Terms & Conditions

APPLICATION SERVICES AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY PORTION OF THE SERVICE, OR BY PAYING FOR THE SERVICE BY AN MEANS OFFERED BY LUCID, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY OTHER WRITTEN NEGOTIATED CONTRACT SIGNED BY YOU.

THE TERMS AND CONDITIONS OF THIS AGREEMENT ("TERMS & CONDITIONS") APPLY TO ANY AND ALL USE OF THE SERVICE BY YOU OR OTHERS IN YOUR ORGANIZATION, AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS REGARDLESS OF THE TYPE OF USE OF THE SERVICE BY YOU OR YOUR ORGANIZATION.

This agreement, as amended from time to time (the "Agreement") is between you ("you", "your", "Client") and Lucid Design.

1. DEFINITIONS. As used in this Agreement:

"You", "Subscriber", and "Your" refers to your organization and anyone in your organization that uses Our software or Our services, including the person signing this Agreement. "Lucid", "the Company", and "Our" refers to Lucid Design Group, Inc. and its assigns.

"Licensed Software" means the web-based software program and any modified, updated or enhanced versions of such programs that Lucid in its sole discretion may provide to You pursuant to this Agreement or under a separate support agreement. Licensed Software specifically excludes Subscriber's Materials.

"Service" and "Services" refers to any and all of Lucid's automated information collection services licensed to You that operates continuously over the internet to access environmental performance data from Your facilities, store this information over time on server(s) owned and/or managed by Lucid, and enable data access over the internet to websites or public kiosk displays.

"Metered Points" mean individual data points read from Subscriber's devices such as but not limited to building automation systems, programmable logic computers, and utility meters, including manually entered or uploaded data.

"Activation Date" means the date on which the Services for the Subscriber are activated. The Activation Date is the date when Lucid completes connectivity with Subscriber's building automation system, programmable logic computer, utility meter, etc. and verifies that the resulting data are accurate.

"Effective Date" refers to the executed dates in the Lucid Order Form and will continue in effect until terminated by either party.

"Documentation" means the description of software features and capabilities as described on Lucid's website, www.luciddesigngroup.com, as of the Effective Date.

"Intellectual Property Rights" means all United States copyrights, trademarks, service marks, trade secrets, patents, patent applications, and all other proprietary rights and equivalent rights throughout the world.

"Service Period" means the license term purchased by Subscriber as referenced in a valid price quotation from Lucid.

"Subscriber's Materials" (or simply "Materials") means the images, artwork, architectural renderings, or other electronic material of a visual nature provided by You to Lucid for display in connection with the Licensed Software.

2. PROPRIETARY RIGHTS.

2.1 License Grant. Subject to the terms and conditions of this Agreement, including the payment of fees as set forth in Section 4, Lucid will provide to You access to, and use of, the Licensed Software and the Service on a nonexclusive, nontransferable, revocable, nonsublicensable basis throughout the Service Period. Promptly following the Activation Date, Lucid will deliver to You user account details and/or URLs to access the Service.

2.2 Additional Functionality. During the Service Period, Lucid may offer additional functionality and/or the ability to use the Service with other third party applications (collectively the "Applications"). If you elect to subscribe to such Applications, Your license grant will be hereby amended to include such Applications in the license grant in Section 2.1 above. Applications may allow the use or disclosure of your information, as further set forth in each application description.

2.3 Subscriber's Materials. You hereby grant a non-exclusive, worldwide, fully sublicensable license to Lucid to copy, display and modify (as necessary for compatibility with the Service) Your Materials. You warrant that Your Materials are owned by You or are properly licensed from the Materials' rightful owner(s) for use in association with the Licensed Software and Service. By providing such Materials to Lucid, You warrant that all Materials do not infringe any third party's proprietary rights. You agree to indemnify, defend, and hold harmless Lucid and its licensors from any infringement or similar claims arising from or against a third party relating to Lucid's use of the Materials and the Materials' incorporation in the Licensed Software or Services.

2.4 Use of Data. Subscriber hereby grants Lucid a non-exclusive, perpetual, worldwide, royalty-free license, including the right to sublicense on an anonymized basis, to Subscriber's Metered Points data gathered by the Service.

2.5 Proprietary Rights. The Service and Licensed Software, including its underlying software and structure, and all worldwide Intellectual Property Rights therein are the exclusive property of Lucid. Except as may be expressly provided in this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Lucid's existing or future intellectual property, including patents. Subscriber will not remove, alter, or obscure any proprietary notices (including copyright notices) of Lucid.

