Last Updated: October, 2021
Welcome to the View platform from “HST” (HST Solar Farms Inc, a Delaware corporation). Thanks for using our products and services (“Services”). Before you get started on View, we ask that you take a few minutes and read the important Terms of Service Agreement below.
IMPORTANT: PRESSING THE “SIGN UP” BUTTON, OR OTHERWISE ORDERING OR USING THE SERVICES (AS DEFINED BELOW) CONSTITUTES ACCEPTANCE OF THIS AGREEMENT ON YOUR BEHALF. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
SCOPE OF AGREEMENT:
SCOPE OF SERVICES:
Our View Platform constitutes a technology platform that enables entities that develop, produce, and sell renewable energy and related products, (“Developers,” or “Program Suppliers”) to conduct development planning, preliminary design and engineering, energy marketing and origination, and other professional services, for the development of clean energy projects, provided by HST as part of our Services.
The Subscription Services comprise of our cloud-based clean energy View development software and any and all content, tools, and materials provided to you by HST to enable you to develop clean energy projects. The Services enables You to transact with buyers (“Buyers”) for the sale of physical or virtual renewable electric energy, bundled with RECs, and/or stand-alone RECs, (each of which, are the “Service Plans”). If you elect to transact with Buyers, you grant your explicit, informed, and affirmative consent to initiate enrollment of Buyers, provided that the Buyers have, in aggregate, subscribed to the minimum subscription threshold as specified by you in terms of energy capacity (“Subscription Threshold”). HST will provide You and applicable Buyer(s) with a Renewable Product Purchase and Sale Agreement (“RPPSA”) codifying the terms of the Buyer’s purchase and receipt, and your sale and delivery, of renewable electricity and/or RECs. Each RPPSA will solely be between a Buyer and You. HST will not be a party to the RPPSA.
License: Subject to the terms and conditions of this Agreement, HST grants you a nonexclusive, limited, non-transferable, non-sublicensable other than according to this Clause, freely revocable license to use the Services solely as permitted by the features of the Services we provide to you. You shall have the right to sublicense the license to any affiliates, provided you shall be responsible for the use of the Services by such affiliates and their personnel who may become users.
Ownership: Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner HST’s company names, logos, product and service names, trademarks or services marks or those of HST’s licensors. The Services and all rights therein are and shall remain HST’s property or the property of HST’s licensors. You acknowledge that the Services include HST’s valuable trade secrets and improper use or disclosure would cause HST irreparable harm. Accordingly, you agree to use the Services solely as authorized in these Terms. You further acknowledge that the license granted pursuant to these Terms does not transfer to you title or ownership of the Services or a copy of the Services, but only a right of limited use.
In connection with your use of the Services, You will comply with all applicable laws, rules and regulations. You will not, and you will not permit any related third party, to: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, copy, duplicate, give access to, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by HST; (iii) decompile, alter, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the oper- ation and/or functionality of any aspect of the Services; (vi) extract the source code, underlying ideas, underlying user interface techniques, or algorithms of the Services; or (vii) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
In connection with your use of the Services, you will not and will not assist or enable others to:
breach or circumvent any applicable laws or regulations, agreements with third-parties, or our Terms and Policies;
use the Services to request, subscribe to, or transact with sellers of renewable power products and services on the same or similar terms presented in a proposed Service Plan independent of HST, to circumvent any Service Fees or for any other reason without HST’s prior written approval;
request, or accept any payment for products or services received under a Service Plan, outside of HST. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold HST harmless from any liability for such payment;
attempt to decipher, decompile, disassemble or reverse engineer any of the software used in the Services;
infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Services.
The Services are subject to usage limits, including, for example, the limits on users and on nameplate capacities of the amount of solar energy designed and engineered, as specified in the User Account. Unless otherwise specified, (A) the Services may not be accessed by more than the number of users associated with your Account type, (B) a user’s password may not be shared with any other individual, and (C) a user identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services only with the express consent of HST. HST may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
THIRD PARTY SERVICES:
USE OF SERVICES:
User Accounts Your HST account gives you access to the Services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a View account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or HST’s termination of this Agreement with you.
