ENER-i ENERGY INTELLIGENCE PLATFORM

General Terms & Conditions

These GENERAL TERMS & CONDITIONS (“Terms”, and together with the Order Form(s) (“Order(s)”) associated herewith, the “Agreement“) set forth the terms and conditions pursuant to which ENER-i.AI, Inc., a Delaware corporation (“ENER-i“) shall provide the customer identified on the Order (“Customer”) access to the ENER-i Energy Intelligence Platform (“ENER-i Platform”) and the Other Services contemplated by the Order and hereby. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the applicable Order. Each Order is subject to these Terms.

1. DEFINITIONS.
   • “Authorized User” means any employee of Customer (and upon the prior written approval of ENER-i, any such approved contractor or consultant of Customer) authorized to access and use the ENER-i Platform on behalf of Customer subject to the number and designation of Authorized Users set forth in the applicable Order.
   • “Customer Data” means all electronic data or information that Customer or an Authorized User submits to be utilized in/with the Service(s).
   • “ENER-i Platform” means ENER-i’s proprietary engineering analytics platform, accessible through the Internet, which supports customers’ modeling and optimization of their grid’s performance.
   • “Other Services” means the customization services identified as such in the applicable Order.
   • “Service(s)” means the ENER-i Platform together with the Other Services.
   • “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Service(s) that are not proprietary to ENER-i.
2. SERVICES AND SUPPORT.
   • Platform Access and Use; Authorized Users. During the Order Term and subject to the terms and conditions of this Agreement, ENER-i hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license to access and use the ENER-i Platform in accordance with the applicable documentation solely for its intended purposes and Customer’s internal business use. The access and use rights granted herein are limited to access and use of the ENER-i Platform by Authorized Users. Authorized Users are required to abide by the terms of this Agreement. Any breach by an Authorized User will be deemed to be a breach by Customer. Customer shall be solely responsible for managing and administering Authorized User accounts, including issuing user names and passwords, provided that ENER-i may terminate or suspend any Authorized User’s access to the Service for any breach without notice. Customer shall be solely responsible for the security and confidentiality of Customer’s account information, including user names and passwords, and will use reasonable efforts to prevent unauthorized access or use of the ENER-i Platform via its account or otherwise. Customer shall immediately notify ENER-i in the event that Customer becomes aware of any unauthorized access to the ENER-i Platform, or any part thereof, or any violation of the terms of this Agreement by Customer or any Authorized User.
   • Restrictions. Customer may not use the ENER-i Platform in any manner not expressly permitted hereby. Without limitation, Customer may not (and will not allow any third party to): (a) rent, lease, lend, sell, redistribute, reproduce, make available or sublicense the ENER-i Platform, or use any component of the ENER-i Platform as a service bureau, (b) copy, decompile, reverse-engineer, disassemble, attempt to derive the source code, underlying structure, ideas or algorithms of, or modify or create derivative works of, the ENER-i Platform, or any part thereof, including without limitation using or attempting to use data generated thereby to create algorithms or models of similar functionality or purpose, (c) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the ENER-i Platform or any part thereof, or substantially download, reproduce or archive any portion of the ENER-i Platform, or (d) use the ENER-i Platform or any part thereof (i) in any way that infringes upon the intellectual property, privacy or other rights of others, (ii) in any way that is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity, (iii) to upload or transmit viruses or malicious code, or (iv) to engage in any other conduct that restricts or inhibits users’ use or enjoyment of the ENER-i Platform. If for some reason these restrictions are prohibited by applicable law or by an agreement ENER-i has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
   • Hosting and Maintenance. Customer acknowledges that ENER-i may host the ENER-i Platform using its own infrastructure or it may engage a third party to host on its behalf. Updates may be provided at ENER-i’s discretion at no additional charge, and ENER-i may, in its sole discretion, make any changes that it deems necessary or useful to maintain or enhance the quality or delivery of the ENER-i Platform or to comply with applicable law, rule or regulation. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by ENER-i. During such time, the ENER-i Platform may be unavailable. Emergency maintenance may be required at other times in the event of system failure.
   • Support; System Requirements. During the Order Term, ENER-i will provide Customer with support in accordance with ENER-I’s standard practice outlined in Exhibit B to these Terms.
