These terms for Apollo Subscription (“Agreement”) are entered into and between Apollo entity identified on the Apollo Order Form (“Us” or “Apollo”) and the customer identified on the Apollo Order Form (“You” including its grammatical variations or “Customer”). Apollo Order Form is governed by this Agreement and the Order Form supplements this Agreement. By agreeing to or accepting the Order Form, you enter into this Agreement. This Agreement and the Order Form constitute the entire terms governing the relationship between the parties related to the Apollo Service. No additional terms are binding unless agreed in writing and signed by us. Certain terms are used with a defined meaning. You will find the definitions in Section 1 of this Agreement.
In consideration of the mutual promises herein and other valuable consideration and on the terms and conditions set forth below and in any applicable Order Form, Apollo agrees to provide and You agree to receive and pay for the Service in accordance with the following terms and conditions:
Definitions
“Affiliate” means any entity that directly or indirectly Controls, is controlled by, or is under common Control with such entity.
“Control” - of an entity means direct or indirect ownership or control of more than 50% of the voting interests of such entity.
“Authorized Users” means Customer’s and its Affiliates’ employees and third party providers authorized to access the Service and/or to receive Customer Data through the Service.
“Competitor” - means any entity that may be reasonably construed as offering competitive functionality or services to those offered by Apollo.
“Confidential Information” of a Party means non-public or proprietary information regarding the business or affairs of that Party, whether oral, written or electronic, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Examples of Confidential Information include the terms and conditions of this Agreement, the Customer Data, business and marketing plans, technology and technical information, financial results and information, product designs, product roadmaps, and business processes.
“Customer Data” means the electronic data or information submitted by Customer.
“Cloud Supplier” means a third party that Customer has engaged to provide the cloud infrastructure on which Service will operate as part of the Customer’s permitted usage of Service under this Agreement.
“Documentation” means the user guide for the Service, as updated from time to time, accessible via the Apollo Online Help Center.
“High Risk Activities” are activities where the failure of the Service could lead to death, personal injury, assets failures, or environmental damage.
“Hosted Services” mean (a) managed services consisting of power, physical environment controls, hardware/server/OS installation or monitoring, network bandwidth supply/management, incident/change management, or (b) security services, including, network security, intrusion detection, firewall, risk management and physical security provided by the Cloud Supplier to Customer.
“Intellectual Property Rights” means all industrial and intellectual property rights and all rights associated therewith, throughout the world, including (1) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, (2) all inventions (whether patentable or not) and all rights in invention disclosures, (3) improvements, trade secrets, proprietary information, know how, technology, technical data, proprietary processes and formulae, algorithms, specifications, customer lists and supplier lists, (4) all designs and any registrations and applications therefor, all trade names, logos, trade dress, trademarks and service marks, trademark and service mark registrations, trademark and service mark applications, and any and all goodwill associated with and symbolized by the foregoing items, (5) Internet domain name registrations, (6) all copyrights, copyright registrations and applications therefor (including copyrights in Software, and all other rights corresponding thereto, (7) all rights in databases and data collections, (8) all moral rights of authors and inventors, however denominated, and (9) any similar or equivalent rights to any of the foregoing
“Laws” means all laws (including statutory law, common/case law, codes), regulations and governmental orders.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“Order Form” means the separate ordering documents under which Customer subscribes to the Apollo Service or requests Professional Services pursuant to this Agreement that have been fully executed by the Parties. As applicable, the Order Form will identify: (i) the Service, (ii) the number of sites, Subscription Term, domain(s) associated with your use of Cloud Products, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment.
“Personal Data” means information relating to an identified or identifiable natural person. An identifiable natural person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Sensitive Personal Data” means (a) information that reveals a natural person’s racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, (b) information or data concerning a natural person’s health or sex life or sexual orientation; or (c) genetic data or biometric data about a natural person.
