Posted/Revised: 5/31/18

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY SIGNING IN, USING, ACCESSING OR BROWSING THE KNOW TRUEUP PLATFORM OR SOLAR DATA PROS WEBSITE, END USER AGREES TO THESE TERMS AND CONDITIONS.

These Terms of Service constitute an agreement (this “Agreement”) by and between Solar Data Pros, LLC, and Solar Maintenance Pros, Inc., a California corporation whose principal place of business is 6701 N. Milburn Ave., Suite 170, Fresno, CA 93722 (hereinafter collectively “SDP”) and the individual using the System as defined below in section 1.8 (“End User”). This Agreement is effective as of the date End User first creates a profile and accesses the System (the “Effective Date”). End User’s use of and SDP’s provision of SDP’s System (as defined below in Section 1.8) are governed by this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.

  1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
    1. AUP” means SDP’s acceptable use policy currently posted here.
    2. Documentation” means SDP’s standard manual, online knowledge base related to use of the System..
    3. End User” means any company or individual who uses the System through End User’s account or passwords, whether authorized or not.
    4. End User Data” means data in electronic form input or collected through the System by or from End User.
    5. “Essential Third Party Energy Data Providers” means data provided by third party energy usage and solar/inverter providers and data exchange programs through an API exchange, which is essential and required for the System to render data.
    6. Order” means an order for access to the System, executed as follows: through online purchase electronically or through signed physical Order form for a subscription to the System .
    7. Privacy Policy” means SDP’s privacy policy, currently posted here.
    8. System” means SDP’s Know TrueUp software as a service platform.
    9. Term” is defined in Section 11.1 below.
  1. THE SYSTEM.

2.1 Use of the System. During the Term, End User may access and use the System pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.

2.2 Documentation: End User may reproduce and use the Documentation solely as necessary to support Users’ use of the System.

3 END USER DATA & PRIVACY.

3.1 Use of End User Data. Unless it receives End User’s prior written consent, SDP: (a) shall not access, process, or otherwise use End User Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to End User Data, including without limitation SDP’s other End Users, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, SDP may disclose End User Data as required by applicable law or by proper legal or governmental authority. SDP shall give End User prompt notice of any such legal or governmental demand and reasonably cooperate with End User in any effort to seek a protective order or otherwise to contest such required disclosure, at End User’s expense.

3.2 Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by SDP’s staff.

3.3 Risk of Exposure. End User recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, End User assumes such risks. SDP offers no representation, warranty, or guarantee that End User Data will not be exposed or disclosed through errors or the actions of third parties.

3.4 Data Accuracy. SDP shall have no responsibility or liability for the accuracy of data uploaded to the System by End User, including without limitation End User Data and any other data uploaded by Users or Essential Third Party Energy Data Providers.

3.5 Data Deletion. SDP may permanently erase End User Data if End User’s account is terminated for 30 days or more.

3.6 Excluded Data. End User represents and warrants that End User Data does not and will not include, and End User has not and shall not upload or transmit to SDP’s computers or other media, any data (“Excluded Data”) that violates any U.S. or international data privacy laws (the “Excluded Data Laws“). End User RECOGNIZES AND AGREES THAT: (a) SDP HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) SDP’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

3.7 Aggregate, De-Identified Data, and Power Usage Data. Notwithstanding the provisions above of this Article 3, SDP may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data, De-Identified Data, and Power Usage Data in any way, in its sole discretion. (“Aggregate Data” refers to summaries of End User Data, or of data that includes End User Data, that do not include personally identifiable information or the names or addresses of End User and any of its Users. “De-Identified Data” refers to End User Data with the following removed: personally identifiable information and the names and addresses of End User and any of its Users.  “Energy Usage Data” refers data collected specific to a house’s electricity, power, and solar usage.)

  1. End User’S RESPONSIBILITIES & RESTRICTIONS.

4.1 Acceptable Use. End User shall comply with the AUP. End User shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 4.1, including without limitation by Users, SDP may suspend End User’s access to the System without advanced notice, in addition to such other remedies as SDP may have. Neither this Agreement nor the AUP requires that SDP take any action against End User or any User or other third party for violating the AUP, this Section 4.1, or this Agreement, but SDP is free to take any such action it sees fit.

4.2 Unauthorized Access. End User shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. End User shall notify SDP immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

4.3 Compliance with Laws. In its use of the System, End User shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of End User Data.

  1.  IP & FEEDBACK.

5.1 IP Rights to the System. SDP retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant End User any intellectual property license or rights in or to the System or any of its components. End User recognizes that the System and its components are protected by copyright and other laws.

5.2 Feedback. SDP has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that End User, End User’s End Purchasers, or other Users provide to SDP, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict SDP’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting End User or the End User’s End Purchaser or other User in question. Feedback will not constitute End User’s confidential information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of SDP’s products or services.)

  1. CONFIDENTIAL INFORMATION. Confidential Information” refers to the following items SDP discloses to End User: (a) any document SDP marks “Confidential”; (b) any information SDP orally designates as “Confidential” at the time of disclosure, provided SDP confirms such designation in writing within 10 business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in End User’s possession at the time of disclosure; (ii) is independently developed by End User without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of End User’s improper action or inaction; or (iv) is approved for release in writing by SDP.

