OMEGA SAAS EULA
Last Updated: July 19th, 2023
BP Pulse Fleet North America Inc. (“BP Pulse”) provides the online charging management system known as OMEGATM (the “Software”) via its proprietary web-based platform utilized by BP Pulse to provide the Software (the “Platform”). This agreement (“Agreement”) establishes the terms pursuant to which BP Pulse will make the Software available to the person or entity (the “Customer”) that has executed a valid and binding agreement with BP Pulse or its authorized resellers (“Authorized Reseller”) for a subscription to the Software (a “Customer Order”). In the event of a conflict between the terms of this Agreement and the Customer Order, the Customer Order shall control.
BY ACCESSING OR USING ANY PART OF THE SOFTWARE OR THE PLATFORM, REGISTERING FOR ACCESS TO THE SOFTWARE OR PLATFORM, CUSTOMER IS AGREEING TO ENTER INTO AND BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE SUFFICIENT RIGHT TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR REGISTER FOR THE SOFTWARE OR PLATFORM.
SECTION 8.4 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN CUSTOMER AND BP PULSE ARE RESOLVED. IN PARTICULAR, THE ARBITRATION AGREEMENT IN SECTION 8.4 WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN CUSTOMER AND BP PULSE TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
1.SUBSCRIPTION; GRANT OF RIGHTS.
1.1 Subscriptions. A Customer Order may provide for one or more subscriptions to access and use the Platform (each a “Subscription”). Each Subscription is limited to a single electric vehicle charger (each an “EV Charger”) assigned by Customer. Once a Subscription is assigned to an EV Charger, it is not transferrable to any other EV Charger unless otherwise provided in a Customer Order.
1.2 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement and the Customer Order, BP Pulse hereby grants to Customer, a non-exclusive, non-transferable (except as permitted by Section 8.1), non-sublicensable right to remotely access and use the Platform, with the EV Charger to which it is assigned, during the applicable Subscription Term, solely for Customer’s and its Affiliates’ own business purposes in accordance with the user materials, instructions, and specifications made available by BP Pulse for the (“Documentation”) and this Agreement. BP Pulse and its licensors reserve all rights in and to Platform not expressly granted to Customer under this Agreement. Notwithstanding the foregoing, Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary to connect to and access the Platform. “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.3 Restrictions on Use. Customer shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Platform or Software, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or Software or any component thereof; (b) use the Platform or Software, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users (defined below) to independently access the Platform or Software; (d) use the Platform or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) use the Platform or Software to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (f) attempt any of the foregoing; or (g) authorize or permit any User or other third party to do any of the forgoing.
1.4 Access and Users. Customer may permit its, and its Affiliates’, independent contractors and employees to access and use the Platform on Customer’s behalf in accordance with this Agreement (each, a “User”); provided that Customer will be liable for the acts and omissions of all Customer Affiliates and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement. Each User may access the Platform using a unique user identification name and password (“User ID”). Customer shall be responsible for ensuring the security and confidentiality of User IDs for all Users. User IDs may not be shared with any person other than the specific User to whom the User ID is assigned. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and shall notify BP Pulse promptly of any unauthorized use.
1.5 Support and Maintenance. BP Pulse will provide its standard support and maintenance services for the Platform. Additional support and maintenance services may be included in the applicable Customer Order. BP Pulse may from time to time develop and automatically install patches, bug fixes, updates, upgrades, and other modifications (“Updates”) to improve the performance of Platform and computer software which is operating on equipment provided by BP Pulse in connection with the Platform.
1.6 Prohibited Data. Notwithstanding anything to the contrary in this Agreement, Customer shall not, and shall take commercially reasonable efforts to ensure that its Users do not, upload to the Platform or otherwise submit or make accessible to BP Pulse any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) the Software and Platform are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (b) BP Pulse will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Customer or any Users upload any Prohibited Data to the Platform in violation of this Section 1.6, BP Pulse may, without limiting any of its other rights and remedies, delete such Prohibited Data.
