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Terms of Service

ALTUS POWER, INC.

Table of Contents
  1. Website Terms of Service
  2. Altus IQ Terms of Service

Effective Date: Dec 1, 2021

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (“TERMS OF USE”) CAREFULLY. Use of (the “Website”) may be monitored, tracked and recorded. Anyone using the Website expressly consents to the Terms of Use outlined herein, as well as to such monitoring, tracking and recording.

Agreement

Customer acknowledges and agrees that the use of the Website, including any and all information, statements, materials, articles, research, data, software, links to third-party websites, products and services made available on or accessible through the Website (collectively, “Content”), is conditioned on Customer’s adherence to these Terms of Use, and that such acceptance creates a valid and binding contract between Customer and Altus Power, Inc. and its subsidiaries and affiliates (together, “Altus”). These Terms of Use are to be observed in addition to the terms of any agreement Customer may have with Altus and are not intended to modify or supersede the terms of such agreement(s), which agreement(s), in the event of any conflicting terms, will govern. By using the Website and the Content, Customer further agrees: (a) to comply with U.S. law regarding the transmission of any information through the Website; (b) not to use the Website for illegal purposes; and (c) not to interfere with, trespass on or disrupt the networks or computers and equipment connected to the Website. If, at any time, Customer does not wish to accept these Terms of Use, Customer must discontinue use of the Website and any Content obtained from the Website.

No representation, solicitation, recommendation or offer

Securities or financial instruments mentioned in the Website may not be suitable or appropriate for all investors. Customer’s particular needs, investment objectives and financial situation were not taken into account in the preparation of the Website. The fact that Altus has made or may make Content available on or accessible through the Website does not constitute a representation by Altus that any such Content is suitable or appropriate for Customer. The Content is for Customer’s personal use, and Altus is not soliciting any action based upon its provision. The Content is not to be construed as a recommendation or an offer to buy or sell, or the solicitation of an offer to buy or sell, or to enter into any transaction in respect of any security, financial product or other instrument. Although the information contained in the Content is obtained or compiled from or based upon information that Altus considers reliable, Altus does not represent that such information is accurate, current or complete. Customer acknowledges that: (a) the Website is provided for informational purposes only; (b) the Website may include information taken from third-party sources; and (c) any reliance on any portion of the Content shall be at Customer’s sole risk.

Intellectual property

The Website, including the Content, is owned by Altus or its licensors, and is protected under the copyright, trademark, data misappropriation, unfair competition, or other intellectual property laws of the U.S. Third-party trademarks and service marks are the property of their respective owners. All other service marks and trademarks displayed on the Website are registered and unregistered service marks and trademarks of Altus. The Website is further protected as a collective work and/or compilation under U.S. copyright and other laws. Using, copying, downloading, reformatting or storing any portion of the Website for other than personal, noncommercial use, unless such use constitutes “fair use” under the Copyright Act of 1976 (17 U.S.C. §107), as amended, and except for one temporary copy in a single computer’s memory, without the prior written consent of Altus or the relevant licensor is expressly prohibited. Customer shall not modify, sell, display, distribute, publish, transmit, broadcast or otherwise disseminate the Website or the Content to others without Altus’s prior written consent. Customer agrees to abide by all applicable copyright, trademark and other intellectual property laws and with all additional copyright and trademark notices, information, and restrictions contained in any of the Content.

Disclaimer of warranties

THE WEBSITE, INCLUDING THE CONTENT, IS PROVIDED “AS IS.” ALTUS, ITS LICENSORS, AND THEIR OFFICERS, DIRECTORS, AND EMPLOYEES (COLLECTIVELY, THE “ALTUS PARTIES”), MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AS TO THE WEBSITE OR ANY PORTION THEREOF OR RELATING TO ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE WEBSITE OR ANY LINKED WEBSITE, UNLESS SUCH REPRESENTATIONS, WARRANTIES AND GUARANTEES ARE NOT LEGALLY EXCLUDABLE. THE Altus PARTIES HAVE NO RESPONSIBILITY TO MAINTAIN THE WEBSITE OR ANY PORTION THEREOF OR TO SUPPLY ANY CORRECTIONS, UPDATES, OR RELEASES THERETO. THE ALTUS PARTIES DO NOT WARRANT THAT THE WEBSITE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER ON WHICH IT IS HOSTED IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SOFTWARE THEREIN IS COMPATIBLE WITH CUSTOMER’S EQUIPMENT. AVAILABILITY OF THE WEBSITE IS SUBJECT TO CHANGE WITHOUT NOTICE. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY Altus, ITS EMPLOYEES OR LICENSEES WILL CREATE A WARRANTY OR GUARANTY, NOR MAY CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE.

Limitation of liability

UNDER NO CIRCUMSTANCES SHALL THE Altus PARTIES HAVE ANY LIABILITY TO CUSTOMER OR TO ANY OTHER PERSON FOR THE QUALITY, ACCURACY, TIMELINESS, CONTINUED AVAILABILITY OR COMPLETENESS OF THE WEBSITE OR ANY PORTION THEREOF. IN NO EVENT WILL THE Altus PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT CUSTOMER OR ANY OTHER PERSON MAY INCUR IN CONNECTION WITH CUSTOMER’S ABILITY OR INABILITY TO USE THE WEBSITE, OR ANY PORTION THEREOF, OR INTERRUPTION OF SERVICE, INCLUDING BUT NOT LIMITED TO, DELAYS OR INTERRUPTION OF INTERNET OR NETWORK SERVICES NOT OPERATED OR CONTROLLED BY THE Altus PARTIES, OR OMISSIONS OR INACCURACIES IN SUCH INFORMATION OR MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOSS OF REVENUE, EVEN IF ANY OF THE Altus PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTHING IN THESE TERMS OF USE EXCLUDES OR RESTRICTS ALTUS'S LIABILITY IN RESPECT OF A BREACH BY Altus OF ANY DUTY OR LIABILITY IT MAY HAVE TO CUSTOMER UNDER APPLICABLE REGULATIONS OR LAWS; FRAUD, WILFUL NEGLECT OR FOR DEATH OR PERSONAL INJURY CAUSED BY ALTUS’S NEGLIGENCE; OR ANY OTHER LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT CUSTOMER MAINTAINS ADEQUATE INSURANCE TO COVER ANY DAMAGES, LOSSES, COSTS OR EXPENSES CUSTOMER MIGHT SUFFER IN THE EVENT OF ANY FAILURE OR UNAVAILABILITY OF THE WEBSITE.