“Service” means Apollo’ cloud based software-as-a-service solar energy analytics application – “Apollo Energy Analytics” as described in the Documentation and subscribed to under an Order Form.
Use of the Service
Apollo’s Responsibilities - Apollo shall: (i) make the Service available to Customer pursuant to the terms of this Agreement and the applicable statement of work and/or Order Form(s); (ii) provide Customer support in accordance with the terms of Apollo’s Standard Support Policy; and (iii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, and keep overall system uptime to minimum 99% for a calendar month except for (a) planned maintenance in accordance with the terms of Apollo’s Standard Support Policy, (b) any unavailability caused by circumstances beyond Apollo’s reasonable control, including, but not limited to, computer attacks or malicious acts on or through the Internet, or delays caused by an Internet service provider, telecommunications or hosting facility or any down-time / unavailability of the public cloud on which the Service is hosted; and (c) any unavailability that results from Customer’s equipment, software, other technology, or the actions of Customer or any third party within Customer’s control. Apollo shall not disclose Customer Data to anyone other than Authorized Users and shall not use Customer Data except: (i) to provide the Service; (ii) to prevent or address service or technical problems in accordance with this Agreement and the Documentation; or (iii) in accordance with Customer’s instructions.
Customer Responsibilities - Customer shall: (i) have sole responsibility for the accuracy and legality of all Customer Data; (ii) shall ensure that it has obtained all consents and permissions necessary to disclose any Personal Data within the Customer Data; (iii) use the Service only in accordance with the Documentation and applicable laws and government regulations, (iv) implement technical safeguards on Customer’s systems and devices to avoid any security risks to the Service and other user’s data and (v) prevent unauthorized access to, or use of, the Service, and notify Apollo promptly of any such unauthorized access or use. Customer shall be liable for the acts and omissions of its Authorized Users hereunder. Authorized Users’ passwords may not be shared with any third party. Customer must maintain confidentiality of the password. Customer is responsible for any user logging-in to the Service using Authorized User’s password. Customer shall be responsible for acquiring all equipment necessary to make connections to the World Wide Web, including a computer and Internet access. Customer agrees to abide by any and all local, country, and international export rules and regulations, laws and treaties governing Customer’s use of the Services, including but not limited to those related to data privacy, international communications and the transmission of technical or personal data. Customer agrees that Customer’s procurement of Services is not contingent on the delivery of any future functionality, features, or enhancements, or dependent on any commitments by Apollo regarding such delivery.
Access to the Service - Apollo will deliver the login instructions for the Service to Customer account or through other reasonable means no later than when Apollo has received payment of the applicable fees. All deliveries under this Agreement will be electronic. Customer shall have a non-exclusive, limited (as specified in the applicable Order Form), non-transferable (except to Affiliates) right to access and use the Service during the Term solely by Authorized Users (up to any limits on number of users in the applicable Order Form) only for the portfolio size specified in the applicable Order Form and solely for its internal business purposes and not for the benefit of any third parties.
Restrictions - Customer shall not knowingly: (i) modify, copy or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Apollo in the provision of the Service and Documentation, except to the extent required by law; (iv) access the Service or Documentation in order to build any commercially available or competing product or service; (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation; (vi) use the Service in violation of applicable Laws; (vii) send or store infringing, obscene, threatening, or otherwise unlawful material, including material that violates privacy rights; (viii) send or store Malicious Code in connection with the Service; (ix) use the Service for product compare or benchmarking purposes; (x) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit or (x) attempt to gain access to the Service in a manner not set forth in the Documentation.
Professional Services - Apollo shall, on an as-needed basis, provide additional services as may be set forth in an Order Form or Statement of Work. Any Order Form or Statement of Work for additional services must be executed by Apollo and Customer and must include or reference a reasonably detailed description of the project or services to be performed (“Professional Services”).
