Red Flag Snapshot Terms and Conditions
PLEASE READ THESE RED FLAG SNAPSHOT TERMS AND CONDITIONS (THIS “AGREEMENT”) BEFORE USING THE RED FLAG SNAPSHOT SERVICES. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE AUTHORITY TO BIND THE APPLICABLE CUSTOMER COMPANY OR ENTITY TO THIS AGREEMENT. BY PURCHASING THE SERVICES, CLICKING “I ACCEPT” OR OTHERWISE USING THE SERVICES, YOU (THE “CUSTOMER”) SIGNIFY ACCEPTANCE OF, AND AGREE TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN CUSTOMER AND EUCLID POWER INC. (“EUCLID” AND, TOGETHER WITH THE CUSTOMER, THE “PARTIES” AND, EACH, A “PARTY”). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE OF CUSTOMER’S INITIAL ACCESS TO ANY SERVICES THROUGH ANY PROVISIONING, REGISTRATION OR ORDER PROCESS (ANY SUCH PROCESS, AN “ORDER”). THIS AGREEMENT WILL GOVERN CUSTOMER’S INITIAL PURCHASE ON THE EFFECTIVE DATE AS WELL AS ANY FUTURE PURCHASES MADE BY CUSTOMER. FROM TIME TO TIME, EUCLID MAY MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND SUCH MODIFICATIONS WILL BE EFFECTIVE FOR ALL SERVICES PURCHASED BY CUSTOMER FOLLOWING SUCH MODIFICATION.
1. RED FLAG SNAPSHOT SERVICES.
(a) Provision of Services. Euclid shall use commercially reasonable efforts to provide Customer with the diligence services specified in one or more Orders entered into from time to time referencing this Agreement (such diligence services, the “Services”).
(b) Reservation of Rights. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Euclid’s technology or intellectual property, including all analysis methods and techniques and all methods for providing reports and other deliverables (including templates and forms hereof).
(c) Customer Responsibilities. Customer is responsible for providing Euclid with timely access to the applicable data room and all other documentation and materials that are reasonably necessary for Euclid to provide the Services (such documentation and materials, the “Diligence Materials”). Customer is responsible for the accuracy, completeness, and quality of all such Diligence Materials and acknowledges that the diligence report or other deliverable prepared by Euclid in connection with the Services (the “Deliverable”) may be inaccurate, incomplete or otherwise erroneous to the extent the Diligence Materials contain accuracy, completeness or quality deficiencies. Customer’s failure to provide adequate access to accurate, complete and high fidelity Diligence Materials may result in an interruption or unsatisfactory performance of the Services.
2. FEES AND PAYMENT.
(a) Fees. Customer shall pay Euclid the fees (“Fees”) as set forth in the Order without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order. If Customer fails to make any payment when due in accordance with the Order, without limiting Euclid’s other rights and remedies: (i) Euclid may charge interest on past due amounts at a rate of 1.0% per month or, if lower, the highest rate permitted under applicable law and (ii) Customer shall reimburse Euclid for all costs incurred by Euclid in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Euclid’s income.
3. DILIGENCE MATERIALS. Customer grants Euclid a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, reproduce, distribute, and make derivative works of Diligence Materials the purpose of providing the Services and related services to Customer.
4. CONFIDENTIAL INFORMATION; FEEDBACK.
(a) Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) rightfully known to the receiving Party on a non-confidential basis; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, consultants, agents or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (such person or entities, its “Representatives”). In addition, and except as permitted herein, the receiving Party shall not use the Confidential Information of the disclosing Party except as necessary to exercise its rights or perform its obligations hereunder. The receiving Party shall be responsible for any unauthorized access, use or disclosure of the disclosing Party’s Confidential Information by the receiving Party’s Representatives. Each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. All Confidential Information disclosed pursuant to the preceding sentence will remain subject to the confidentiality and non-use obligations contained herein for all purposes other than such permitted disclosure. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and, at the disclosing Party’s request, certify in writing that such Confidential Information has been destroyed. Each Party’s confidentiality obligations with regard to Confidential Information are effective as of the Effective Date and will survive expiration or termination of this Agreement.
(b) Feedback. Customer or any of its employees or contractors may send or transmit any communications or materials to Euclid by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”). In such case, Customer shall, and hereby does, grant to Euclid a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
5. WARRANTIES AND DISCLAIMERS.
(a) Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has the necessary organizational power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other Party herein; (iii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder do not and will not violate any other agreement to which such Party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.
