Terms of Use (Current)

Last updated June 1st, 2022.

These HelioScope Terms of Use (these “Terms”) and the Service Order(s) (collectively, “Agreement”) govern your access and use of HelioScope unless you and Aurora Solar inc., on behalf of itself and its wholly-owned subsidiary, Folsom Labs, Inc. (collectively, “Aurora”, “we”, “us” or “our”) have executed a separate agreement governing the access and use of HelioScope. “You” means the entity you represent in accepting this Agreement or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree”. PLEASE NOTE THAT IF YOU SIGN UP FOR HELIOSCOPE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THIS AGREEMENT, INCLUDING THESE TERMS, AND (C) THE WORD “YOU” IN THIS AGREEMENT WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

This Agreement is effective as of the date you first click “I agree” or use or access HelioScope, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “I agree” at the time you register for a HelioScope account.

What this Agreement covers.

1. HelioScope. This Agreement governs your access to and use of HelioScope and related Support.

How HelioScope is administered.

1. Administrators. Through HelioScope, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of HelioScope and End User Accounts. This may include creating, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Administrators may also take over management of End User Accounts previously registered using an email address belonging to your domain. Without limiting Section 2.3 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of HelioScope for you.
2. End User Consent. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (a) Administrators to have the access described in this Agreement and Aurora’s privacy policy currently available at https://www.aurorasolar.com/privacy-policy (the “Privacy Policy”); and (b) Aurora’s provision of HelioScope to Administrators and End Users. You will provide evidence of such consents upon our reasonable request.
3. Responsibility for End Users. You are responsible for controlling whom you allow to become an End User. We are only required to provide HelioScope to those End Users for whom you have paid the applicable fees, and only such End Users who are permitted to access and use HelioScope. You are responsible for compliance with this Agreement by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including purchases they may place and how End Users use Your Data, even if those End Users are not from your organization or domain.
4. Credentials. You must require that all End Users keep their user IDs and passwords for HelioScope strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
5. Age Requirement for End Users. HelioScope is not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all End Users are at least 18 years old.

What’s included in your HelioScope subscriptions; what are the restrictions.

1. Access to HelioScope. During the applicable Subscription Term, you may access and use HelioScope solely for your own internal business purposes and solely by no more than the number of End Users for which you have paid the applicable Fees, all in accordance with, and subject to the terms of this Agreement, and the Documentation. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
2. Project Limits. “Monthly Project Allowance” means your permitted number of Projects as set forth in your Service Order during each calendar month following the effective date of the Subscription Term (each, a “Month”). If your Subscription Term is longer than one (1) Month, then at the end of each Month except for the last Month of your Subscription Term, the unused portion of the Monthly Project Allowance for such Month may be rolled over for use in the next Month in addition to the Monthly Project Allowance allocated for the next Month, provided that no unused portion of any Monthly Project Allowance may be rolled over from one Subscription Term to another Subscription Term and all unused Projects expire without any refund at the end of each Subscription Term. If your subscription is monthly, i.e. your Subscription Term is one (1) Month, you may not roll over any unused portion of any Monthly Project Allowance and all unused Projects expire without any refund at the end of each Subscription Term. “Project Size” means the wattage output of the solar design(s) for a given Project. “Maximum Project Size” means your maximum permitted wattage per design in a given Project as set forth in your Service Order. We reserve the right to suspend or terminate your account or access to HelioScope if the total aggregate number of Projects you use in a Month exceeds your Monthly Project Allowance or if your Project Size exceeds your Maximum Project Size (each, an “Overage”) consistently and repeatedly. You agree that consistently repeated Overage is a material breach of this Agreement subject to Section 12.2.
3. Support. During the Subscription Term, we will provide reasonable Support for HelioScope through a combination of email and chat.
4. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt or create derivative works of HelioScope; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to HelioScope to a third party; (c) incorporate HelioScope into a product you provide to a third party; (d) interfere with or otherwise circumvent mechanisms in HelioScope intended to limit your use; (e) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to HelioScope, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (f) remove or obscure any proprietary or other notices contained in HelioScope; (g) use HelioScope for competitive analysis or to build competitive products; (h) publicly disseminate information regarding the performance of HelioScope; or (i) encourage or assist any third party to do any of the foregoing.

Our security and data privacy policies.

1. Security. We implement security procedures designed to help protect Your Data from security attacks.
2. Privacy. We may collect certain data and information about you and your End Users in connection with you and your End Users’ use of HelioScope and otherwise in connection with this Agreement (“End User Data”). We may use all such data and information in accordance with our Privacy Policy, which you acknowledge. End User Data is not Your Data or Your Materials.
3. Improving HelioScope. We are always striving to improve HelioScope. In order to do so, we may use analytics techniques to better understand how HelioScope is being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
4. Subpoenas. Nothing in this Agreement prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we may use commercially reasonable efforts to notify you where permitted to do so.