2. SUBSCRIPTION TERM; TERMINATION.
2.1 Term; Termination. The term of this Agreement will commence on the date that Customer first accepts this Agreement and will continue until the last to expire of the Subscriptions, unless terminated earlier. A party may terminate this Agreement upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.
2.2 Subscription Term. The term of each Subscription will commence on the date on which such Subscription is assigned to an applicable EV Charger, and will continue for the initial period provided in the Customer Order (the “Initial Subscription Term”). Thereafter, the Subscription will automatically renew for additional 1 year periods (each a “Renewal Subscription Term”) unless a party provides notice of its intent not to renew at least 30 days prior to the applicable renewal date. For each Subscription, the Initial Subscription Term and each Renewal Subscription Term are referred to collectively as the “Subscription Term”).
2.3 Effects of Termination. Upon termination of this Agreement: (a) all Subscriptions shall immediately cease, (b) Customer’s rights granted in this Agreement will immediately cease, and (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control. Sections 1.3, 2.3, 3, 4, 5, 6, 7, and 8 will survive the termination or expiration of this Agreement for any reason.
2.4 Suspension. Notwithstanding anything to the contrary in this Agreement, BP Pulse may suspend Customer’s access to the Platform if BP Pulse determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to BP Pulse and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 1.3 or 7; (d) Customer’s or its Users’ use of the Platform violates applicable law; (e) Customer has failed to pay any amounts owed under the Customer Order or, where Customer has purchased a Subscription through an Authorized Reseller, the Authorized Reseller has failed to pay any amounts owed to BP Pulse for the Subscription. BP Pulse shall use commercially reasonable efforts to provide Customer with notice of such suspension. BP Pulse may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to BP Pulse’s reasonable satisfaction. BP Pulse’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under the Customer Order.
3. PROPRIETARY RIGHTS.
3.1 Customer Data. As between the parties, Customer owns all right, title, and interest in and to any electronic data or information input into the Platform by or on behalf of Customer (“Customer Data”). Customer Data does not include Charging Data or Aggregated Data (each defined below). Customer hereby grants to BP Pulse and its authorized representatives and contractors, a limited, non-exclusive, non-transferable (except as permitted by Section 8.1) license to use the Customer Data solely for the limited purpose of providing the Platform for Customer and fulfilling its other obligations and exercising its rights under this Agreement.
3.2 Energy Consumption Data. Certain features of the Platform require Customer to provide BP Pulse with access to its energy consumption data for the location where the EV Charger with an active Subscription is installed (“Energy Consumption Data”). Customer will provide BP Pulse with access to such Energy Consumption Data through the methods identified by BP Pulse, which may require Customer to authorize BP Pulse’s third party integration partner to access Customer’s utility account and provide Energy Consumption Data to BP Pulse. All Energy Consumption Data is Customer Data and, as between BP Pulse and Customer, is owned solely by Customer.
3.3 Charging Data. BP Pulse shall retain ownership of any content, data, or information that is collected or produced by the Platform (“Charging Data”). Charging Data may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform. BP Pulse grants to Customer a non-exclusive, royalty-free, perpetual right and license to use solely for its own internal business purposes the Charging Data relating to Customer’s access to or use of the Platform (“Customer-Specific Charging Data”). BP Pulse will make Customer-Specific Charging Data available via the Platform during the applicable Subscription Term. After the Subscription Term, Customer will have a period of 90 days during which BP Pulse will provide the Customer-Specific Charging Data to Customer in a common format upon Customer’s request at no additional charge. After such 90 day period, BP Pulse reserves the right to charge Customer on a time and materials basis for any Customer-Specific Charging Data that is not immediately retrievable. Notwithstanding the foregoing, BP Pulse has no obligation to retain Customer-Specific Charging Data after such 90 day period.
3.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, BP Pulse may analyze Customer Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). BP Pulse retains ownership of all right, title, and interest in and to Aggregated Data. BP Pulse may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Platform.