Customer Data - Apollo does not review, censor or monitor and is not in any manner responsible for any content Customer stores or sends through the Services, to the extent such content includes, without limitation, infringing, abusive, profane, hateful, libelous, unlawful, or offensive material, all content from parties accessed via the Services, accessed by Customer and those Customer has authorized, shall be all at Customer’s own risk. Customer acknowledges hereby and retain all right, title and interest (including, where appropriate, copyright and other proprietary or Intellectual Property Rights) in the content, information and files Customer stores through use of the Services, and Apollo explicitly disclaims any ownership of, or right, title and interest in the content, information and files Customer stores through use of the Services. Apollo assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content accessed using the Services. Information Customer stores in the Services is considered Customer’s Confidential information
Apollo shall use reasonable commercial efforts to ensure as part of the Services, but cannot guarantee that any content, data, or files stored or sent to or by Customer using the Services will be transmitted in uncorrupted form without viruses or other damaging or destructive attributes or within a reasonable period of time. Apollo shall use reasonable commercial efforts to ensure as part of the Services, but cannot guarantee, that any content, data, or files Customer stores in or transmit through the Services will not be subject to unauthorized access by others or that others will not gain access to the Services.
Changes to the Service - Customer acknowledge that the Service is on-line, subscription-based, and that in order to provide improved customer value, Apollo may make changes to the Service, and Apollo may update the applicable Documentation accordingly. Subject to our obligation to provide Service under existing Order Forms, Apollo can discontinue Services, or any portion or feature of Service for any reason at any time without liability to you.
Subscription Fees and Payment
Invoicing; Payment Terms; Taxes - Customer agrees to pay to Apollo (i) subscription fees for the Service in the amount set forth in the applicable Order Form and (ii) any Professional Services fees (Onoboarding, Customization if any) set forth in the applicable Order Form or Statement of Work. Unless specified otherwise in the applicable Order Form, the subscription fees for the initial term shall be due and payable by Customer upon execution of the applicable Order Form and the subscription fees for each subsequent term shall be due and payable prior to the commencement of each subsequent term. Unless specified otherwise in the applicable Order Form, invoiced Professional Services fees shall be due and payable net fifteen (15) days following receipt of Apollo’s invoice therefor. The payment obligations set forth in this Agreement are exclusive of all sales, use, withholding, value-added, privilege, excise or similar taxes or duties and Customer is responsible for paying such taxes, excluding USA income tax on Apollo. Except as otherwise specified herein, all payment obligations under any and all Order Forms are non-cancelable and all payments made are non-refundable. If parties agree that Apollo may not invoice without a purchase order, Apollo will not be obliged to deliver any Services or license keys unless it receives the purchase order from the Customer. However, parties acknowledge that Customer’s purchase order is merely for Customer’s internal accounting document and does not modify the terms of this Agreement or any Order Form.
Withholding Taxes - Customer will pay all fees net of any applicable withholding taxes. Both Parties will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If Apollo qualifies for a tax exemption, or a reduced treaty withholding rate, Apollo will provide you with reasonable documentary proof. Customer will provide us reasonable documentary evidence that Customer has paid the relevant authority for the sum withheld or deducted.
Renewal - Upon agreement by both Parties and execution of an Order Form, at the end of the then-current subscription term, each subscription to the Service shall renew for an additional term specified in the renewal Order Form (“Renewal Subscription Term”).
Overdue Payments; Non-Payment and Suspension of Service - Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Apollo’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer’s account is more than fifteen (15) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, Apollo reserves the right to suspend the Service upon eight (8) days written notice, without liability to Customer, until such amounts are paid in full.
Proprietary Rights; Aggregated Data
Ownership; Reservation of Rights - Apollo and its licensors own all right, title and interest in and to the Service, Documentation, and other Apollo Intellectual Property Rights. Subject to the limited rights expressly granted hereunder, Apollo reserves all rights, title and interest in and to the Service and Documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Apollo shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Customer feedback provided in connection with its use of the Service.
