscribe instructions at the bottom of the email. You may continue to receive service- related and other non-marketing emails.
Cookies. Most browser settings let you delete and reject cookies placed by websites. Many browsers accept cookies by default until you change your settings. If you do not accept cookies, you may not be able to use all functionality of the Service and it may not work properly. For more information about cookies, including how to see what cookies have been set on your browser and how to manage and delete them, visit www.allaboutcookies.org.
We use Google Analytics to help us understand user activity on the Service. You can learn more about Google Analytics cookies at https://developers.google.com/analytics/resources/concepts/gaConceptsCookies and about how Google protects your data at http://www.google.com/analytics/learn/privacy.html. You can prevent the use of Google Analytics relating to your use of our sites by downloading and installing a browser plugin available at https://tools.google.com/dlpage/gaoptout?hl=en.
We use FullStory to help us understand user activity on the Service and to create re-watchable session replays of user sessions, which may include your mouse movements, scrolls and keystrokes (even if you don’t submit text through form fields). We use this information to diagnose and troubleshoot bugs and improve the Service. You can opt out of the collection of your information through FullStory here: https://www.fullstory.com/optout/
Local storage. You may be able to limit use of HTML5 cookies in your browser settings. Unlike other cookies, Flash-based local storage cannot be removed or rejected via your browser settings, but you can adjust the settings of your Flash player to block it. Blocking Flash storage may impede the functionality of Flash applications, including those employed by the Service. For more information on Flash local storage visit https://helpx.adobe.com/flash-player/kb/disable-local-shared-objects-flash.html
Device location data. Users of our mobile app can disable our access to their device’s precise geolocation in their mobile device settings.
Advertising choices. You can limit use of your information for interest-based advertising by:
- Browser settings. Blocking third party cookies in your browser settings.
- Privacy browsers/plug-ins. By using privacy browsers or ad-blocking browser plug-ins that let you block tracking technologies.
- Ad industry tools. Opting out of interest-based ads from companies participating in the following industry opt-out programs:
Network Advertising Initiative: https://www.networkadvertising.org/managing/opt_out.asp
Digital Advertising Alliance: https://optout.aboutads.info
AppChoices mobile app, https://www.youradchoices.com/appchoices - Mobile settings. Using your mobile device settings to limit use of the advertising ID associated with your mobile device for interest-based advertising purposes.
You will need to apply these opt-out settings on each device from which you wish to opt-out.
Do Not Track. Some Internet browsers may be configured to send “Do Not Track” signals to the online services that you visit. We currently do not respond to “Do Not Track” or similar signals. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
Declining to provide information. We need to collect personal information to provide certain services. If you do not provide the information we identify as required or mandatory, we may not be able to provide those services.
Other sites and services
The Service may contain links to websites and other online services operated by third parties. These links are not an endorsement of, or representation that we are affiliated with, any third party. In addition, our content may be included on web pages or other online services that are not associated with us. We do not control websites or online services operated by third parties, and we are not responsible for their actions.
Security
We employ a number of technical, organizational and physical safeguards designed to protect the personal information we collect. However, no security measures are failsafe and we cannot guarantee the security of your personal information.
International data transfer
We are headquartered in the United States and may use service providers that operate in other countries. Your personal information may be transferred to the United States or other locations where privacy laws may not be as protective as those in your state, province, or country.
Children
The Service is not intended for use by children under 16 years of age. If we learn that we have collected personal information through the Service from a child under 16 without the consent of the child’s parent or guardian as required by law, we will delete it.
Changes to this Privacy Policy
We reserve the right to modify this Privacy Policy at any time. If we make material changes to this Privacy Policy, we will notify you by updating the date of this Privacy Policy and posting it on the Service. If required by law we will also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via email or another manner through the Service. Any modifications to this Privacy Policy will be effective upon our posting the modified version (or as otherwise indicated at the time of posting). In all cases, your use of the Service after the effective date of any modified Privacy Policy indicates your acceptance of the modified Privacy Policy.
How to contact us
You can reach us by email at privacy@arcadia.com or at the following mailing address:
Arcadia, Inc.
5600 S Quebec St D320
Greenwood Village, CO 80111
Attention: Legal
California Privacy Notice / Your Privacy Rights
Scope. This section describes how we collect, use, and share the Personal Information of California residents to the extent we act as a “business” under the California Consumer Privacy Act (“CCPA”) and their rights with respect to their Personal Information. For purposes of this section, “Personal Information” has the meaning given in the CCPA but does not include information exempted from the scope of the CCPA. Additionally, this section does not apply to information we collect from you in the course of communicating with you in your capacity as an employee, controlling owner, director, officer or contractor of an organization (i.e., company, partnership, sole proprietorship, non-profit or government agency) in the context of performing due diligence on, or providing or receiving products or services to or from, that organization. In some cases we may provide a different privacy notice to certain categories of California residents, such as job applicants, in which case that notice will apply instead of this section.
Your California privacy rights. As a California resident, you have the rights listed below. However, these rights are not absolute, and in certain cases we may decline your request as permitted by law.
- Information. You can request the following information about how we have collected and used your Personal Information during the past 12 months:
The categories of Personal Information that we have collected.
The categories of sources from which we collected Personal Information.
The business or commercial purpose for collecting and/or selling Personal Information.
The categories of third parties with whom we share Personal Information.
The categories of Personal Information that we sold or disclosed for a business purpose.
The categories of third parties to whom the Personal Information was sold or disclosed for a business purpose. - Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.
- Deletion. You can ask us to delete the Personal Information that we have collected from you.
- Opt-out of sales. If we sell your Personal Information, you can opt-out.
- Nondiscrimination. You are entitled to exercise the rights described above free from discrimination as prohibited by the CCPA.
You may submit requests to exercise your right to information, access or deletion by visiting this form or by calling us at our toll-free number (866)-526-0083.
Notice of right to opt-out of the “sale” of your Personal Information. Like many companies, we use online advertising services that employ cookies and similar technologies to collect information about your device and online activity on our sites and other online services. They use this information to try to tailor the ads you see online to your interests. These are called interest-based ads. The CCPA may classify our use of these services as a “sale” of personal information to those advertising services from which California residents have the right to opt-out. You can opt-out of any “sale” that results from use of your personal information for these purposes by visiting www.arcadia.com and following the “Do not sell my personal information” link at the bottom of the page, or by emailing privacy@arcadia.com.
We will need to verify your identity to process your information, access and deletion requests and reserve the right to confirm your California residency. To verify your identity we may require you to log into your Arcadia account, government identification, a declaration under penalty of perjury or other information. Your authorized agent may make a request on your behalf upon our verification of the agent’s identity and our receipt of a copy of a valid power of attorney given to your authorized agent pursuant to California Probate Code Sections 4000-4465. If you have not provided your agent with such a power of attorney, you must provide your agent with written and signed permission to exercise your CCPA rights on your behalf, provide the information we request to verify your identity, and provide us with written confirmation that you have given the authorized agent permission to submit the request. We cannot process your request if you do not provide us with sufficient detail to allow us to understand and respond to it.
Personal information that we collect, use and disclose
The chart below summarizes the Personal Information we collect by reference to the categories of Personal Information specified in the CCPA, and describes our practices currently and during the 12 months preceding the effective date of this Privacy Policy. Information you voluntarily provide to us, such as in free-form webforms, may contain other categories of personal information not described below.
Statutory category of personal information (PI) (Cal. Civ. Code § 1798.140) | PI we collect in this category (See “Personal information we collect” above for description) | Source | Business/ | Categories of third parties whom we “disclose” PI for a business purpose | Categories of third parties to whom we “sell” PI |
Identifiers (excluding online indentifiers) | Account data Third party service account data | You Through our service providers on our behalf Third party sources | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Commercial Information | Account data Payment & transactional data Marketing data Research data Third party service account data Online activity data | Your Through our service providers on our behalf Third party sources Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional Advisors | Advertising partners (to facilitate online advertising) |
Financial Information | Third party service account data Payment & transactional data | You Through our service providers on our behalf Third party sources | Service delivery Research & development Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | None |
Online Identifiers | Account data Device data | You Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Internet or Network Information | Marketing data Device data Online activity data | Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Geolocation Data | Device data Precise geolocation data | Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Marketing Partners Advertising Partners | Advertising partners (to facilitate online advertising) |
Inferences | May be derived from your Third party service account data Payment & transactional data Marketing data Research data Device data | N/A | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Marketing Partners Advertising Partners | Advertising partners (to facilitate online advertising) |
California Shine the Light Law
Under California’s Shine the Light law (California Civil Code Section 1798.83), California residents may ask companies with whom they have formed a business relationship primarily for personal, family or household purposes to provide the names of third parties to which they have disclosed certain personal information (as defined under the Shine the Light law) during the preceding calendar year for their own direct marketing purposes and the categories of personal information disclosed. You may send us requests for this information to privacy@arcadia.com. In your request, you must include the statement “Shine the Light Request,” and provide your first and last name and mailing address and certify that you are a California resident. We reserve the right to require additional information to confirm your identity and California residency. Please note that we will not accept requests via telephone, mail, or facsimile, and we are not responsible for notices that are not labeled or sent properly, or that do not have complete information.
Effective May 30th 2023 to July 6th 2023
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ARCADIA PRIVACY POLICY
(Last Updated: May 15, 2023)
This Privacy Policy describes how Arcadia Power, Inc. and our affiliates (collectively “Arcadia,” “we“, “us” or “our“) handle personal information that we collect through our websites, platform and mobile applications (collectively, the “Service”), through social media, in connection with our marketing activities and through other activities described in this Privacy Policy.
Arcadia provides Services to both business customers and direct to consumers. When we provide Services to our business customers, we may collect personal information on their behalf as their processor, and this Privacy Policy does not apply to such information that we process on behalf of our business customers while providing the Services to them. Our use of such information is restricted by our agreements with those business customers. If you have concerns regarding personal information that we process on behalf of a business, please direct your concerns to that business.
Table of contents
- Personal information we collect
- How we use your personal information
- How we share your personal information
- Your choices
- Other sites and services
- Security
- International data transfer
- Children
- Changes to this Privacy Policy
- How to contact us
- California Privacy Notice / Your California Privacy Rights
Personal information we collect
Information you provide to us. Personal information you may provide to us through the Service, through our marketing efforts, or otherwise includes:
- Account data, such as your first and last name, email address, physical address, phone number, and username and password that you provide when establishing an online account with us.
- Third party service account data, such as the username and password, account number, usage/billing data, payment history, account history, program participation data, utility usage data, and other data associated with your other accounts that you instruct us to connect to the Service, such as your utility company account.
- Communications that we exchange with you, including when you contact us with questions, feedback, or otherwise.
- Payment and transactional data needed to complete your orders on or through the Service (including name, payment card information, bank account number, billing information), and your purchase history.
- Research data, that you provide when you agree to participate in our surveys, promotions, or contents, such as your survey responses.
- Marketing data, such as your preferences for receiving our marketing communications, and details about your engagement with them.
- Other information not specifically listed here, which we will use as described in this Privacy Policy or as otherwise disclosed at the time of collection.
Third party sources. We may combine personal information we receive from you with personal information we obtain from other sources, such as:
- Data providers, such as information services and data licensors.
- Public sources, such as social media platforms.
- Marketing partners, such as companies that have entered into joint marketing relationships with us.
Automatic data collection. We, our service providers, and our business partners may automatically log information about you, your computer or mobile device, and your interaction over time with the Service, our communications and other online services, such as:
- Device data, such as your computer’s or mobile device’s operating system type and version, manufacturer and model, browser type, screen resolution, RAM and disk size, CPU usage, device type (e.g., phone, tablet), IP address, unique identifiers (including identifiers used for advertising purposes), language settings, mobile device carrier, radio/network information (e.g., WiFi, LTE, 3G), and general location information such as city, state or geographic area.
- Online activity data, such as pages or screens you viewed, how long you spent on a page or screen, the website you visited before browsing to the Service, navigation paths between pages or screens, information about your activity on a page or screen, access times, and duration of access, and whether you have opened our marketing emails or clicked links within them.
- Precise geolocation data, when you authorize our mobile application to access your device’s location.
Cookies and similar technologies. Like many online services, we use the following technologies:
- Cookies, which are text files that websites store on a visitor‘s device to uniquely identify the visitor’s browser or to store information or settings in the browser for the purpose of helping you navigate between pages efficiently, remembering your preferences, enabling functionality, helping us understand user activity and patterns, and facilitating online advertising.
- Local storage technologies, like HTML5 and Flash, that provide cookie-equivalent functionality but can store larger amounts of data, including on your device outside of your browser in connection with specific applications.
- Flash cookies, or locally-stored objects and HTML5 local storage, which are used on websites for purposes similar to cookies but allow storage of a larger amount of data about your activities and preferences across different services and sessions.
- Web beacons, also known as pixel tags or clear GIFs, which are used to demonstrate that a webpage or email was accessed or opened, or that certain content was viewed or clicked.
- Software development kits, or SDKs, which incorporate into our app third party computer code that allows our service providers or advertising partners to collect user data directly from the app for a variety of purposes, including to provide us with analytics regarding the use of the app, add features or functionality to our app, or to facilitate online advertising.
How we use your personal information
We use your personal information for the following purposes or as otherwise described at the time of collection:
Service delivery. We use your personal information to:
- provide, operate and improve the Service and our business;
- engage in direct-to-consumer marketing efforts;
- communicate with you about the Service, including by sending announcements, updates, security alerts, and support and administrative messages;
- understand your needs and interests, and personalize your experience with the Service and our communications; and
- provide support for the Service, respond to your requests, questions and feedback.
Research and development. We may use your personal information for research and development purposes, including to analyze and improve the Service and our business. As part of these activities, we may create aggregated, de-identified or other anonymous data from personal information we collect. We make personal information into anonymous data by removing information that makes the data personally identifiable to you. We may use this anonymous data and share it with third parties for our lawful business purposes, including to analyze and improve the Service and promote our business.
Marketing and advertising. We, our service providers and our third party advertising partners may collect and use your personal information for marketing and advertising purposes:
- Direct marketing. We may send you Arcadia-related direct marketing communications as permitted by law, including by email and text messages. You may opt-out of our marketing communications as described in the Opt-out of marketing section below. We (including our service providers on our behalf) may also engage in door-to-door marketing activities from time to time.
- Interest-based advertising. We may engage third party advertising companies and social media companies to display ads on our Service and other online services. These companies may use cookies and similar technologies to collect information about your interaction (including the data described in the automatic data collection section above) over time across the Service, our communications and other online services, and use that information to serve online ads that they think will interest you. This is called interest-based advertising. We may also share information about our users with these companies to facilitate interest-based advertising to those users on other online platforms. You can learn more about your choices for limiting interest-based advertising in the Advertising choices section below.