3. UPDATES, UPGRADES AND NEW PRODUCTS.

Lucid may update the Services and the hardware and software used to provide the Service from time to time. Lucid shall include in the Services provided hereunder any such updates that Lucid generally provides to its similarly situated customers free of charge; however, nothing in this Agreement will obligate Lucid to provide Services that include any upgrade (i.e. revisions to the Services that include new features or substantial increases in functionality), unless such upgrade is described in a new purchase order and You have paid the applicable license fees for such upgrade.

4. FEES AND PAYMENT.

You shall pay, within 30 days of receipt of invoice from Lucid, all fees or charges accruing to Your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may only use the Service and Licensed Software if you have paid all license fees due to Lucid ("Fees"). All payments must be made in U.S. dollars. The Fees exclude all applicable sales, use and other taxes and you are responsible for payment of all such taxes (other than taxes based on Lucid's income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees.

Lucid reserves the right to modify its fees and charges and to introduce new charges upon renewal of the Agreement, not to exceed a 5% increase from prior Term. Fees for other services will be charged on an as quoted basis. All pricing terms are confidential, and You agree not to disclose them to any third party.

Any portion of the fees that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. IF ANY PAYMENT IS GREATER THAN 30 DAYS PAST DUE, YOUR SERVICE AND THIS AGREEMENT MAY BE TERMINATED AT LUCID'S DISCRETION.

5. INDEPENDENT CONTRACTOR STATUS.

This Agreement shall not be construed to create a relationship between the parties of agent, servant, employee, partnership, joint venture or association. Lucid shall perform the services hereunder as an independent contractor, retaining complete control over its personnel and operation. Neither Lucid nor its employees shall be, in any sense, Your employees or agents. You shall be responsible for paying all required state and federal taxes, including applicable sales and use taxes. Furthermore, Client shall pay all shipping charges (billed at cost) and agrees that all hardware shall be shipped FOB shipping point. Additional insurance for shipping is available to Client at cost. Any shipping or other terms listed on Client's purchase order shall be of no force and effect unless expressly agreed to in writing by Lucid.

6. YOUR OBLIGATIONS.

6.1 Non-transfer. The Services are for use by You and Your authorized end users only, and only for Your internal business purposes, and not for resale, distribution, assignment, transfer, rent or loan to any third party, including any of Your parent or subsidiary entities unless expressly authorized by Lucid.

6.2 Other Restrictions on Use. Subscriber agrees to use only web application software licensed by Lucid to access the Services for Subscriber's own internal business operations. You agree to not reverse engineer or otherwise attempt to discover source code or underlying ideas or algorithms of the Services or Licensed Software, or to modify reorder, augment or manipulate or create derivative works based on the Services and Licensed Software. Any breach of this Section 6.2 or other manipulating, reverse-engineering, or otherwise exploiting the Service using software not properly licensed by Lucid constitutes grounds for immediate termination of this Agreement by Lucid.

7. WARRANTIES.

7.1 Performance. For the period of time described below, Lucid warrants that the Service and Licensed Software, when used as permitted under this Agreement and in accordance with the Documentation, will operate substantially as described in the Documentation. Lucid, on behalf of itself and its licensors, does not warrant that Your use of the Service or Licensed Software will be error free or uninterrupted. Lucid is not liable whatsoever for interruptions in the Service stemming from Your computers, network hardware, building automation software, internet connectivity, or other elements owned or controlled by You or others that are reasonably required for the Service or Licensed Software to operate. Lucid will, at its own expense and as its sole obligation and as Your sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to maintain maximum uptime throughout the term of this Agreement.

7.2 Disclaimers. Except as to the express warranties in this Section 7, Lucid offers its Service and Licensed Software on an "as is" basis. Lucid makes no other warranties, express, implied or statutory, regarding the Service and Licensed Software including any warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights. Subscriber acknowledges that it has relied on no warranties other than the express warranties in this Section 7.

8. LIABILITY LIMITATION.

In no event will Lucid or its licensors be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement. In no event will Lucid's total cumulative Liability in connection with this Agreement, the Service and the Licensed Software, whether in contract or tort or otherwise, exceed the amount of Service Fees actually paid to Lucid hereunder. Subscriber acknowledges that the Service Fees reflect the allocation of risk set forth in this Agreement and that Lucid would not enter into this Agreement without these limitations on its liability.