Customer Data - Customer shall retain all right, title and interest in and to the Customer Data. Subject to terms of this Agreement, and solely to the extent necessary to provide the Service to Customer, Customer grants us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Customer Data. Customer represents and warrants that: (i) Customer has obtained all necessary rights, releases and permissions to submit all Customer Data to Apollo and to grant the rights granted to Apollo in this Agreement and (ii) Customer Data and its submission and use as Customer authorizes in this Agreement will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of Customer’s or third-party policies or terms governing Customer Data. Other than our express obligations under Section 5 below, Apollo assumes no responsibility or liability for Customer Data, and Customer is solely responsible for Customer Data and the consequences of submitting and using it with the Service
Apollo performs regular system-wide back up procedures for the Services. However, Customer understands the inherent risk in electronic storage and agree to rely solely on Customer’s own back up copies of all files, data, content, and documents stored in or transmitted through the Services should those files, data, and documents stored in or transmitted through the Services become lost or damaged. During the Term, as well as after the Term expires, Apollo shall have no responsibility to recover or retrieve Customer Data, documents, and files stored and transmitted by Customer as part of Customer’s use of the Services, unless such recovery or retrieval results from an event or occurrence that requires a system-wide restoration, and the determination of such an event or occurrence along with the recovery and retrieval actions and process shall be determined solely and exclusively by Apollo.
Apollo has no obligation to monitor any content uploaded to the Service. Nonetheless, if Apollo deems such action necessary based on Customer’s violation of this Agreement, Apollo may (1) remove Customer Data from the public cloud hosting the Service or (2) suspend Customer’s access to the Service. Apollo will use reasonable efforts to provide Customer with advance notice of removals and suspensions when practicable, but if Apollo determines that Customer’s actions endanger the operation of the Service or other users, Apollo may suspend your access or remove Customer Data immediately without notice. Apollo has no liability to Customer for removing or deleting Customer Data from or suspending your access to Service as described in this Section 3.2.
Use of Aggregated Data - Apollo owns the aggregated and statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Apollo from utilizing the Aggregated Data for purposes of operating Apollo’s business and enhancing Apollo’s services, provided that Apollo’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any Personal Data.
Right to Survey - Apollo reserves the right to survey Authorized Users and Third Party users on a periodic basis solely for the purpose of enhancing the user experience and improving the Service. Apollo is prohibited from selling, trading or sharing any data received from such surveys.
Confidentiality
Confidential Information - Either Party may from time to time disclose (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information of the Disclosing Party. Except as expressly permitted by this Agreement, for a period of five (5) years from receipt of the applicable Confidential Information, the Receiving Party shall (i) protect such Confidential Information of the Disclosing Party from unauthorized dissemination, using the same degree of care which the Receiving Party ordinarily uses with respect to its own proprietary information, but in no event with less than reasonable care, (ii) not use such Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and (iii) limit the disclosure of such Confidential Information of the Disclosing Party to the employees, consultants, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to such Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order of a competent court or similar competent judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement promptly and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order enjoining, restraining or limiting the disclosure of such Confidential Information. Notwithstanding any other provision of this Agreement, the confidentiality obligations set forth herein shall apply indefinitely with regard to the (i) Customer Data, (ii) Service, (iii) any related technology, data and databases, algorithm or information contained therein or provided therewith and (iv) the Documentation, and in any event including any trade secrets related to any of the foregoing. Nothing in this Agreement shall limit any rights and remedies the Parties have under applicable laws governing trade secrets.
Return of Confidential Information - Except to the extent a Receiving Party is otherwise entitled to retain Confidential Information hereunder, the Receiving Party shall return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in tangible form and all materials or media containing or incorporating any Confidential Information of the Disclosing Party: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the Receiving Party shall certify promptly and in writing that it has done so
Remedies - If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections hereunder, the other Party shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
Exclusions - Confidential Information shall not include any information that: (i) is or becomes generally known to the public other than through a breach of a confidentiality obligation; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party. Customer Data shall not be subject to the exclusions set forth in this Section.