Compliance and protection. We may use your personal information to:
- comply with applicable laws, lawful requests, and legal process, such as to respond to subpoenas or requests from government authorities;
- protect our, your or others’ rights, privacy, safety or property (including by making and defending legal claims);
- audit our internal processes for compliance with legal and contractual requirements and internal policies;
- enforce the terms and conditions that govern the Service; and
- prevent, identify, investigate and deter fraudulent, harmful, unauthorized, unethical or illegal activity, including cyberattacks and identity theft.
How we share your personal information
We may share your personal information with the following parties and as otherwise described in this Privacy Policy or at the time of collection:
Third parties at your direction. Third parties when you direct us to, such as when we share your personal information with your local energy utility company to facilitate connecting the Service to your utility account.
Affiliates. Our corporate parent, subsidiaries, and affiliates, for purposes consistent with this Privacy Policy.
Service providers. Companies and individuals that provide services on our behalf or help us operate the Service or our business (such as hosting, information technology, cloud storage, payment processors, customer support, email delivery, online user analytics services, and marketing, including direct and door-to-door marketing activities).
Advertising partners. Third party advertising companies for the interest-based advertising purposes described above.
Marketing partners. Third party companies whose products and services you may be interested in. You can request to opt-out of this sharing by sending your request to privacy@arcadia.com.
Professional advisors. Professional advisors, such as lawyers, auditors, bankers and insurers, where necessary in the course of the professional services that they render to us.
Authorities and others. Law enforcement, government authorities, and private parties, as we believe in good faith to be necessary or appropriate for the compliance and protection purposes described above.
Business transferees. Acquirers and other relevant participants in business transactions (or negotiations for such transactions) involving a corporate divestiture, merger, consolidation, acquisition, reorganization, sale or other disposition of all or any portion of the business or assets of, or equity interests in, Arcadia or our affiliates (including, in connection with a bankruptcy or similar proceedings).
Please keep in mind that whenever you voluntarily make your personal information available for viewing by third parties or the public on or through our Service, that information can be seen, collected and used by others. We are not responsible for any use of such information by others.
Your choices
You have the following choices with respect to your personal information.
Access or update your information. If you have registered for a Service account, you may review and update certain account information by logging into the account.
Opt-out of marketing communications. You may opt out of marketing-related emails by following the opt-out or unsubscribe instructions at the bottom of the email. You may continue to receive service- related and other non-marketing emails.
Cookies. Most browser settings let you delete and reject cookies placed by websites. Many browsers accept cookies by default until you change your settings. If you do not accept cookies, you may not be able to use all functionality of the Service and it may not work properly. For more information about cookies, including how to see what cookies have been set on your browser and how to manage and delete them, visit www.allaboutcookies.org.
We use Google Analytics to help us understand user activity on the Service. You can learn more about Google Analytics cookies at https://developers.google.com/analytics/resources/concepts/gaConceptsCookies and about how Google protects your data at http://www.google.com/analytics/learn/privacy.html. You can prevent the use of Google Analytics relating to your use of our sites by downloading and installing a browser plugin available at https://tools.google.com/dlpage/gaoptout?hl=en.
We use FullStory to help us understand user activity on the Service and to create re-watchable session replays of user sessions, which may include your mouse movements, scrolls and keystrokes (even if you don’t submit text through form fields). We use this information to diagnose and troubleshoot bugs and improve the Service. You can opt out of the collection of your information through FullStory here: https://www.fullstory.com/optout/
Local storage. You may be able to limit use of HTML5 cookies in your browser settings. Unlike other cookies, Flash-based local storage cannot be removed or rejected via your browser settings, but you can adjust the settings of your Flash player to block it. Blocking Flash storage may impede the functionality of Flash applications, including those employed by the Service. For more information on Flash local storage visit https://helpx.adobe.com/flash-player/kb/disable-local-shared-objects-flash.html
Device location data. Users of our mobile app can disable our access to their device’s precise geolocation in their mobile device settings.
Advertising choices. You can limit use of your information for interest-based advertising by:
- Browser settings. Blocking third party cookies in your browser settings.
- Privacy browsers/plug-ins. By using privacy browsers or ad-blocking browser plug-ins that let you block tracking technologies.
- Ad industry tools. Opting out of interest-based ads from companies participating in the following industry opt-out programs:
Network Advertising Initiative: https://www.networkadvertising.org/managing/opt_out.asp
Digital Advertising Alliance: https://optout.aboutads.info
AppChoices mobile app, https://www.youradchoices.com/appchoices - Mobile settings. Using your mobile device settings to limit use of the advertising ID associated with your mobile device for interest-based advertising purposes.
You will need to apply these opt-out settings on each device from which you wish to opt-out.
Do Not Track. Some Internet browsers may be configured to send “Do Not Track” signals to the online services that you visit. We currently do not respond to “Do Not Track” or similar signals. To find out more about “Do Not Track,” please visit http://www.allaboutdnt.com.
Declining to provide information. We need to collect personal information to provide certain services. If you do not provide the information we identify as required or mandatory, we may not be able to provide those services.
Other sites and services
The Service may contain links to websites and other online services operated by third parties. These links are not an endorsement of, or representation that we are affiliated with, any third party. In addition, our content may be included on web pages or other online services that are not associated with us. We do not control websites or online services operated by third parties, and we are not responsible for their actions.
Security
We employ a number of technical, organizational and physical safeguards designed to protect the personal information we collect. However, no security measures are failsafe and we cannot guarantee the security of your personal information.
International data transfer
We are headquartered in the United States and may use service providers that operate in other countries. Your personal information may be transferred to the United States or other locations where privacy laws may not be as protective as those in your state, province, or country.
Children
The Service is not intended for use by children under 16 years of age. If we learn that we have collected personal information through the Service from a child under 16 without the consent of the child’s parent or guardian as required by law, we will delete it.
Changes to this Privacy Policy
We reserve the right to modify this Privacy Policy at any time. If we make material changes to this Privacy Policy, we will notify you by updating the date of this Privacy Policy and posting it on the Service. If required by law we will also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via email or another manner through the Service. Any modifications to this Privacy Policy will be effective upon our posting the modified version (or as otherwise indicated at the time of posting). In all cases, your use of the Service after the effective date of any modified Privacy Policy indicates your acceptance of the modified Privacy Policy.
How to contact us
You can reach us by email at privacy@arcadia.com or at the following mailing address:
Arcadia, Inc.
5600 S Quebec St D320
Greenwood Village, CO 80111
Attention: Legal
California Privacy Notice / Your Privacy Rights
Scope. This section describes how we collect, use, and share the Personal Information of California residents to the extent we act as a “business” under the California Consumer Privacy Act (“CCPA”) and their rights with respect to their Personal Information. For purposes of this section, “Personal Information” has the meaning given in the CCPA but does not include information exempted from the scope of the CCPA. Additionally, this section does not apply to information we collect from you in the course of communicating with you in your capacity as an employee, controlling owner, director, officer or contractor of an organization (i.e., company, partnership, sole proprietorship, non-profit or government agency) in the context of performing due diligence on, or providing or receiving products or services to or from, that organization. In some cases we may provide a different privacy notice to certain categories of California residents, such as job applicants, in which case that notice will apply instead of this section.
Your California privacy rights. As a California resident, you have the rights listed below. However, these rights are not absolute, and in certain cases we may decline your request as permitted by law.
- Information. You can request the following information about how we have collected and used your Personal Information during the past 12 months:
The categories of Personal Information that we have collected.
The categories of sources from which we collected Personal Information.
The business or commercial purpose for collecting and/or selling Personal Information.
The categories of third parties with whom we share Personal Information.
The categories of Personal Information that we sold or disclosed for a business purpose.
The categories of third parties to whom the Personal Information was sold or disclosed for a business purpose. - Access. You can request a copy of the Personal Information that we have collected about you during the past 12 months.
- Deletion. You can ask us to delete the Personal Information that we have collected from you.
- Opt-out of sales. If we sell your Personal Information, you can opt-out.
- Nondiscrimination. You are entitled to exercise the rights described above free from discrimination as prohibited by the CCPA.
You may submit requests to exercise your right to information, access or deletion by visiting this form or by calling us at our toll-free number (866)-526-0083.
Notice of right to opt-out of the “sale” of your Personal Information. Like many companies, we use online advertising services that employ cookies and similar technologies to collect information about your device and online activity on our sites and other online services. They use this information to try to tailor the ads you see online to your interests. These are called interest-based ads. The CCPA may classify our use of these services as a “sale” of personal information to those advertising services from which California residents have the right to opt-out. You can opt-out of any “sale” that results from use of your personal information for these purposes by visiting www.arcadia.com and following the “Do not sell my personal information” link at the bottom of the page, or by emailing privacy@arcadia.com.
We will need to verify your identity to process your information, access and deletion requests and reserve the right to confirm your California residency. To verify your identity we may require you to log into your Arcadia account, government identification, a declaration under penalty of perjury or other information. Your authorized agent may make a request on your behalf upon our verification of the agent’s identity and our receipt of a copy of a valid power of attorney given to your authorized agent pursuant to California Probate Code Sections 4000-4465. If you have not provided your agent with such a power of attorney, you must provide your agent with written and signed permission to exercise your CCPA rights on your behalf, provide the information we request to verify your identity, and provide us with written confirmation that you have given the authorized agent permission to submit the request. We cannot process your request if you do not provide us with sufficient detail to allow us to understand and respond to it.
Personal information that we collect, use and disclose
The chart below summarizes the Personal Information we collect by reference to the categories of Personal Information specified in the CCPA, and describes our practices currently and during the 12 months preceding the effective date of this Privacy Policy. Information you voluntarily provide to us, such as in free-form webforms, may contain other categories of personal information not described below.
Statutory category of personal information (PI) (Cal. Civ. Code § 1798.140) | PI we collect in this category (See “Personal information we collect” above for description) | Source | Business/ | Categories of third parties whom we “disclose” PI for a business purpose | Categories of third parties to whom we “sell” PI |
Identifiers (excluding online indentifiers) | Account data Third party service account data | You Through our service providers on our behalf Third party sources | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Commercial Information | Account data Payment & transactional data Marketing data Research data Third party service account data Online activity data | Your Through our service providers on our behalf Third party sources Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional Advisors | Advertising partners (to facilitate online advertising) |
Financial Information | Third party service account data Payment & transactional data | You Through our service providers on our behalf Third party sources | Service delivery Research & development Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | None |
Online Identifiers | Account data Device data | You Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Internet or Network Information | Marketing data Device data Online activity data | Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Advertising partners Professional advisors | Advertising partners (to facilitate online advertising) |
Geolocation Data | Device data Precise geolocation data | Automatic collection | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Marketing Partners Advertising Partners | Advertising partners (to facilitate online advertising) |
Inferences | May be derived from your Third party service account data Payment & transactional data Marketing data Research data Device data | N/A | Service delivery Research & development Marketing & advertising Compliance & Protection | Third parties at your direction Service providers Marketing Partners Advertising Partners | Advertising partners (to facilitate online advertising) |
California Shine the Light Law
Under California’s Shine the Light law (California Civil Code Section 1798.83), California residents may ask companies with whom they have formed a business relationship primarily for personal, family or household purposes to provide the names of third parties to which they have disclosed certain personal information (as defined under the Shine the Light law) during the preceding calendar year for their own direct marketing purposes and the categories of personal information disclosed. You may send us requests for this information to privacy@arcadia.com. In your request, you must include the statement “Shine the Light Request,” and provide your first and last name and mailing address and certify that you are a California resident. We reserve the right to require additional information to confirm your identity and California residency. Please note that we will not accept requests via telephone, mail, or facsimile, and we are not responsible for notices that are not labeled or sent properly, or that do not have complete information.
Arcadia Support Services Policy
Effective October 1st 2024
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ARCADIA SUPPORT SERVICES POLICY
(Last Updated: October 1, 2024)
The Arcadia Support Services Policy describe Arcadia’s technical support for Platform Services clients:
1.General.
Arcadia will provide support services to Client to assist resolving issues with the Platform Services as described below. Support services will respond to informational and implementation questions about the Platform Services and all features of the Platform Services, troubleshooting operational or systemic problems with the Platform Services; troubleshooting API issues; and user issues with the Platform Services. Feature requests to add to a future update or release of the Platform Services will not be resolved with support services, and Arcadia is under no obligation to respond to or resolve any feature requests in any future update or release.
2.Access to Support.
Arcadia will use commercially reasonable efforts to meet the applicable targeted response availability and response times set forth below. Client acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem, and the level of Client's cooperation and responsiveness in providing materials, information, access and support reasonably required by Arcadia to achieve problem resolution:
Business hours, 9am to 8pm ET Monday through Friday (excluding public holidays) via email or ticketing system. Any email requests that are not sent via the email domain specified will not be ticketed or categorized according to this Support Services Policy.
3.Severity Levels and Target Resolution Times.
Arcadia will use commercially reasonable efforts to provide a response as described below:
Severity Level | Definition | Examples of Problems | Target Response Time |
Severity 1 - Critical | A critical production issue* within the Platform Services that renders Client production non-functional or materially incorrect, for all or a significant portion of Authorized Users, with no acceptable workaround. | Unable to access API All Platform Services are unavailable | 2 hours |
Severity 2 - Severe | A severe production issue within the Platform Services that renders Client production non-functional or incorrect, for either i) one or a small portion of Authorized Users, or ii) for which there is an accepted workaround. | One or more Platform Services appear to be impacted Multiple users reporting severe slowness or degradation of Platform Service Intermittent availability of API | 1 business day |
Severity 3 - Important | An important production issue within the Platform Services that involves minimal end-user or operational impact. There is an acceptable workaround. | Escalation of a single user experience. Additional investigation requested from Support Functional questions and general product inquiries | 30 business days, or override to a mutually agreed upon timeframe |
*“Production issues” refer to the functionality of the Platform Services and do not include feature requests or service interruptions due to the unavailability of Utility Endpoint Data or other circumstances outside of Arcadia’s control such as (a) force majeure events, (b), downtime or unavailability of utility or Client data centers or websites, (c) actions of Client or a third party (other than Arcadia agents or contractors), or any suspension of Platform Services as permitted under an applicable agreement.
4.Unresolved & Resolved Support Issues.
A request for support is considered resolved if:
•Client indicates the issue is resolved;
•The source of the issue lies with a third party, in which case, Arcadia will work with the third party or Company (as appropriate on resolution).
•Client does not respond to a query or request from Arcadia after seven (7) consecutive days.
Effective July 6th 2023 to October 1st 2024
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ARCADIA SUPPORT SERVICES POLICY
(Last Updated: July 6, 2023)
The Arcadia Support Services Policy describe Arcadia’s technical support for Platform Services clients:
1.General.
