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EXHIBIT A
<br />Appendix A
<br />SEW Software-as-a-Seryice Subscriotton 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 services 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 SEWS Max Support Plan, SEW's maintenance and support performed in
<br />accordance with SEWS 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 SEWS 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 SEWS
<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 Customers 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(otherthan third-parry equipment within SEW s direct control);
<br />iv)that result from any planned maintenance as described in this Agreement or(v)arising from SEWS suspension ortermination 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 incur a late
<br />payment fee of 1.5%or the maximum allowable under the law,whichever is less.If Customers 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-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.
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