Your Data.

1. Using Your Data to provide HelioScope to You. You retain all right, title and interest in and to Your Data in the form submitted to HelioScope. You hereby grant and will grant us a worldwide, non-exclusive, royalty-free, transferable (in whole or in part), sublicensable (through multiple tiers of sublicenses) license to (a) access, use, process, copy, distribute, perform, export, and display Your Data as is reasonably necessary to provide HelioScope for the term of this Agreement; and (b) archive and perform analytics on Your Data and to distribute, publicly display or perform or otherwise use the results of the same provided such results are in an aggregated form that does not personally identify an individual person, and this license in subsection (b) is irrevocable and perpetual. Solely to the extent that reformatting Your Data for display in HelioScope constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and other information relating to your use of HelioScope in order to respond to your support requests.
2. Your Data Compliance Obligations. You and your use of HelioScope (including use by your End Users) must comply at all times with this Agreement, and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to HelioScope and to grant the rights granted to us in this Agreement and (ii) Your Data and its submission and use as you authorize in this Agreement will not violate (1) any Laws, (2) any third party intellectual property, privacy, publicity or other rights, or (3) any of your or third party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with HelioScope.
3. No Sensitive Data. You will not submit to HelioScope (or use HelioScope to collect) any Sensitive Data. Notwithstanding any other provision to the contrary, we have no responsibility or liability under this Agreement for Sensitive Data.
4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.2 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of HelioScope, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Sensitive Data); or (iii) Your Materials; or (iv) access or use of HelioScope by your or your End Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 3.5 (Restrictions). This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense. You will not settle or otherwise compromise our rights without our prior written consent.
5. Removals and Suspension. We have no obligation to monitor any content uploaded to HelioScope. Nonetheless, if we deem such action necessary based on your violation of this Agreement, including our policies, or in response to takedown requests that we receive, we may (1) remove Your Data from HelioScope or (2) suspend your access to HelioScope. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of HelioScope or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to HelioScope as described in this Section 5.5.

Using third party products with HelioScope.

 

You (including your End Users) may choose to use or procure other third party products or services in connection with HelioScope. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with HelioScope, we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with HelioScope. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.

Billing, renewals, and payment.

1. Subscriptions. HelioScope is offered either on a monthly subscription basis or an annual subscription basis, as indicated in your Service Order.
2. Renewals. Except as otherwise specified in your Service Order, unless either party elects not to renew your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal by contacting our support team. Cancelling your subscription by electing non-renewal means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to HelioScope continuing to be offered and will be charged at the then-current rates.
3. Adding Users. You may add users by creating a new Service Order or modifying an existing Service Order. Unless otherwise specified in the applicable Service Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
4. Fees; Payment. You will pay all fees set forth in the relevant Service Order (“Fees”) by the due dates and in the currency specified in such Service Order, and in accordance with the terms and conditions therein and this Agreement. We reserve the right to change the Fees or applicable charges and to institute new charges and Fees at the end of a Subscription Term. Unless otherwise specified in the applicable Service Order, the Fees are non-refundable after the money back period as provided by Aurora in the relevant Service Order. You agree that we may bill your credit card or other payment method you provide for renewals, additional users, Overages, expenses, and unpaid fees, as applicable.
5. Delivery. We will deliver the login instructions for HelioScope to your email account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your subscription has been initiated. All deliveries under this Agreement will be electronic.

Taxes not included.

1. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of HelioScope in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

No contingencies on other products of future functionality.

 

You acknowledge that HelioScope referenced in a Service Order is being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products. You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.

IP Rights in HelioScope and Feedback.

 

HelioScope is made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including HelioScope) and End User Data. From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

Confidentiality.

 

Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to HelioScope will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

Term and Termination.

1. Term. This Agreement is effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
2. Termination for Cause. Either party may terminate this Agreement (including all related Service Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after notice; (b) ceases operation without a successor; or (c) 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 not dismissed within sixty (60) days thereafter).
3. Effects of Termination. Upon any expiration or termination of this Agreement, you must cease using HelioScope and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of this Agreement (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of HelioScope during the applicable Subscription Term. If you terminate this Agreement in accordance with Section 12.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate this Agreement in accordance with Section 12.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
4. Survival. The following provisions will survive any termination or expiration of this Agreement: Sections 3.4 (Restrictions), 5.4 (Your Indemnity), 6 (Third Party Products), 7.4 (Fees; Payment), 8 (Taxes not included), 10 (IP Rights in HelioScope and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.4 (Warranty Disclaimer), 14 (Limitations of Liability), 15 (IP Indemnification) (but solely with respect to claims arising from your use of HelioScope during the Subscription Term), 17 (Dispute Resolution) and 20 (General Provisions).