Indemnification

Customer agrees to indemnify, defend and hold harmless Altus from and against any and all losses, liabilities, judgments, fines, settlements, damages, costs and expenses (including attorneys’ fees) resulting from or arising out of any suits, actions, claims, demands, investigations, hearings or similar proceedings (collectively, “Proceedings”) to the extent such Proceedings are based on or result from (i) Customer’s inability to use the Website or any portion thereof, or any data, information, service, report, analysis or publication Customer derives therefrom; (ii) Customer’s breach or violation of any term or condition contained herein; or (iii) Customer’s violation of state or federal securities laws or regulations or any other person’s rights, including but not limited to, infringement of any intellectual property, proprietary or privacy right of any third-party.

Hyperlinks to or from third-party websites

The Website may contain links to certain Internet websites sponsored and maintained by third-parties. These Internet websites are not under the control of Altus. Altus does not investigate, monitor or review such third-party websites for accuracy, completeness or conformance with applicable regulations or laws. In addition, third-party websites may contain links to the Website. Altus is not responsible or liable for, and makes no representations or warranties, concerning the content of any such third-party websites. The fact that Altus has provided a link to a third-party website, or that a third-party website has provided a link to the Website, does not constitute an endorsement, authorization, sponsorship, or affiliation by Altus with respect to that website, its owners, or its providers. Customer accesses that website and any services or information provided therein at Customer’s own risk.

Computer viruses

Customer shall not introduce into the Website any code, malicious or hidden procedures, routines or mechanisms that would inhibit other Customers’ access to the Website, or to enable or impair its operation, nor shall Customer access the Website to gain any unauthorized access to any computer system operated by Altus.

Suspicious activity

If Altus determines that Customer is engaging in, or has engaged in, any suspicious activity, Altus reserves the right to terminate Customer’s access to all or part of the Website immediately and, if deemed appropriate by Altus in its sole discretion, to notify any relevant government or regulatory authority.

Complaints

The Website is not a forum to register a formal regulatory complaint. If Customer has a specific complaint about Altus, Customer should register its complaint with the appropriate regulatory entity. 

Modifications to terms of use

Altus reserves the right, without notice and at its sole discretion, to modify any portion of these Terms of Use. Customer should continue to review these Terms of Use whenever accessing or using the Website. Customer’s use of the Website after the posting of changes to these Terms of Use will constitute Customer’s acceptance of these Terms of Use, as modified, and Customer will be bound by any such changes as of the date they are first posted to the Website. Altus expressly rejects any terms and conditions proposed by Customer that are in addition to or that conflict with these Terms of Use and such proposed terms and conditions shall be of no force or effect.

Enforceability and governing law

If any provision of these Terms of Use is determined to be invalid, superseded, illegal or unenforceable, in whole or in part, the validity, legality or enforceability of any of the remaining provisions or notices shall not in any way be affected or impaired thereby and shall continue in full force and effect. Any dispute, controversy or claim arising out of or related to the Website or these Terms of Use shall be governed by and interpreted under the laws of Fairfield County in the State of Connecticut (excluding any rules of law that would lead to the application of the laws of any other jurisdiction).

Confidentiality

Altus will endeavor to maintain the confidentiality of personal information Customer provides in connection with the use of the Website and the Content. Nonetheless, Customer acknowledges and agrees that any such information sent via the Internet may not be protected and there can be no assurance that such information will remain confidential. With the exception of personal information, any communication or material Customer posts or transmits to Altus over the Internet is, and will be treated as, non-confidential and non-proprietary. Customer’s posting or transmitting of any unlawful, threatening, libelous, defamatory, obscene, pornographic, abusive, discriminatory or profane material, or any material that could constitute or encourage conduct that would be considered a criminal offence or violation of any law, is strictly prohibited. In addition, Customer acknowledges and agrees that, subject to applicable law, Altus may disclose Customer’s name and other personal and financial information about Customer or Customer’s account(s) to its employees, representatives, officers, directors, agents and affiliates, or to any governmental or regulatory authority or self-regulatory organization, or to any third-party service provider, (i) to comply with applicable laws, rules, orders, subpoenas or requests for information by governmental or regulatory authorities or self-regulatory organizations, or (ii) for any other purpose described in any agreement Customer may have with Altus.

For additional information regarding the confidentiality of personal information, please refer to Altus’s Privacy Policy.

Testimonials

Testimonials may not be representative of the experience of other investors, partners or clients of Altus, nor do they guarantee Altus's future performance or success.

Contact

Customer may direct any questions or comments regarding these Terms of Use to legal@altuspower.com.

These Terms of Use were last updated on December 1, 2021 and are effectively immediately.

Effective Date: Mar 14, 2024

Altus IQTM Terms of Service

Welcome to Altus IQTM. We strongly encourage you to review the full Terms of Service that are below, all of which apply to your use of the Altus IQTM.

These Altus IQTM Terms of Service, together with the Documentation and Acceptable Use Policy (collectively, the “Agreement”), are between you, individually, or your company or legal entity, as applicable (“Customer”) and Altus Power, LLC (“Altus Power”) and govern Customer’s access to and use of the Altus IQTM Services (as defined below). This Agreement is the parties’ entire agreement with respect to the subject matter and merges and supersedes all related prior and contemporaneous agreements. By accepting via click-through or otherwise or manually or electronically signing this Agreement, Customer indicates its acceptance of this Agreement. If Customer is accepting this Agreement on behalf of a company or other legal entity, Customer represents, warrants, and covenants to Altus Power that it has the legal authority to bind such company or legal entity to this Agreement. If Customer does not have such authority or does not agree with this Agreement, Customer must not access or use the Altus IQTM Services. The "Effective Date" of this Agreement is the date of Customer’s acceptance of this Agreement. Capitalized terms have the meanings ascribed to them in this Agreement.