Arcadia will provide support services to Client to assist resolving issues with the Platform Services as described below. Support services will respond to informational and implementation questions about the Platform Services and all features of the Platform Services, troubleshooting operational or systemic problems with the Platform Services; troubleshooting API issues; and user issues with the Platform Services. Feature requests to add to a future update or release of the Platform Services will not be resolved with support services, and Arcadia is under no obligation to respond to or resolve any feature requests in any future update or release.
2.Access to Support.
Arcadia will use commercially reasonable efforts to meet the applicable targeted response availability and response times set forth below. Client acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem, and the level of Client's cooperation and responsiveness in providing materials, information, access and support reasonably required by Arcadia to achieve problem resolution:
Business hours, 9am to 8pm ET Monday through Friday (excluding public holidays) via email or ticketing system. Any email requests that are not sent via the email domain specified will not be ticketed or categorized according to this Support Services Policy.
3.Severity Levels and Target Resolution Times.
Arcadia will use commercially reasonable efforts to provide a response as described below:
Severity Level | Definition | Examples of Problems | Target Response Time |
Severity 1 - Critical | A critical production issue* within the Platform Services that renders Client production non-functional or materially incorrect, for all or a significant portion of Authorized Users, with no acceptable workaround. | Unable to access API All Platform Services are unavailable | 2 hours |
Severity 2 - Severe | A severe production issue within the Platform Services that renders Client production non-functional or incorrect, for either i) one or a small portion of Authorized Users, or ii) for which there is an accepted workaround. | One or more Platform Services appear to be impacted Multiple users reporting severe slowness or degradation of Platform Service Intermittent availability of API | 1 business day |
Severity 3 - Important | An important production issue within the Platform Services that involves minimal end-user or operational impact. There is an acceptable workaround. | Escalation of a single user experience. Additional investigation requested from Support Functional questions and general product inquiries | 30 business days, or override to a mutually agreed upon timeframe |
*“Production issues” refer to the functionality of the Platform Services and do not include feature requests or service interruptions due to the unavailability of Utility Endpoint Data or other circumstances outside of Arcadia’s control such as (a) force majeure events, (b), downtime or unavailability of utility or Client data centers or websites, (c) actions of Client or a third party (other than Arcadia agents or contractors), or any suspension of Platform Services as permitted under an applicable agreement.
4.Unresolved & Resolved Support Issues.
A request for support is considered resolved if:
•Client indicates the issue is resolved;
•The source of the issue lies with a third party, in which case, Arcadia will work with the third party or Company (as appropriate on resolution).
•Client does not respond to a query or request from Arcadia after seven (7) consecutive days.
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
ARCADIA SUPPORT SERVICES POLICY
(Last Updated: May 15, 2023)
The Arcadia Support Services Policy describe Arcadia’s technical support for Platform Services clients:
1.General.
Arcadia will provide support services to Client to assist resolving issues with the Platform Services as described below. Support services will respond to informational and implementation questions about the Platform Services and all features of the Platform Services, troubleshooting operational or systemic problems with the Platform Services; troubleshooting API issues; and user issues with the Platform Services. Feature requests to add to a future update or release of the Platform Services will not be resolved with support services, and Arcadia is under no obligation to respond to or resolve any feature requests in any future update or release.
2.Access to Support.
Arcadia will use commercially reasonable efforts to meet the applicable targeted response availability and response times set forth below. Client acknowledges that the time required for resolution of issues may vary depending on the specific circumstances of each problem, including, without limitation, the nature of the incident/problem, the extent and accuracy of information available about the incident/problem, and the level of Client's cooperation and responsiveness in providing materials, information, access and support reasonably required by Arcadia to achieve problem resolution:
•Business hours, 9am to 8pm ET Monday through Friday (excluding public holidays) via email or ticketing system. Any email requests that are not sent via the email domain specified will not be ticketed or categorized according to this Support Services Policy.
3.Severity Levels and Target Resolution Times.
Arcadia will use commercially reasonable efforts to provide a response as described below:
Severity Level | Definition | Examples of Problems | Target Response Time |
Severity 1 - Critical | A critical production issue* within the Platform Services that renders Client production non-functional or materially incorrect, for all or a significant portion of Authorized Users, with no acceptable workaround. | Unable to access API All Platform Services are unavailable | 2 hours |
Severity 2 - Severe | A severe production issue within the Platform Services that renders Client production non-functional or incorrect, for either i) one or a small portion of Authorized Users, or ii) for which there is an accepted workaround. | One or more Platform Services appear to be impacted Multiple users reporting severe slowness or degradation of Platform Service Intermittent availability of API | 1 business day |
Severity 3 - Important | An important production issue within the Platform Services that involves minimal end-user or operational impact. There is an acceptable workaround. | Escalation of a single user experience. Additional investigation requested from Support Functional questions and general product inquiries | 30 business days, or override to a mutually agreed upon timeframe |
*“Production issues” refer to the functionality of the Platform Services and do not include feature requests or service interruptions due to the unavailability of Utility Endpoint Data or other circumstances outside of Arcadia’s control such as (a) force majeure events, (b), downtime or unavailability of utility or Client data centers or websites, (c) actions of Client or a third party (other than Arcadia agents or contractors), or any suspension of Platform Services as permitted under an applicable agreement.
4.Unresolved & Resolved Support Issues.
A request for support is considered resolved if:
•Client indicates the issue is resolved;
•The source of the issue lies with a third party, in which case, Arcadia will work with the third party or Company (as appropriate on resolution).
•Client does not respond to a query or request from Arcadia after seven (7) consecutive days.
Data Processing Addendum
Effective October 1st 2024
DownloadTable of Contents
DATA PROCESSING ADDENDUM
(Last Updated: October 1, 2024)
This is a reference copy of the Arcadia Data Processing Addendum (DPA), which may be required for some Arcadia customers. To sign the DPA, please reach out to your Arcadia sales representative.
This Data Processing Addendum (“Addendum”) forms part of the agreement between Client (as defined below) and Arcadia (as defined below) for Services (as defined below) (collectively, the “Agreement”). This Addendum shall apply when Arcadia Processes Personal Data disclosed to it by Client. Upon mutual execution, this Addendum is incorporated into the Agreement. This Addendum applies where and only to the extent that Client acts as a business or the controller (as applicable) with respect to the processing of Personal Data, and in such event Client has appointed Arcadia to process Personal Data as a processor or service provider (as applicable) on its behalf in connection with the Services. This Addendum is intended to demonstrate the parties’ compliance with data protection laws that may be applicable to Arcadia’s delivery and Client’s receipt of Services (together “Data Protection Laws”).
1. Defined Terms. Any capitalized terms not defined herein shall have the meanings given in the Agreement. For purposes of this Addendum, words and phrases in this Addendum shall, to the greatest extent possible, have the meanings given to them in the applicable Data Protection Laws. In particular:
(a) “CCPA” means the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. as may be amended, superseded or replaced.
(b) “Controller” has the meaning given to it in the applicable Data Protection Laws.
(c) “Data Subject” means “Data Subject” as used by the EEA Data Protection Law or “Consumer” as used by other applicable laws.
(d) “EEA Data Protection Law" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” or "GDPR"), and laws implemented by EEA members, which contain derogations from, or exemptions or authorizations for the purposes of, the GDPR, or which are otherwise intended to supplement the GDPR or convert the GDPR into domestic law.
(e) “EU Standard Contractual Clauses” or “Clauses” means the standard contractual clauses, including Annexes I and II, for the transfer of personal data to third countries pursuant to the GDPR, with optional clauses applied (except for option 1 of Clause 9(a), the optional language in Clause 11(a), and option 2 of Clause 17), as officially published by the European Commission Implementing Decision 2021/914, dated 4 June 2021, and as updated or replaced by the European Commission from time to time.
(f) “Personal Data” has the meaning given to it in the applicable Data Protection Laws.
(g) “Process” or “Processing” has the meaning given to it in the applicable Data Protection Laws.
(h) “Processor” has the meaning given to it in the applicable Data Protection Laws.
(i) “Subprocessor” means any natural or legal person, public authority, agency or other body which processes personal data on behalf of a Processor (including any affiliate of the Processor).
(j) United Kingdom Standard Contractual Clauses (“UK SCCs”) means the EU SCCs and the UK International Data Transfer Addendum as officially published at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/ with the option of Exporter only for Table 4 and the Alternative Part 2 Mandatory Clauses.
2. Details of Processing. The context for the Processing of the Controller’s Personal Data by Arcadia is the performance of Arcadia’s obligations under the Agreement, and Arcadia will Process such Personal Data until the expiration or termination of the Agreement unless otherwise instructed in writing by Client. The types of Personal Data, the categories of Data Subjects and other details of the Processing activities are described in Annex I.
3. Subprocessors. Prior to any addition or replacement of engagement of any Subprocessors, Arcadia will update the Subprocessors list at https://arc-legal.arcadia.com/#third-party-subprocessors. Within thirty (30) days after Arcadia’s notification of the intended change, Client can object to any new Subprocessor by sending notice to privacy@arcadia.com on the basis that such addition would cause Client to violate applicable legal requirements. If Client objects to Arcadia’s use of any new Subprocessor by so giving written notice to Arcadia within thirty (30) days of being informed by Arcadia of the appointment of such new Subprocessor and Arcadia fails to provide a commercially reasonable alternative to avoid the Processing of Personal Data by such Subprocessor within thirty (30) days of Arcadia’s receipt of Client’s objection, Client may, as its sole and exclusive remedy, terminate any Services that cannot be provided by Arcadia without the use of the objected to new Subprocessor. If Client does not object within such period, the respective Subprocessor may be commissioned to Process Personal Data. Subprocessors are required to abide by the same level of data protection and security as Arcadia under this Addendum as applicable to their Processing of Personal Data and Arcadia will remain responsible to Client for any acts or omissions of any Subprocessor that cause Arcadia to breach any of Arcadia’s obligations under this Addendum. Arcadia will restrict the Subprocessors’ access to, and Processing of, Personal Data only to what is necessary to provide products or services to Client in accordance with the Agreement.
4. Processing Obligations. In accordance with Data Protection Laws:
(a) Arcadia shall only Process the Personal Data (i) as needed to provide the products or services to Client in accordance with the Agreement, (ii) in accordance with the specific instructions that it has received from Client, including with regard to any transfers, and (iii) as needed to comply with laws that Arcadia is subject to, and in such case, Arcadia will inform Client of that legal requirement before Processing unless the law prohibits such information on important grounds of public interest;
(b) Arcadia shall ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) Arcadia shall implement the measures set forth in Annex II and as set forth in the Agreement to ensure a level of security appropriate to the risks that are presented by Arcadia’s Processing of Personal Data, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
(d) Taking into account the nature of the Processing, Arcadia shall assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Controller’s obligation to respond to requests for exercising Data Subjects’ rights;
(e) Taking into account the nature of Processing and the information available to Arcadia, Arcadia shall assist Client with Client’s compliance with its obligations regarding personal data breaches, data protection impact assessments, security of processing, and prior consultation, each as and to the extent required by applicable Data Protection Laws;
(f) Upon Client’s written request, Arcadia shall either delete or return to Client all of the Personal Data in Arcadia’s possession after the end of the provision of products or services relating to Processing, unless otherwise required by applicable laws. In such cases, Arcadia will ensure that Client Personal Data is only Processed as necessary to comply with applicable laws;
(g) Upon Client’s written request, Arcadia shall provide Client with a confidential summary report of its external auditors to verify the adequacy of its security measures and other information necessary to demonstrate Arcadia’s compliance with this Addendum and, to the extent required by Data Protection Laws (and no more than once per year unless otherwise required by Data Protection Laws) allow for, and contribute to, audits, including inspections, conducted by Client or another auditor mandated by Client. Client agrees to treat such summary report and other information described in this subsection as Arcadia’s Confidential Information under the terms of the Agreement;
(h) Arcadia shall promptly inform Client if, in Arcadia’s opinion, an instruction by Client infringes Data Protection Laws; and
(i) Arcadia shall comply with all Data Protection Laws in respect of the Services applicable to Arcadia as Processor. Arcadia is not responsible for determining the requirements of laws or regulations applicable to Client’s business, or that a product or service meets the requirements of any such applicable laws or regulations. As between the parties, Client is responsible for the lawfulness of the Processing of the Client Personal Data and for taking appropriate steps in Client’s control to maintain appropriate security, protection and deletion of Client Personal Data. If Client is acting as a Processor, Client has obtained the authorisations required from the relevant Controller(s) and Client shall serve as the single point of contact for Arcadia. Client shall not use the Services in a manner that would violate applicable Data Protection Laws.
5. Transfers of Personal Data.
(a) Client acknowledges and agrees that Arcadia may transfer and process Personal Data in the United States and anywhere else in the world where Arcadia, its Affiliates or its Sub-processors maintain data processing operations. Arcadia and Client shall work together to ensure such transfers are made in compliance with the requirements of Applicable Data Protection Laws and this Addendum. To the extent Client’s use of the Services requires an onward transfer mechanism to lawfully transfer personal data from a jurisdiction (i.e. the European Economic Area, the United Kingdom or Switzerland) to a recipient in locations outside of that jurisdiction to a country not providing an adequate level of protection pursuant to the applicable Data Protection Laws (“Non-Adequate Country”), the parties shall cooperate to ensure compliance with the applicable Data Protection Laws on the terms set out in the following sections, which shall apply in such event:
(b) By entering into this Addendum, Client and Arcadia are entering into the EU Standard Contractual Clauses, including Annexes I and II, if Client, Arcadia, or both are located in a Non-Adequate Country. If the EU Standard Contractual Clauses are not required because both parties are located in a country considered adequate by the applicable Data Protection Laws, but during the Agreement the country where Client or Arcadia is located becomes a Non-Adequate Country, then the EU Standard Contractual Clauses will apply to Personal Data that is transferred to such Non-Adequate Country.
(c) The parties acknowledge that the applicable module of the EU Standard Contractual Clauses will be determined by their role as Controller and/or Processor under the circumstances of each case and are responsible for determining the correct role undertaken in order to fulfill the appropriate obligations under the applicable module. When Client is acting as a Controller, module 2 (Controller-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country, and when Client is acting as a Processor, module 3 (Processor-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country.
(d) With regards to (i) Clause 7 of the EU Standard Contractual Clauses, the optional docking clause will not apply; (ii) Clause 9 of the EU Standard Contractual Clauses, Option 2 will apply and the time period for prior notice of sub-processor changes will be as set forth in Section 3 (Subprocessing) of this Addendum; (iii) in Clause 11 of the EU Standard Contractual Clauses, the optional language will not apply; (iv) in Clause 13 of the EU Standard Contractual Clauses and as set forth in Annex I.C below, the competent supervisory authority with responsibility for ensuring compliance with the GDPR as regards the Personal Data transferred under the EU Standard Contractual Clauses shall be the Data Protection Commission of Ireland; (v) in Clause 17 of the EU Standard Contractual Clauses, the parties agree that the EU Standard Contractual Clauses shall be governed by the laws of Ireland. With regards to Clause 18(b) of the EU Standard Contractual Clauses, the parties agree that the courts of Dublin, Ireland, shall resolve any dispute. Annex I and Annex II of the EU Standard Contractual Clauses shall be completed with the information set out in Annex I and II to this DPA.
