SOFTWARE SUBLICENSE AGREEMENT
This Software Sublicense Agreement ("Agreement") is made and entered into this ______
(EFFECTIVE DATE) (the "Effective Date"), by and between:
PENN POWER GROUP, LLC d/b/a NORTHEAST ENERGY SYSTEMS, a limited liability company organized under the laws of Pennsylvania, ("Seller") and
(CUSTOMER LEGAL NAMEand state of formation or incorporation)("Buyer").
Seller and Buyer sometimes are referred to in this Agreement, collectively, as the "Parties" and individually, as a "Party".
WHEREAS, Seller is an authorized channel partner for the distribution of the engines, products, and related parts and services of INNIOJenbacher GmbH & Co OG, its successors and assigns ("Jenbacher"), as well as an authorized Jenbacher provider of aftermarket parts and equipment warranty, repair, monitoring and maintenance services;
WHEREAS, pursuant to a software subscription agreement and license from Jenbacher, Seller is able to provide Buyer with the JenbachermyPlant* remote monitoring and diagnostic system, hosted by Jenbacher on a web- based service platform and made available to end-customers and owners of Jenbacher equipment by means of the internet or through other electronic data transmission means; and
WHEREAS, Buyer desires to access and use the services and features that are available with the myPlant* remote monitoring and diagnostic system under this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein (the sufficiency and adequacy of which is acknowledged by the Parties), Seller and Buyer agree as follows:
This Agreement is for the sale of a software sublicense for the myPlant* asset performance management remote monitoring and diagnostics system applicable to Jenbacher generator sets. Buyer may use myPlant* for the reasons and purposes set forth herein, including but not limited to:
Remote monitoring for the Covered Unit or Covered Units to help Buyer’s operators improve availability, reliability, operating performance and maintenance effectiveness of its Jenbacher equipment;
The myPlant* "Protect" fleet management option which provides Buyer with an overview of its engine fleet, including unlimited data and fleet trends, remote access to DIA.NE messages, advanced diagnostics, fleet reporting and SMS/email alarm notifications; and
Remote troubleshooting capability through Jenbachers ’s Distributed Power Services™ Excellence Center.
NOTICE: Remote monitoring with myPlant* affords Seller and Buyer the opportunity to observe operating parameters and certain performance metrics on Jenbacher gas engine unit or units owned or operated by Buyer through connections to monitoring systems that provide notifications to alert whoever is monitoring at the time to deviations in such parameters and metrics, including possible engine malfunctions. The remote monitoring capability and other myPlant* features provided by this Agreement do not replace the necessary on-site, proactive visual monitoring of the Covered Unit(s) while in operation by Buyer and/or owner nor does Seller’s remote access in any way abrogate or negate the responsibility of Buyer and/or the owner of the equipment to have trained and qualified operators on site when the equipment is in operation. Buyer and/or the owner of the Covered Unit(s) has the primary responsibility for both remote and onsite monitoring of the equipment and responding to alerts generated by the myPlant* remote monitoring system.
Capitalized terms, when used in this Agreement, shall have the meaning set forth below, as defined in Appendix V, or as otherwise specifically defined in the other provisions of this Agreement and its Appendices:
"Agreement" means this myPlant* Software Sublicense Agreement between Seller and Buyer.
"Covered Unit(s)" means the specific Jenbacher gas engine unit or units owned or operated by Buyer and identified by serial number(s) on Appendix I for which the Software Module is sublicensed under the terms of this Agreement.
"Total Agreement Price" means the total price to be paid by Buyer to Seller for the Term of the Agreement.
"myPlant*" means the myPlant* asset performance management remote monitoring and diagnostics system applicable to the Covered Unit(s).
"Scope of System" means the solutions and features of myPlant* as described in Section 3 and Appendix II of this Agreement.
"Site" means the Buyer’s facility and location of the Covered Unit(s).
"Software Modules" means Jenbacher’s proprietary application software for the myPlant* system, hosted on Jenbacher’s or Seller’s computer system, access to which is granted to Buyer under this Agreement.
PARTS, SUBLICENSE AND SCOPE OF SYSTEM - MYPLANT* "PROTECT" PACKAGE
Seller agrees to sell to Buyer a sublicense for the Software Module (or Software Modules) for the myPlant* asset performance management system with the solutions and features set forth in the Scope of System.