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1. Access to and Use of the Altus IQTM Services

1.1. License.  Subject to this Agreement, Altus Power grants Customer during its Subscription Period a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Altus IQTM Services solely for use by Customer and Customer End Users, including in Customer’s Application(s) or any products or services provided by Altus Power in connection with the Altus IQTM Services.Customer must have an Account provided by Altus Power to access and use the Altus IQTM Services.

Customer shall be solely responsible for the information it provides to create its Account, as well as the management and security of its Account and password as well as any access to or use of its Account. If Customer becomes aware of any unauthorized use of its Account or password. Customer will notify Altus Power as promptly as possible. Altus Power has no obligation to provide Customer with multiple Accounts or to issue credits or refunds to Customer for any unauthorized use of Customer’s Account or password.

1.2. Restrictions. Customer will not and will not permit any Customer End User or other third party to: (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Altus IQTM Services to a third party (except as otherwise expressly permitted in this Agreement); (b) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise seek to obtain or extract any or all of the source code of the Altus IQTM Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Altus Power); (c) remove or obscure any proprietary or other notices contained in the Altus IQTM Services, including but not limited to copyrights, trademarks, logos, legends or other notices of ownership; (d) access or use the Altus IQTM Services in violation of the Acceptable Use Policy; (e) create multiple Applications or Accounts to simulate or act as a single Application or Account, or otherwise access or use the Altus IQTM Services in a manner intended to avoid incurring Fees or exceeding usage quotas; or (f) install, access, or use any third-party software or technology in any way that would subject Altus Power’s intellectual property or technology, including any portion of the Altus IQTM Services, to any other license terms or other restrictions.

1.3. Provision and Use of Altus Power Core Data. The Altus IQTM Services include the capability for Customer and Customer End Users to access and use Altus Power Core Data in Customer’s Application(s). If displaying or otherwise distributing Altus Power Core Data, Customer must include in its agreements with Customer End Users provisions that provide substantially equivalent protections to Altus Power and its licensors as those included in this Agreement, including Section 7 (Intellectual Property Rights), Section 14 (Disclaimer of Warranties) and Section 16 (Customer Indemnification) of this Agreement. Further, Customer must prominently attribute Altus Power and its licensors, as applicable, as the source of Altus Power Core Data and provide a hyperlink to the Altus Power Website. 

1.4. Early Access Products and Features. Altus Power may make available to Customer certain products, features, services, or software that are not yet generally available, which are labeled as “Early Access” or “Alpha”, “Beta” (collectively, “Early Access Products and Features”). Customer may access and use such Early Access Products and Features solely for its internal evaluation purposes and in accordance with this Agreement.

1.5. Free Trials. Altus Power may offer free trials of the Altus IQTM Services in its sole discretion. If access to the Altus IQTM Services is provided to Customer for free trial purposes, such free trial access to and use of the Altus IQTM Services is governed by this Agreement. During the free trial period, no technical service or other support will be provided to Customer. A free trial may terminate upon the use of all credits provided by Altus Power for purposes of such free trial or after a certain period of time, as Altus Power may determine in its sole discretion. At any time prior to or during the free trial period, Altus Power may, in its sole discretion, terminate Customer’s free trial access without prior notice for any reason, without any liability to Customer, to the extent permitted under applicable law. After the free trial period expires or terminates, Customer must cease access to and use of the applicable Altus IQTM Services and must delete any Altus Power Core Data from its Application(s). Customer may only continue using the Altus IQTM Services by enrolling in a paid subscription or as otherwise permitted by Altus Power. Any leftover credits from a free trial will not be refundable, redeemable, or otherwise transferrable to any paid subscription for the Altus IQTM Services.

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2. Customer Data

2.1 Intellectual Property Rights in Customer Data. Customer and its licensors, as applicable, shall, as between Altus Power and Customer and such licensors, retain all right, title and interest (including any and all intellectual property rights) in and to Customer Data and any modifications made thereto by Customer in the course of using the Altus IQTM Services. Subject to this Agreement, Customer hereby grants to Altus Power a non-exclusive, worldwide, royalty-free license to process and store Customer Data solely to the extent necessary to provide the Altus IQTM Services and any associated technical support services to Customer, for internal business purposes, including analytics and reporting, and to comply with legal, regulatory, audit, data security, and contractual obligations. Customer represents, warrants, and covenants that (i) Customer and its licensors, as applicable, own and control, and will continue to own and control, all right, title, and interest (including any and all intellectual property rights) in Customer Data, as applicable; (ii) Customer and its licensors, as applicable, have and will continue to have the right to grant the foregoing license(s) relating to the processing and storing of Customer Data to Altus Power under this Agreement; and (iii) the processing and storing of Customer Data by Altus Power will not violate any laws, rules, regulations, or the rights of any third party.

Customer represents, warrants, and covenants that its use of the Altus IQTM Services and Customer Data will comply with applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions, and any other legal or regulatory requirements, including but not limited to those related to privacy and data protection. Customer shall be solely responsible and liable for the accuracy, reliability, completeness, timeliness, appropriateness, and legality of all Customer Data.

2.2 Provision and Use of Customer Data. The Altus IQTM Services include the capability for Customer, in its sole discretion, to share Customer Data in its Application(s) with Customer End Users as well as other customers of Altus Power, and to access or use data from other Altus Power customers, as set forth in this Section 2.2. When providing Customer Data, Customer acknowledges and agrees that it is solely responsible for any risks associated with providing the Customer Data through the Altus IQTM Services and that Altus Power has no control over, and has no liability for, any acts or omissions of any Altus Power customer with respect to its access to or use of such Customer Data. Further, Customer acknowledges and agrees that Altus Power has no control over, and has no liability for, any data of any other Altus Power customer that Customer or its Customer End Users access or use through the Altus IQTM Services. Customer acknowledges and agrees that it accesses or uses data of other Altus Power customers and provides data to Altus Power customers at its own risk and is solely responsible for obtaining the approvals, licenses, or consents required for such access or use of such data from other Altus Power customers.