3.5 The Platform. All proprietary technology utilized by BP Pulse to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of BP Pulse. BP Pulse or its third-party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Platform, including, without limitation, the Software, Documentation, Updates, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by or for BP Pulse in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by BP Pulse.
3.6 Third Party Software. Certain items of software included with the Platform may be subject to “open source” or “free software” licenses (“Open Source Software”). Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, BP Pulse makes such Open Source Software, and any BP Pulse modifications to that Open Source Software, available by written request to BP Pulse at the email or mailing address included in this Agreement.
4. WARRANTY; DISCLAIMERS.
4.1 Access to the Platform. BP Pulse warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. BP Pulse does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies BP Pulse of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, BP Pulse shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if BP Pulse is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to BP Pulse and, BP Pulse shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 4.1 do not apply to or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.
4.2 Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant BP Pulse the license in Section 3.1.
4.3 Third Party Sites.The Platform may contain links to other websites or services operated by third parties (“Third Party Sites”). Such Third Party Sites are not under BP Pulse’s direction or control. Customer’s access to or use of these Third Party Sites is at Customer’s own risk and is subject to any terms and conditions presented to Customer by the operator of the Third Party Sites.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) BP PULSE MAKES NO WARRANTY WITH RESPECT TO ANY EV CHARGERS, CHARGING EQUIPMENT, SERVICES, OR ANY OTHER PRODUCT THAT MAY BE PURCHASED BY CUSTOMER OR INTENDED BY CUSTOMER FOR USE WITH THE PLATFORM. ANY USE OF THE EV CHARGERS IS AT CUSTOMER’S SOLE RISK.
5.1 Claims Against Customer. BP Pulse shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (a “Customer Claim”), and BP Pulse shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying BP Pulse in writing of such Customer Claim; (b) giving BP Pulse sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at BP Pulse’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, BP Pulse shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, BP Pulse will have no obligation under this Section 5.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that BP Pulse did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than BP Pulse or its authorized agents or subcontractors. This Section 5.1 states BP Pulse’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
5.2 Claims Against BP Pulse. Customer shall defend, any claim, suit, or action against BP Pulse brought by a third party to the extent that such claim, suit, or action is based upon BP Pulse’s use of any Customer Data in accordance with this Agreement or Customer’s use of any Customer Data (a “BP Pulse Claim”) and Customer shall indemnify and hold BP Pulse harmless, from and against Losses that are specifically attributable to such BP Pulse Claim or those costs and damages agreed to in a settlement of such BP Pulse Claim. The foregoing obligations are conditioned on BP Pulse: (a) promptly notifying Customer in writing of such BP Pulse Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 5.2 or otherwise with respect to any BP Pulse Claim to the extent based upon BP Pulse’s use of the Customer Data in violation of this Agreement.
6. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED FEES PAID TO BP PULSE FOR THE APPLICABLE SUBSCRIPTION DURING THE SUBSCRIPTION TERM DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. IF THE SUBSCRIPTION IS NOT SEPARATELY DELINEATED ON THE CUSTOMER ORDER, THE AMOUNTS PAID FOR THE SUBSCRIPTION WILL BE APPORATIONED BY BP PULSE IN ITS REASONABLE DISCRETION. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 6 DO NOT APPLY TO A PARTY’S MISAPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTIONS 1.2 OR 1.3.
7.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. BP Pulse’s Confidential Information includes Software, Documentation, and Charging Data. Customer’s Confidential Information includes Customer Data.
7.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 7. Recipient will be liable to the Discloser for any of its independent contractor’s acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 7. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
7.3 Exceptions. Recipient shall have no confidentiality obligations under Section 7.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.
8.1 Assignment. Customer may not assign this Agreement or any of its rights under this Agreement to any third party without BP Pulse’s prior written consent; except that Customer may assign this Agreement without consent to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect. Customer shall remain jointly and severally liable with any assignee for any breach of this Agreement.