(b) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED “AS IS” AND EUCLID HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EUCLID SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5, EUCLID MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR ARE ACCURATE, COMPLETE, OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, EUCLID PROVIDES NO WARRANTY OR GUARANTEE THAT ANY RESULTS, ANALYSIS OR INVESTMENT OR DEVELOPMENT DECISIONS MADE THROUGH THE USE OF THE SERVICES WILL BE RELIABLE, USEFUL OR ERROR FREE. EUCLID’S ROLE IS LIMITED TO PROVIDING ANALYSIS, AND RECOMMENDATIONS FOR CUSTOMER’S INDEPENDENT CONSIDERATION. CUSTOMER REMAINS SOLELY RESPONSIBLE FOR THE RESULTS, CONSEQUENCES, AND OUTCOMES OF ITS DECISIONS, INCLUDING ANY LEGAL, REGULATORY, OPERATIONAL, OR FINANCIAL IMPLICATIONS ARISING FROM ITS USE OF THE SERVICES. WITHOUT LIMITING ANY OTHER DISCLAIMERS IN THIS AGREEMENT, EUCLID MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OR COMPLETENESS OF AI-ASSISTED OUTPUTS AND SHALL NOT BE RESPONSIBLE FOR DECISIONS MADE BY CUSTOMER IN RELIANCE ON SUCH OUTPUTS. ANY AI-GENERATED OUTPUTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL, REGULATORY, OR FINANCIAL ADVICE. CUSTOMER REMAINS SOLELY RESPONSIBLE FOR REVIEWING, VALIDATING, AND APPROVING ALL DELIVERABLES PRIOR TO USE.
6. INDEMNIFICATION. Customer shall indemnify, hold harmless, and, at Euclid’s option, defend Euclid from and against any Losses resulting from any Third-Party Claim related to the acquisition, sale, development, operation and/or maintenance of the Customer Projects. Customer may not settle any Third-Party Claim against Euclid unless Euclid consents to such settlement, and further provided that Euclid will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
7. LIMITATIONS OF LIABILITY.
(a) Indirect Liabilities. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EUCLID WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
(b) Direct Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO EUCLID UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
(c) Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 7 SHALL NOT LIMIT (I) A PARTY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 6; (II) DAMAGES ARISING IN CONNECTION WITH A PARTY’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE; OR (III) DAMAGES ARISING IN CONNECTION WITH A PARTY’S MISAPPROPRIATION OR OTHER UNAUTHORIZED USE OF THE OTHER PARTY’S TECHNOLOGY.
8. TERM AND TERMINATION.
(a) Term and Termination. This Agreement shall remain in effect until the termination or completion of any Order hereunder. Either Party may terminate an Order, effective on written notice to the other Party, if the other Party materially breaches its obligations under such Order or this Agreement, and such breach: (A) is incapable of cure or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach. In addition, either Party may terminate this Agreement and each Order, effective immediately upon written notice to the other Party, if the other Party: (W) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (X) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (Y) makes or seeks to make a general assignment for the benefit of its creditors; or (Z) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) Survival. This Section 8(b) and Sections 1(b), 2, 4, 5(b), 6, 7, and 9 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
9. MISCELLANEOUS.
(a) Entire Agreement. This Agreement, together with each Order constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Notwithstanding the foregoing, Customer shall not be excused from its payment obligations as a result of the occurrence or persistence of a force majeure event.
(d) Amendment and Modification; Waiver. Except for Euclid’s ability to update this Agreement at any time and for such update to apply to future Orders, this Agreement may not be amended or updated except with the mutual written agreement of the Parties. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the borough of Manhattan in New York, New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
(f) Construction. As used in this Agreement, all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require. The words “hereof,” “herein” and “hereunder” and other words of similar import refer to this Agreement as a whole, as the same may from time to time be amended or supplemented in accordance herewith, and not to any subdivision contained in this Agreement. The word “including” when used herein is not intended to be exclusive and means “including, without limitation.” Any reference to a person or entity shall include that person or entity’s successors and assigns or to any person or entity succeeding to that person or entity’s functions.
(g) Publicity. During the term of this Agreement, Euclid may include Customer’s name and logo in its marketing materials and customer lists, including on its website. To the extent Customer provides standard trademark usage guidelines, Euclid shall use Customer’s name and logo in accordance with the guidelines. In addition, Customer will cooperate with Euclid with respect to a mutually agreed joint press release.
(h) Relationship of the Parties. For all purposes under this Agreement, each Party will be and act as an independent contractor of the other and will not bind or attempt to bind the other to any contract, and nothing contained herein shall be deemed to constitute either Party as an employee, partner, joint venturer, or agent of the other Party. NOTWITHSTANDING ANY DUTY (INCLUDING ANY FIDUCIARY DUTY) THAT MAY OTHERWISE EXIST AT LAW OR IN EQUITY, TO THE FULLEST EXTENT PERMITTED BY LAW, (I) NO PARTY SHALL HAVE A FIDUCIARY DUTY TO ANY PERSON BOUND BY THIS AGREEMENT, AND (II) THE SOLE DUTIES, IF ANY, OF EACH PARTY TO THIS AGREEMENT AND ITS RESPECTIVE AFFILIATES TO ANY PERSON BOUND BY THIS AGREEMENT SHALL BE LIMITED TO THE CONTRACTUAL DUTIES IMPOSED BY THIS AGREEMENT.
(i) Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this Agreement without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.