2.3 Estimated Data/Projections. The Altus IQTM Services provides the Customer with estimated data projections based on the information and assumptions provided by Customer. These estimations are subject to change based on various factors, including but not limited to market conditions, climate changes, economic factors, and other unforeseen circumstances. Altus Power makes no warranties or representations, whether express or implied, regarding the accuracy, completeness, or reliability of the estimated data projections. The estimations are provided "as is" and without any warranty of any kind. Customer acknowledges and agrees that Altus Power or any of its subsidiaries shall not be liable for any direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with the use of the estimated data projections, even if Altus Power has been advised of the possibility of such damages.

2.4 HIPAA Data. Customer agrees not to upload to the Altus IQTM Services any HIPAA Data unless Customer has entered into a separate agreement with Altus Power that governs Customer’s uploading of HIPAA Data to the Altus IQTM Services, which shall be incorporated by reference into this Agreement. Unless such separate agreement is in place, Altus Power will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement, or in HIPAA, or any similar federal or state laws, rules, or regulations. If Customer is permitted to upload HIPAA Data to the Altus IQTM Services, then Customer may submit HIPAA Data to the Altus IQTM Services only by uploading it as Customer Data.

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3. Third-Party Components, Products, Data, and Services

Customer acknowledges and agrees that Altus Power relies on certain third-party (including open source) components, products, data, and services to provide the Altus IQTM Services, which may be subject to separate licenses or additional terms and conditions, including but not limited to disclaimer and attribution requirements, (collectively, “Third-Party Requirements”). If there are any conflicts between this Agreement and the Third-Party Requirements governing such third-party components, products, and services, those Third-Party Requirements shall govern in connection with such third-party components, products, data, and services. Customer acknowledges receipt of the notices with respect to any Third-Party Requirements for any third-party components, products, and services in our Documentation, as may be amended from time to time, or otherwise included in the Additional Terms. Customer represents, warrants, and covenants that its access to and use of the Altus IQTM Services will comply with all applicable Third-Party Requirements.

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4. Data Privacy

 The parties shall comply with the Privacy Policy.

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5. Pricing and Payment

5.1 Pricing and Payment. All Fees and payment terms associated with the Altus IQTM Services are set forth in the Customer’s Altus IQTM Agreement. Customer is responsible for paying timely all applicable Fees associated with its access to and use of the Altus IQTM Services. All invoices issued by Altus Power to Customer are due and payable within thirty (30) days of issuance; Altus Power has no obligation to provide Customer with multiple invoices. Late payments will incur late fees as set forth in Section 5.3.

If Customer elects to pay by credit card, debit card, or wire transfer, Altus Power will charge Customer for all Fees immediately upon issuance of an invoice. Payments made via wire transfer must include the bank information provided by Altus Power.

Altus Power may, in its sole discretion, issue requests for payment or receipts for payment in a form other than invoices that serve substantially the same purpose. Further, Altus Power may, in its sole discretion, enter into a special agreement to allow for Customer to pay invoices on a different schedule or by a different method. If required under applicable law, rule, or regulation, Customer may be asked to provide authentication for online payments; failure to provide such authentication may result in late payments.

5.2 Subscriptions. Altus Power issues electronic invoices on the 1st day of each Subscription Period, or as otherwise determined by Altus Power from time to time, for all subscription Fees.

5.3 Late Payments. Altus Power reserves the right to charge Customer interest on any amounts due that have not been paid by the applicable due date at a rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until such amounts due are paid in full to Altus Power. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Altus Power in collecting any late payments. If Customer is late on payment for the Altus IQTM Services, Altus Power may suspend Customer’s access to the Altus IQTM Services or terminate this Agreement, unless Customer is disputing in good faith the portion of the unpaid applicable Fees and is cooperating diligently with Altus Power to resolve the dispute.

5.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted in writing to Accounting Support within 30 days after an invoice is issued. If the parties determine that certain billing inaccuracies are attributable to Altus Power, Altus Power will not issue a corrected invoice, but will instead issue a credit notice specifying the incorrect amount in the affected invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless such claims are made within 30 days after being invoiced. Any refunds are at the sole discretion of Altus Power and will only be in the form of credit for the Altus IQTM Services. Nothing in this Agreement obligates Altus Power to extend credit or to refund any Fees to Customer or any other party. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and Fees are non-refundable. Further, credits used for the Altus IQ Services are not refundable or otherwise transferrable.

 

5.5 Subscription Upgrades, Downgrades, and Cancellations. Customers may upgrade, downgrade, or cancel subscriptions to the Altus IQTM Services through the Admin Console.

  1. Upgrades. Customer may upgrade its subscription to the Altus IQTM Services at any time, which may take up to thirty (30) days. Upon upgrading, Altus Power will issue an invoice to Customer for the full or pro-rated amount of the applicable Fees for the Subscription Period, in Altus Power’s sole discretion, depending on the circumstances of the upgrade.
  2. Downgrades / Cancellations. Customer may downgrade or cancel its subscription to the Altus IQTM Services at any time; however, such changes will not take effect until the end of the then-current Subscription Period.

5.6 Taxes. Customer is responsible for any Taxes, and Customer will pay Altus Power for the Altus IQTM Services without any reduction for Taxes. If Altus Power is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Altus Power with a timely and valid tax exemption certificate authorized by the appropriate taxing authority, as determined by Altus Power in its sole discretion. In some states, the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Altus Power, Customer must provide Altus Power with an official tax receipt or other appropriate documentation to support such withholding. If the Altus IQTM Services are subject to local VAT, and Customer is required to make a withholding of local VAT from amounts payable to Altus Power, the value of the Altus IQTM Services calculated in accordance with the above procedure will be increased (grossed up) by Customer for the respective amount of local VAT and the grossed up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by the Customer and Customer will ensure that Altus Power receives payment for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to the applicable tax authority).

Customer will provide Altus Power with tax identification information and such other reasonable documentation or information that Altus Power may require to ensure its compliance with applicable tax laws, rules, regulations, and authorities in any applicable jurisdictions. Customer will be liable to pay (or reimburse Altus Power for) any taxes, interest, penalties, or fines arising out of any misdeclaration by Customer.

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6. Suspension

6.1 Acceptable Use Policy Violations. If Altus Power becomes aware that Customer’s or any Customer End User’s access or use of the Altus IQTM Services violates the Acceptable Use Policy, Altus Power will give Customer written notice of the violation and request that Customer immediately correct the violation and confirm in writing to Altus Power that such violation has been corrected to Altus Power’s satisfaction. Altus Power may also suspend, disable, terminate, or otherwise limit all or part of Customer’s access to the Altus IQTM Services until such violation is corrected.