8.2 Independent Contractor Relationship. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in this Agreement, neither party has the right or authority to assume or create any obligation on behalf of the other party. This Agreement may not be amended except by a writing signed by both parties hereto. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings.
8.3 Waiver. Any waiver of the provisions of this Agreement must be in writing and signed by the party providing such waiver and shall not be implied by any usage of trade, course of dealing, or course of performance. No exercise of any right or remedy by either party shall constitute a waiver of any other right or remedy of such party contained herein or provided by applicable law.
8.4 Governing Law; Dispute Resolution; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of Delaware, excluding any of its conflict of law provisions that would require the application of the laws of another jurisdiction. Any unresolved dispute arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled in accordance with the American Arbitration Association (“AAA”) rules for commercial arbitration in effect on the date of this Agreement. The arbitrators shall be independent and selected by AAA. If the total amount in dispute is less than 1,000,000 USD there shall be a single arbitrator. If the total amount in dispute is 1,000,000 USD or greater, there shall be 3 arbitrators. The award of the arbitrators shall be accompanied by a reasoned opinion. The United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration shall be Houston, Texas and the language of the arbitration shall be English. Except to the extent expressly provided herein, the arbitrators are not empowered to award consequential, indirect, special, punitive or exemplary damages, and each party hereby irrevocably waives any damages in excess of actual damages. Either party may apply to the arbitrators seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). The courts of the State of Delaware shall have jurisdiction to hear any action to compel arbitration or any other judicial proceedings with respect to this Agreement. IF PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING RELATING TO A DISPUTE UNDER THIS AGREEMENT AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.
8.5 U.S. Government Customers. All relevant portions of the Platform are each a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 CFR 12.212 (Sep 1995), and is provided to the U.S. government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202 (Jun 1995), all U.S. government users acquire the licenses and rights granted with respect to the Platform with only the rights expressly set forth herein and no other rights.
8.6 Publicity. Neither party shall (a) issue any media releases or public disclosures relating to this Agreement, or (b) use the name, logo, or marks of the other party without the prior written consent of the other party. Notwithstanding the forgoing, BP Pulse may use Customer’s name and logo in BP Pulse’s marketing and promotional materials that include customer lists.
8.7 No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and legal benefit of the parties and their successors and permitted assigns and, except as otherwise provided in this Agreement, no other person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim, in connection with this Agreement.
8.8 Amendments. No change, amendment, or modification of this Agreement shall be valid or binding upon the parties unless such change, amendment, or modification shall be in writing and duly executed by both parties.
8.9 Severability. Any provision of this Agreement which is invalid, illegal, or unenforceable shall be ineffective to the extent of such invalidity, illegality, or unenforceability, without affecting in any way the remaining provisions hereof or rendering any other provision of this Agreement invalid, illegal, or unenforceable. The parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible with respect to the transactions contemplated by this Agreement.
8.10 Notices. Notices required to be sent to BP Pulse under this Agreement shall be in writing and may be delivered by United States mail, or overnight courier service to BP Pulse Fleet North America Inc., 335 E Middlefield Blvd, Mountain View, CA 94043, Attn: Legal. Notices required to be send to Customer under this Agreement shall be in writing and may be delivered to the address or email address of Customer on file with BP Pulse. Notice by electronic mail shall be effective when received. Notice by overnight United States mail or courier shall be effective on the next business Day after it was sent. A party may change its address for notices by providing notice of same in accordance herewith.
8.11 Remedies. Each party acknowledges that any actual or threatened breach of Sections 1.2, 1.3, or 7 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
8.12 Modification. This Agreement may be updated by BP Pulse from time to time. No such update will become effective until the beginning of the following Renewal Subscription Term unless otherwise agreed by both parties in writing.
8.13 Entire Agreement. This Agreement embodies the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings of the parties, verbal or written, with respect to the subject matter hereof.