1. ACCEPTANCE OF APPA TERMS AND CONDITIONS
User warrants and represents that it has reviewed and accepts all of the American Public Power Association (APPA) Terms and Conditions relating to the use of APPA’s Utility Recognition Software (the “Software”).
2. WEB-BASED LICENSE; RESERVATION OF TITLE.
APPA grants to User, and User accepts, a nonexclusive license and rights to use the Software through the use of the Internet and use the Software and the Documentation only as authorized in the APPA Terms and Conditions for its own purpose and operations during the Term of this Agreement. The Software will be hosted by APPA and accessed and used by User through the use of the Internet and User’s computers. The Software and Documentation remain the property of APPA and all title to the Software and Documentation remains with APPA.
The term of this Agreement is one (1) year. If User does not provide APPA written notice of non-renewal at least ninety (90) days before the expiration of any term, the Agreement will automatically renew for additional one (1) year terms.
4. USER RESPONSIBILITIES.
User is responsible for maintaining its network and its user desktops and providing its own users’ network access to the Software. User is also responsible for ensuring that its users comply with these APPA Terms and Conditions with respect to the use of the Software and Documentation. User shall provide connectivity and security for the Internet for its location(s) for purposes of providing adequate access to Software hosted by APPA. APPA shall not be responsible for the reliability or continued availability of the communication lines, or the corresponding security configurations, used by User in accessing the Internet to access the Software. User shall provide adequate industry “best practice” standards to ensure reasonable security for integration between applications at the User site and Software hosted by APPA. User shall be responsible for ensuring that any User Content is accurate, not corrupt in any way, and does not contain any viruses.
APPA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND SERVICES PROVIDED OR OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, PERFORMANCE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATION CONTENT, AND SYSTEM INTEGRATION, IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTIES AGAINST INTEREFERENCE WITH USER’S ENJOYMENT OF SUCH SERVICES AND SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES. THE SOFTWARE PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS” BASIS, AND APPA HAS NO OBLIGATIONS TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS OR MODIFICATIONS.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1. APPA IP Rights. User agrees that the Software, Documentation and Services are proprietary solutions and services and that all right, title and interest in and to such Software, Documentation and Services, including all associated intellectual property rights, including, without limitation: patent, copyright, trade secret, trademark and all of APPA’S registered trademarks, trademark applications, trade names, URL registrations and other proprietary rights, are and shall at all times remain with APPA. The Software contains trade secrets and proprietary information owned by APPA and is protected by United States copyright laws and international trade provisions. User must treat the Software like any other copyrighted material and User may not copy or distribute the Software or Documentation, electronically or otherwise, for any purpose. APPA has granted User hereunder a nonexclusive right to use the Software and to receive the Services pursuant to these APPA Terms and Conditions.
5.2. User IP Rights. User will own all User Content and all other related intellectual property and proprietary rights, including, without limitation: patent, copyright, trade secret, trademark and other proprietary rights and all of User's registered trademarks, trademark
applications, trademarks and service marks, trade names, URL registrations. User’s IP Rights will remain the sole property of User. APPA will not obtain any intellectual property rights in or to User's IP Rights.
6. LIMITATIONS OF LIABILITY.
APPA will not be responsible for claims, damages or liabilities arising from (i) software or hardware provided by a third party; (ii) modifications to the Software by a party other than APPA or its designees (iii) failure to perform any services other than those expressly agreed to
pursuant to this Agreement, (iv) acts or omissions reasonably based on instructions or directions from User or other service providers, or from their authorized agents or employees, or (v) errors in the provision of or the failure to provide the Services to the extent such error or failure is caused by (1) incomplete, inaccurate or untimely information provided by User or third party
designees of User, (2) failure of User to perform its obligations or provide resources as required by this Agreement, or (3) a Force Majeure Event, as defined in Section 7 below.
APPA’s and its affiliates' aggregate, entire and collective liability in any calendar year arising out of or relating to the Agreement, including without limitation on account of performance or non-performance of the Software or Services or other obligations hereunder, regardless of the form of the cause of action, whether in contract, tort (including without limitation negligence),
breach of warranty, statute or otherwise, will in no event exceed the fees paid to APPA under this Agreement during the twelve month period preceding APPA’s act(s) or omission(s) giving
rise to the liability. The foregoing limitation is cumulative with all payments being aggregated to determine satisfaction of the limit. The existence of one or more claims will not enlarge the limit. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IN NO EVENT SHALL APPA OR ITS AFFILIATES BE LIABLE TO USER FOR DIRECT, INDIRECT SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES OF ANY KIND OR NATURE, (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST INCOME, GOODWILL OR DATA) ARISING OUT OF THE USE OF THIS SOFTWARE AND ITS DOCUMENTATION, WHETHER FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION, EVEN IF APPA OR ITS AFFILIATES HAVE
BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
7. FORCE MAJEURE.
APPA will be excused from performance of its obligations pursuant to this Agreement for any period and to the extent it is prevented from performing such obligations, in whole or in part, as a result of delays caused by User or a third party, or an act of God, severe weather, war, civil disturbance, court order or any other cause over which APPA does not have direct control,
including internet or communication problems, third party hardware or software errors, computer viruses or similar harmful programs or data, or unauthorized access or theft (a "Force Majeure Event").
User will indemnify, defend, and hold harmless APPA and its affiliates, including their directors, officers and employees, from and against all third party claims, actions, obligations, damages, losses, liabilities, and expenses, including reasonable attorneys' fees and expenses (collectively, “Losses”) arising out of or relating to this Agreement or APPA’s provision of Software and Services under this Agreement, including but not limited to Losses arising out of the breach of User's representations and warranties; provided, however, that User will have no responsibility to APPA with respect to any Losses to the extent the same have been caused by APPA’s gross negligence, willful misconduct or material breach of the Agreement.
9. ENTIRE AGREEMENT.
Together with the pricing terms, this Agreement and these APPA Terms and Conditions supersede any and all agreements, either oral or written, between the Parties hereto with respect to the provision of Software and Services by APPA and contain all the covenants and agreements between the Parties with respect to the Utility Recognition Software. User acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by APPA or anyone acting on its behalf, which are not embodied herein, and that no other agreement, statement or promise not contained in the Agreement or these Terms
and Conditions shall be valid or binding.
10. GOVERNING LAW.
These APPA Terms and Conditions shall be governed by and construed both as to validity and performance and enforced in accordance with the law of the Commonwealth of Virginia without giving effect to the choice of law principles thereof. User specifically agrees to the venue and personal jurisdiction of the federal and state courts of the Commonwealth of Virginia.