6.2 Other Suspension. Notwithstanding the foregoing paragraph regarding violations of the Acceptable Use Policy, Altus Power may suspend, disable, terminate, or otherwise limit all or part of Customer’s access to the Altus IQTM Services without notice if Altus Power reasonably determines, in its sole discretion, that:

  1. Customer’s or any Customer End User’s access or use of the Altus IQTM Services could adversely impact the Altus IQTM Services or other Altus Power customers’ access to or use of the Altus IQTM Services, including but not limited to causing denial of service attacks, mail flooding, or other attacks or disruptions;
  2. There is unauthorized third-party access to the Altus IQTM Services in connection with Customer’s or any Customer End User’s access to or use of the Altus IQTM Services;
  3. Altus Power is required to do so to comply with applicable law, rule, regulation, or a request by governmental entities; or
  4. Customer is in breach of this Agreement,

provided that, Altus Power may decide, in its sole discretion, to not suspend, disable, terminate, or otherwise limit all of part of Customer’s access to the Altus IQTM Services if Customer acts in good faith to cooperate diligently with Altus Power to resolve any of the foregoing issues.

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7. Intellectual Property Rights

7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any right, title, or interest, implied or otherwise, to the other party’s content or any of the other party’s intellectual property (including all patents, copyrights, trademarks, trade secrets and other intellectual property). As between the parties, Customer and its licensors, as applicable, own all right, title, an interest in Customer Data and the Application(s), and Altus Power, its Affiliates, and its licensors, as applicable, own all right, title, and interest in the Altus IQTM Services and any and all related underlying technology and documentation, as well as any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated therein. Customer acknowledges and agrees that Altus Power Core Data and its component parts were developed, compiled, prepared, revised, selected, and arranged by Altus Power, its Affiliates, or its licensors, through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, money and originality and that they constitute valuable intellectual property and trade secrets of Altus Power, its Affiliates, or its licensors.

7.2 Use of Marks. Altus Power may use and display Customer’s name, logo, trademarks, and service marks on Altus Power’s website and in Altus Power’s marketing materials in connection with identifying Customer as a customer of Altus Power. Upon Customer’s written request, Altus Power will remove any such marks from Altus Power’s website and, to the extent commercially feasible, Altus Power’s marketing materials. If Altus Power requests, Customer agrees to participate in a case study, press release and/or cooperate with Altus Power in speaking to the media, and to speak at a future Altus Power event.

Altus Power, the Altus IQTM Services, and any Altus Power product or service, names, logos, trademarks, or service marks that may appear in the Altus IQTM Services or elsewhere are proprietary to Altus Power and its Affiliates, and may not be copied, imitated or used, in whole or in part, without Altus Power’s prior written permission, which may be withheld in Altus Power’s sole discretion.

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8. Use of Customer Data, Customer Feedback, and Customer Usage Data; Benchmarking

8.1 Customer Data. Except as set forth herein, Altus Power will not access or use Customer Data, except as necessary to provide the Altus IQTM Services and any associated technical support services to Customer, for internal business purposes, including analytics and reporting, and to comply with legal, regulatory, audit, data security, and contractual obligations. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Altus Power may collect and use Customer Data and Customer Usage Data to manage, measure, develop, improve, support, and operate its products and services. Altus Power will not share any Customer Data or Customer Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 11 (Confidentiality) of this Agreement, or (b) to the extent the Customer Data or Customer Usage Data, as applicable, is aggregated and anonymized such that Customer and its Customer End Users cannot be identified.

8.2 Customer Feedback. If Customer or a Customer End User provides Altus Power with Feedback about the Altus IQTM Services, then such Customer or Customer End User automatically grants to Altus Power (without charge, payment of royalties or other consideration) a non-exclusive, royalty-free, fully paid, perpetual, irrevocable, worldwide license in the Feedback, and Altus Power and its Affiliates are free to make, use, disclose, modify, distribute, reproduce, license, commercialize and otherwise freely exploit without restriction of any kind the Feedback as part of any of Altus Power and its Affiliates’ products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential.

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9. Technical Support Services

Altus Power may at its sole discretion provide certain technical support services in connection with Customer’s access to and use of the Altus IQTM Services in accordance with this Agreement. See link for Altus Power’s Technical Support Guidelines. Altus Power has no obligation under this Agreement to provide technical support services to Customer regarding the Altus IQTM Services, and Customer shall be solely responsible for the technical support and maintenance of its Application(s) and any associated systems that access or use the Altus IQTM Services.

 

10. [Reserved]

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11. Confidentiality

11.1 Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, pricing for the Altus IQTM Services, and Customer’s Account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation under this Agreement by the receiving party or its Representatives; (2) the receiving party received lawfully from another source that does not have a confidentiality obligation to the disclosing party; (3) is independently developed without violation of this Agreement; or (4) is Feedback, a comment or suggestion volunteered about the other party’s business, products, or services.

11.2 Protection of Confidential Information. Each party will take commercially reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship herein. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives (applying such nondisclosure obligations of the receiving party to such Representative except with regards to the right to share with other third parties) and, in the event of discovery of any unauthorized use or disclosure or in violation of this Section 11, must promptly notify the other party. Neither party shall remove, overprint, or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from the other party.

11.3 Disclosure Required by Law. A party and its Representatives may disclose the other’s Confidential Information if required by law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order or otherwise oppose the disclosure. Notwithstanding the foregoing, notice shall not be required if the receiving party or its Representatives are requested or required to disclose Confidential Information during routine supervisory examinations or regulatory oversight by regulatory authorities with jurisdiction over the receiving party or its Representatives.

11.4 Duration of Confidentiality Obligations. These obligations apply: (1) for Customer Data, until it is deleted by Altus Power or falls into one of the exceptions listed in the first paragraph of this Section 11; and (2) for all other Confidential Information for a period of three years after a party receives the Confidential Information.

