If you are participating in the Program or accessing the Breakthrough Energy Materials in connection with work you are doing for a company or corporate entity (”Company”), either as an employee or contractor, the term “you”, “your” or “Developer” includes both you as an individual as well as that Company. In addition, you represent and warrant that you have the authority to bind the Company, and that Company has authorized you to accept the terms of this Agreement.
Breakthrough Energy reserves its right, at any time and for any reason, to change or add to certain aspects of the Program, including any portion of the Breakthrough Energy Materials (as defined below).
Definitions. In addition to any other terms that are defined in the body of this Agreement, the following terms have the following meanings:
“API(s)” means any application program interface that is provided to Developer in the Breakthrough Energy Materials or otherwise by Breakthrough Energy to Developer.
“Intellectual Property Rights” means all worldwide, current or future, copyright rights (including, the exclusive right to use, reproduce, modify, create derivative works of, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, trade names, trademarks, service marks, and trade dress), patent rights (including, the exclusive right to make, have made, use, sell and offer to sell, import and export), trade secrets, moral rights, right of publicity, goodwill and all other intellectual property rights as may exist now and hereafter that come into existence, and all renewals, continuations, continuations in part and extensions thereof, regardless of whether those rights arise under the law of the United States or any other state, country or jurisdiction.
“Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Mozilla Public License; (c) the BSD License; and (d) the Apache License.
“Breakthrough Energy Materials” means software, services or other materials available through the Program, including but not limited to the API.
“Breakthrough Energy Proprietary Software” means any software or software components, tools, libraries, modules or packages included within the Breakthrough Energy Materials that are not Open Source Software, including all documentation related to the Breakthrough Energy Materials.
Eligibility. You are eligible to use the Breakthrough Energy Materials in accordance with this Agreement if Breakthrough Energy has approved your application to participate in the Program.
Developer’s License to Use the Breakthrough Energy Materials.
License Limitations. You will use the Breakthrough Energy Materials solely in accordance with the terms of this Agreement. If the Breakthrough Energy Materials are going to be used by you in your capacity as an employee or contractor of a Company, you will use the Breakthrough Energy Materials solely on behalf of and for purposes of that Company and you will only share or otherwise make available Breakthrough Energy Materials with other employees and individuals doing work for your Company who have a need to know the information to facilitate your use of the Breakthrough Energy Materials.
License for Breakthrough Energy Materials. Provided that Developer is in compliance with all terms and conditions in this Agreement, Breakthrough Energy hereby grants to Developer a non-exclusive, non-transferable, non-sublicensable, personal license under Breakthrough Energy’s Intellectual Property Rights to internally use the Breakthrough Energy Materials solely for research or other non-commercial purposes. Any commercial use or distribution is prohibited. DEVELOPER MAY NOT SUBLICENSE, PROVIDE OR REDISTRIBUTE ANY PORTION OF THE BREAKTHROUGH ENERGY MATERIALS TO ANY THIRD PARTY. Results derived from use of the Breakthrough Energy Materials may be published but appropriate attribution for the use of the API or other Breakthrough Energy Materials should be provided as follows: “The Contrails API is provided by Breakthrough Energy and is available at https://api.contrails.org.”
Open Source Software. Developer hereby acknowledges that the Breakthrough Energy Materials may contain Open Source Software. Developer agrees to review any documentation that accompanies the Breakthrough Energy Materials or is identified in a link provided in the documentation for the Breakthrough Energy Materials in order to determine which portions of the Breakthrough Energy Materials are Open Source Software and are licensed under an Open Source Software license. To the extent any Open Source Software license requires that Breakthrough Energy provide Developer the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Developer in this Agreement, then those rights in the applicable Open Source Software license will take precedence over the rights and restrictions granted in this Agreement, but solely with respect to that Open Source Software. Developer acknowledges that the Open Source Software license is solely between Developer and the applicable licensor of the Open Source Software. Developer will comply with the terms of all applicable Open Source Software licenses, if any.
Breakthrough Energy Proprietary Software. At no time will Developer distribute any Breakthrough Energy Proprietary Software as Open Source Software, that in any way would cause any Breakthrough Energy Proprietary Software to be subject to any Open Source Software or similar license.
No Endorsement. Developer agrees that unless Developer receives the express prior written authorization of Breakthrough Energy, and except for the attribution requirement noted above in Section 3.2, Developer will not use the Breakthrough Energy name, or the image (e.g., photograph or drawings) of any Breakthrough Energy product or service for any purpose.