Data Privacy and Security
Data Privacy - In connection with the Contract and the Services, each party confirms that it will comply with all applicable laws, statutes, regulation, and codes relating to data privacy to the extent applicable to them. Customer confirms that it has obtained all legally required authorizations to transfer any Personal Data to Apollo and contractors providing administrative, infrastructure and other support services to Apollo, including across borders. Customer and Authorized Users should provide Apollo only with Personal Data that is requested by Apollo or that is otherwise necessary for Apollo to provide the Service. Apollo will not use such Personal Data other than for the purpose of providing the Service. Apollo will access only the Personal Data that it needs to perform the Service (i.e., no more than necessary). Apollo will not store Personal Data longer than necessary to achieve the permitted purposes specified in this Agreement. Parties will sign a separate Data Processing Agreement if required under the applicable data privacy legislations.
Customers (including Authorized Users) are advised never to provide Apollo with Sensitive Personal Data. Customer will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to your breach of this obligation regarding Sensitive Personal Data.
Protection and Security - Apollo shall use commercially reasonable efforts to implement technical safeguards in accordance with the Documentation to protect security and integrity of Customer Data. Customer acknowledges that the Service is hosted on a public cloud which is accessed by the customers over the public internet, which limits the manner in which these technical safeguards may be implemented. Further, the Service may not retain data without any capacity limitations and prior data files may be overwritten by the newly created data files. Customer must download and/or backup the data at regular intervals to avoid data loss.
Deployment on Customer selected cloud - Apollo shall upload the Service onto a cloud instance supplied by Cloud Supplier selected by the Customer only if the Order Form expressly permits the same. In such cases, Apollo disclaims any liability in the event of a negative consequence to information technology network or environment, including without limitation, Customer Data loss or disruption in Service. Further Apollo has no responsibility whatsoever, financial or otherwise, to Customer or to any other party for any hardware, data center services, Hosted Services, Cloud Supplier services used by Customer in connection with the Customer’s permitted usage of Services under this Agreement and relevant Order Form.
Customer shall ensure that Apollo is provided the required access rights to the cloud instance supplied by Cloud Supplier selected by the Customer throughout the Term to enable Apollo to carry out its obligations under this Agreement.
Further Apollo shall also have the right, with reasonable notice to Customer, to directly or through a third party, audit Customer's use of the Service hosted on cloud instance supplied by Cloud Supplier selected by the Customer no more than once each calendar year to assure compliance with the terms of this Agreement and the Order Form. If such audit reveals unlicensed use of Service including but not limited to usage in excess of the portfolio size permitted under the Order Form, Customer shall promptly order sufficient subscription to permit all Service usage disclosed. If material unlicensed use is found (portfolio size shortage of 5% or more), Customer shall reimburse Apollo for the reasonable audit costs Apollo has incurred and purchase the necessary Service subscription at the then list price within 30 days. Apollo and our auditors will use the information obtained in compliance audit only to enforce Apollo’ rights and to determine whether Customer is in compliance with the terms of this Agreement and Order Form. By invoking the rights and procedures described above, Apollo does not waive its rights to enforce this Agreement (including any Order Form) or to protect our intellectual property by any other means permitted by law.
Warranties & Disclaimers
Limited Warranty - Subject to the limitations and exceptions set forth in this Agreement, Apollo warrants that when accessed and used for the purpose and in the manner permitted and authorized by this Agreement, the Service will perform substantially in accordance with industry standards and with the specifications set forth in the then-applicable Documentation and that the functionality of the Service will not be materially decreased during the Term. Customer’s access to the Service is through the Internet, and Customer understands that Customer’s ability to use the Service is dependent on the global telecommunications infrastructure involving the reliability and performance. Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Apollo is not responsible for any delays, delivery failures, or other damage resulting from such problems. Professional Services shall be performed in a professional manner, consistent with industry standards and warranty period will be as agreed in the Order Form or statement of work document executed for Professional Services.