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12. Term and Termination

12.1 Term and Renewal. This Agreement is effective as of the Effective Date and shall continue through the Subscription Period specified in your Altus IQTM Agreement; and, unless otherwise specified therein, your subscription will automatically renew for the shorter of the subscription term, or one year. If you choose not to renew, you must give written notice of non-renewal within the notice periods set forth in your Altus IQTM Agreement.  

12.2 Termination for Cause. Either party may terminate this Agreement (including any subscription to the Altus IQTM Services) for cause upon written notice if: (i) the other party is in material breach of this Agreement and fails to cure such material breach within 30 days after receipt of written notice; (ii) the other party ceases operation without a successor; or (iii) the other party seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. In addition, Altus Power may suspend, disable, terminate, or otherwise limit all or part of Customer’s access to the Altus IQTM Services without terminating this Agreement if Customer meets any of the foregoing conditions. For any termination for cause by Customer in accordance with this Section 12, Customer shall not be entitled to any refund or credit of any prepaid Fees applicable to any unused portion of Customer’s subscription to the Altus IQTM Services.

12.3 Early Cancellation. Customer may terminate this Agreement (including any subscription to the Altus IQTM Services) for its convenience at any time via the Admin Console or upon written notice to Altus Power; provided that Customer shall not be entitled to any refund or credit of any prepaid Fees applicable to any unused portion of Customer’s subscription to the Altus IQTM Services.

12.4 Effect of Termination. If this Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to Altus Power will become due and payable immediately; (iii) Customer must cease its access to and use of the Altus IQTM Services and any software provided by Altus Power in connection therewith; (iv) Customer must delete any Altus Power Core Data from its Application(s) and associated systems; (v) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party; and (vi) Altus Power will have no obligation to store or provide further access to Customer Data. Altus Power’s exercise of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

12.5 Retrieval Right. Upon written request to Altus Power, and provided Customer has paid all outstanding Fees, Customer will have 30 days from the date of termination of this Agreement to access the Altus IQTM Services solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement (and any applicable subscription to the Altus IQTM Services) shall continue in full force and effect for the duration of the Retrieval Right. Altus Power shall have no further obligation to make Customer Data available after termination of this Agreement and shall thereafter delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data or the Altus IQTM Services.

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13. Representations and Warranties

Each party represents, warrants, and covenants that: (a) it has full rights and authority to enter into this Agreement; (b) its performance under this Agreement will not violate in any material respect any agreement or obligation between it and any third party; and (c) it will comply with all laws, rules, and regulations applicable to its performance under this Agreement in all material respects. Altus Power warrants that the Altus IQTM Services will substantially conform to the Documentation.

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14. Disclaimer of Warranties

THE ALTUS IQTM SERVIES AND THE SOFTWARE AND CONTENT PROVIDED THEREWITH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALTUS POWER, ITS AFFILIATES, PARENTS, SUBSIDIARIES, LICENSORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES (COLLECTIVELY, THE “ALTUS POWER PARTIES”), MAKE NO WARRANTY THAT THE ALTUS IQTM SERVICES OR THE SOFTWARE AND CONTENT PROVIDED THEREWITH WILL (1) MEET CUSTOMER’S REQUIREMENTS; (2) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (3) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ALTUS POWER PARTIES HEREBY DISCLAIM ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WHETHER ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR COURSE OF PERFORMANCE, AS TO THE ALTUS IQTM SERVICES AND THE SOFTWARE AND CONTENT PROVIDED THEREWITH.

THE ALTUS POWER PARTIES WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY CLAIM MADE OR ACTION TAKEN IN RELIANCE ON MATERIAL AND/OR INFORMATION CONTAINED IN OR INCLUDED AS PART OF THE ALTUS IQ SERVICES. THE ALTUS POWER PARTIES DO NOT REPRESENT, WARRANT, OR COVENANT THAT MATERIAL AND CONTENT CONTAINED IN OR INCLUDED AS PART OF THE ALTUS IQ SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE.

WHILE THE ALTUS POWER PARTIES ATTEMPT TO MAKE CUSTOMER’S ACCESS TO AND USE OF THE ALTUS IQTM SERVICES SAFE, THE ALTUS POWER PARTIES DO NOT REPRESENT, WARRANT, OR COVENANT THAT THE ALTUS IQTM SERVICES OR THE SOFTWARE AND CONTENT PROVIDED THEREWITH ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

THE ALTUS POWER PARTIES WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO CUSTOMER FOR, ANY USE OF THE ALTUS IQTM SERVICES OR THE SOFTWARE AND CONTENT PROVIDED THEREWITH, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (1) CUSTOMER ERROR SUCH AS FORGOTTEN PASSWORDS; (2) SERVER FAILURE OR DATA LOSS; (3) CORRUPTED OR HACKED SOFTWARE OR HARDWARE; (4) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (5) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE ALTUS IQTM SERVICES.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES OR CONDITIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

15. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ALTUS POWER PARTIES BE LIABLE TO CUSTOMER, ANY CUSTOMER END USER, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES RESULTING FROM, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR THE ALTUS IQTM SERVICES, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF THE ALTUS POWER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF THE ALTUS IQTM SERVICES ARE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S APPLICATION(S) OR LOSS OF DATA RESULTING THEREFROM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ALTUS POWER OR ANY OF THE ALTUS POWER PARTIES RESULTING FROM, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR THE ALTUS IQTM SERVICES EXCEED THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR (B) THE AMOUNT CUSTOMER PAID TO ALTUS POWER IN THE PAST TWELVE MONTHS FOR THE ALTUS IQTM SERVICES DIRECTLY RELATING TO THE ITEM(S) THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

NO LIMITATION OR EXCLUSION SET FORTH IN THIS AGREEMENT WILL APPLY TO ANY LIABILITY ARISING OUT OF: (1) ALTUS POWER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16, (2) ALTUS POWER’S BREACH OF SECTION 11 (CONFIDENTIALITY), OR (3) ALTUS POWER’S VIOLATION OF CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS. NOTHING IN THIS AGREEMENT EXCLUDES OR RESTRICTS ALTUS POWER’S LIABILITY IN RESPECT OF A BREACH BY ALTUS POWER OF ANY DUTY OR LIABILITY IT MAY HAVE TO CUSTOMER UNDER APPLICABLE LAWS OR REGULATIONS THAT CANNOT LAWFULLY BE EXCLUDED. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT IT MAINTAINS ADEQUATE INSURANCE TO COVER ANY DAMAGES, LOSSES, COSTS OR EXPENSES IT MIGHT SUFFER IN THE EVENT OF ANY FAILURE OR UNAVAILABILITY OF THE ALTUS IQ SERVICES, INCLUDING ACCESS TO CUSTOMER DATA.