Third-Party Materials. Certain portions of Breakthrough Energy Materials may be provided by third parties (”Third Party Materials”). Either Breakthrough Energy or the applicable third party may provide Developer with the applicable terms and conditions either through an email notification, a conspicuous posting on the relevant website, or via a click through agreement, in which case those terms and conditions (and not this Agreement) will govern Developer’s use of the Third Party Materials. Developer will comply with the terms applicable to Third Party Materials, if any.
Additional Restrictions. Except as expressly provided in this Agreement, Developer will not (and will not allow or enable any third party to):
copy, modify, create a derivative work of, sublicense, rent, sell, lease or otherwise transfer or distribute the Breakthrough Energy Materials or any portion thereof to any person or entity;
decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of Breakthrough Energy Materials by any means whatsoever;
remove, alter or obscure any product identification, legal, copyright, trademark or other proprietary rights notices contained in the Breakthrough Energy Materials;
engage in any activity with the Breakthrough Energy Materials that interferes with, disrupts, damages or accesses in an unauthorized manner the servers, networks, or other properties or services of Breakthrough Energy or any third party;
use the Breakthrough Energy Materials for any fraudulent, unlawful or illegal activity;
use the Breakthrough Energy Materials to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as intellectual property rights and rights of privacy and publicity) of others;
use the Breakthrough Energy Materials to use, display, transmit or otherwise make available adult content or any content that promotes gambling, sale of tobacco or alcohol to persons under 21 years of age, pyramid schemes, chain letters or disruptive commercial messages or advertisements;
sell, lease, share, transfer, sublicense or derive income from the use or provision of the API, whether for direct commercial or monetary gain or otherwise, without Breakthrough Energy’s prior written permission; or
use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation as determined by Breakthrough Energy in its sole discretion.
Fees. The Breakthrough Energy Materials are currently provided for free, but Breakthrough Energy reserves the right to charge for any or all of the licenses granted by Breakthrough Energy to Developer under this Agreement, after providing notice to its licensees of those fees. If Breakthrough Energy does charge a royalty, license fee or any other fee, and Developer is not willing to pay that fee, Developer should cease accessing or using any or all of the Breakthrough Energy Materials.
Privacy and Information Security. Developer is solely responsible for compliance with data privacy and information security laws and best practices. Breakthrough Energy is not collecting, receiving, processing or handling any personal information via the API.
Developer’s Feedback License to Breakthrough Energy. Developer acknowledges and agrees that Developer may provide Breakthrough Energy with comments, information or data about the Breakthrough Energy Materials (”Developer Data”) Developer hereby grants Breakthrough Energy a worldwide, non-exclusive, royalty-free license to use, reproduce, publicly display, publicy perform, create derivative works of and distribute the Developer Data for the purposes of (a) monitoring the performance, quality and security of the APIs; and (b) improving Breakthrough Energy Materials or other Breakthrough Energy’s products or services. Nothing in this Agreement will be construed as restricting or preventing Breakthrough Energy from creating and fully exploiting any products, services, applications, content or other items based on Developer Data.
Term and Termination.
Term and Termination. The term of this Agreement will commence upon the Effective Date and will continue until terminated: (a) by either party upon written notice to the other party or, in the case of Developer terminating this Agreement, upon discontinuing Developer’s participation in the Program and access and use of all Breakthrough Energy Materials; or (b) automatically, if Developer fails to comply with any term of this Agreement.
Survival. Sections 1, 3.3 through and including 3.7, and 4 through and including 21 will survive any termination or expiration of this Agreement for any reason.
Effect of Termination or Request by Breakthrough Energy. Upon termination of this Agreement for any reason or upon Breakthrough Energy’s written request, all rights and licenses granted by Breakthrough Energy to Developer in this Agreement will automatically terminate and Developer will immediately (a) discontinue participation in the Program, and (b) cease all access and use of any and all Breakthrough Energy Materials. Upon termination of this Agreement or upon Breakthrough Energy’s written request, Developer will return to Breakthrough Energy (or destroy, if requested by Breakthrough Energy) all Breakthrough Energy Materials in the possession of Developer (including Developer’s employees or individuals doing work for Developer) and have an officer of Developer certify Developer’s return or destroy obligations in this Section.
Suspension. Developer acknowledges and agrees that Breakthrough Energy may suspend or terminate Developer’s use of all or any of the Breakthrough Energy Materials or Developer’s participation in the Program for any reason and at any time, without notice.