(e) 5.3 Regarding UK SCCs, if Arcadia is not established in an Adequate Country: Arcadia is hereby entering into UK SCCs as a Data Importer with Client and in so doing, Arcadia is hereby entering into the EU SCCs on the terms set out in Section 5© above subject to the amendments in the UK International Data Transfer Addendum.
6. Personal Data Breach. Arcadia will promptly investigate all allegations of unauthorized access to, or use or disclosure of the Personal Data. If Arcadia reasonably believes there has been a Personal Data breach, Arcadia will notify Client without undue delay and in any event within forty-eight (48) hours, and provide sufficient information to allow Client to report the personal data breach or notify Data Subjects as required by applicable Data Protection Laws.
7. Records. Arcadia shall maintain all records required by applicable Data Protection Laws, and (to the extent they are applicable to Arcadia’s activities for Client) Arcadia shall make them available to Client upon its written request.
8. Third Party Requests. If any government or regulatory authority requests access to Personal Data, unless prohibited by law, Arcadia will notify Client of such request to enable Client to take necessary actions to communicate directly with the relevant authority and respond to such request. If Arcadia is prohibited by law to notify Client of such request, it will use reasonable efforts to challenge the prohibition on notification and will provide the minimum amount of information permissible when responding, based on a reasonable interpretation of the request
9. California. To the extent the Personal Data is subject to the CCPA, the parties agree that Client is a business and that it appoints Arcadia as its service provider to process Personal Data as permitted under the Agreement (including this Addendum) and the CCPA, or for purposes otherwise agreed in writing (the "Permitted Purposes"). Client and Arcadia agree that: (a) Arcadia shall not retain, use or disclose personal information for any purpose other than the Permitted Purposes; (b) Personal Data was not sold to Arcadia and Arcadia shall not "sell" personal information (as defined by the CCPA); (c) Arcadia shall not retain, use or disclose personal information outside of the direct business relationship between Arcadia and Client.
10. Entire Agreement; Order of Precedence; No Conflict. Except as amended by this Addendum, the Agreement will remain in full force and effect. Client agrees that this Addendum, including any claims arising from them, are subject to the terms set forth in the Agreement, including the limitations of liability. If there is any conflict or inconsistency between the EU Standard Contractual Clauses, the Addendum and/or the remainder of the Agreement, then the following order of precedence will apply: the EU Standard Contractual Clauses (if applicable), the remainder of this Addendum and the remainder of the Agreement. Nothing in this Addendum is intended to modify or contradict the applicable terms in the Data Protection Laws or the EU Standard Contractual Clauses or prejudice the fundamental rights or freedoms of Data Subjects under Data Protection Laws.
ANNEX 1 TO EXHIBIT B, DATA PROCESSING ADDENDUM
A. List of Parties
1. Data Exporter(s)
Name: The data exporter is Client.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement or as otherwise notified in writing to Arcadia by Client.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Client is entering into these Clauses and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Client is Controller or Processor or both. The role of Client as Controller, Processor, or both is determined by the circumstances of each case and Client is responsible for determining the correct role undertaken in order to fulfil the appropriate obligations under the applicable module.
2. Data Importer(s)
Name: The data importer is Arcadia acting as a Processor or Subprocessor, as applicable, if located in a Non-Adequate Country.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Arcadia is entering into these Clauses in such cases where Arcadia is located in a Non-Adequate Country and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Arcadia as Processor.
B. Description of Transfer
1. Categories of Data Subjects whose Personal Data is transferred
Data exporter may submit Personal Data to data importer the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
- Employees of data exporter
- Data exporter’s users authorized by data exporter to use the Services
- Employees or contact persons of data exporter’s customers, business partners and vendors
2. Categories of Personal Data transferred
Data exporter may submit Personal Data to Processor the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
- First and last name
- Employment information (such as title, position, employer)
- Contact information (such as email, phone, physical address)
- IP address, online identifier or other ID data
Utility credential and endpoint data - Personal Data that might be included in utility endpoint data is generally limited to service addresses along with other non-Personal Data such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
3. Special or sensitive categories of Personal Data transferred
None
4. Frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Personal Data is transferred in accordance with Client’s instructions and at Client’s determination, but it is generally on a continuous basis.
5. Nature of the Processing
The Personal Data transferred may be subject to the following Processing activities: collecting, monitoring, supporting, operations, storing, hosting, backup, development and the other services as set forth in the Agreement.
6. Purposes(s) of the data transfer and further processing
The transfer and Processing of Personal Data is made for the following purposes: To provide the Services and support as set forth in the Agreement.
7. Duration of Processing
The Processing of Personal Data will occur until the expiration or termination of the Agreement unless otherwise instructed in writing by the Client.
8. Transfers to Subprocessors
The subject matter, nature and duration of Processing are as set forth in the above sections.
C. Competent Supervisory Authority
The competent supervisory authority for Arcadia is the Data Protection Commission of Ireland in accordance with Clause 13 of the EU Standard Contractual Clauses.
D. Arcadia Privacy Contact
The Arcadia privacy contact can be contacted at privacy@arcadia.com.
ANNEX 2 TO APPENDIX B, DATA PROCESSING ADDENDUM
Technical and Organizational Security Measures
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user account is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via a ticketing system. The change request contains, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Effective July 6th 2023 to October 1st 2024
DownloadTable of Contents
DATA PROCESSING ADDENDUM
(Last Updated: July 6, 2023)
This is a reference copy of the Arcadia Data Processing Addendum (DPA), which may be required for some Arcadia customers. To sign the DPA, please reach out to your Arcadia sales representative.
This Data Processing Addendum (“Addendum”) forms part of the agreement between Client (as defined below) and Arcadia (as defined below) for Services (as defined below) (collectively, the “Agreement”). This Addendum shall apply when Arcadia Processes Personal Data disclosed to it by Client. Upon mutual execution, this Addendum is incorporated into the Agreement. This Addendum applies where and only to the extent that Client acts as a business or the controller (as applicable) with respect to the processing of Personal Data, and in such event Client has appointed Arcadia to process Personal Data as a processor or service provider (as applicable) on its behalf in connection with the Services. This Addendum is intended to demonstrate the parties’ compliance with data protection laws that may be applicable to Arcadia’s delivery and Client’s receipt of Services (together “Data Protection Laws”).
1. Defined Terms. Any capitalized terms not defined herein shall have the meanings given in the Agreement. For purposes of this Addendum, words and phrases in this Addendum shall, to the greatest extent possible, have the meanings given to them in the applicable Data Protection Laws. In particular:
(a) “CCPA” means the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. as may be amended, superseded or replaced.
(b) “Controller” has the meaning given to it in the applicable Data Protection Laws.
(c) “Data Subject” means “Data Subject” as used by the EEA Data Protection Law or “Consumer” as used by other applicable laws.
(d) “EEA Data Protection Law" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” or "GDPR"), and laws implemented by EEA members, which contain derogations from, or exemptions or authorizations for the purposes of, the GDPR, or which are otherwise intended to supplement the GDPR or convert the GDPR into domestic law.
(e) “EU Standard Contractual Clauses” or “Clauses” means the standard contractual clauses, including Annexes I and II, for the transfer of personal data to third countries pursuant to the GDPR, with optional clauses applied (except for option 1 of Clause 9(a), the optional language in Clause 11(a), and option 2 of Clause 17), as officially published by the European Commission Implementing Decision 2021/914, dated 4 June 2021, and as updated or replaced by the European Commission from time to time.
(f) “Personal Data” has the meaning given to it in the applicable Data Protection Laws.
(g) “Process” or “Processing” has the meaning given to it in the applicable Data Protection Laws.
(h) “Processor” has the meaning given to it in the applicable Data Protection Laws.
(i) “Subprocessor” means any natural or legal person, public authority, agency or other body which processes personal data on behalf of a Processor (including any affiliate of the Processor).
(j) United Kingdom Standard Contractual Clauses (“UK SCCs”) means the EU SCCs and the UK International Data Transfer Addendum as officially published at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/ with the option of Exporter only for Table 4 and the Alternative Part 2 Mandatory Clauses.
2. Details of Processing. The context for the Processing of the Controller’s Personal Data by Arcadia is the performance of Arcadia’s obligations under the Agreement, and Arcadia will Process such Personal Data until the expiration or termination of the Agreement unless otherwise instructed in writing by Client. The types of Personal Data, the categories of Data Subjects and other details of the Processing activities are described in Annex I.
3. Subprocessors. Prior to any addition or replacement of engagement of any Subprocessors, Arcadia will update the Subprocessors list at https://arc-legal.arcadia.com/#third-party-subprocessors. Within thirty (30) days after Arcadia’s notification of the intended change, Client can object to any new Subprocessor by sending notice to privacy@arcadia.com on the basis that such addition would cause Client to violate applicable legal requirements. If Client objects to Arcadia’s use of any new Subprocessor by so giving written notice to Arcadia within thirty (30) days of being informed by Arcadia of the appointment of such new Subprocessor and Arcadia fails to provide a commercially reasonable alternative to avoid the Processing of Personal Data by such Subprocessor within thirty (30) days of Arcadia’s receipt of Client’s objection, Client may, as its sole and exclusive remedy, terminate any Services that cannot be provided by Arcadia without the use of the objected to new Subprocessor. If Client does not object within such period, the respective Subprocessor may be commissioned to Process Personal Data. Subprocessors are required to abide by the same level of data protection and security as Arcadia under this Addendum as applicable to their Processing of Personal Data and Arcadia will remain responsible to Client for any acts or omissions of any Subprocessor that cause Arcadia to breach any of Arcadia’s obligations under this Addendum. Arcadia will restrict the Subprocessors’ access to, and Processing of, Personal Data only to what is necessary to provide products or services to Client in accordance with the Agreement.
4. Processing Obligations. In accordance with Data Protection Laws:
(a) Arcadia shall only Process the Personal Data (i) as needed to provide the products or services to Client in accordance with the Agreement, (ii) in accordance with the specific instructions that it has received from Client, including with regard to any transfers, and (iii) as needed to comply with laws that Arcadia is subject to, and in such case, Arcadia will inform Client of that legal requirement before Processing unless the law prohibits such information on important grounds of public interest;
(b) Arcadia shall ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) Arcadia shall implement the measures set forth in Annex II and as set forth in the Agreement to ensure a level of security appropriate to the risks that are presented by Arcadia’s Processing of Personal Data, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
(d) Taking into account the nature of the Processing, Arcadia shall assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Controller’s obligation to respond to requests for exercising Data Subjects’ rights;
(e) Taking into account the nature of Processing and the information available to Arcadia, Arcadia shall assist Client with Client’s compliance with its obligations regarding personal data breaches, data protection impact assessments, security of processing, and prior consultation, each as and to the extent required by applicable Data Protection Laws;
(f) Upon Client’s written request, Arcadia shall either delete or return to Client all of the Personal Data in Arcadia’s possession after the end of the provision of products or services relating to Processing, unless otherwise required by applicable laws. In such cases, Arcadia will ensure that Client Personal Data is only Processed as necessary to comply with applicable laws;
(g) Upon Client’s written request, Arcadia shall provide Client with a confidential summary report of its external auditors to verify the adequacy of its security measures and other information necessary to demonstrate Arcadia’s compliance with this Addendum and, to the extent required by Data Protection Laws (and no more than once per year unless otherwise required by Data Protection Laws) allow for, and contribute to, audits, including inspections, conducted by Client or another auditor mandated by Client. Client agrees to treat such summary report and other information described in this subsection as Arcadia’s Confidential Information under the terms of the Agreement;
(h) Arcadia shall promptly inform Client if, in Arcadia’s opinion, an instruction by Client infringes Data Protection Laws; and
(i) Arcadia shall comply with all Data Protection Laws in respect of the Services applicable to Arcadia as Processor. Arcadia is not responsible for determining the requirements of laws or regulations applicable to Client’s business, or that a product or service meets the requirements of any such applicable laws or regulations. As between the parties, Client is responsible for the lawfulness of the Processing of the Client Personal Data and for taking appropriate steps in Client’s control to maintain appropriate security, protection and deletion of Client Personal Data. If Client is acting as a Processor, Client has obtained the authorisations required from the relevant Controller(s) and Client shall serve as the single point of contact for Arcadia. Client shall not use the Services in a manner that would violate applicable Data Protection Laws.
5. Transfers of Personal Data.
(a) Client acknowledges and agrees that Arcadia may transfer and process Personal Data in the United States and anywhere else in the world where Arcadia, its Affiliates or its Sub-processors maintain data processing operations. Arcadia and Client shall work together to ensure such transfers are made in compliance with the requirements of Applicable Data Protection Laws and this Addendum. To the extent Client’s use of the Services requires an onward transfer mechanism to lawfully transfer personal data from a jurisdiction (i.e. the European Economic Area, the United Kingdom or Switzerland) to a recipient in locations outside of that jurisdiction to a country not providing an adequate level of protection pursuant to the applicable Data Protection Laws (“Non-Adequate Country”), the parties shall cooperate to ensure compliance with the applicable Data Protection Laws on the terms set out in the following sections, which shall apply in such event:
(b) By entering into this Addendum, Client and Arcadia are entering into the EU Standard Contractual Clauses, including Annexes I and II, if Client, Arcadia, or both are located in a Non-Adequate Country. If the EU Standard Contractual Clauses are not required because both parties are located in a country considered adequate by the applicable Data Protection Laws, but during the Agreement the country where Client or Arcadia is located becomes a Non-Adequate Country, then the EU Standard Contractual Clauses will apply to Personal Data that is transferred to such Non-Adequate Country.
(c) The parties acknowledge that the applicable module of the EU Standard Contractual Clauses will be determined by their role as Controller and/or Processor under the circumstances of each case and are responsible for determining the correct role undertaken in order to fulfill the appropriate obligations under the applicable module. When Client is acting as a Controller, module 2 (Controller-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country, and when Client is acting as a Processor, module 3 (Processor-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country.
(d) With regards to (i) Clause 7 of the EU Standard Contractual Clauses, the optional docking clause will not apply; (ii) Clause 9 of the EU Standard Contractual Clauses, Option 2 will apply and the time period for prior notice of sub-processor changes will be as set forth in Section 3 (Subprocessing) of this Addendum; (iii) in Clause 11 of the EU Standard Contractual Clauses, the optional language will not apply; (iv) in Clause 13 of the EU Standard Contractual Clauses and as set forth in Annex I.C below, the competent supervisory authority with responsibility for ensuring compliance with the GDPR as regards the Personal Data transferred under the EU Standard Contractual Clauses shall be the Data Protection Commission of Ireland; (v) in Clause 17 of the EU Standard Contractual Clauses, the parties agree that the EU Standard Contractual Clauses shall be governed by the laws of Ireland. With regards to Clause 18(b) of the EU Standard Contractual Clauses, the parties agree that the courts of Dublin, Ireland, shall resolve any dispute. Annex I and Annex II of the EU Standard Contractual Clauses shall be completed with the information set out in Annex I and II to this DPA.