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16. Indemnification

16.1 Indemnification by Customer. Customer agrees to defend, indemnify, and hold the Altus Power Parties harmless against any and all actual and alleged damages, awards, judgments, losses, liabilities, obligations, fines, penalties, interest, fees, expenses, (including reasonable attorneys’ fees and amounts paid in settlements), and costs, of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, in law or equity, whether in tort, contract or otherwise, resulting from, in connection with, or arising out of any claims, actions, causes of actions, demands, threats, allegations, suits, investigations, hearings, or proceedings (each, a “Claim”) made or brought against any of the Altus Power Parties at any time by any third party or government authority arising out of, in connection with, or related to Customer’s use of the Altus IQTM Services or any violation of these Terms of Use or the Customer’s Altus IQTM Agreement:

In connection with any Claim, Customer may not settle any claim (or in any way require the indemnified party to admit liability, pay money, or take or refrain from taking any action) without the express prior written consent of Altus Power (which consent to be granted in Altus Power’s sole discretion). The indemnitee shall have the right to participate in the defense of any proceeding with counsel of its own choice at its own expense.

16.2 Indemnification by Altus Power. Subject to the limitations set forth in this Agreement, including Section 15, Altus Power shall defend, indemnify, and hold Customer harmless against any costs, losses, or damages (including reasonable legal fees) incurred in connection with claims made or brought against Customer by a third party alleging that the access to or use of the Altus IQTM Services as contemplated hereunder infringes or misappropriates the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (1) promptly gives written notice of the Infringement Claim to Altus Power; (2) gives Altus Power sole control of the defense and settlement of the Infringement Claim; provided that Altus Power may not settle any Infringement Claim without Customer’s prior consent unless it unconditionally releases Customer of all liability and the monetary damages in connection with such settlement are paid by Altus Power; and (3) provides to Altus Power all reasonable assistance and information. This Section 16 states Altus Power’s sole liability with respect to, and Customer’s exclusive remedy against Altus Power for, any claim against Customer.

The foregoing indemnity in does not extend to (1) any Infringement Claim based upon or arising from Customer Data or infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Altus IQTM Services with other products, software, or services not provided or approved by Altus Power, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Altus IQTM Services other than the most current version; (3) any use, distribution, sublicensing, or exercise of any other right outside the scope of this Agreement; (4) any access, use, modification, combination, or development of the Altus IQTM Services that is not performed or authorized in writing by Altus Power; and (5) Customer’s or Customer End User’s breach of this Agreement.

16.3 Other Remedies. If (1) Altus Power becomes aware of an actual or potential Infringement Claim, or (2) Customer provides Altus Power with written notice of an actual or potential Infringement Claim, Altus Power may (or in the case of an injunction against Customer, shall), at Altus Power’s sole option and determination: (i) procure for Customer the right to continue to use the Altus IQTM Services or (ii) replace or modify the applicable Altus IQTM Services so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Altus Power in its sole discretion, terminate the rights granted hereunder to the Customer to access and use the Altus IQTM Services and refund to Customer that portion of any prepaid Fees that is applicable to the period following the termination of the Altus IQTM Services pursuant to this Section 16, less any outstanding Fees owed on such affected portion of the Altus IQTM Services.

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17. Export Control and Economic Sanctions

Customer acknowledges that the Altus IQTM Services may be subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Altus IQTM Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government.

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18. Modifications and Amendments

18.1 To the Services. Altus Power may make updates or other changes to the Altus IQTM Services from time to time in its sole discretion without notice to Customer. Notwithstanding the foregoing, if Altus Power makes a material change to the Altus IQTM Services, Altus Power will make commercially reasonable efforts to notify Customer in writing, including without limitation by posting to the Altus Power Website or its successor site(s), or via the Admin Console as soon as reasonably practicable.

 

18.2 To this Agreement. Altus Power may make changes to this Agreement from time to time in its sole discretion upon written notice, including without limitation by posting on the Altus Power Website or its successor site(s), or by notifying Customer via the Admin Console. Changes made to this Agreement will be effective immediately unless otherwise noted by Altus Power. If Customer does not agree to any changes made to this Agreement, Customer must stop using the Altus IQTM Services. Access or use of the Altus IQTM Services will constitute acceptance of the revised Agreement.

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19. Governing Law and Disputes; Jury Trial and Class Action Waiver

This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts-of-law principles and any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York located in the City of New York, Borough of Manhattan, or of the United States of America for the Southern District of New York. Customer hereby accepts, generally and unconditionally, the jurisdiction of the aforesaid courts and hereby irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that it may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

Customer understands and agrees that, by accepting this Agreement, Customer and Altus Power are each waiving the right to a trial by jury or to participate in a class action.

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20. Miscellaneous

20.1 Entire Agreement. This Agreement comprises the entire agreement between Customer and Altus Power relating to Customer’s access to and use of the Altus IQTM Services, and supersedes any and all prior discussions, agreements, and understandings of any kind (including without limitation prior versions of this Agreement).

20.2 Severability. If any provision of this Agreement is determined to be invalid, superseded, illegal or unenforceable, in whole or in part, the validity, legality or enforceability of any of the remaining provisions or notices shall not in any way be affected or impaired thereby and shall continue in full force and effect.

20.3 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any waiver must be in writing and signed by the waiving party and shall be effective only in the specific instance and for the purpose given.

20.4 No Third-party Beneficiaries. This Agreement do not create any third-party beneficiary rights except as expressly provided herein. Notwithstanding the foregoing, the Altus Power Parties are intended third-party beneficiaries of this Agreement.

