|
7
<br />Appendix B
<br />SEW Notification Services Agreement
<br />Smart Energy Systems, Inc. dba Smart Energy Water (“Provider” or “SEW”) has developed certain proprietary software applications and services for a
<br />Customer, and the Parties have agreed that Provider will make the Services described in the Order Form available to the Customer hereunder. Therefore, in
<br />consideration of the mutual covenants, terms, and conditions set forth below and in any relevant exhibits or documents, the adequacy of which is hereby
<br />acknowledged, the Parties agree as follows
<br />
<br />1. Definitions
<br />1.1. “Monthly Uptime Percentage” shall refer to the difference between 100% and the percentage of time during which the Services are unavailable.
<br />1.2. “Services” shall refer to notification services for the SCM® Cloud Services platform utilized to establish form(s) of contact between the Customer
<br />and end user of the SEW Cloud Services Platform, which include, but are not limited to, SMS text messaging, email, and interactive voice
<br />response (IVR) services.
<br />1.3. “SEW Cloud Services Platform” shall refer to Customer’s deployment of the SCM® platform, or other applicable software of SEW sold through
<br />an authorized reseller.
<br />1.4. “Term” shall mean the Term set forth in the applicable license agreement, SaaS subscription agreement, cloud services agreement, or if not
<br />defined in an applicable signed writing, one (1) year from the Effective Date.
<br />2. Scope and General Terms
<br />2.1. SEW shall provide the following Services selected within the Order Form in accordance with the following terms and conditions.
<br />2.2. Customer may use the Services solely to:
<br />a) Use and make the Services available to end users in connection with the use of SEW Cloud Services Platform.
<br />b) Use the Services in connection with and as necessary for Customer’s activities pursuant to these terms or the terms set forth in an
<br />applicable license agreement, SaaS subscription agreement, or cloud services agreement.
<br />c) Allow any affiliates to use the Services, subject to the terms hereunder.
<br />2.3. In relation to the Services provided under this Agreement, Customer agrees that:
<br />a) Customer shall not transfer, resell, lease, license, or otherwise make available the Services or SEW Cloud Services Platform to third
<br />parties or offer it on a standalone basis, or make any representation, warranty, or guarantee to any end user or third party on behalf of
<br />SEW concerning the Services.
<br />b) SEW shall be entitled to use any Customer data that is necessary to provide the Services.
<br />c) Customer’s use of the Services does not violate the terms of this Agreement.
<br />d) Customer shall not use the Services or SEW Cloud Services Platform to create, train, or improve (director or indirectly) a substantially
<br />similar product or service.
<br />e) Customer shall not reverse engineer, decompile, disassemble, or otherwise create, attempt to create or derive, or permit or assist anyone
<br />else to create or derive the source code of any Services or SEW Cloud Services Platform provided in connection with this Agreement.
<br />2.4. SEW shall make the Services available and guarantee a Monthly Uptime Percentage of 99.5%, notwithstanding any unavailability or performance
<br />issues of the Services caused by or as a result of the following (collectively, the “Exclusions”):
<br />a) Factors that are outside of SEW’s reasonable control, including, without limitation, any force majeure event, telecommunications provider-
<br />related problems or issues, internet access or related problems occurring beyond the point in the network where SEW maintains access
<br />and control of the Services.
<br />b) Any actions or inactions of Customer or any third party.
<br />c) Any Customer application(s), equipment, software, or other technology, third party equipment, software, etc. not authorized for use with
<br />the Services.
<br />d) Routine or scheduled maintenance for which SEW will provide at least twenty-four (24) hours of advanced notice.
<br />e) Problems or issues related to alpha, beta, or not otherwise generally available in SEW features or products.
<br />2.5. Notification Services shall commence at the rates and volumes selected by Customer in the Order Form.
<br />a) In the event that Customer exceeds the number of emails per month selected, SEW shall automatically escalate Customer to the next
<br />service tier and corresponding rates. Customer shall thereafter be invoiced according to the rates set forth for the escalated tier for the
<br />remaining Term for such Order Form.
<br />b) At any time during the Term of the Order Form, Customer can contact SEW to request to be change their service to a lower tier. Such
<br />changes to revert to a lower tier and corresponding rates can be made only once during a twelve month period. Customer shall not be
<br />entitled to any credits for unused volumes when reverting to a lower service tier after having been escalated to a higher tier as a result of
<br />having exceeded notification volume limits.
<br />c) In the event Customer requires a higher notification Volume SLA tier in order to meet increased demand or to ensure timely delivery of the
<br />Services for Customer’s end users, Customer shall contact SEW detailing the Email Volume SLA or SMS Volume SLA tier customer
<br />wishes to upgrade to.
<br />3. Term
<br />3.1. The Initial Term of this Agreement shall begin on the Effective Date and continue for the Term as stated in the applicable Order Form.
<br />4. Renewals
<br />4.1. This Agreement shall automatically renew upon the expiration of the Initial Term as stated in the Order Form for one (1) year intervals (“Renewal
<br />Term”), unless terminated by Customer by providing written notice to SEW ninety (90) days prior to the expiration of the Term. For the avoidance
<br />of doubt, SEW shall not be required to refund any previously paid fees, regardless of when termination occurs during the Term or Renewal Term.
<br />5. Fees
<br />5.1. Fees for the Services shall be set forth in the Order Form. Customer shall be invoiced for applicable one-time initial setup fees, maintenance and
<br />support fees, and monthly service type fees upfront upon signing of this Agreement and annually thereafter if applicable. The usage fees
<br />applicable to inbound and outbound SMS messaging or voice call messages that are selected by the Customer shall be invoiced based on
<br />monthly intervals. Customer agrees to make all payments to SEW within thirty (30) calendar days after receipt of invoice. Late invoices will incur
<br />a late 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,
<br />SEW reserves the right with prior written notice to withhold performance of its obligations under this Agreement, without liability, until such
<br />payments are paid in full, or to terminate for cause. Fees under this Agreement shall additionally be exclusive of all taxes, levies, or duties
<br />imposed by taxing authorities, and Customer shall be responsible for all applicable taxes, levies, or duties hereunder.
<br />6. Warranty and Liability
<br />6.1. DISCLAIMER OF WARRANTY. WITH THE EXCEPTION OF THE SERVICE LEVEL COMMITMENT SET FORT H IN SECTION 2.4, THE
<br />SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS -IS,” EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION,
<br />ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
<br />EXHIBIT A
<br />DocuSign Envelope ID: 6EE86165-D6F1-4646-9E79-5B5C46F230E7Docusign Envelope ID: 8554268A-3B16-47CD-A583-5329ACD47579
|