Confidentiality. “Confidential Information” means any and all technical and non-technical information obtained from or made available by Breakthrough Energy or third party at any time and in connection with this Agreement (e.g., the Breakthrough Energy Materials or Program) that is identified as confidential or proprietary or that, given the nature of the information or the manner of its disclosure, reasonably should be considered confidential or proprietary. Developer will (a) use Confidential Information solely for the purpose of fulfilling Developer’s obligations under this Agreement or using Breakthrough Energy Materials as permitted under this Agreement; (b) protect and keep Confidential Information from disclosure or access by third parties; and (c) not disclose or provide access to any Confidential Information to any third party without Breakthrough Energy’s express written consent. Developer may disclose Confidential Information if compelled to disclose Confidential Information under a valid and binding order issued by a government authority provided Developer: (i) gives Breakthrough Energy prompt notice before any disclosure of Confidential Information pursuant to the order, (ii) limits disclosure to the scope required by the order; and (iii) cooperates with Breakthrough Energy’s efforts to obtain a protective order to narrow the scope of disclosure or use of Confidential Information.
Ownership. This Agreement only grants a license and is not a sale of the Breakthrough Energy Materials or any portion or copy thereof. As between the parties, Breakthrough Energy owns all right, title and interest in and to the Program and Breakthrough Energy Materials, including but not limited to the Breakthrough Energy Proprietary Software, any updates thereof and all Intellectual Property Rights therein. Except for the licenses granted by Breakthrough Energy to Developer under this Agreement, no right, interest or license in or to the Breakthrough Energy Materials, whether by implication, estoppel or otherwise, is granted to Developer under or in connection with this Agreement. If Developer receives notice of or discovers any third party claim (or threat of a claim) regarding any Intellectual Property Right in a particular functionality or code contained in the Breakthrough Energy Materials (or their utilization under this Agreement), Developer will immediately notify Breakthrough Energy regarding that claim in writing in reasonable detail.
Support and Maintenance. Breakthrough Energy will have no obligation under this Agreement to provide Developer with any maintenance or support with respect to the Program, any Breakthrough Energy Material. Developer acknowledges and understands that, notwithstanding any other provision of this Agreement, Breakthrough Energy has no obligation to provide Developer with any updates, fixes, upgrades or other changes or additions to the Breakthrough Energy Materials.
Warranties and Disclaimers.
General Warranties. Each party represents and warrants that it has all right, power and authority to enter into this Agreement. Developer represents and warrants that Developer will comply with applicable laws, including all applicable privacy, privacy-related, data security and information security-related laws and regulations, and will not violate any third party rights, including Intellectual Property Rights, of third parties.
Breakthrough Energy Materials. DEVELOPER EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
USE OF THE BREAKTHROUGH ENERGY MATERIALS IS AT DEVELOPER’S SOLE RISK AND THE BREAKTHROUGH ENERGY MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. BREAKTHROUGH ENERGY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY;
NEITHER BREAKTHROUGH ENERGY NOR ITS SUPPLIERS WARRANT THAT THE BREAKTHROUGH ENERGY MATERIALS ARE SUITABLE FOR DEVELOPER’S USE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY DEVELOPER THROUGH THE BREAKTHROUGH ENERGY MATERIALS WILL MEET DEVELOPER’S EXPECTATIONS, OR THAT DEFECTS IN THE BREAKTHROUGH ENERGY MATERIALS WILL BE CORRECTED;
NEITHER BREAKTHROUGH ENERGY NOR ITS SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE BREAKTHROUGH ENERGY MATERIALS OR IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE;
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED AS PART OF OR THROUGH THE BREAKTHROUGH ENERGY MATERIALS IS DONE AT DEVELOPER’S OWN DISCRETION AND RISK AND DEVELOPER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO DEVELOPER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF THAT MATERIAL; AND
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BREAKTHROUGH ENERGY CREATES A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND NO USE OF ANY PORTION OF THE BREAKTHROUGH ENERGY MATERIALS IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
THE PRECEDING WARRANTY DISCLAIMERS ARE MADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Indemnification. Developer will, at its expense, defend, hold harmless and indemnify Breakthrough Energy and its affiliates and its and their officers, directors, employees, agents, suppliers or customers from and against any third party allegations, claims, losses, damages, settlements, costs, expenses and other liabilities, including reasonable attorneys’ fees (collectively, “Claims”), arising from (a) any act or omission by Developer (including Developer’s employee or contractor), including breach of any provision in this Agreement or (b) actual or alleged infringement, violation or misappropriation of any Intellectual Property Right by Developer. Breakthrough Energy will give Developer notice of any Claim for which it seeks indemnification, provided that failure to give notice will not affect Developer’s obligation to indemnify except to the extent that the failure adversely prejudices Developer’s ability to defend the Claim. The obligation to indemnify is separate from the duty to defend. Breakthrough Energy may participate in the defense of any Claim at its own expense. Developer will not consent to the entry of any judgment or enter into any settlement without Breakthrough Energy’s prior written consent, which may not be unreasonably withheld.