Warranties and Disclaimer.

1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into HelioScope (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of HelioScope for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity or (ii) if the non-conformity was caused by misuse, unauthorized modifications or third party products, software, services or equipment. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 13.
4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 13, HELIOSCOPE AND SUPPORT ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THIS AGREEMENT, WE DO NOT WARRANT THAT YOUR USE OF HELIOSCOPE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF HELIOSCOPE NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

Limitation of Liability.

1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Service Order, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section 3.4 (Restrictions).
4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

IP Indemnification.

 

We will defend you against any claim brought against you by a third party alleging that HelioScope, when used as authorized under this Agreement, infringe a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of HelioScope is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of HelioScope in accordance with this Agreement; (ii) substitute a substantially functionally similar to HelioScope; or (iii) terminate your right to continue using HelioScope and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to HelioScope in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if HelioScope is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if HelioScope is used in combination with any non-Aurora product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of HelioScope; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third party deliverables or components contained with HelioScope or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 15 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH HELIOSCOPE OR OTHER ITEMS WE PROVIDE UNDER THIS AGREEMENT.

Publicity Rights.

 

We may identify you as an Aurora customer in our promotional materials.

Dispute Resolution.

1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 17.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 17.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 17.1 (Informal Resolution) and 17.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.

Changes to these Terms.

 

We may update these Terms (including our policies) from time to time in our sole discretion, with notice to you in accordance with Section 20.1 (Notices) and/or by posting the modified Terms on our website. It’s important that you review these Terms whenever we update them. If you continue to access and/or use HelioScope after we have posted updated Terms it means that you accept and agree to the changes.

Changes to HelioScope.

 

You acknowledge that HelioScope is an on-line, subscription-based product, and that in order to provide improved customer experience we may make changes to HelioScope, and we may update the applicable Documentation accordingly. Subject to our obligation to provide HelioScope under existing Service Orders, we can discontinue any portion or feature of any product for any reason at any time without liability to you.

General Provisions.

1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Aurora Solar, Inc. PO BOX: 102896 Pasadena, CA 91189-2896. Your notices to us will be deemed given upon receipt.
2. 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 is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
3. Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in their entirety (including all Service Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
4. Entire Agreement. This Agreement (including these Terms and all Service Orders) is the entire agreement between you and us relating to HelioScope and any other subject matter covered by this Agreement, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to HelioScope or any other subject matter covered by this Agreement, unless you and Aurora have executed a separate agreement governing use of HelioScope. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. In case of inconsistency among this Agreement and any other policy or statement on our website, this Agreement shall control.
5. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 18 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by an authorized representative of each party.
6. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
7. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

Definitions.

 

Certain capitalized terms are defined in this Section 21, and others are defined contextually in this Agreement.

“Administrators” means the End User designated by you who administers the access and use of HelioScope under this Agreement to other End Users on your behalf.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Documentation” means our standard published documentation for HelioScope, currently located here.

“End User” means an individual you or your Affiliate permits or invites to use HelioScope. For the avoidance of doubt: (a) individuals invited by your End Users (including Administrator), (b) individuals under accounts managed by your Administrator, and (c) individuals interacting with HelioScope as your customers are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access HelioScope.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to HelioScope.

“HelioScope” means our cloud-based solutions, including any client software we provide and related content, materials, tools and services.

“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a HelioScope account. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Service Order” means Aurora’s applicable online order page(s), flows, in-product screens or other Aurora-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use, fee schedule and other relevant terms. As applicable, the Service Order will identify: (i) the number of End Users, Subscription Term, or other scope of use parameters and (ii) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Each Service Order will form part of this Agreement and will be subject to the terms and conditions contained herein.

“Our Technology” means HelioScope, the “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“Project” means a location or address for which you initiate creating a solar design(s) via HelioScope. It is possible for multiple designs to exist for a given Project.

“Sensitive Data” means any (i) categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; (vi) information about a non-United States person which originates in the European Economic Area, Switzerland, and/or the United Kingdom which could reasonably be considered “foreign intelligence information” as defined by 50 U.S.C. § 1801(e); or (vii) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Subscription Term” means your permitted subscription period for HelioScope, as set forth in the applicable Service Order.

“Support” means support for HelioScope.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to HelioScope. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through HelioScope.

“Your Materials” means Your Data, your materials, systems, personnel or other resources.