This Main Sales Agreement (“Agreement”) is entered into by and between Pairly Climate, Inc., a Delaware corporation with its principal place of business at 46 Canterbury Hill Road, Acton, MA 01720 (“Pairly Climate” or “Provider”), and the entity or individual agreeing to these terms (“Customer”). This Agreement governs Customer’s access to and use of the software-as-a-service platform and related services provided by Pairly Climate (collectively, the “Services”).
By executing an Order Form that references this Agreement, or by accessing or using the Services, Customer agrees to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms.
1. SaaS Services and Support
1.1 Services. Subject to the terms of this Agreement and any applicable Order Form, Pairly Climate will use commercially reasonable efforts to provide Customer with the Services described in the applicable Order Form. The Services include access to Pairly Climate’s cloud-based platform for utility data collection, management, analysis, and reporting (the “Platform”).
1.2 Support. Pairly Climate will provide Customer with reasonable technical support for the Services during normal business hours (9:00 AM to 6:00 PM Eastern Time, Monday through Friday, excluding federal holidays) via email at support@nectarclimate.com. Pairly Climate will use commercially reasonable efforts to respond to support requests within one (1) business day.
1.3 Availability. Pairly Climate will use commercially reasonable efforts to maintain availability of the Platform at a rate of at least 99.5% uptime, measured on a monthly basis, excluding scheduled maintenance windows. Pairly Climate will provide Customer with reasonable advance notice of any scheduled maintenance that may affect availability.
1.4 Data Processing. Pairly Climate will process Customer’s utility data, including but not limited to energy consumption data, billing information, meter readings, and related documentation (“Customer Data”) in accordance with Customer’s instructions and applicable data protection laws. Customer retains all rights, title, and interest in Customer Data.
1.5 Modifications. Pairly Climate reserves the right to modify the Services from time to time. Pairly Climate will provide Customer with reasonable notice of any material changes to the Services. No modification will materially diminish the functionality of the Services during the applicable Subscription Term.
2. Restrictions and Responsibilities
2.1 Customer Restrictions. Customer shall not, and shall not permit any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Services available to any third party other than Authorized Users; (b) modify or make derivative works based upon the Services; (c) reverse engineer or access the Services in order to build a competitive product or service, or copy any ideas, features, functions, or graphics of the Services; (d) send spam or otherwise duplicative or unsolicited messages through the Services; (e) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material through the Services; (f) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code through the Services; or (g) interfere with or disrupt the integrity or performance of the Services.
2.2 Customer Responsibilities. Customer shall: (a) be responsible for all activity occurring under Customer’s user accounts and for the compliance of all Authorized Users with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Pairly Climate promptly of any such unauthorized access or use; (c) use the Services only in compliance with all applicable laws and regulations; and (d) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data.
2.3 Authorized Users. Customer may permit its employees, contractors, and agents (“Authorized Users”) to access and use the Services on Customer’s behalf, subject to the terms of this Agreement. Customer is responsible for ensuring that all Authorized Users comply with the terms of this Agreement.
3. Confidentiality and Proprietary Rights
3.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (“Confidential Information”). Confidential Information of Pairly Climate includes non-public information regarding features, functionality, and performance of the Services. Confidential Information of Customer includes Customer Data.
3.2 Protection. The Receiving Party agrees to: (a) take reasonable precautions to protect such Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; and (b) not use or divulge to any third party any such Confidential Information except as expressly permitted by this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iv) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement.
3.3 Proprietary Rights. Pairly Climate retains all right, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer retains all right, title, and interest in and to Customer Data. Customer grants Pairly Climate a non-exclusive, worldwide, royalty-free license to use, copy, store, transmit, display, and process Customer Data solely to the extent necessary to provide the Services.
3.4 Aggregated Data. Notwithstanding anything to the contrary, Pairly Climate may collect and use aggregated, anonymized, or de-identified data derived from Customer Data (“Aggregated Data”) for its own business purposes, including to improve the Services, compile statistical analyses, and develop benchmarking data, provided that such Aggregated Data does not identify Customer or any individual.
4. Payment of Fees
4.1 Fees. Customer shall pay the fees set forth in the applicable Order Form (“Fees”). Unless otherwise specified in the Order Form, Fees are due and payable in advance on an annual basis. All Fees are quoted and payable in United States dollars.
4.2 Invoicing. Pairly Climate will invoice Customer in accordance with the billing terms set forth in the applicable Order Form. Unless otherwise specified, payment is due within thirty (30) days of the invoice date.
4.3 Late Payment. If Customer fails to make any payment when due, without limiting Pairly Climate’s other rights and remedies, Pairly Climate may charge interest on the past due amount at the rate of 1.5% per month (or the highest rate permitted by law, whichever is lower) from the date such payment was due until the date paid.