(e) 5.3 Regarding UK SCCs, if Arcadia is not established in an Adequate Country: Arcadia is hereby entering into UK SCCs as a Data Importer with Client and in so doing, Arcadia is hereby entering into the EU SCCs on the terms set out in Section 5© above subject to the amendments in the UK International Data Transfer Addendum.
6. Personal Data Breach. Arcadia will promptly investigate all allegations of unauthorized access to, or use or disclosure of the Personal Data. If Arcadia reasonably believes there has been a Personal Data breach, Arcadia will notify Client without undue delay and in any event within forty-eight (48) hours, and provide sufficient information to allow Client to report the personal data breach or notify Data Subjects as required by applicable Data Protection Laws.
7. Records. Arcadia shall maintain all records required by applicable Data Protection Laws, and (to the extent they are applicable to Arcadia’s activities for Client) Arcadia shall make them available to Client upon its written request.
8. Third Party Requests. If any government or regulatory authority requests access to Personal Data, unless prohibited by law, Arcadia will notify Client of such request to enable Client to take necessary actions to communicate directly with the relevant authority and respond to such request. If Arcadia is prohibited by law to notify Client of such request, it will use reasonable efforts to challenge the prohibition on notification and will provide the minimum amount of information permissible when responding, based on a reasonable interpretation of the request
9. California. To the extent the Personal Data is subject to the CCPA, the parties agree that Client is a business and that it appoints Arcadia as its service provider to process Personal Data as permitted under the Agreement (including this Addendum) and the CCPA, or for purposes otherwise agreed in writing (the "Permitted Purposes"). Client and Arcadia agree that: (a) Arcadia shall not retain, use or disclose personal information for any purpose other than the Permitted Purposes; (b) Personal Data was not sold to Arcadia and Arcadia shall not "sell" personal information (as defined by the CCPA); (c) Arcadia shall not retain, use or disclose personal information outside of the direct business relationship between Arcadia and Client.
10. Entire Agreement; Order of Precedence; No Conflict. Except as amended by this Addendum, the Agreement will remain in full force and effect. Client agrees that this Addendum, including any claims arising from them, are subject to the terms set forth in the Agreement, including the limitations of liability. If there is any conflict or inconsistency between the EU Standard Contractual Clauses, the Addendum and/or the remainder of the Agreement, then the following order of precedence will apply: the EU Standard Contractual Clauses (if applicable), the remainder of this Addendum and the remainder of the Agreement. Nothing in this Addendum is intended to modify or contradict the applicable terms in the Data Protection Laws or the EU Standard Contractual Clauses or prejudice the fundamental rights or freedoms of Data Subjects under Data Protection Laws.
ANNEX 1 TO EXHIBIT B, DATA PROCESSING ADDENDUM
A. List of Parties
1. Data Exporter(s)
Name: The data exporter is Client.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement or as otherwise notified in writing to Arcadia by Client.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Client is entering into these Clauses and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Client is Controller or Processor or both. The role of Client as Controller, Processor, or both is determined by the circumstances of each case and Client is responsible for determining the correct role undertaken in order to fulfil the appropriate obligations under the applicable module.
2. Data Importer(s)
Name: The data importer is Arcadia acting as a Processor or Subprocessor, as applicable, if located in a Non-Adequate Country.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Arcadia is entering into these Clauses in such cases where Arcadia is located in a Non-Adequate Country and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Arcadia as Processor.
B. Description of Transfer
1. Categories of Data Subjects whose Personal Data is transferred
Data exporter may submit Personal Data to data importer the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
- Employees of data exporter
- Data exporter’s users authorized by data exporter to use the Services
- Employees or contact persons of data exporter’s customers, business partners and vendors
2. Categories of Personal Data transferred
Data exporter may submit Personal Data to Processor the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
- First and last name
- Employment information (such as title, position, employer)
- Contact information (such as email, phone, physical address)
- IP address, online identifier or other ID data
Utility credential and endpoint data - Personal Data that might be included in utility endpoint data is generally limited to service addresses along with other non-Personal Data such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
3. Special or sensitive categories of Personal Data transferred
None
4. Frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Personal Data is transferred in accordance with Client’s instructions and at Client’s determination, but it is generally on a continuous basis.
5. Nature of the Processing
The Personal Data transferred may be subject to the following Processing activities: collecting, monitoring, supporting, operations, storing, hosting, backup, development and the other services as set forth in the Agreement.
6. Purposes(s) of the data transfer and further processing
The transfer and Processing of Personal Data is made for the following purposes: To provide the Services and support as set forth in the Agreement.
7. Duration of Processing
The Processing of Personal Data will occur until the expiration or termination of the Agreement unless otherwise instructed in writing by the Client.
8. Transfers to Subprocessors
The subject matter, nature and duration of Processing are as set forth in the above sections.
C. Competent Supervisory Authority
The competent supervisory authority for Arcadia is the Data Protection Commission of Ireland in accordance with Clause 13 of the EU Standard Contractual Clauses.
D. Arcadia Privacy Contact
The Arcadia privacy contact can be contacted at privacy@arcadia.com.
ANNEX 2 TO APPENDIX B, DATA PROCESSING ADDENDUM
Technical and Organizational Security Measures
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user account is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via a ticketing system. The change request contains, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
DATA PROCESSING ADDENDUM
(Last Updated: May 30, 2023)
This is a reference copy of the Arcadia Data Processing Addendum (DPA), which may be required for some Arcadia customers. To sign the DPA, please reach out to your Arcadia sales representative.
This Data Processing Addendum (“Addendum”) forms part of the agreement between Client (as defined below) and Arcadia (as defined below) for Services (as defined below) (collectively, the “Agreement”). This Addendum shall apply when Arcadia Processes Personal Data disclosed to it by Client. Upon mutual execution, this Addendum is incorporated into the Agreement. This Addendum applies where and only to the extent that Client acts as a business or the controller (as applicable) with respect to the processing of Personal Data, and in such event Client has appointed Arcadia to process Personal Data as a processor or service provider (as applicable) on its behalf in connection with the Services. This Addendum is intended to demonstrate the parties’ compliance with data protection laws that may be applicable to Arcadia’s delivery and Client’s receipt of Services (together “Data Protection Laws”).
1. Defined Terms. Any capitalized terms not defined herein shall have the meanings given in the Agreement. For purposes of this Addendum, words and phrases in this Addendum shall, to the greatest extent possible, have the meanings given to them in the applicable Data Protection Laws. In particular:
(a) “CCPA” means the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 et seq. as may be amended, superseded or replaced.
(b) “Controller” has the meaning given to it in the applicable Data Protection Laws.
(c) “Data Subject” means “Data Subject” as used by the EEA Data Protection Law or “Consumer” as used by other applicable laws.
(d) “EEA Data Protection Law" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” or "GDPR"), and laws implemented by EEA members, which contain derogations from, or exemptions or authorizations for the purposes of, the GDPR, or which are otherwise intended to supplement the GDPR or convert the GDPR into domestic law.
(e) “EU Standard Contractual Clauses” or “Clauses” means the standard contractual clauses, including Annexes I and II, for the transfer of personal data to third countries pursuant to the GDPR, with optional clauses applied (except for option 1 of Clause 9(a), the optional language in Clause 11(a), and option 2 of Clause 17), as officially published by the European Commission Implementing Decision 2021/914, dated 4 June 2021, and as updated or replaced by the European Commission from time to time.
(f) “Personal Data” has the meaning given to it in the applicable Data Protection Laws.
(g) “Process” or “Processing” has the meaning given to it in the applicable Data Protection Laws.
(h) “Processor” has the meaning given to it in the applicable Data Protection Laws.
(i) “Subprocessor” means any natural or legal person, public authority, agency or other body which processes personal data on behalf of a Processor (including any affiliate of the Processor).
(j) United Kingdom Standard Contractual Clauses (“UK SCCs”) means the EU SCCs and the UK International Data Transfer Addendum as officially published at https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/international-data-transfer-agreement-and-guidance/ with the option of Exporter only for Table 4 and the Alternative Part 2 Mandatory Clauses.
2. Details of Processing. The context for the Processing of the Controller’s Personal Data by Arcadia is the performance of Arcadia’s obligations under the Agreement, and Arcadia will Process such Personal Data until the expiration or termination of the Agreement unless otherwise instructed in writing by Client. The types of Personal Data, the categories of Data Subjects and other details of the Processing activities are described in Annex I.
3. Subprocessors. Prior to any addition or replacement of engagement of any Subprocessors, Arcadia will update the Subprocessors list at https://vault.pactsafe.io/s/db63018b-ec5f-4792-8bc4-46f3950b6724/legal.html#third-party-subprocessors. Within thirty (30) days after Arcadia’s notification of the intended change, Client can object to any new Subprocessor by sending notice to privacy@arcadia.com on the basis that such addition would cause Client to violate applicable legal requirements. If Client objects to Arcadia’s use of any new Subprocessor by so giving written notice to Arcadia within thirty (30) days of being informed by Arcadia of the appointment of such new Subprocessor and Arcadia fails to provide a commercially reasonable alternative to avoid the Processing of Personal Data by such Subprocessor within thirty (30) days of Arcadia’s receipt of Client’s objection, Client may, as its sole and exclusive remedy, terminate any Services that cannot be provided by Arcadia without the use of the objected to new Subprocessor. If Client does not object within such period, the respective Subprocessor may be commissioned to Process Personal Data. Subprocessors are required to abide by the same level of data protection and security as Arcadia under this Addendum as applicable to their Processing of Personal Data and Arcadia will remain responsible to Client for any acts or omissions of any Subprocessor that cause Arcadia to breach any of Arcadia’s obligations under this Addendum. Arcadia will restrict the Subprocessors’ access to, and Processing of, Personal Data only to what is necessary to provide products or services to Client in accordance with the Agreement.
4. Processing Obligations. In accordance with Data Protection Laws:
(a) Arcadia shall only Process the Personal Data (i) as needed to provide the products or services to Client in accordance with the Agreement, (ii) in accordance with the specific instructions that it has received from Client, including with regard to any transfers, and (iii) as needed to comply with laws that Arcadia is subject to, and in such case, Arcadia will inform Client of that legal requirement before Processing unless the law prohibits such information on important grounds of public interest;
(b) Arcadia shall ensure that persons authorized to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) Arcadia shall implement the measures set forth in Annex II and as set forth in the Agreement to ensure a level of security appropriate to the risks that are presented by Arcadia’s Processing of Personal Data, taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
(d) Taking into account the nature of the Processing, Arcadia shall assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Controller’s obligation to respond to requests for exercising Data Subjects’ rights;
(e) Taking into account the nature of Processing and the information available to Arcadia, Arcadia shall assist Client with Client’s compliance with its obligations regarding personal data breaches, data protection impact assessments, security of processing, and prior consultation, each as and to the extent required by applicable Data Protection Laws;
(f) Upon Client’s written request, Arcadia shall either delete or return to Client all of the Personal Data in Arcadia’s possession after the end of the provision of products or services relating to Processing, unless otherwise required by applicable laws. In such cases, Arcadia will ensure that Client Personal Data is only Processed as necessary to comply with applicable laws;
(g) Upon Client’s written request, Arcadia shall provide Client with a confidential summary report of its external auditors to verify the adequacy of its security measures and other information necessary to demonstrate Arcadia’s compliance with this Addendum and, to the extent required by Data Protection Laws (and no more than once per year unless otherwise required by Data Protection Laws) allow for, and contribute to, audits, including inspections, conducted by Client or another auditor mandated by Client. Client agrees to treat such summary report and other information described in this subsection as Arcadia’s Confidential Information under the terms of the Agreement;
(h) Arcadia shall promptly inform Client if, in Arcadia’s opinion, an instruction by Client infringes Data Protection Laws; and
(i) Arcadia shall comply with all Data Protection Laws in respect of the Services applicable to Arcadia as Processor. Arcadia is not responsible for determining the requirements of laws or regulations applicable to Client’s business, or that a product or service meets the requirements of any such applicable laws or regulations. As between the parties, Client is responsible for the lawfulness of the Processing of the Client Personal Data and for taking appropriate steps in Client’s control to maintain appropriate security, protection and deletion of Client Personal Data. If Client is acting as a Processor, Client has obtained the authorisations required from the relevant Controller(s) and Client shall serve as the single point of contact for Arcadia. Client shall not use the Services in a manner that would violate applicable Data Protection Laws.
5. Transfers of Personal Data.
(a) Client acknowledges and agrees that Arcadia may transfer and process Personal Data in the United States and anywhere else in the world where Arcadia, its Affiliates or its Sub-processors maintain data processing operations. Arcadia and Client shall work together to ensure such transfers are made in compliance with the requirements of Applicable Data Protection Laws and this Addendum. To the extent Client’s use of the Services requires an onward transfer mechanism to lawfully transfer personal data from a jurisdiction (i.e. the European Economic Area, the United Kingdom or Switzerland) to a recipient in locations outside of that jurisdiction to a country not providing an adequate level of protection pursuant to the applicable Data Protection Laws (“Non-Adequate Country”), the parties shall cooperate to ensure compliance with the applicable Data Protection Laws on the terms set out in the following sections, which shall apply in such event:
(b) By entering into this Addendum, Client and Arcadia are entering into the EU Standard Contractual Clauses, including Annexes I and II, if Client, Arcadia, or both are located in a Non-Adequate Country. If the EU Standard Contractual Clauses are not required because both parties are located in a country considered adequate by the applicable Data Protection Laws, but during the Agreement the country where Client or Arcadia is located becomes a Non-Adequate Country, then the EU Standard Contractual Clauses will apply to Personal Data that is transferred to such Non-Adequate Country.
(c) The parties acknowledge that the applicable module of the EU Standard Contractual Clauses will be determined by their role as Controller and/or Processor under the circumstances of each case and are responsible for determining the correct role undertaken in order to fulfill the appropriate obligations under the applicable module. When Client is acting as a Controller, module 2 (Controller-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country, and when Client is acting as a Processor, module 3 (Processor-to-Processor) of the EU Standard Contractual Clauses will apply to the Personal Data transferred to any Non-Adequate Country.