You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of letters and numbers) with your account. You must notify HST immediately of any breach of security or unauthorized use of your account. HST will not be liable for any losses caused by any unauthorized use of your account. By providing your email address you consent to using the email address to send you Services-related notices, including any notices required by law, instead of postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. Users must quote the name of HST if they publish pictures or tables issued from the software.
You will (i) be responsible for your (and as applicable, your personnel’s) compliance with these Terms, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify HST immediately of any such unauthorized access and/or use of which you become aware, and (iii) use the Services only in accordance with these Terms and all applicable laws and government regulations. You will not (w) make the Services available to any third party, (x) sell, resell, rent or lease the Services, (y) interfere with or disrupt the integrity or performance of the Services or any third-party data contained on the Services, including, as applicable, the third-party data of your employees or colleagues, or (z) attempt to gain unauthorized access to the Services or their related systems or networks. You must notify HST immediately of any breach of security or unauthorized use of your email or mobile phone. Although HST will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of HST or others due to such unauthorized use. In certain instances you may be asked to provide additional user verification to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide additional user verification.
Some of our Services allow you to upload, submit, store, send or receive information, data and content (“User Content”). You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours. By providing User Content to HST, you grant HST a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and HST’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant HST the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor HST’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. HST may, but shall not be obligated to, review, monitor, or remove User Content, at HST’s sole discretion and at any time and for any reason, without notice to you. HST may use User Content in an aggregated and/or anonymized manner for purposes of sales, marketing, business development, product enhancement, or customer service. Unless otherwise stated, all materials contained on or within the Services, including, but not limited to, financial outputs, Power Purchase Agreements and related commercial information, engineering drawings and output, system design specifications, energy yield simulations, power plant layouts and drawings, permitting and construction documents, text, graphics, images, code, illustrations, designs, icons, photographs, video clips, and written and other materials (collectively, “HST Content”), as well as their selection and arrangement, are protected by copyright, trademark, trade-secret, patent, and/or other intellectual property laws, and unauthorized use of HST Content may violate such laws and these Terms. If you use the Services to generate proposals, drawings, or other services for your clients integrating the results and content generated by the Services (the “Results”), then HST grants you a license to reproduce and display such proposals and Results. You agree that you will not copy, reproduce, republish, frame, download, transmit, modify, display, reverse engineer, sell, or participate in any sale of, rent, lease, loan, assign, distribute, license, sublicense, or exploit in any way, in whole or in part, HST Content, the Services or any related software, except as expressly stated in these Terms.
You understand that use of the Services may result in charges to you from HST or a Third Party Provider (“Charges”). You agree to pay the Charges for the Services in accordance with the applicable billing schedule for your User Account. Invoices are due in advance or within specified payment credit terms. Payment obligations are non-cancellable and fees paid are non-refundable. You agree to reimburse HST for any sales, use and similar taxes arising from the provision of the Services that any federal, state or local governments may impose. HST may charge additional fees for exceptions, processing, setup and other special services. If HST is required to pay any such taxes based on the licenses granted in these Terms or on your use of the Services, then such taxes will be billed to and paid by you.
HST reserves the right to change the schedule of fees from time to time. You will be notified of any change in fees at least 30 days in advance of the effective date. If a fee increase or change to this Agreement is not acceptable, you may cancel the Services as provided herein prior to the time when it takes effect. Your continued use of the Services constitutes your agreement to those changes. If HST is unable to collect fees due because of insufficient funds in your Bank Account or for any other reason, you must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees or charges for return items, plus interest at the lesser of 18% annually or the maximum allowed by law, plus attorney’s fees and other costs of collection as allowed by law. In addition, HST may suspend the Services or terminate this Agreement and avail itself of any other available remedy.