4.4 Taxes. All Fees are exclusive of taxes. Customer is responsible for paying all taxes, levies, or duties imposed by taxing authorities associated with the Services, excluding taxes based on Pairly Climate’s net income. If Pairly Climate has the legal obligation to collect and remit taxes for which Customer is responsible, the appropriate amount shall be added to Customer’s invoice.
4.5 Fee Adjustments. Pairly Climate may adjust Fees upon any renewal of the Subscription Term by providing Customer with at least sixty (60) days’ prior written notice before the end of the then-current Subscription Term.
5. Term and Termination
5.1 Term. This Agreement commences on the date Customer first accesses the Services (the “Effective Date”) and continues until all subscriptions hereunder have expired or been terminated (the “Term”). The initial subscription period shall be as set forth in the applicable Order Form (the “Initial Subscription Term”). Unless otherwise specified in the Order Form, the subscription will automatically renew for successive one-year periods (each a “Renewal Term” and together with the Initial Subscription Term, the “Subscription Term”), unless either party gives the other written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term.
5.2 Termination for Cause. Either party may terminate this Agreement if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach.
5.3 Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
5.4 Effect of Termination. Upon termination or expiration of this Agreement: (a) Customer’s right to access and use the Services will immediately cease; (b) Customer shall pay all Fees owing through the date of termination; (c) each party shall return or destroy all Confidential Information of the other party in its possession; and (d) upon Customer’s written request made within thirty (30) days after termination, Pairly Climate will make Customer Data available to Customer for export in a standard machine-readable format. After such thirty (30) day period, Pairly Climate will have no obligation to maintain or provide any Customer Data.
5.5 Survival. Sections 3 (Confidentiality and Proprietary Rights), 4 (Payment of Fees, to the extent of any outstanding obligations), 6 (Warranty and Disclaimer), 7 (Limitation of Liability), and 8 (Miscellaneous) shall survive any termination or expiration of this Agreement.
6. Warranty and Disclaimer
6.1 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement; and (b) this Agreement is a valid and binding obligation, enforceable against such party in accordance with its terms.
6.2 Provider Warranty. Pairly Climate warrants that the Services will perform materially in accordance with the applicable documentation during the Subscription Term. Customer’s sole and exclusive remedy and Pairly Climate’s sole obligation for any breach of this warranty shall be, at Pairly Climate’s option, to: (a) correct the non-conforming Services at no additional charge; or (b) terminate the affected Order Form and refund to Customer any prepaid Fees covering the remainder of the Subscription Term.
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES ARE PROVIDED “AS IS” AND PAIRLY CLIMATE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PAIRLY CLIMATE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. PAIRLY CLIMATE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER DATA, OR INFORMATION RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, OR SERVICE INTERRUPTIONS CAUSED BY PAIRLY CLIMATE OR ANY THIRD PARTY.
7. Limitation of Liability
7.1 Limitation. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7.2 Exclusion of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.3 Exceptions. The limitations set forth in Sections 7.1 and 7.2 shall not apply to: (a) Customer’s payment obligations under this Agreement; (b) either party’s indemnification obligations; (c) a party’s breach of its confidentiality obligations under Section 3; or (d) damages arising from a party’s gross negligence or willful misconduct.
8. Miscellaneous
8.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. Any legal action or proceeding arising under this Agreement shall be brought exclusively in the federal or state courts located in the State of New York, and each party hereby consents to the personal jurisdiction and venue therein.
8.2 Entire Agreement. This Agreement, together with any applicable Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of a conflict between the terms of this Agreement and any Order Form, the terms of the Order Form shall prevail.
8.3 Amendment. No modification or amendment to this Agreement shall be effective unless in writing and signed by both parties. Notwithstanding the foregoing, Pairly Climate may update this Agreement from time to time, and the updated version will be effective upon the next renewal of the Subscription Term.
8.4 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. A waiver of any right or remedy under this Agreement shall not constitute a waiver of any subsequent breach or default.
8.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed severable from this Agreement and shall not affect any other provisions of this Agreement.
8.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety without consent of the other party to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
8.7 Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) where such failure or delay results from force majeure events, including but not limited to acts of God, fire, flood, earthquake, pandemic, labor dispute, governmental action, Internet or telecommunications failure, or any other cause beyond the reasonable control of the affected party.
8.8 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Pairly Climate shall be sent to: Pairly Climate, Inc., 46 Canterbury Hill Road, Acton, MA 01720, Attn: Legal Department, or to legal@nectarclimate.com.
8.9 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.