20.5 Assignment. Altus Power (and each of its permitted assignees, transferees, or delegees) may freely assign, transfer, or delegate all rights and obligations under this Agreement fully or partially without notice to Customer. Customer may not assign or transfer this Agreement without the prior written  consent of Altus Power, except to a successor by reason of merger, reorganization sale of all or substantially all of Customer’s assets, change of control or operation of law, provided such successor is not a competitor of Altus Power. Assignment, transfer, or delegation by Customer will not relieve Customer of its obligations under this Agreement. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.

20.6 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.

20.7 Independent Contractors. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties.

20.8 Notices. Notices will be treated as delivered on the date received if personally delivered or immediately upon receipt if delivered by email or other electronic transmission. Notices to Altus Power must be in writing and sent via email to Technical Support, with a copy (which shall not constitute notice) sent via email to Legal Support for all legal notices. Notices to Customer will be sent to the individual at the address Customer identifies on its Account as its contact for notices. Altus Power may send notices and other information to Customer by email or other electronic form, including its website or via the Admin Console.

 

20.9 Survival. The terms of this Agreement that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement will survive termination or expiration, including all indemnity obligations, confidentiality obligations, and related procedures.

21. Definitions

“Account” means Customer’s Altus Power account for accessing the Altus IQTM Services.

“Acceptable Use Policy” means Altus Power’s acceptable use policy for the Altus IQTM Services located link, as may be amended from time to time.

 

“Additional Terms” means any policies or additional terms relating to the Altus IQTM Services, including but not limited to, the Acceptable Use Policy, Privacy Policy, and any other documentation incorporated herein by reference, in each case as may be amended from time to time.

“Admin Console” means the online console(s) and/or tool(s) provided by Altus Power to Customer for administering the Altus IQTM Services and managing Customer’s subscription to the Altus IQTM Services.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Altus IQTM Services” means the products and services along with any associated APIs provided by Altus Power, including without limitation Altus Power Core Data, as may be updated from time to time.

 

“Altus Power Core Data” means certain data relating to power generation, power usage, electricity consumption, fuel consumption, solar savings, carbon emissions calculated using CRREM carbon pathway data and Energy Information Administration data, as may be updated from time to time, which is provided as part of the Altus IQTM Services. Altus Power Core Data includes all endpoints listed in the Documentation.

“Application(s)” means any web or other application Customer creates using the Altus IQTM Services, including any source code written by Customer to be used with the Altus IQTM Services.

“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.

“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Altus IQTM Services.

“Customer End Users” means the individuals or entities Customer permits to use the Application(s), which shall not include individuals or entities engaged in solar asset, energy storage and EV charging origination, managing solar assets, energy storage and EVE charging, and/or software development for clean energy solutions

“Customer Usage Data” means usage, operations, and technical data related to Customer’s access to and use of the Altus IQTM Services, including but not limited to query logs and metadata.

“Documentation” means the Altus Power documentation relating to the access to and use of the Altus IQTM Services, as may be amended from time to time, available at altuspower.com/IQ , or their successor sites.

 

“Early Access Products and Features” means certain products, features, services, or software that are not yet generally available, which are labeled as “Early Access”, “Alpha”, “Beta”.

“Feedback” means ideas, suggestions, enhancement or feature requests, comments, recommendations, corrections, or other feedback about the Altus IQTM Services provided to Altus Power by Customer and Customer End Users.

“Fees” means the applicable fees for subscribing to the Altus IQTM Services and any applicable Taxes.

“HIPAA Data” means any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act, as amended and supplemented, (“HIPAA”) or any similar federal or state laws, rules or regulations.

 

“Privacy Policy” means the Altus Power privacy policy, as may be amended from time to time, available at Altus Power Privacyxf or its successor site(s).

 

“Representatives” means a party’s employees, officers, directors, Affiliates, contractors, advisors, subcontractors, and consultants.

“Subscription Period” means the term of a Customer’s subscription to the Altus IQTM Services, commencing from the date on which the Customer subscribes and for the duration as set forth in the Customer’s Altus IQTM Agreement.

“Taxes” means any duties, customs fees, or taxes (other than Altus Power’s income tax) associated with the purchase of a subscription to the Altus IQ Services, including any related penalties or interest.

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Appendix A

Acceptable Use Policy

This Altus IQTM Acceptable Use Policy supplements the Altus IQTM Terms of Service (the “Agreement”). Access to and use of the Altus IQTM Services is subject to this Acceptable Use Policy. All capitalized terms used herein that are not defined in this Acceptable Use Policy shall have the respective meanings given to them in the Agreement. Notwithstanding anything to the contrary in the Agreement, in the event of any conflict between the Agreement and this Acceptable Use Policy, this Acceptable Use Policy shall govern.

This Acceptable Use Policy may be updated by Altus Power, at its sole discretion, from time to time upon written notice, by posting an updated version of this Acceptable Use Policy at Terms of Use or its successor site(s) or via the Admin Console.

 

  • Customer agrees not to, and not to allow third parties to, access or use the Altus IQTM Services:
  • to distribute Altus Power Core Data as a data feed, an API, or an export file to Customer End Users for programmatic access or usage outside of the Application(s).
  • to store, transmit, or make available (a) content that is infringing, libelous, unlawful, tortious, or in violation of third-party rights, (b) content or technology that harms, interferes with, or limits the normal operation of the Altus IQTM Services or (c) viruses, malware, or other malicious code;
  • for illegal, threatening, or offensive uses, or for similarly objectionable purposes, such as propagating hate or violence or causing harm to others or to Altus Power’s reputation;
  • for developing, supporting or using software, devices, scripts, robots, or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology) to scrape the Altus IQTM Services or otherwise copy or extract information and other data from the Altus IQTM Services in a manner not expressly authorized under the Agreement;
  • to transact in, or facilitate activities related to, misappropriating another individual’s identity, including, but not limited to, improperly obtaining credit card information and/or account credentials;
  • to attempt to gain unauthorized access to the Altus IQTM Services or any related systems, including those of Altus Power’s Representatives and other customers;
  • to permit direct or indirect access to or use of the Altus IQTM Services in a way that violates the Agreement, including without limitation to infringe the intellectual property rights of others in any way;
  • to copy the Altus IQTM Services or any part, feature, function, or user interface thereof except as expressly permitted under the Agreement; or
  • to build similar or competitive products or services to the Altus IQTM Services.