The operating data from the Covered Units monitored and collected shall at all times be treated by Seller and Jenbacher as confidential and proprietary Buyer information and will not be disclosed to third parties without the written authorization of Buyer; provided, however, both Seller and Jenbacher retainthe right to save and use operating data from the Covered Units under this Agreement for non-specific general purposes for analysis and comparison with other in-service Jenbacher equipment in a non- attributable manner so as not to identify the Covered Units or Buyer as the operator or owner of the monitored units.
CONNECTION REQUIREMENTS/BUYER’S OBLIGATIONS
As a requirement of and condition to obtaining myPlant*, Buyer is obligated to:
follow the myPlant® Connection Requirements as set forth in Jenbacher Technical Instruction 2300-008, a copy of which is attached hereto as Appendix III;
supply one unused Ethernet port on the control system;
provide a full-time, dedicated connectivity solution (DSL, Cellular, etc.) to remotely access the myPlant*web portal and have such internet connectivity in place at the start of installation by Seller;
provide the necessary site labor to assist Seller on the installation tasks, including compliancewith all local labor requirements at the Site;
assist Seller as necessary to obtain the current control system configuration on the Covered Unit(s); and
bear all cost and expenses for data connections.
BUYER’S INSTALLATION OBLIGATIONS
Installation of the hardware and software for myPlant* is the responsibility of Buyer.
Seller does not accept liability for the actions of the Buyer’s employees or subcontractors.
Some legacy control systems on Covered Units may not be designed to stream all sensor data available to myPlant* and the Total Agreement Price does does not include any control system upgrades, which are the responsibility of the Buyer.
If any additional sensors are installed by Buyer, it is Buyers’ responsibility to configure the gas engine control system properly to ensure that the operational tags associated with these sensors are provided to the DIA.NE or DIA.NE WIN.
EXCLUSIONS AND COMPLIANCE ASSUMPTIONS
The Total Agreement Price has been determined based upon the following exclusions and assumptions:
All local, regional or special permits (environmental, construction, installation);
Spare parts and special tools;
Site power, water, compressed air, or other necessary Site features to operate Covered Unit(s);
Other hardware or infrastructure necessary for data connection to Seller’s remote monitoring center;
Ongoing and/or proactive monitoring of the Covered Units by Seller during the Initial Term or any Extension Term;
Ordering and/ or delivery of spare parts;
Performance of any other services by Seller at the Site;
Customized levels of service tailored to specific Buyer needs;
Scope or work or additional services not otherwise explicitly defined stated in this Agreement; and
Additional certifications or ratings for local or regional codes not covered under this Agreement.
Compliance and Certifications
Seller represents, and Buyer acknowledges, that the Software Modules provided by Seller are within the developer’s current design practices and standards but are not designed to any specific state or local codes;
The Total Agreement Price does not include the cost or expense of compliance with any state or local codes unless expressly defined by Buyer in advance and included by Seller in Appendix III; and
Buyer acknowledges its responsibility to have trained and qualified operators for on-site operation and monitoring the Covered Units and releases Seller from liability from the actions or inactions of Buyer’s on-site personnel.
TERMS OF PAYMENT
In consideration of the sublicense granted pursuant to this Agreement, Buyer will pay Seller those fees, expenses and other amounts specified in the Proposal. Seller shall invoice payment no more than 60 days prior to the start of any Term. Payment will be due 30 days after the date of receipt of Seller’s invoice.
Buyer will pay interest to Seller on all amounts not timely paid in accordance with this Agreement, at the lesser of the rate of 1% per month and the maximum amount permitted by applicable law.
If Seller reasonably determines that Buyer’s payment history (including its failure to pay by the due date) does not justify continuation of Seller’s performance, Seller may require payment security, and/or suspend or terminate the unperformed portion of this Agreement.
ALL PRICES ARE EXCLUSIVE OF TAXES AND BUYER SHALL BE RESPONSIBLE FOR TAXES AND DUTIES, INCLUDING SALES, GROSS RECEIPTS, USE, EXCISE, IMPORT, PROPERTY, STAMP, AND VALUE-ADDED TAXES, AND ALL ITEMS OF WITHHOLDING, DEFICIENCY, PENALTY, ADDITION TO TAX, INTEREST, OR ASSESSMENT RELATED THERETO.
The Appendices form an integral part of this Agreement and are both attached and incorporated by reference. In the event of any conflict between the terms herein and the Appendices, the terms and conditions in this Agreement shall prevail. The provisions of the Appendices listed below shall prevail in the order listed.