Any free use of the software is temporary and can be revoked by HST at any time. You are solely responsible for properly canceling your account. An email or chat request (from the account or account email address) to cancel your account is sufficient to cancel the View Subscription. If you cancel the Services before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again. HST also reserves the right to make any appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. Charges paid by you are final and non-refundable, unless otherwise determined by HST. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that HST may use a secondary payment method in your Account, if available.
HST does not guarantee the Results of the View software, which depend to a large extent on the parameters entered by the user. The validity of the content of meteorological databases and the validity of components databases cannot be guaranteed. HST makes no guarantees about the information provided on the Services, including without limitation, that the Results are an accurate representation of clean energy power costs as well as power plant construction and operation costs. Similarly, HST makes no representations about accuracy, reliability, completeness, or timeliness of any data from a third-party service provider or the quality or nature of third-party products or services obtained through the Services. All information on the Application and in the Services is provided “as is,” with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose.
If HST provides you any professional information in the course of providing the Service, it is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any such information without first seeking independent professional advice from a person who is licensed and/or qualified in the applicable area. For clarity, you will be solely responsible for: (i) compliance with any and all applicable laws, rules, and regulations affecting your business; and (ii) any use you may make of the Services to assist in complying with any such laws, rules, or regulations. The Services do not include any legal, regulatory, accounting, or tax advice, and you will rely solely upon your own advisors with respect to such advice.
Each party hereby represents and warrants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder, (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party, and (c) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, HST PROVIDES SERVICES “AS IS,” “AS AVAILABLE” AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLES, NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES IMPLIED BY ANY COURSE OF PER- FORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, SAVE TO THE EXTENT REQUIRED BY LAW. SOME STATES OR COUNTRIES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT THE HST PLATFORM IS A TECHNOLOGY PLATFORM THAT ENABLES DEVELOPMENT OF RENEW- ABLE ENERGY SYSTEMS. HST IS NOT A UTILITY OR A SUPPLIER. THE SERVICES DO NOT INCLUDE ANY LEGAL, REGULATORY, ACCOUNT- ING, OR TAX ADVICE, AND YOU WILL RELY SOLELY UPON YOUR OWN ADVISORS WITH RESPECT TO SUCH ADVICE.
To the maximum extent permitted by applicable law, you agree to release, defend, indemnify, and hold HST and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies, (ii) your improper use of the Services, and (iii) your breach of any laws, regulations or third party rights.
LIMITATION OF LIABILITY:
OTHER THAN WITH RESPECT TO (i) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, (ii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR, (iii) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF THE REPRESENTA- TIONS OR WARRANTIES, (A) IN NO EVENT SHALL HST BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY YOU OR ANY THIRD PARTY COLLECTIVELY ARIS- ING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL HST BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE GREATER OF (X) FIFTY THOUSAND DOLLARS ($50,000), AND (Y) THE TOTAL AMOUNTS PAID OR PAYABLE HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY. NOTWITHSTANDING THE FORE- GOING, NOTHING IN THIS CONTRACT SHALL EXCLUDE OR RESTRICT LIABILITY FOR DEATH OR PERSONAL INJURY OR LIABILITY FOR DAMAGES CAUSED WITH INTENT OR GROSS NEGLIGENCE.
The term “Confidential Information” shall mean any confidential or proprietary business, technical, marketing, legal, operational or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with the Agreement, whether orally or in physical form. However, Confidential Information shall not include information (a) previously known by Receiving Party without an obligation of confiden- tiality, (b) acquired by Receiving Party from a third party which was not, to Receiving Party’s knowledge, under an obligation of confidentiality, (c) that is or becomes publicly available through no fault of Receiving Party, or (d) that Disclosing Party provides written permission to Receiving Party to disclose, but only to the extent of such permitted disclosure. Receiving Party agrees that (a) it will use Confidential Information solely for the purposes permitted under this Agreement and (b) it will not disclose the Confidential Information to any third party other than Receiving Party’s employees or agents who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein. In the event Receiving Party receives a sub- poena, administrative or judicial order, or any other request for disclosure of any Confidential Information of Disclosing Party, Receiving Party will give Disclosing Party prompt written notice of such subpoena, order or request and allow Disclosing Party to assert any available defenses to disclosure. Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care. Notwithstanding anything to the contrary in this Section 7 of the Terms, your use of the Services gives HST the right to disclose and discuss with Program Suppliers for the limited purpose of performing the Services.