Limitation of Liability; Damages. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL BREAKTHROUGH ENERGY, OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE ANY PORTION OF THE PROGRAM, INCLUDING THE BREAKTHROUGH ENERGY MATERIALS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF BREAKTHROUGH ENERGY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES WILL BREAKTHROUGH ENERGY, OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY DEVELOPER AS A RESULT OF (a) ANY RELIANCE PLACED BY DEVELOPER ON THE COMPLETENESS OR ACCURACY OF ANY BREAKTHROUGH ENERGY MATERIAL, (b) ANY CHANGES WHICH BREAKTHROUGH ENERGY OR ITS SUPPLIERS MAY MAKE TO THE BREAKTHROUGH ENERGY MATERIALS OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF ANY FEATURE OF THE PROGRAM, INCLUDING THE BREAKTHROUGH ENERGY MATERIALS, (c) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH DEVELOPER’S USE OF THE BREAKTHROUGH ENERGY MATERIALS; (d) DEVELOPER’S FAILURE TO PROVIDE BREAKTHROUGH ENERGY WITH INFORMATION; OR (e) DEVELOPER’S FAILURE TO KEEP DEVELOPER’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL BREAKTHROUGH ENERGY, OR ITS AFFILIATES OR SUPPLIERS’ TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNT OF TWO HUNDRED AND FIFTY UNITED STATES DOLLARS (US $250).
Press Releases; Marketing. Developer will not make any formal public announcements (e.g., a press release) relating to this Agreement without the prior written approval of Breakthrough Energy, unless otherwise required by law.
No Assignment. Developer may not assign or otherwise transfer this Agreement or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Breakthrough Energy, which consent may be withheld in Breakthrough Energy’s sole discretion; and any attempted transfer or assignment is null and void.
Injunctive Relief. Developer acknowledges and agrees that the copying, disclosure or use of the Breakthrough Energy Materials or Confidential Information in a manner inconsistent with any provision of this Agreement may cause irreparable injury to Breakthrough Energy for which Breakthrough Energy will not have an adequate remedy at law. Accordingly, Breakthrough Energy will be entitled to seek equitable relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions.
U.S. Government Legend. The Breakthrough Energy Materials licensed under this Agreement are “commercial computer software” as the term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations and its successors. If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement and its successors.
Relationship of the Parties. Each of the parties will at all times during the term of this Agreement act as, and will represent itself to be, an independent contractor, and not an agent or employee of the other. Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent. Developer will be solely responsible for all costs, expenses and losses associated with its use of the Breakthrough Energy Materials.
Notices. Notices sent to Breakthrough Energy should be sent to email@example.com. Notices sent to Developer will be sent to the e-mail address provided by Developer at the time of applying for admission to the Program.
Changes to this Agreement. This Agreement may only be changed by a written amendment agreed to by both parties, or by both parties’ agreement to a new Agreement that supersedes the terms of this Agreement.
Changes and Availability of Breakthrough Energy Materials and Program. Developer acknowledges and agrees that Breakthrough Energy may change or otherwise modify or stop providing all or any portion of the Breakthrough Energy Materials and Program without prior notice to Developer. Developer further acknowledges and agrees that the modified versions of the Breakthrough Energy Materials may be incompatible with applications developed on previous versions of the Breakthrough Energy Materials.
Miscellaneous Legal Provisions. This Agreement contains the entire agreement of the parties, and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, is effective unless agreed to by both parties to this Agreement. This Agreement is binding on and inures to the benefit of the parties hereto and their respective successors and permitted assigns. A waiver of any default hereunder or of any of the terms and conditions of this Agreement will not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but will apply solely to the instance to which that waiver is directed. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions will not in any way be affected or impaired. If any provision of this Agreement conflicts with applicable law or a provision of a valid Business Associate Agreement, then such applicable law or provision will take precedence over this Agreement.This Agreement is governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. The sole and exclusive jurisdiction and venue for any claims related to or arising under this Agreement will be in a court located in King County, Washington. Both parties consent to the exclusive jurisdiction of that court and agree that process may be served in the manner provided in this Agreement for giving of notices or otherwise as allowed by Washington state or federal law.Developer will not export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country or to any individual or entity for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining an export license or approval. With respect to any export transactions under this Agreement, Developer will cooperate with Breakthrough Energy in any reasonable manner to effect compliance with all applicable export regulations.The headings in this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof. Unless accompanied with “only,” “solely,” or other limiting term, “including,” “includes,” and “e.g.,” mean “including, without limitation,” or “includes, but without limitation.