(d) With regards to (i) Clause 7 of the EU Standard Contractual Clauses, the optional docking clause will not apply; (ii) Clause 9 of the EU Standard Contractual Clauses, Option 2 will apply and the time period for prior notice of sub-processor changes will be as set forth in Section 3 (Subprocessing) of this Addendum; (iii) in Clause 11 of the EU Standard Contractual Clauses, the optional language will not apply; (iv) in Clause 13 of the EU Standard Contractual Clauses and as set forth in Annex I.C below, the competent supervisory authority with responsibility for ensuring compliance with the GDPR as regards the Personal Data transferred under the EU Standard Contractual Clauses shall be the Data Protection Commission of Ireland; (v) in Clause 17 of the EU Standard Contractual Clauses, the parties agree that the EU Standard Contractual Clauses shall be governed by the laws of Ireland. With regards to Clause 18(b) of the EU Standard Contractual Clauses, the parties agree that the courts of Dublin, Ireland, shall resolve any dispute. Annex I and Annex II of the EU Standard Contractual Clauses shall be completed with the information set out in Annex I and II to this DPA.
(e) 5.3 Regarding UK SCCs, if Arcadia is not established in an Adequate Country: Arcadia is hereby entering into UK SCCs as a Data Importer with Client and in so doing, Arcadia is hereby entering into the EU SCCs on the terms set out in Section 5© above subject to the amendments in the UK International Data Transfer Addendum.
6. Personal Data Breach. Arcadia will promptly investigate all allegations of unauthorized access to, or use or disclosure of the Personal Data. If Arcadia reasonably believes there has been a Personal Data breach, Arcadia will notify Client without undue delay and in any event within forty-eight (48) hours, and provide sufficient information to allow Client to report the personal data breach or notify Data Subjects as required by applicable Data Protection Laws.
7. Records. Arcadia shall maintain all records required by applicable Data Protection Laws, and (to the extent they are applicable to Arcadia’s activities for Client) Arcadia shall make them available to Client upon its written request.
8. Third Party Requests. If any government or regulatory authority requests access to Personal Data, unless prohibited by law, Arcadia will notify Client of such request to enable Client to take necessary actions to communicate directly with the relevant authority and respond to such request. If Arcadia is prohibited by law to notify Client of such request, it will use reasonable efforts to challenge the prohibition on notification and will provide the minimum amount of information permissible when responding, based on a reasonable interpretation of the request
9. California. To the extent the Personal Data is subject to the CCPA, the parties agree that Client is a business and that it appoints Arcadia as its service provider to process Personal Data as permitted under the Agreement (including this Addendum) and the CCPA, or for purposes otherwise agreed in writing (the "Permitted Purposes"). Client and Arcadia agree that: (a) Arcadia shall not retain, use or disclose personal information for any purpose other than the Permitted Purposes; (b) Personal Data was not sold to Arcadia and Arcadia shall not "sell" personal information (as defined by the CCPA); (c) Arcadia shall not retain, use or disclose personal information outside of the direct business relationship between Arcadia and Client.
10. Entire Agreement; Order of Precedence; No Conflict. Except as amended by this Addendum, the Agreement will remain in full force and effect. Client agrees that this Addendum, including any claims arising from them, are subject to the terms set forth in the Agreement, including the limitations of liability. If there is any conflict or inconsistency between the EU Standard Contractual Clauses, the Addendum and/or the remainder of the Agreement, then the following order of precedence will apply: the EU Standard Contractual Clauses (if applicable), the remainder of this Addendum and the remainder of the Agreement. Nothing in this Addendum is intended to modify or contradict the applicable terms in the Data Protection Laws or the EU Standard Contractual Clauses or prejudice the fundamental rights or freedoms of Data Subjects under Data Protection Laws.
ANNEX 1 TO EXHIBIT B, DATA PROCESSING ADDENDUM
A. List of Parties
1. Data Exporter(s)
Name: The data exporter is Client.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement or as otherwise notified in writing to Arcadia by Client.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Client is entering into these Clauses and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Client is Controller or Processor or both. The role of Client as Controller, Processor, or both is determined by the circumstances of each case and Client is responsible for determining the correct role undertaken in order to fulfil the appropriate obligations under the applicable module.
2. Data Importer(s)
Name: The data importer is Arcadia acting as a Processor or Subprocessor, as applicable, if located in a Non-Adequate Country.
Address: As set out in the Agreement.
Contact person’s name, position and contact details: As set out in the Agreement.
Activities relevant to the data transferred under these Clauses: As set out in the Agreement.
Signature and date: By entering into the Agreement, Arcadia is entering into these Clauses in such cases where Arcadia is located in a Non-Adequate Country and deemed to have signed this Annex I on the effective date of the Agreement.
Role (controller/processor): Arcadia as Processor.
B. Description of Transfer
1. Categories of Data Subjects whose Personal Data is transferred
Data exporter may submit Personal Data to data importer the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:
- Employees of data exporter
- Data exporter’s users authorized by data exporter to use the Services
- Employees or contact persons of data exporter’s customers, business partners and vendors
2. Categories of Personal Data transferred
Data exporter may submit Personal Data to Processor the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:
- First and last name
- Employment information (such as title, position, employer)
- Contact information (such as email, phone, physical address)
- IP address, online identifier or other ID data
Utility credential and endpoint data - Personal Data that might be included in utility endpoint data is generally limited to service addresses along with other non-Personal Data such as utility financial and operational data, services areas, baseline areas (territories), services offered, tariff rate plans, incentives, and rebates, definitions of seasons, calendars and times of use; definitions of billing demand formulas and other quantities; typical usage and cost profiles; and typical building usage and cost.
3. Special or sensitive categories of Personal Data transferred
None
4. Frequency of the transfer (e.g., whether the data is transferred on a one-off or continuous basis)
Personal Data is transferred in accordance with Client’s instructions and at Client’s determination, but it is generally on a continuous basis.
5. Nature of the Processing
The Personal Data transferred may be subject to the following Processing activities: collecting, monitoring, supporting, operations, storing, hosting, backup, development and the other services as set forth in the Agreement.
6. Purposes(s) of the data transfer and further processing
The transfer and Processing of Personal Data is made for the following purposes: To provide the Services and support as set forth in the Agreement.
7. Duration of Processing
The Processing of Personal Data will occur until the expiration or termination of the Agreement unless otherwise instructed in writing by the Client.
8. Transfers to Subprocessors
The subject matter, nature and duration of Processing are as set forth in the above sections.
C. Competent Supervisory Authority
The competent supervisory authority for Arcadia is the Data Protection Commission of Ireland in accordance with Clause 13 of the EU Standard Contractual Clauses.
D. Arcadia Privacy Contact
The Arcadia privacy contact can be contacted at privacy@arcadia.com.
ANNEX 2 TO APPENDIX B, DATA PROCESSING ADDENDUM
Technical and Organizational Security Measures
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user account is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via a ticketing system. The change request contains, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Technical and Organizational Security Measures
Effective October 1st 2024
DownloadTable of Contents
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user accounts is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via ticketing system. The change request should contain, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Effective July 6th 2023 to October 1st 2024
DownloadTable of Contents
TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES
(Last Updated: July 6, 2023)
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user accounts is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via ticketing system. The change request should contain, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES
(Last Updated: May 15, 2023)
- Security. Arcadia shall, during the term of the Agreement, comply in all material respects with the following technical and organizational security measures applicable to the Services:
- General.
- All Arcadia applications that are accessible from the Internet or process personal data are approved prior to launch or implementation by Arcadia’s information security.
- Physical Security.
- The equipment hosting the Arcadia Offerings is located in a physically secure facility, which requires badge access at a minimum.
- Physical access to infrastructure housing the Arcadia Offerings is restricted and access allowed based on a need-to-know basis.
- Electronic media (online or offline) and confidential hard copy material is appropriately protected from theft or loss.
- Authentication.
- All access to Arcadia systems is controlled by an authentication method involving a minimum of a unique user ID/complex password combination
- Privileged users and administrators use strong authentication.
- Passwords are never stored in clear text.
- Passwords are complex and not easy to guess or crack. Effectiveness of authentication is tested on a regular basis to verify that unauthorized authentication is not easily permitted.
- Remote network access is secured by two-factor authentication.
- All activity performed under a User ID is the responsibility of the individual assigned to that user ID. Users do not share their User ID/password with others or allow other employees to use their User ID/password to perform actions.
- Use of generic user accounts is not permitted.
- Authorization.
- Logical or network access to infrastructure housing the Services is restricted and access allowed based on a need-to-know basis.
- Access requests are documented and approved based on a business need utilizing the principle of least privilege.
- Access rights are reviewed on a periodic basis.
- Upon termination or resignation of personnel, access is revoked in a timely manner.
- Change Management. Change requests are documented via ticketing system. The change request should contain, at a minimum, the following information.
- Business justification for the change
- Nature of defect (if applicable)/enhancement
- Testing required
- Back-out procedures
- Systems affected
- User contact
- The process to review and approve change requests must be documented. The process must include management approval.
- Network Security.
- Industry standard firewalls are implemented to protect the application environment and associated data from the Internet and untrusted networks.
- Inbound and outbound connections are denied unless expressly allowed.
- Firewall events are monitored in order to detect potential security events.
- Network Intrusion Detection or Prevention Systems (NIDS/NIPS) are implemented to monitor traffic for applications handling confidential information.
- Effectiveness of controls are tested on a periodic basis.
- Logging and Monitoring. Security relevant events, including, but not limited to, login failures, use of privileged accounts, changes to access models or file permissions, modification to installed software, or the operating system, changes to user permissions, or privileges or use of any privileged system function, are logged on all systems.
- System Security.
- Systems are securely configured according to a security baseline. This baseline includes removing unnecessary services and changing default, vendor-supplied or otherwise weak user accounts and passwords.
- System components maintain current security patch levels.
- Web servers are hardened according to a secure baseline.
- Web servers are configured to accept requests for only authorized and published directories. Default sites, executable or directory listings are disabled.
- An inventory of technology used to store or process Client data is maintained.
- Security Awareness. Arcadia will design and maintain a Security Awareness program that will train employees upon hire and annually afterwards maintain regular touchpoints with employees on emerging threats.
- Device and Media Control.
- Arcadia will maintain a device management platform ensuring endpoint controls (e.g. antivirus/antimalware, disk encryption, patching) are applied uniformly to user endpoints.
- Arcadia will encrypt Client data utilizing at minimum TLS 1.2 in transit and AES-256 at rest.
- Arcadia will securely sanitize physical media intended for reuse prior to such reuse, and will destroy physical media not intended for reuse, consistent with Industry Best Practices for media sanitization.
- General.
- Viruses and Disabling Code. Arcadia will use commercially reasonable efforts to avoid introducing any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Services, including, without limitation, its security or data. In the event a virus or similar item is found to have been introduced into Arcadia’s system, Arcadia will: (a) use commercially reasonable efforts to reduce or eliminate the effects of the virus or similar item; and (b) if the virus or similar item causes a loss of operational efficiency or loss of data, mitigate and restore.
- Incident Reporting/Investigation. Arcadia shall notify Client of any confirmed security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Client data (“Data Breach”) without undue delay , unless otherwise prohibited by state or federal law. Arcadia will provide Client with regular updates with any new details regarding the Data Breach. A report about the Data Breach will be provided to Client as soon as reasonably practicable and after considering appropriate precautions or limitations such as attorney-client privilege.
- Investigations. Upon written notice to Arcadia, Arcadia shall assist and support Client in the event of an investigation by any regulator, including a data protection regulator, or similar authority, if and to the extent that such investigation relates to personal data handled by Arcadia on behalf of Client. Such assistance shall be at Client’s sole expense, except where such investigation was required due to Arcadia’s gross negligence.
- Audit. Arcadia will periodically review control effectiveness and remediate any deficiencies identified.
Third Party Subprocessors
Effective July 6th 2023
DownloadTable of Contents
THIRD PARTY SUBPROCESSORS
(Last Updated: July 6, 2023)
The below list describes the infrastructure environment, sub-processors and certain other entities (“Subprocessors”) material to the services currently branded as the Arcadia Power platform services (f/k/a Arc platform services) (collectively, the “Services”), where such Subprocessors process personal data on behalf of Arcadia Power Inc. and its affiliates in furtherance of their provision of the Services to clients (such data, “Client Personal Data”):
The following describes the legal entities engaged in subprocessing of Client Personal Data by Arcadia Power, Inc.:
•Amazon Web Services, Inc.
•Elasticsearch, Inc.
•Datadog, Inc.
•Prefect Technologies, Inc.
•Google, LLC
•Rollbar, Inc.
•Functional Software, Inc.
•Snowflake, Inc.
•TaskUs, Inc.
•New Relic, Inc.
•Zendesk, Inc.
•Atlassian Corporation Plc (JIRA)
In addition to the Subprocessors listed above, the following affiliated entity may also function as a subprocessor:
•Urjanet Energy Solutions Private Limited (India)
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
THIRD PARTY SUBPROCESSORS
(Last Updated: May 24, 2023)
The below list describes the infrastructure environment, sub-processors and certain other entities (“Subprocessors”) material to the services currently branded as the Arcadia Power platform services (f/k/a Arc platform services) (collectively, the “Services”), where such Subprocessors process personal data on behalf of Arcadia Power Inc. and its affiliates in furtherance of their provision of the Services to clients (such data, “Client Personal Data”):
The following describes the legal entities engaged in subprocessing of Client Personal Data by Arcadia Power, Inc.:
•Amazon Web Services, Inc.
•Elasticsearch, Inc.
•Datadog, Inc.
•Prefect Technologies, Inc.
•Google, LLC
•Rollbar, Inc.
•Functional Software, Inc.
•Snowflake, Inc.
•TaskUs, Inc.
•New Relic, Inc.
•Zendesk, Inc.
•Atlassian Corporation Plc (JIRA)
In addition to the Subprocessors listed above, the following affiliated entity may also function as a subprocessor:
•Urjanet Energy Solutions Private Limited (India)
Arcadia Test Environment License Agreement
Effective October 1st 2024
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TEST ENVIRONMENT LICENSE AGREEMENT
(Last Updated: October 1, 2024)
This Test Environment License Agreement (this “Agreement”) enables your organization (the “Company”) to obtain access to certain software systems and developer APIs of Arcadia in order to evaluate Arcadia’s services in connection with a proposed transaction. Your use of the Services (as defined below) constitutes acceptance of this Agreement on behalf of your Company. If you do not agree to these terms and conditions, you may not use the Services.