Exclusions - The limited warranty set forth above will not apply to defects or errors in the Service’s functionality that are caused by: (a) Customer’s failure to follow installation, operation or maintenance instructions or procedures in the Documentation; (b) Customer’s mishandling, abuse, misuse, negligence, or improper storage, servicing, or operation of the Service (including without limitation use with incompatible equipment) or exceeding the usage limitations; (c) modifications, repairs or improper installation not performed by Apollo; (d) any causes beyond reasonable control of Apollo; (e) public internet or public cloud infrastructure including unavailability thereof; or (f) Malicious Code, virus or Trojans not introduced by Apollo.
Remedy - In the event that the Service fails to conform to the warranties set forth herein in any material respect, Apollo’ entire liability and Customer’s sole and exclusive remedy with respect to such breach will be at Apollo’ option: (a) correct the failure; or (b) terminate the Agreement and Order Form and refund the purchase price paid by Customer under the relevant Order Form for the Service subscription that pertains to period post termination date i.e. the balance unutilized Term of the Order Form, provided that Customer reports deficiencies in writing to Apollo within thirty (30) days of the first date the deficiency is identified by Customer.
The aforesaid limited warranty does not apply specifically to any issues pertaining to the functionality of the public cloud used by Apollo or cloud supplied by the Cloud Supplier selected by Customer. Apollo’ written agreement with public cloud providers may come with its own warranty terms. Apollo does not take any other responsibility for the functionality of the public cloud.
Indemnification
Indemnification by Apollo - Apollo agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Customer or its Affiliates to the extent it is based on a claim that Customer’s or its Affiliates (i) use of the Service in accordance with this Agreement and the Documentation that infringes or violates any Intellectual Property Right of a third party, and will indemnify and hold Customer and its Affiliates harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against Customer or its Affiliates in a final judgment or awarded against Customer or agreed to in settlement by Apollo in such action. Customer shall provide Apollo with: (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof provided that Apollo may not settle any Claim unless it unconditionally releases the Customer of all liability; and (c) all available information, assistance and authority to settle and/or defend any such claim or action, at Apollo’s expense.
Exclusions to Apollo’ Indemnification - Apollo shall not be required to indemnify Customer in the event of: (i) modification of the Service by Customer, its Employees, or Authorized Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (ii) use of the Service in a manner inconsistent with the Documentation; (iii) use of the Service in combination with any other product or service not provided by Apollo; or (iv) use of the Service in a manner not otherwise contemplated by this Agreement.
Remedies - If Apollo or Customer is enjoined from using the Service, becomes, or in the opinion of Apollo is likely to become, the subject of an infringement claim or action otherwise covered by the indemnification remedy in Section 7.1, Apollo may at its sole option: (a) procure, at no cost to Customer, for Customer the right to continue using the Service; (b) replace or modify the Service to render them non-infringing, provided there is no material loss of functionality; or (c) terminate this Agreement and refund the subscription fee(s) paid by Customer for the Service. Apollo may not settle any Claim unless it unconditionally releases Customer of all liability. This indemnity is the only remedy of the customer under this agreement for violation of a third party’s intellectual property rights.
Customer Indemnity - Customer agrees to indemnify and hold Apollo and its officers, directors, employees, affiliates, agents, and business partners harmless from and against all losses, damages and expenses, including reasonable attorney’s fees, in connection with any claims brought by any third party against Apollo or Apollo’s officers or employees arising as a result of: (i) Customer’s use of the Service in violation of the terms of this Agreement or Customer’s breach of Section 1 above, (ii) claims that the Customer Data infringes the rights of, or has caused harm to, a third party or violates any law, (iii) conduct by Customer as described in Section titled “Exclusions to Apollo’ Indemnification” or (iv) Customer’s willful misconduct; provided, however, that Apollo: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Apollo of all liability); and (c) provides to Customer, at Helio’s cost, all reasonable assistance.