9. TERM AND TERMINATION.

9.1 Term. The term of this Agreement will begin on the Start Date in the Lucid Order Form and will continue in force for a period of one year or for such other initial term as otherwise mutually agreed upon in writing (the "Term"). Thereafter this Agreement will automatically renew for a period of one year or for such other initial term as otherwise mutually agreed upon in writing by the parties ("Renewal Term"), unless either party gives the other party not fewer than thirty (30) days notice of its intent not to renew, or unless terminated under the terms contained within this Agreement.

9.2 Termination. Subscriber may terminate this Agreement at any time, with or without cause, upon written notice to Lucid. Lucid may terminate this Agreement, effective immediately upon written notice to Subscriber, if: (a) Subscriber fails to pay any portion of the Service Fees when due within thirty (30) days after receiving written notice from Lucid that payment is due; or (b) Subscriber breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Lucid. Lucid may also immediately terminate this Agreement for Subscriber's breach of Section 6, upon written notice.

9.3 Effects of Termination. Upon termination of this Agreement for any reason, any amounts owed to Lucid under this Agreement before such termination will be immediately due and payable, all rights granted to Subscriber in this Agreement will immediately cease to exist, and all Services and Licensed Software provided by Lucid may cease functioning, the precise timing of which shall be determined at Lucid's sole discretion. If subscriber elects to terminate this Agreement, no portion of the Fees will be refunded or excused.

9.4 Survival. Sections 1 ("Definitions"), Section 2 ("Proprietary Rights"), Section 6 ("Your Obligations"), 7.2 ("Disclaimers"), 8 ("Liability Limitation"), 9.3 ("Effects of Termination"), and 10 ("General") will survive termination of this Agreement for any reason.

10. GENERAL.

10.1 Support. Lucid is not required to provide any support services with respect to Subscriber's property, including without limitation computers, building automation systems, network connections, routers, firewalls, or software products that operate on Subscriber's computers.

10.2 Compliance with Laws. Subscriber will comply with all applicable laws and regulations in its use of the Service and Licensed Software. Subscriber will defend, indemnify and hold harmless Lucid from and against any claim arising out of or related to a violation of such laws or regulations by Subscriber or any of its agents, officers, directors, or employees.

10.3 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing via email and will be effective one (1) business day after sending by email. Lucid will use the email address provided by Subscriber upon entering into this Agreement. It is Subscriber's duty to promptly notify Lucid of any change in Subscriber's email at the following email address sales@luciddg.com.

10.4 Governing Law. This Agreement will be governed by the laws of the State of California, without giving effect to its rules regarding conflicts of law. This Agreement shall not be governed by, and shall be construed without regard to, the United Nations Convention on the International Sales of Goods. Each party hereby irrevocably submits to the jurisdiction and venue before the Superior Court of California, County of Alameda and the federal courts in the Northern District of California as to any action or proceeding arising out of or relating to this Agreement, and each party irrevocably waives, to the fullest extent permitted by law, any objection which such party may now or hereafter have regarding jurisdiction and venue in such forum, and any claim that such forum is an inconvenient forum.

10.5 Assignment. Neither party may subcontract its duties or obligations in this Agreement to a third party without the other party's prior written consent; however, Lucid may assign this Agreement in connection with merger, reincorporation, reorganization or sale of all or substantially all of the assets and/or shares of Lucid.

10.6 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.7 Severability. If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect.

10.8 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to".

10.9 Force Majeure. Except for Subscriber's obligations to pay Lucid hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

10.10 Entire Agreement. This Agreement constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the Service and Licensed Software and supersedes all prior or contemporaneous agreements, understandings, and communication between the parties, whether written or oral. The terms and conditions listed on any purchase order that conflict with this Agreement are null and void and shall have no binding effect. This Agreement may be amended only by a written document signed by both parties.

10.11 Note to California Subscribers: Pursuant to Assembly Bill 1274 (Title 1.81.4, California Civil Code Section 1798.98), if Metered Points include "data" as defined therein ("a customer's electrical or natural gas usage that is made available to the business as part of an advanced metering infrastructure provided by an electrical corporation, a gas corporation, or a local publicly owned electric utility, and includes the name, account number, or physical address of the customer") such as through Green Button, you are hereby notified that such Metered Points may be shared with any of Lucid's contractors or affiliates (collectively "Affiliate") provided that such Affiliate shall be required under contract to maintain reasonable security procedures and protect the Metered Points from unauthorized access, destruction, use, modification or disclosure. Any such use shall be for the improvement of the Licensed Software. You hereby consent to such sharing and use of data as described above.