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<br />Appendix A
<br />SEW Software-as-a-Service Subscription Terms
<br />Smart Energy Systems, Inc. dba Smart Energy Water (“Provider” or “SEW”) has developed certain proprietary software applications, and the Parties have
<br />agreed that Provider will make the software-as-a-service platform(s) set forth on the Order Form attached hereto (the “Software”) available via the
<br />Internet to the Customer hereunder. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits
<br />or documents, the adequacy of which is hereby acknowledged, the Parties agree as follows:
<br />1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
<br />1.1. “Agreement” means these SEW Software-as-a-Service Subscription Terms & Conditions, including any applicable Order Form.
<br />1.2. “Customer Data” means the data uploaded or otherwise input by Customer and/or Subscribers into the Software.
<br />1.3. “Documentation” means the Software’s standard user manuals and any other accompanying documents related to the Software, in each case, that
<br />are delivered by SEW to Customer during Implementation.
<br />1.4. “Feedback” means any suggestions, comments for enhancements or functionality or other feedback regarding SEW’s products and/or s ervices that
<br />are communicated by Customer to SEW.
<br />1.5. “Implementation” means the process for gathering requirements, configuring, testing, training, and integrating the Software for Customer’s use, as set
<br />forth in a Statement of Work.
<br />1.6. “Maintenance and Support” means, unless Customer is subscribing to SEW’s Max Support Plan, SEW’s maintenance and support performed in
<br />accordance with SEW’s then-current Standard Support Plan (a copy of which will be provided to Customer upon request).
<br />1.7. “Order Form” means an Order Form for Smart Energy Water Cloud Services executed between SEW and Customer.
<br />1.8. “Software” means the SEW software that Customer has subscribed to as identified in an applicable Order Form.
<br />1.9. “Specifications” means SEW’s specifications for the Software.
<br />1.10. “Statement of Work” means a statement of work that (a) expressly references, and is governed by, this Agreement, (b) is executed by an authorized
<br />representative of each party and (c) sets forth, at a minimum, the Services to be performed by SEW and the related fees to be paid by Customer in
<br />consideration thereof.
<br />1.11. “Subscribers” means an active account registered with the Customer to use the Software, either from a preexisting account of Customer or as
<br />associated with an active utility meter, as set forth in an applicable Order Form.
<br />2. SOFTWARE DELIVERY.
<br />2.1. Right to Access and Use Software. Subject to the terms and conditions of this Agreement, SEW hereby grants Customer a non-exclusive, non-
<br />sublicensable, non-transferable, limited right to access and use the Software for Customer’s business purposes.
<br />2.2. Restrictions on Software Use. Customer will not permit any third parties to access and use the Software other than Subscribers. Customer will not
<br />permit Subscribers in excess of the cap set forth in the applicable Order Form to access or use the Software. Customer will be responsible and liable
<br />for all Subscribers’ compliance with the terms and conditions of this Agreement. Customer will not: (a) modify, translate or create derivative works
<br />from the Software; (b) allow third parties to exploit the Software; (c) reverse engineer, decompile, or attempt to derive any of the Software’s source
<br />code, object code or underlying structure, ideas or algorithms of the Software; (d) remove or modify any program markings or any notice of SEW’s
<br />proprietary rights; (e) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the
<br />Software; (f) use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (g) hack, manipulate, interfere
<br />with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Software or its related systems, hardware or
<br />networks or any content or technology incorporated in any of the foregoing. Customer will (i) use commercially reasonable efforts to prevent
<br />unauthorized access to or use of the Software and notify SEW promptly of any such unauthorized access or use, and (ii) use the Software only in
<br />accordance with the Documentation and all applicable laws, rules and regulations.
<br />3. UPDATES AND SERVICE LEVELS.
<br />3.1. Provision of Updates and Maintenance SEW will provide regular Maintenance and Support, including by making available to Customer any
<br />modifications, bug-fixes, or security updates to the Software that SEW generally makes available to its customers, for no additional fee (“Updates”).
<br />“Software” as defined herein will incorporate any Updates, as well as any custom upgrades provided to Customer pursuant to a Statement of Work as
<br />contemplated herein.
<br />3.2. Service Level Availability: SEW will use commercially reasonable efforts to make the Software available in accordance with the Availability Service
<br />Level Agreement (“SLA”) stated hereunder. SEW will provide Availability (as defined below) of at least 99.5% each month as calculated below.
<br />“Availability” is calculated as follows:
<br />Availability = ([# of minutes in month]-[# of minutes per month the Software is Unavailable])/ [# of minutes in month]
<br />“Unavailable” means the Software is not available for access and use through Customer’s Internet connection, excluding any performance issues: (i)
<br />caused by factors outside of SEW’s reasonable control, including any force majeure event or Internet access or related problems beyond the
<br />demarcation point of SEW; (ii) that result from any actions or inactions of Customer or any third party; (iii) that result from Customer’s equipment,
<br />software or other technology and/or third-party equipment, software or other technology (other than third-party equipment within SEW’s direct control);
<br />(iv) that result from any planned maintenance as described in this Agreement or (v) arising from SEW’s suspension or termination of Customer’s right
<br />to use the Software.
<br />4. FEES.
<br />4.1. Fees. Fees shall be based upon the SEW Platform(s), modules, number of Subscribers, and Services selected from the Order Form and the pricing
<br />stated therein. Customer agrees to make all payments to SEW within thirty (30) calendar days after receipt of invoice. Late invoices will inc ur a late
<br />payment fee of 1.5% or the maximum allowable under the law, whichever is less. If Customer’s account is sixty (60) days or more overdue, SEW
<br />reserves the right with prior written notice to withhold performance of its obligations under this Agreement, without liability, until such payments are
<br />paid in full, or to terminate for cause. Fees under this Agreement shall additionally be exclusive of all taxes, levies, or duties imposed by taxing
<br />authorities, and Customer shall be responsible for all applicable taxes, levies, or duties hereunder.
<br />5. INTELLECTUAL PROPERTY RIGHTS.
<br />5.1. Customer Data. As between SEW and Customer, Customer owns the Customer Data. Customer hereby grants to SEW: (a) a non-exclusive,
<br />worldwide, royalty-free, fully paid up, non-sublicensable (except to contractors and service SEWs providing services on behalf of SEW), non-
<br />transferable (subject to Section 12.3) right and license to copy, distribute, display, create derivative works of and otherwise use the Customer Data (i)
<br />to perform its obligations under this Agreement, (ii) to internally improve its products and services and (iii) to create aggregated and/or anonymized
<br />data from such Customer Data (the “Aggregated Data”); and (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up,
<br />sublicensable (through multiple tiers), transferable right and license to copy, distribute, display, create derivative works of and otherwise use the
<br />Aggregated Data. Customer reserves any and all right, title and interest in and to the Customer Data other than the rights and licenses expressly
<br />granted to SEW in this Section 5.1.
<br />EXHIBIT A
<br />DocuSign Envelope ID: 6EE86165-D6F1-4646-9E79-5B5C46F230E7Docusign Envelope ID: 8554268A-3B16-47CD-A583-5329ACD47579
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