Limitation of Liability; Exclusion of Damages
Limitation of Liability - To the maximum extent permitted by law and except with respect to either party’s indemnification obligations specified in section 7 herein or a breach of a party’s confidentiality obligations specified in section 4 herein or amounts owed by customer to apollo under any order form, in no event shall either party’s (or apollo’s third party licensors’) aggregate liability arising out of or related to this agreement, whether in contract, tort or otherwise, exceed the subscription fees actually paid by customer in consideration for service during the immediately preceding twelve (12) month period from which the claim arose (or, for a claim arising before the first anniversary of the effective date, the amount paid for the first twelve month period).
Exclusions - Except with respect to either party’s indemnification obligations specified in section 7 herein or a breach of a party’s confidentiality obligations specified in section 4 herein, in no event shall either party have any liability to the other party for any indirect, special, incidental, punitive, or consequential damages, however caused, or for any lost profits, loss of use, cost of data reconstruction, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, arising out of, or in any way connected with the service, including but not limited to the use or inability to use the service, any interruption, inaccuracy, error or omission, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such loss or damages.
In no event is Apollo liable for any damage to or loss or destruction (a) of any of Customer Data, content, files, or data which may result from Customer’s use of the Services; (b) arising from Customer’s failure to perform in connection with this Agreement; or (c) arising from misuse of Customer’s user name(s) or passwords. All limitations and disclaimers stated in this Agreement also apply to Apollo' licensors as intended beneficiaries of this Agreement. Any rights or limits stated herein are the maximum for which Apollo and its licensors are collectively responsible.
Term & Termination
Term of Agreement; Term of Access to the Service - The term of this Agreement and the subscriptions to the Service commences on the date and are for the term as specified in the applicable Order Form unless the same has been otherwise terminated under the provisions of this Agreement (“Term”).
Termination - Either Party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event the Agreement is terminated, all Order Forms are simultaneously terminated.
Effect of Termination - Upon expiration of the Term, the subscription terminates immediately and the Customer must immediately cease using the Services. The Services may cease to be available to the Customer. Upon any termination of this Agreement or Order Form, Customer shall, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under the section entitled “Access to Customer Data”) and Apollo Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Apollo prior to the effective date of termination and termination for any reason other than for uncured material breach by Apollo shall not relieve Customer of the obligation to pay all future amounts due under all order forms. Upon termination for cause by Apollo, all future amounts due under all Order Forms shall be accelerated and become due and payable immediately.
Access to Customer Data - Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Apollo will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data, for a period of up to fifteen (15) days after such request is received by Apollo. After such thirty (30) day period, Apollo will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data. If Customer requests Apollo’s assistance, Customer may acquire Apollo professional services at Apollo’s then-current billing rates pursuant to a separately executed Statement of Work.
Survival - Notwithstanding anything to the contrary in this Section 9, the provisions of Sections 1-4 and 7-11 shall survive termination of this Agreement.
General Provisions
Entire Agreement - This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and shall supersede and merge all prior and contemporaneous communications and agreements with respect to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless in a written agreement signed by the parties hereto. No Customer purchase order, invoice or similar document will modify the terms of this Agreement. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other Exhibit or Attachment.
Assignment - Neither Party shall be entitled to assign or otherwise transfer rights or obligations under this Agreement, including use of the Service, whether in whole or in part, except with the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms) without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement and all past due fees are paid in full, except that Customer shall have no right to assign this Agreement to a Competitor of Apollo. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Apollo may also permit its Affiliates, agents and contractors to exercise Apollo’ rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Force Majeure - Neither Party shall be liable for, or be considered to be in breach of or default on account of, any delay or failure to perform as a result of any cause or condition beyond such Party’s reasonable control (including, but not limited to, computer attacks or malicious acts, such as attacks on or through the Internet, or delays caused by an Internet service provider, telecommunications or hosting facility). Neither Party’s payment obligations shall be excused by a force majeure event.