1. Definitions:
a. “Aggregated Analytics” shall mean: (i) any data or information collected, received and/or compiled by Arcadia under the terms of this Agreement, and (ii) the results and data from any manipulation, analysis, calculations, or processing of such data, including, without limitation, Company Data, in accordance with this Agreement, which in each of (i), (ii) and (iii) is in an aggregated and anonymized form. All Aggregated Analytics shall be considered Arcadia’s Data and Confidential Information.
b. “Arcadia Data” shall mean shall mean any data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials, including, without limitation, statistics, analyses and forecasts, and any similar information that is either owned or licensed by Arcadia and that Arcadia makes available through the Services, excluding Company Data.
c. “Company Data” shall mean any data, information, content or other materials of any kind uploaded by Company into the Services.
d. “Enterprise Dashboard” shall mean the user interface provided to enterprise customers of Arcadia through which they can access and manage the Services.
e. “Enterprise API” shall mean the application programming interface and the webhooks through which enterprise customers of Arcadia can access the Services and connected systems.
f. “Enterprise Platform” shall mean the Enterprise API, the Enterprise Dashboard, together with the Arcadia Platform and all other computer systems, websites, databases, networks, and other systems and functions of any kind accessible via or connected to the foregoing.
g. “Services” shall mean the software and professional services provided through the Enterprise Platform.
h. “Arcadia Platform” shall mean the software as a service platform offered by Arcadia to its customers, including without limitation the services offered through the arcadia.com website.
2. License Grant; Proposed Transaction.
a. Arcadia hereby grants to Company a limited, non-exclusive, revocable license to access and use the Services during the Term (as defined below), solely for the purpose of evaluating the Services in connection with a proposed business transaction (the “Proposed Transaction”).
b. The purpose of the foregoing license grant is solely to evaluate the Services in connection with the Proposed Transaction. As such, Arcadia may implement technical or functional limitations on the Services, which may include, without limitation, data throttling, limited access to certain functions, and use quotas.
c. The Parties are not obligated to consummate the Proposed Transaction or to enter any other particular course of business or transaction by operation of this Agreement. If the Parties mutually agree to consummate the Proposed Transaction, they shall enter into a binding written agreement (a “Transaction MSA”) in connection therewith, the terms and provisions of which shall govern the Proposed Transaction and the rights and obligations of the Parties in connection therewith, in all respects. Upon entering a Transaction MSA, the terms of such Transaction MSA shall supersede the terms of this Agreement, provided that if the Company again uses any “sandbox” portions of the Services outside the scope of any Transaction MSA, this Agreement shall control.
3. Term and Termination.
a. This Agreement shall be effective when you commence use of the Services, and shall continue until terminated as provided in Section 3.b (the “Term”).
b. This Agreement may be terminated by either Party immediately upon written notice.
c. Upon any termination of this Agreement, (i) Company shall immediately cease all use of the Services; (ii) Company shall return or destroy any Arcadia materials or confidential information in its possession; and (iii) Arcadia shall have no obligation to retain any Company Data uploaded to or stored in the Services. The following provisions shall survive any termination or expiration of this Agreement: 1, 3.c, 4, 5, 6, 7, 8, and 9 and any other terms which by their nature would or should survive termination.
4. Acceptable Uses.
a. Company represents, warrants and covenants that it will comply with all of the following restrictions: (i) Company shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services; (ii) Company shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (iii Company shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained therein; (iv) Company has obtained all necessary rights, licenses and consents necessary to utilize the Company Data in connection with the Services, and the Company Data shall not infringe, misappropriate or violate any right (including without limitation intellectual property rights and privacy rights) of any third party; (v) except as expressly stated in this agreement, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means and (vi) Company shall not use or leverage the Services or any data contained therein for any commercial endeavor other than evaluation of the Proposed Transaction.
b. Arcadia reserves the right to (i) monitor usage for violation of the foregoing acceptable uses and (ii) to impose data, bandwidth, query or other usage limitations in furtherance of the non-commercial nature of this license.
c. Any violation of this Section 4 shall be a material breach of this Agreement and may result in immediate termination of the license granted herein.
5. Ownership.
a. The Services, the Arcadia Data and the Aggregated Analytics, are all the exclusive intellectual property of Arcadia and its licensors and Company does not obtain any right, title or interest therein except as expressly set forth in this Agreement. Arcadia, its suppliers and service providers reserve all rights not granted in the Agreement.
b. Company retains all right, title and interest in and to the Company Data, provided that Company grants Arcadia a license to store, handle, process, transmit and reproduce the Company Data (i) as necessary to provide the Services and (ii) in order to create Aggregated Analytics.
6. Confidentiality.
a. Each party (the “Receiving Party”) agrees to keep confidential and not to disclose and, except in the performance of its obligations under this Agreement, not to use any confidential or proprietary information related to the technology or business of the other party (the “Disclosing Party”) or the Disclosing Party’s end users, vendors, suppliers or contractors which is disclosed by the Disclosing Party that the Receiving Party learns or obtains in connection with this Agreement, whether furnished or communicated orally, in writing, electronically, or in any other form or medium, of a confidential or sensitive nature and whether or not expressly designated “Confidential,” including without limitation, information relating to products or technology of the Disclosing Party, or to the Disclosing Party’s business (including, without limitation, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, inventions (whether patentable or not), names and expertise of employees and consultants, all information relating to customers and customer transactions and other technical, business, financial, customer and product development plans, forecasts, strategies and information), the terms of this Agreement and the Proposed Transaction (all of the foregoing, “Confidential Information”). Neither Party shall disclose the terms of this Agreement to any third party without the prior written consent of the other (except for its attorneys, accountants, funding sources, and other service providers as necessary, provided that such service providers are bound to maintain the confidentiality thereof). Each Party shall use reasonable precautions to protect the Confidential Information of the other in its possession and employ at least those precautions that such Party employs to protect its own Confidential Information.
b. Notwithstanding anything herein to the contrary, the Parties’ obligations with respect to the other Party’s Confidential Information shall not apply to: (i) information a Receiving Party can document is in or (through no improper action or inaction by the Receiving Party or any affiliate, agent or employee thereof) enters the public domain; (ii) information known to the Receiving Party prior to the time of receipt from the Disclosing Party; (iii) information received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party; or (iv) information independently developed by the Receiving Party or its agents without reference to or reliance upon Confidential Information of the Disclosing Party.
c. Receiving Party, with prior written notice to the Disclosing Party, may disclose such Confidential Information to the extent required to be disclosed to a governmental entity or agency in connection with any application for governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency, provided however, that reasonable measures shall be taken by Receiving Party to guard against disclosure of Disclosing Party’s Confidential Information, including without limitation, seeking appropriate confidential treatment or a protective order, and notifying and assisting the Disclosing Party to do so, in each case at the Disclosing Party’s expense.
7. No Warranties; Disclaimer; Indemnification; Liability for Users.
a. COMPANY’S USE OF THE SERVICES IS AT COMPANY’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Arcadia expressly disclaims all warranties of any kind, whether express, implied, or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Arcadia makes no warranty that (i) the Services will meet the Company’s requirements, (ii) the Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Services will be accurate or reliable, or (iv) the quality of any products, services, information, or other material purchased or obtained by Company through the Services will meet Company’s expectations.
b. Company expressly agrees that Arcadia will not be liable for any indirect, incidental, special, consequential, exemplary damages, or damages for loss of profits including but not limited to, damages for loss of goodwill, use, data, or other intangible losses (even if Arcadia has been advised of the possibility of such damages), whether based on contract, tort, negligence, strict liability or otherwise, resulting from: (i) the use or the inability to use the Services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the Services; (iii) unauthorized access to Company Data; (iv) statements or conduct of any third party on the Services; or (v) any other matter relating to the Services. In no event will Arcadia’s total liability to Company for all damages, losses, or causes of action exceed one hundred dollars ($100).
c. Company agrees to release, indemnify, and hold harmless Arcadia, its affiliates, and its and their respective officers, employees, directors, members, and agents from any and all losses, damages, costs, expenses (including reasonably attorneys’ fees), rights, claims, actions of any kind arising out of or relating to Company’s use of the Services.
d. Company is responsible, and principally liable, for use of the Services by its employees, agents, contractors and representatives (its “Users”), including without limitation the User’s compliance with this Agreement.
8. Severability. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be impaired or affected thereby, and each term, provision and part shall continue in full force and effect, and shall be valid and enforceable to the fullest extent permitted by law.
9. Miscellaneous. This Agreement represents the entire understanding of the Parties and supersedes all prior written or oral agreements with respect to the subject matter hereof. A waiver of any default is not a waiver of any subsequent default. Headings are provided for convenience only and shall not be construed to alter the meaning of any provision. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, D.C., without regard to its conflict of laws provisions. Any proceeding related to this Agreement shall be brought only in a court of competent jurisdiction located in Washington, D.C., and each party irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party hereby irrevocably waives its rights to trial by jury in any Action or proceeding arising out of this agreement or the transactions relating to its subject matter.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY ARCADIA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Arcadia will also update the “Last Updated” date at the top of the Agreement. If Arcadia makes any material changes, Company will be notified at the contact e-mail address provided. Any changes to the Agreement will be effective immediately for new users of the Services, and will be effective thirty (30) days after posting notice of such changes for existing Users, provided that any material changes shall be effective for existing Users upon the earlier of thirty (30) days after posting notice of such changes on the Services or thirty (30) days after dispatch of an e-mail notice of such changes. Arcadia may require Company’s consent to the updated Agreement in a specified manner before further use of the Services is permitted. If Company do not agree to any change(s) after receiving a notice of such change(s), Company and its Users shall stop using the Services. Continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE ARCADIA ENTERPRISE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Effective July 6th 2023 to October 1st 2024
DownloadTable of Contents
TEST ENVIRONMENT LICENSE AGREEMENT
(Last Updated: July 6, 2023)
This Test Environment License Agreement (this “Agreement”) enables your organization (the “Company”) to obtain access to certain software systems and developer APIs of Arcadia in order to evaluate Arcadia’s services in connection with a proposed transaction. Your use of the Services (as defined below) constitutes acceptance of this Agreement on behalf of your Company. If you do not agree to these terms and conditions, you may not use the Services.
1. Definitions:
a. “Aggregated Analytics” shall mean: (i) any data or information collected, received and/or compiled by Arcadia under the terms of this Agreement, and (ii) the results and data from any manipulation, analysis, calculations, or processing of such data, including, without limitation, Company Data, in accordance with this Agreement, which in each of (i), (ii) and (iii) is in an aggregated and anonymized form. All Aggregated Analytics shall be considered Arcadia’s Data and Confidential Information.
b. “Arcadia Data” shall mean shall mean any data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials, including, without limitation, statistics, analyses and forecasts, and any similar information that is either owned or licensed by Arcadia and that Arcadia makes available through the Services, excluding Company Data.
c. “Company Data” shall mean any data, information, content or other materials of any kind uploaded by Company into the Services.
d. “Enterprise Dashboard” shall mean the user interface provided to enterprise customers of Arcadia through which they can access and manage the Services.
e. “Enterprise API” shall mean the application programming interface and the webhooks through which enterprise customers of Arcadia can access the Services and connected systems.
f. “Enterprise Platform” shall mean the Enterprise API, the Enterprise Dashboard, together with the Arcadia Platform and all other computer systems, websites, databases, networks, and other systems and functions of any kind accessible via or connected to the foregoing.
g. “Services” shall mean the software and professional services provided through the Enterprise Platform.
h. “Arcadia Platform” shall mean the software as a service platform offered by Arcadia to its customers, including without limitation the services offered through the arcadia.com website.
2. License Grant; Proposed Transaction.
a. Arcadia hereby grants to Company a limited, non-exclusive, revocable license to access and use the Services during the Term (as defined below), solely for the purpose of evaluating the Services in connection with a proposed business transaction (the “Proposed Transaction”).
b. The purpose of the foregoing license grant is solely to evaluate the Services in connection with the Proposed Transaction. As such, Arcadia may implement technical or functional limitations on the Services, which may include, without limitation, data throttling, limited access to certain functions, and use quotas.
c. The Parties are not obligated to consummate the Proposed Transaction or to enter any other particular course of business or transaction by operation of this Agreement. If the Parties mutually agree to consummate the Proposed Transaction, they shall enter into a binding written agreement (a “Transaction MSA”) in connection therewith, the terms and provisions of which shall govern the Proposed Transaction and the rights and obligations of the Parties in connection therewith, in all respects. Upon entering a Transaction MSA, the terms of such Transaction MSA shall supersede the terms of this Agreement, provided that if the Company again uses any “sandbox” portions of the Services outside the scope of any Transaction MSA, this Agreement shall control.
3. Term and Termination.
a. This Agreement shall be effective when you commence use of the Services, and shall continue until terminated as provided in Section 3.b (the “Term”).
b. This Agreement may be terminated by either Party immediately upon written notice.
c. Upon any termination of this Agreement, (i) Company shall immediately cease all use of the Services; (ii) Company shall return or destroy any Arcadia materials or confidential information in its possession; and (iii) Arcadia shall have no obligation to retain any Company Data uploaded to or stored in the Services. The following provisions shall survive any termination or expiration of this Agreement: 1, 3.c, 4, 5, 6, 7, 8, and 9 and any other terms which by their nature would or should survive termination.
4. Acceptable Uses.
a. Company represents, warrants and covenants that it will comply with all of the following restrictions: (i) Company shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services; (ii) Company shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (iii Company shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained therein; (iv) Company has obtained all necessary rights, licenses and consents necessary to utilize the Company Data in connection with the Services, and the Company Data shall not infringe, misappropriate or violate any right (including without limitation intellectual property rights and privacy rights) of any third party; (v) except as expressly stated in this agreement, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means and (vi) Company shall not use or leverage the Services or any data contained therein for any commercial endeavor other than evaluation of the Proposed Transaction.
b. Arcadia reserves the right to (i) monitor usage for violation of the foregoing acceptable uses and (ii) to impose data, bandwidth, query or other usage limitations in furtherance of the non-commercial nature of this license.
c. Any violation of this Section 4 shall be a material breach of this Agreement and may result in immediate termination of the license granted herein.
5. Ownership.
a. The Services, the Arcadia Data and the Aggregated Analytics, are all the exclusive intellectual property of Arcadia and its licensors and Company does not obtain any right, title or interest therein except as expressly set forth in this Agreement. Arcadia, its suppliers and service providers reserve all rights not granted in the Agreement.
b. Company retains all right, title and interest in and to the Company Data, provided that Company grants Arcadia a license to store, handle, process, transmit and reproduce the Company Data (i) as necessary to provide the Services and (ii) in order to create Aggregated Analytics.