6.1 Nondisclosure. End User shall not use Confidential Information for any purpose other than using the System for internal business (the “Purpose”). End User: (a) shall not disclose Confidential Information to any employee or contractor of End User unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with End User with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without SDP’s prior written consent. Without limiting the generality of the foregoing, End User shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. End User shall promptly notify SDP of any misuse or misappropriation of Confidential Information that comes to End User’s attention. Notwithstanding the foregoing, End User may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. End User shall give SDP prompt notice of any such legal or governmental demand and reasonably cooperate with SDP in any effort to seek a protective order or otherwise to contest such required disclosure, at SDP’s expense.

6.2 Injunction. End User agrees that breach of this Article 6 would cause SDP irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, SDP will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

6.3 Termination & Return. With respect to each item of Confidential Information, the obligations of Section 6.1 above (Nondisclosure) will terminate one (1) year after the date of disclosure; provided that such obligations related to Confidential Information constituting SDP’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, End User shall return all copies of Confidential Information to SDP or certify, in writing, the destruction thereof.

6.4 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. SDP will retain all right, title, and interest in and to all Confidential Information.

6.5 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), End User is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

      1. IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
      2. USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

7 REPRESENTATIONS & WARRANTIES.

7.1 From SDP. SDP represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. SDP’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by SDP. In the event of a breach of the warranty in this Section 7.1, SDP, at its own expense, will promptly take the following actions: (a) secure for End User the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the System and refund to End User any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with End User’s right to terminate for breach where applicable, the preceding sentence states SDP’s sole obligation and liability, and End User’s sole remedy, for breach of the warranty in this Section 7.1 and for potential or actual intellectual property infringement by the System.

7.2 Warranty Disclaimers. END USER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SDP HAS NO OBLIGATION TO INDEMNIFY OR DEFEND END USER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) SDP DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) SDP DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT End User DATA WILL REMAIN PRIVATE OR SECURE.

  1. INDEMNIFICATION. End User shall defend, indemnify, and hold harmless SDP and the SDP Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to End User’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including End User Data; (b) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through End User’s account, including without limitation by End User Data; and (c) claims that use of the System through End User’s account, including by End User’s End Purchasers or other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to SDP’s negligence. End User’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at End User’s expense and payment of judgments. SDP will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “SDP Associates” are SDP’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
  2. LIMITATION OF LIABILITY.

9.1 Dollar Cap. SDP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) ONE AND A HALF (1.5) TIMES THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR THE SERVICE OR (B) ONE HUNDRED DOLLARS ($100).

9.2 Essential Third Party Energy Data Provider.  IN NO EVENT SHALL SDP BE LIABLE FOR ANY DAMAGE DUE TO AN ESSENTIAL THIRD PARTY DATA PROVIDER CEASING TO PROVIDE DATA, PROVIDING INACCURATE DATA, OR BEING UNAVAILABLE FOR ANY DURATION OF TIME.

9.3 Exclusion of Consequential Damages. IN NO EVENT WILL SDP BE LIABLE TO END USER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

9.4 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SDP IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF END USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, SDP’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, SDP’s liability limits and other rights set forth in this Article 9 apply likewise to SDP’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

  1. Term & Termination.

10.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order or, if none, for one year. Thereafter, the Term will renew for successive one year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

10.2 Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting SDP’s other rights and remedies, SDP may suspend or terminate a End User’s End Purchaser’s or other User’s access to the System at any time, without advanced notice, if SDP reasonably concludes such End User’s End Purchaser or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects SDP to potential liability.

10.3 Termination Due to Third Party Data Pull Cessation.  The System relies on the ability pull data from third party energy usage and solar/inverter providers and data exchange programs from Essential Third Party Energy Data Providers.  Should any Essential Third Party Energy Data Provider cease to continue the program or should the cease providing the data for any reason, this Agreement shall immediately terminate and with it all of the rights and obligations of the parties.

10.4 Effects of Termination. Upon termination of this Agreement, End User shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of End User to pay fees incurred before termination; (b) Articles and Sections 5 (IP & Feedback), 6 (Confidential Information), 7.2 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

  1. MISCELLANEOUS.

11.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no SDP employee or contractor will be an employee of End User.

11.2 Notices. SDP may send notices pursuant to this Agreement to End User’s email contact points provided by End User, and such notices will be deemed received 24 hours after they are sent. End User may send notices pursuant to this Agreement to the address listed in the second paragraph of this Agreement, and such notices will be deemed received 72 hours after they are sent.

11.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

11.4 Assignment & Successors. End User may not assign this Agreement or any of its rights or obligations hereunder without SDP’s express written consent. Except to the extent forbidden in this Section 11.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

11.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

11.6 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

11.7 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Fresno, California. This Section 11.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

11.8 Conflicts. In the event of any conflict between this Agreement and any SDP policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.

11.9 Technology Export. End User shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by SDP or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, End User shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

11.10 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

11.11 Amendment. SDP may amend this Agreement from time to time by posting an amended version at its Website and sending End User written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless End User first gives SDP written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of End User’s next Term following the Proposed Amendment Date (unless End User first terminates this Agreement pursuant to Article 11, Term & Termination). End User’s continued use of the System following the effective date of an amendment will confirm End User’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 12.11, SDP may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.