Notices - All notices and other communications under this Agreement shall be in writing and shall be effective when received or, if delivery is not accomplished by reason of or some fault of the addressee, when tendered, and may be transmitted by (i) personal delivery, (ii) express mail by registered or certified mail, (iii) by courier or delivery service, or (iv) by email with a receipt confirmed in writing by the receiving Party, to Apollo at Apollo Energy Analytics at 5900 BALCONES DR STE 100 AUSTIN, TX 78731, Attn: Legal Department, or email address legal@apolloenergyanalytics.com or to Customer at their address or email address set forth on the applicable Order Form(s), or to such other addresses as either Party may from time to time notify the other Party of in accordance with this Section.
Relationship between the Parties - In all matters relating to this Agreement, Customer and Apollo shall act as independent parties and nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship or employment or franchise relationship between the Parties. Neither Party has the right, power or authority to bind the other or incur, assume or create any obligation on behalf of the other Party.
Choice of Law and Venue - This Agreement shall be governed by the laws of the United Kingdom, without regard to any of its conflict of laws provisions. Any action or proceeding relating to this Agreement must be brought in the courts of London, UK, and each Party irrevocably submits to the jurisdiction and venue of this court in any such action or proceeding.
Export Controls - Customer shall comply with all applicable laws including laws related to controls related to export or import and shall obtain all permissions, authorizations and permits, in each case related to its procurement and use of the Service or Customer Data.
Anti Bribery and Anti-Corruption - The Parties represent that they conduct respective business activities in an ethical manner and are compliant with applicable laws including anti-bribery and anti-corruption laws and have requisite policies in this regard.
Headings; Counterparts; “Includes” and “Including” - All captions, titles or section headings of this Agreement are for ease of reference only, shall not affect the interpretation or construction of any provisions of this Agreement and shall not be deemed part of this Agreement. Wherever the word “including” or “include” shall appear in this Agreement, such term shall be construed to mean “including without limitation” or “include without limitation,” as the case may be.
Partial Invalidity - If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable by a competent court of law, competent arbitrator or other competent authority, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. The invalid provision shall be replaced by an appropriate provision, which to the extent permitted by applicable law, comes closest to the Parties’ intent of what the Parties would have agreed on, had they been aware of the invalidity or unenforceability, in order to meet the spirit and purpose of this Agreement.
Waiver - No waiver by either Party to this Agreement of any provision hereof, and no failure by either Party to exercise any of such Party’s rights or remedies hereunder, shall be deemed to constitute a waiver of such provision, right, or remedy in the future, or of any other provision, right, or remedy hereunder, unless such waiver shall be set forth in a written instrument signed by the Party against whom such waiver is sought to be enforced.
Third Party Beneficiary - Other than as expressly set forth herein, no provision of this Agreement shall be deemed for the benefit of any other person or entity, including any third party.
Miscellaneous - If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Except as otherwise specified in writing by Customer, Apollo may use Customer’s name and logo in lists of customers, on marketing materials and on its website.
Changes - Apollo may modify the terms and conditions of this Agreement (including Apollo policies) from time to time, with notice to Customer at the email address set forth on the applicable Order Form(s) or by posting the modified terms on our website. Together with notice, Apollo will specify the effective date of the modifications.
Except as otherwise indicated below, modifications to the terms and conditions of this Agreement will take effect at the next renewal of your Term and will automatically apply as of the renewal date agreed in the renewal Order Form. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Term. If the effective date of such modifications is during your then-current Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Order Form upon notice to us, and we will refund you any fees you have pre-paid for use of the Service for the terminated portion of the applicable Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order Form is subject to the version of the terms and conditions of this Agreement in effect at the time of signing of the Order Form.