6. Confidentiality.
a. Each party (the “Receiving Party”) agrees to keep confidential and not to disclose and, except in the performance of its obligations under this Agreement, not to use any confidential or proprietary information related to the technology or business of the other party (the “Disclosing Party”) or the Disclosing Party’s end users, vendors, suppliers or contractors which is disclosed by the Disclosing Party that the Receiving Party learns or obtains in connection with this Agreement, whether furnished or communicated orally, in writing, electronically, or in any other form or medium, of a confidential or sensitive nature and whether or not expressly designated “Confidential,” including without limitation, information relating to products or technology of the Disclosing Party, or to the Disclosing Party’s business (including, without limitation, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, inventions (whether patentable or not), names and expertise of employees and consultants, all information relating to customers and customer transactions and other technical, business, financial, customer and product development plans, forecasts, strategies and information), the terms of this Agreement and the Proposed Transaction (all of the foregoing, “Confidential Information”). Neither Party shall disclose the terms of this Agreement to any third party without the prior written consent of the other (except for its attorneys, accountants, funding sources, and other service providers as necessary, provided that such service providers are bound to maintain the confidentiality thereof). Each Party shall use reasonable precautions to protect the Confidential Information of the other in its possession and employ at least those precautions that such Party employs to protect its own Confidential Information.
b. Notwithstanding anything herein to the contrary, the Parties’ obligations with respect to the other Party’s Confidential Information shall not apply to: (i) information a Receiving Party can document is in or (through no improper action or inaction by the Receiving Party or any affiliate, agent or employee thereof) enters the public domain; (ii) information known to the Receiving Party prior to the time of receipt from the Disclosing Party; (iii) information received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party; or (iv) information independently developed by the Receiving Party or its agents without reference to or reliance upon Confidential Information of the Disclosing Party.
c. Receiving Party, with prior written notice to the Disclosing Party, may disclose such Confidential Information to the extent required to be disclosed to a governmental entity or agency in connection with any application for governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency, provided however, that reasonable measures shall be taken by Receiving Party to guard against disclosure of Disclosing Party’s Confidential Information, including without limitation, seeking appropriate confidential treatment or a protective order, and notifying and assisting the Disclosing Party to do so, in each case at the Disclosing Party’s expense.
7. No Warranties; Disclaimer; Indemnification; Liability for Users.
a. COMPANY’S USE OF THE SERVICES IS AT COMPANY’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Arcadia expressly disclaims all warranties of any kind, whether express, implied, or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Arcadia makes no warranty that (i) the Services will meet the Company’s requirements, (ii) the Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Services will be accurate or reliable, or (iv) the quality of any products, services, information, or other material purchased or obtained by Company through the Services will meet Company’s expectations.
b. Company expressly agrees that Arcadia will not be liable for any indirect, incidental, special, consequential, exemplary damages, or damages for loss of profits including but not limited to, damages for loss of goodwill, use, data, or other intangible losses (even if Arcadia has been advised of the possibility of such damages), whether based on contract, tort, negligence, strict liability or otherwise, resulting from: (i) the use or the inability to use the Services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the Services; (iii) unauthorized access to Company Data; (iv) statements or conduct of any third party on the Services; or (v) any other matter relating to the Services. In no event will Arcadia’s total liability to Company for all damages, losses, or causes of action exceed one hundred dollars ($100).
c. Company agrees to release, indemnify, and hold harmless Arcadia, its affiliates, and its and their respective officers, employees, directors, members, and agents from any and all losses, damages, costs, expenses (including reasonably attorneys’ fees), rights, claims, actions of any kind arising out of or relating to Company’s use of the Services.
d. Company is responsible, and principally liable, for use of the Services by its employees, agents, contractors and representatives (its “Users”), including without limitation the User’s compliance with this Agreement.
8. Severability. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be impaired or affected thereby, and each term, provision and part shall continue in full force and effect, and shall be valid and enforceable to the fullest extent permitted by law.
9. Miscellaneous. This Agreement represents the entire understanding of the Parties and supersedes all prior written or oral agreements with respect to the subject matter hereof. A waiver of any default is not a waiver of any subsequent default. Headings are provided for convenience only and shall not be construed to alter the meaning of any provision. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, D.C., without regard to its conflict of laws provisions. Any proceeding related to this Agreement shall be brought only in a court of competent jurisdiction located in Washington, D.C., and each party irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party hereby irrevocably waives its rights to trial by jury in any Action or proceeding arising out of this agreement or the transactions relating to its subject matter.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY ARCADIA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Arcadia will also update the “Last Updated” date at the top of the Agreement. If Arcadia makes any material changes, Company will be notified at the contact e-mail address provided. Any changes to the Agreement will be effective immediately for new users of the Services, and will be effective thirty (30) days after posting notice of such changes for existing Users, provided that any material changes shall be effective for existing Users upon the earlier of thirty (30) days after posting notice of such changes on the Services or thirty (30) days after dispatch of an e-mail notice of such changes. Arcadia may require Company’s consent to the updated Agreement in a specified manner before further use of the Services is permitted. If Company do not agree to any change(s) after receiving a notice of such change(s), Company and its Users shall stop using the Services. Continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE ARCADIA ENTERPRISE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Effective May 30th 2023 to July 6th 2023
DownloadTable of Contents
TEST ENVIRONMENT LICENSE AGREEMENT
(Last Updated: May 15, 2023)
This Test Environment License Agreement (this “Agreement”) enables your organization (the “Company”) to obtain access to certain software systems and developer APIs of Arcadia in order to evaluate Arcadia’s services in connection with a proposed transaction. Your use of the Services (as defined below) constitutes acceptance of this Agreement on behalf of your Company. If you do not agree to these terms and conditions, you may not use the Services.
1. Definitions:
a. “Aggregated Analytics” shall mean: (i) any data or information collected, received and/or compiled by Arcadia under the terms of this Agreement, and (ii) the results and data from any manipulation, analysis, calculations, or processing of such data, including, without limitation, Company Data, in accordance with this Agreement, which in each of (i), (ii) and (iii) is in an aggregated and anonymized form. All Aggregated Analytics shall be considered Arcadia’s Data and Confidential Information.
b. “Arcadia Data” shall mean shall mean any data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials, including, without limitation, statistics, analyses and forecasts, and any similar information that is either owned or licensed by Arcadia and that Arcadia makes available through the Services, excluding Company Data.
c. “Company Data” shall mean any data, information, content or other materials of any kind uploaded by Company into the Services.
d. “Enterprise Dashboard” shall mean the user interface provided to enterprise customers of Arcadia through which they can access and manage the Services.
e. “Enterprise API” shall mean the application programming interface and the webhooks through which enterprise customers of Arcadia can access the Services and connected systems.
f. “Enterprise Platform” shall mean the Enterprise API, the Enterprise Dashboard, together with the Arcadia Platform and all other computer systems, websites, databases, networks, and other systems and functions of any kind accessible via or connected to the foregoing.
g. “Services” shall mean the software and professional services provided through the Enterprise Platform.
h. “Arcadia Platform” shall mean the software as a service platform offered by Arcadia to its customers, including without limitation the services offered through the arcadia.com website.
2. License Grant; Proposed Transaction.
a. Arcadia hereby grants to Company a limited, non-exclusive, revocable license to access and use the Services during the Term (as defined below), solely for the purpose of evaluating the Services in connection with a proposed business transaction (the “Proposed Transaction”).
b. The purpose of the foregoing license grant is solely to evaluate the Services in connection with the Proposed Transaction. As such, Arcadia may implement technical or functional limitations on the Services, which may include, without limitation, data throttling, limited access to certain functions, and use quotas.
c. The Parties are not obligated to consummate the Proposed Transaction or to enter any other particular course of business or transaction by operation of this Agreement. If the Parties mutually agree to consummate the Proposed Transaction, they shall enter into a binding written agreement (a “Transaction MSA”) in connection therewith, the terms and provisions of which shall govern the Proposed Transaction and the rights and obligations of the Parties in connection therewith, in all respects. Upon entering a Transaction MSA, the terms of such Transaction MSA shall supersede the terms of this Agreement, provided that if the Company again uses any “sandbox” portions of the Services outside the scope of any Transaction MSA, this Agreement shall control.
3. Term and Termination.
a. This Agreement shall be effective when you commence use of the Services, and shall continue until terminated as provided in Section 3.b (the “Term”).
b. This Agreement may be terminated by either Party immediately upon written notice.
c. Upon any termination of this Agreement, (i) Company shall immediately cease all use of the Services; (ii) Company shall return or destroy any Arcadia materials or confidential information in its possession; and (iii) Arcadia shall have no obligation to retain any Company Data uploaded to or stored in the Services. The following provisions shall survive any termination or expiration of this Agreement: 1, 3.c, 4, 5, 6, 7, 8, and 9 and any other terms which by their nature would or should survive termination.
4. Acceptable Uses.
a. Company represents, warrants and covenants that it will comply with all of the following restrictions: (i) Company shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services; (ii) Company shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (iii Company shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained therein; (iv) Company has obtained all necessary rights, licenses and consents necessary to utilize the Company Data in connection with the Services, and the Company Data shall not infringe, misappropriate or violate any right (including without limitation intellectual property rights and privacy rights) of any third party; (v) except as expressly stated in this agreement, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means and (vi) Company shall not use or leverage the Services or any data contained therein for any commercial endeavor other than evaluation of the Proposed Transaction.
b. Arcadia reserves the right to (i) monitor usage for violation of the foregoing acceptable uses and (ii) to impose data, bandwidth, query or other usage limitations in furtherance of the non-commercial nature of this license.
c. Any violation of this Section 4 shall be a material breach of this Agreement and may result in immediate termination of the license granted herein.
5. Ownership.
a. The Services, the Arcadia Data and the Aggregated Analytics, are all the exclusive intellectual property of Arcadia and its licensors and Company does not obtain any right, title or interest therein except as expressly set forth in this Agreement. Arcadia, its suppliers and service providers reserve all rights not granted in the Agreement.
b. Company retains all right, title and interest in and to the Company Data, provided that Company grants Arcadia a license to store, handle, process, transmit and reproduce the Company Data (i) as necessary to provide the Services and (ii) in order to create Aggregated Analytics.
6. Confidentiality.
a. Each party (the “Receiving Party”) agrees to keep confidential and not to disclose and, except in the performance of its obligations under this Agreement, not to use any confidential or proprietary information related to the technology or business of the other party (the “Disclosing Party”) or the Disclosing Party’s end users, vendors, suppliers or contractors which is disclosed by the Disclosing Party that the Receiving Party learns or obtains in connection with this Agreement, whether furnished or communicated orally, in writing, electronically, or in any other form or medium, of a confidential or sensitive nature and whether or not expressly designated “Confidential,” including without limitation, information relating to products or technology of the Disclosing Party, or to the Disclosing Party’s business (including, without limitation, computer programs, code, algorithms, schematics, data, know-how, processes, ideas, inventions (whether patentable or not), names and expertise of employees and consultants, all information relating to customers and customer transactions and other technical, business, financial, customer and product development plans, forecasts, strategies and information), the terms of this Agreement and the Proposed Transaction (all of the foregoing, “Confidential Information”). Neither Party shall disclose the terms of this Agreement to any third party without the prior written consent of the other (except for its attorneys, accountants, funding sources, and other service providers as necessary, provided that such service providers are bound to maintain the confidentiality thereof). Each Party shall use reasonable precautions to protect the Confidential Information of the other in its possession and employ at least those precautions that such Party employs to protect its own Confidential Information.
b. Notwithstanding anything herein to the contrary, the Parties’ obligations with respect to the other Party’s Confidential Information shall not apply to: (i) information a Receiving Party can document is in or (through no improper action or inaction by the Receiving Party or any affiliate, agent or employee thereof) enters the public domain; (ii) information known to the Receiving Party prior to the time of receipt from the Disclosing Party; (iii) information received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party; or (iv) information independently developed by the Receiving Party or its agents without reference to or reliance upon Confidential Information of the Disclosing Party.
c. Receiving Party, with prior written notice to the Disclosing Party, may disclose such Confidential Information to the extent required to be disclosed to a governmental entity or agency in connection with any application for governmental or regulatory approval, or pursuant to the lawful requirement or request of a governmental entity or agency, provided however, that reasonable measures shall be taken by Receiving Party to guard against disclosure of Disclosing Party’s Confidential Information, including without limitation, seeking appropriate confidential treatment or a protective order, and notifying and assisting the Disclosing Party to do so, in each case at the Disclosing Party’s expense.
7. No Warranties; Disclaimer; Indemnification; Liability for Users.
a. COMPANY’S USE OF THE SERVICES IS AT COMPANY’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Arcadia expressly disclaims all warranties of any kind, whether express, implied, or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Arcadia makes no warranty that (i) the Services will meet the Company’s requirements, (ii) the Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Services will be accurate or reliable, or (iv) the quality of any products, services, information, or other material purchased or obtained by Company through the Services will meet Company’s expectations.
b. Company expressly agrees that Arcadia will not be liable for any indirect, incidental, special, consequential, exemplary damages, or damages for loss of profits including but not limited to, damages for loss of goodwill, use, data, or other intangible losses (even if Arcadia has been advised of the possibility of such damages), whether based on contract, tort, negligence, strict liability or otherwise, resulting from: (i) the use or the inability to use the Services; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained or messages received or transactions entered into through or from the Services; (iii) unauthorized access to Company Data; (iv) statements or conduct of any third party on the Services; or (v) any other matter relating to the Services. In no event will Arcadia’s total liability to Company for all damages, losses, or causes of action exceed one hundred dollars ($100).
c. Company agrees to release, indemnify, and hold harmless Arcadia, its affiliates, and its and their respective officers, employees, directors, members, and agents from any and all losses, damages, costs, expenses (including reasonably attorneys’ fees), rights, claims, actions of any kind arising out of or relating to Company’s use of the Services.
d. Company is responsible, and principally liable, for use of the Services by its employees, agents, contractors and representatives (its “Users”), including without limitation the User’s compliance with this Agreement.
8. Severability. If any term, provision or part of this Agreement is to any extent held invalid, void or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be impaired or affected thereby, and each term, provision and part shall continue in full force and effect, and shall be valid and enforceable to the fullest extent permitted by law.
9. Miscellaneous. This Agreement represents the entire understanding of the Parties and supersedes all prior written or oral agreements with respect to the subject matter hereof. A waiver of any default is not a waiver of any subsequent default. Headings are provided for convenience only and shall not be construed to alter the meaning of any provision. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, D.C., without regard to its conflict of laws provisions. Any proceeding related to this Agreement shall be brought only in a court of competent jurisdiction located in Washington, D.C., and each party irrevocably consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party hereby irrevocably waives its rights to trial by jury in any Action or proceeding arising out of this agreement or the transactions relating to its subject matter.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY ARCADIA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Arcadia will also update the “Last Updated” date at the top of the Agreement. If Arcadia makes any material changes, Company will be notified at the contact e-mail address provided. Any changes to the Agreement will be effective immediately for new users of the Services, and will be effective thirty (30) days after posting notice of such changes for existing Users, provided that any material changes shall be effective for existing Users upon the earlier of thirty (30) days after posting notice of such changes on the Services or thirty (30) days after dispatch of an e-mail notice of such changes. Arcadia may require Company’s consent to the updated Agreement in a specified manner before further use of the Services is permitted. If Company do not agree to any change(s) after receiving a notice of such change(s), Company and its Users shall stop using the Services. Continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE ARCADIA ENTERPRISE WEBSITE TO VIEW THE THEN-CURRENT TERMS.