INTELLECTUAL PROPERTY RIGHTS:
You acknowledge and agree that: any and all HST’s Intellectual Property Rights are the sole and exclusive property of HST or its licensors; you shall not acquire any ownership interest in any of HST’s Intellectual Property Rights under this Agreement; any goodwill derived from the use of HST’s Intellectual Property Rights inures to the benefit of HST or its licensors, as the case may be; if you acquire any Intellectual Property Rights, rights in or relating to any of the Services (including any rights in any Trademarks, derivative works or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to HST or its licensors, as the case may be, without further action by either of the Parties; and you shall use HST’s Intellectual Property Rights solely for purposes of using the Services under this Agreement and only in accordance with this Agreement. All rights not expressly granted in this Agreement are expressly reserved to HST. All trademarks, service marks, logos and designs used as part of the Services whether registered or unregistered, are owned by HST or other third parties. You may not use or display any trademarks, service marks, logos or designs owned by HST or its affiliates without our prior written consent.
MODIFICATION AND TERMINATION:
HST is constantly changing and improving its Services. HST may add or remove functionalities or features, and may suspend or stop the Services altogether. You can stop using our Services at any time. HST may also stop providing Services to you, or add or create new limits to our Services at any time. HST may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check these Terms periodically for changes. Your continued use of the Services following the posting of any changes to these Terms constitutes acceptance of those changes. HST believes that you own your data and preserving your access to such data is important. If we discontinue a service, where reasonably possible, HST will give you reasonably advance notice and a chance to get information out of that service.
Subscriptions renew automatically on an annual basis until you notify us of your decision to cancel the Subscription. Cancellation will be effective at the end of the then-current term. Either party may terminate these Terms for cause upon 30 days written notice to the other party of material breach if the breach remains uncured at the expiration of the 30-day notice period. Upon expiration or termination of these Terms for any reason, the rights, licenses and access to the Services granted to you under these Terms will immediately terminate, and all Charges will become immediately due and payable to HST. All terms and provisions of this Agreement, which by their nature are intended to survive any termination or expiration of these Terms, will so survive.
You and HST agree to use your best reasonable efforts in good faith to resolve amicably any dispute that may arise relating to this Agreement. In the event a dispute is not resolved within 45 days, the seat of the arbitration shall be Los Angeles and the language of the arbitration shall be English. The arbitral award shall be final, conclusive and binding on the Parties. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of California, and US courts shall have exclusive jurisdiction over any claim arising thereunder. Either Party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property rights under this Agreement.
If you are accepting these Terms on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you but instead these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law). You hereby agree to waive all defenses of lack of personal jurisdiction and forum non-conveniens and agree that process may be served in a manner authorized by applicable law or court rule.
Neither party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that HST may assign these Terms to a parent, affiliate, subsidiary, or successor to its business, if any. Subject to the foregoing, these Terms will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this will be null and void.
YOU AND HST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO HST SERVICES MUST COMMENCE WITHIN THREE (3) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
If any term or provision of this legal notice is for any reason held to be invalid, such invalidity shall not affect any other term or provision, and this legal notice shall be interpreted as if such term or provision had never been contained in this legal notice.
You agree that no joint venture, partnership, employment or agency relationship exists between you and HST as a result of this Agreement and/or your use of the Application or Services. You may not assign any part of its rights and obligations under this Agreement without our prior written consent. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced. The terms of this Agreement are severable and may be construed to the extent of their enforceability in light of the parties’ mutual intent. The titles and subtitles in this Agreement are used for convenience only and are not to be considered in construing it.
Sections 3 -15 shall survive any termination of this Agreement with respect to use of the Services by You. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.