Appendix I: Covered Unit or Units
Appendix II: Scope of System
Appendix III: Jenbacher Technical Instructions 2300-0008 (myPlant* Connection requirements)
Appendix IV: General Terms and Conditions of Agreement and Software Sublicense
The initial term of this Agreement (the "Initial Term") shall be for a period beginning on the Commencement Date (as defined in Appendix IV) and ending at the close of business on (Insert Correct end date). The Initial Term of this Agreement will be automatically extended for successive additional periods of one (1) year (the "Extension Term"), unless written notice of cancellation is given by either Party at least sixty (60) days prior to the end of the Initial Term or any Extension Term.
Notices. Any notice required or permitted to be given under this Agreement shall be in writing and either shall be (i) mailed by certified mail, postage prepaid, return receipt requested, or (ii) sent by a nationally recognized overnight air courier service, or (iii) sent by electronic mail. All such communications shall be mailed, sent or delivered, addressed to the Party for whom it is intended at its address set forth below. Any communication so addressed and mailed shall be deemed to be given on the earliest of (a) when actually received or delivered, or (b) on the first business day after deposit with an overnight air courier service, in each case to the address of the intended addressee. Either Party may designate a change of address by written notice to the other by giving at least ten (10) calendar days’ prior written notice of such change of address.
If to Buyer, notices should be sent to:
(Insert Customer contact and address here)
If to Seller, notices should be sent to:
8330 State Road Philadelphia PA 19136
Integration. The Proposal, this Agreement and the Appendices attached and incorporated by reference constitute the final, complete and entire agreement between the Parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, or the Parties, and there are no warranties, representation or other agreements between or among the Parties in connection with the subject matter hereof except as specifically set forth herein.
Amendment. This Agreement may be amended only by an instrument in writing duly executed and delivered by or on behalf of each Party hereto.
Waiver. Any waiver of any breach of or failure to comply with any provisions of this Agreement shall be in writing and approved an executed by the Party which is not in breach of or non-compliance with this Agreement. Any such waiver shall not be interpreted as or constitute a continuing waiver of the relevant provision or a waiver of any other breach of, or failure to comply with, any other provision of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument.
Validity. If any provision of this Agreement is declared to be void or unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect to the extent feasible in the absence of the void and unenforceable provision. The Parties furthermore agree to execute and deliver such amendatory contractual provisions to accomplish lawfully as nearly as possible the goals and purposes of the provision so held to be void or unenforceable.
No Third-Party Rights. This Agreement is intended to be for the sole benefit of the Parties, and it is not the intention of the Parties to confer third party beneficiary rights or remedies upon any other Person.
Survival. The provisions of this Section 10 shall survive termination or expiration of this Agreement.
Independent Contractors. The relationship between Seller and Buyer under this Agreement is that of independent contractors and not of employer-employee or principal-agent. Seller is not the legal representative of Buyer under this Agreement, nor is Buyer the legal representative of Seller under this Agreement. Neither Seller nor Buyer has the right or authority to assume or undertake any obligation or make any representation on behalf of the other.
Dispute Resolution. All disputes arising in connection with this Agreement shall be settled, if possible, by negotiation of the Parties. If the matter is not resolved by such negotiations, either Party may, by the giving of written notice, cause the matter to be referred to a meeting of appropriate higher management of the Parties. Such meeting shall be held within ten (10) business days following the giving of the written notice. If the matter is not resolved within twenty (20) business days after the date of the notice referring the matter to appropriate higher management, the Parties may pursue arbitration as set forth in Section 10 K.
Governing Law and Arbitration of Certain Disputes. This Agreement shall be construed and interpreted in accordance with the laws of the state in which the Site is located, without giving effect to any conflicts of law principles that would apply the laws of another jurisdiction. EACH PARTY EXPRESSLY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY DISPUTE ARISING UNDER THIS AGREEMENT. Other than collection matters and actions seeking injunctive relief in a court of competent jurisdiction, disputes arising under or relating to the Agreement will be submitted to the American Arbitration Association ("AAA") office located in Pittsburgh, PA, for binding arbitration in accordance with the AAA’s then-current Commercial Arbitration Rules. The cost of the arbitration, including the fees and expenses of the arbitrator, will be shared equally, with each Party paying its own attorneys’ fees. The Arbitrator will have the authority to award damages only to the extent otherwise available under the Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the Effective Date.
(Insert Customer legal name here)
PENN POWER GROUP, LLC
D/B/A NORTHEAST ENERGY SYSTEMS