   • Other Services. During the Order Term and subject to the terms and conditions of this Agreement, ENER-i will provide Customer with the Other Services, if any, set forth in the applicable Order.
3. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES.
   • Customer Responsibilities. Customer shall provide ENER-i with all information, materials and assistance as reasonably required for ENER-i to provide the Service(s) for Customer and its Authorized Users pursuant to this Agreement. Customer agrees and acknowledges that in order to provide the Services to the Customer, Customer must have a valid ESRI server license with utility network and an a valid ESRI user for each platform login,
   • Compliance with Applicable Law. Customer and each Authorized User uses the Service(s) at its own initiative and is responsible for compliance with any applicable laws, rules and regulations. ENER-i may also impose limits on the use or access to the Service(s) as required by law, rule or regulation.
   • Customer Data. Customer and its Authorized Users are solely responsible for the Customer Data submitted to be utilized in/with the Service(s) by Authorized Users. Customer represents, warrants and agrees that it has received proper consent and permission of any third party to submit data of such third party (“Third-Party Data”) to the Services.
4. INTELLECTUAL PROPERTY.
   • Reservation of Rights. All intellectual property rights in and to the Service(s) (excluding any Customer Data) remain the sole property of ENER-I and/or its licensors. If Customer or any of its Authorized Users submits to ENER-i comments, suggestions, or other feedback regarding the Service(s) (“Feedback”), Customer agrees that ENER-i will be free to use such Feedback for any purpose without accounting or obligation.
   • Rights in Data. As between ENER-i and Customer, Customer shall own all rights, title, and interest in and to any Customer Data. Customer grants and agrees to grant to ENER-i a non-exclusive, transferable, sublicensable, royalty free license during the Order Term to use Customer Data in order to provide the Service(s) to Customer (including monitoring and improving the same). Customer acknowledges and agrees that such usage may incidentally improve ENER-i’s algorithms given the machine learning nature of the Service(s). In addition, Customer hereby grants to ENER-i a non-exclusive, sublicensable, royalty free license to use Customer Data to compile and synthesize aggregated and/or de-identified information (“De-Identified Data”) for so long as any subscription for the Service(s) or an Order is still in effect between the parties. Notwithstanding anything in this Agreement to the contrary, to the extent that ENER-i collects or generates De-Identified Data, such De-Identified Data will be owned solely by ENER-i and may be used to monitor and improve the Service(s) for Customer and others, without a duty of accounting or other obligation. ENER-i shall ensure that Customer is not identified or identifiable as the source of any such De-Identified Data. Customer agrees and acknowledges that it may not have access to the De-Identified Data.
   • If Customer elects to send and/or receive Customer Data to/from an ENER-i integration partner, Customer hereby grants ENER-i the right (i) to disclose or otherwise permit access to Customer Data by the ENER-i integration partners, (ii) to receive or otherwise access Customer Data from such ENER-i integration partners; and (iii) use the Customer Data so received as expressly permitted in this Section 4.2. Customer acknowledges and agrees that, notwithstanding any provision herein to the contrary, ENER-i integration partners’ rights and obligations with respect to Customer Data shall be solely as agreed to by and between Customer and the applicable integration partner and ENER-i does not control nor is it responsible for any acts or omissions of ENER-i integration partners with respect to Customer Data or otherwise.
5. PAYMENT TERMS.
   • Fees. Applicable fees (“Fees”) and pricing for the Service(s) are set forth in the applicable Order. Customer may be subject to additional fees or storage limits as set forth in the applicable Order. Subscription renewal pricing is specified in Section 11.2 (Subscription Renewals and Renewal Pricing).
   • Payment Terms. Unless otherwise specified on an Order, Customer hereby agrees to pay ENER-i annual Fees within 30 days of the invoice date. Fees for Other Service(s) will be invoiced as delivered and are payable within 30 days of the invoice date. Fees are payable by check or other electronic payment method on file with Customer’s account (“Customer Payment Method”). Except to the extent otherwise provided in the Order, all Fees are non-refundable and are payable in U.S. dollars. Any Fees remaining unpaid past their due date shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. ENER-i may also (at its discretion, without notice and in addition to other remedies it may have) suspend any Service(s) and Customer’s and its Authorized Users’ access to the Service(s) if any invoice remains unpaid for more than 15 days past its due date.
   • Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, transactional excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of ENER-i. ENER-i shall have no liability for any taxes owed by Customer or its Authorized Users as a result of their use of the Service(s).
6. WARRANTIES AND DISCLAIMER.
   • Mutual Warranties. Each party represents that it is an entity that is duly organized, validly existing, and in good standing in the jurisdiction in which it is formed, and that it has the requisite corporate or similar power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
   • Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1, ALL SERVICES AND ENER-I MATERIALS ARE PROVIDED “AS IS.” ENER-I AND ITS LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ENER-I AND ITS LICENSORS, MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
7. CONFIDENTIALITY.
   • Definition. “Confidential Information” means any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing party hereunder. Except as otherwise provided for herein, ENER-i’s Confidential Information includes, without limitation, the ENER-i Platform, any ENER-i software comprising the same (if applicable), and the terms and conditions of this Agreement. Customer’s Confidential Information includes, without limitation, the Customer Data.
   • Exclusions. Notwithstanding Subsection 8.1, nothing received by a receiving party shall be construed as Confidential Information which: (a) is now available or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality; (c) is known to the receiving party prior to such disclosure; or (d) is, at any time, developed by the receiving party independent of any such disclosure(s).
   • Non-Use and Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party, or as otherwise expressly set forth herein. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own Confidential Information of like importance, but shall at least use reasonable care. It is understood that said Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein.
   • Disclosure Required by Law. Notwithstanding Subsection 8.3 above, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure.
8. LIMITATION OF LIABILITY.
   • DISCLAIMER OF DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) AND LIABILITIES RESULTING FROM A BREACH OF SECTIONS 2.2 (RESTRICTIONS) OR 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
9. INDEMNIFICATION.
   • By ENER-i. ENER-i shall defend Customer from and against any claim, demand, or action in any form brought by a third party against Customer, and indemnify and hold Customer harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from or related to any allegation that the ENER-i Platform, as provided to Customer and used within the scope of this Agreement, infringes any U.S. patent, copyright, or trade secret. Notwithstanding the forgoing, ENER-i will have no liability for any infringement claim of any kind if the claim results from: (a) unauthorized use; (b) any third-party products or services; (c) the combination, operation or use of any component of the ENER-i Platform with products or services not supplied by ENER-i, to the extent such a claim would have been avoided if the ENER-i Platform was not used in such combination; (d) use of information, materials, or Customer Data provided to ENER-i furnished by or on behalf of Customer; or (e) compliance with designs, plans or specifications furnished by or on behalf of Customer.
   • By Customer. Customer shall defend ENER-i from and against any claim, demand, or action in any form and indemnify and hold ENER-i harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees in each case arising from or related to: (a) unauthorized use of the ENER-i Platform by Customer or any Authorized User; (b) any Customer Data; or (c) violation of applicable law, rule or regulation.
   • Rights Upon Infringement. If Customer’s use of the Service(s) is, or in ENER-i’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection 10.1 above, ENER-i may, at its sole option and expense: (a) procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite ENER-i’s commercially reasonable efforts, then ENER-i may terminate Customer’s rights and ENER-i’s obligations hereunder with respect to the Service(s) and refund a pro-rated portion of any pre-paid Fees paid therefor, based upon Customer’s use to date.
   • Conditions Precedent. The indemnifying party will have no obligation under this Section as to any claim, suit, or proceeding unless: (a) the indemnified party promptly notifies the indemnifying party in writing of such claim, suit, or proceeding; (b) the indemnifying party has sole control of its defense and settlement; and (c) the indemnified party, upon request of the indemnifying party, cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnifying party keeps the indemnified party informed of and consults with the indemnified party in connection with the progress of such litigation or settlement; and the indemnified party may choose to participate in the defense or settlement of the claim at its own expense.
   • Sole Remedy. The provisions of this Section set forth ENER-i’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any proprietary or intellectual property rights of any kind.
10. TERM AND TERMINATION.
    • Order Term. This Agreement will commence on the Activation Date (which is the date the initial Order is signed by Customer) and unless terminated as set forth herein, will continue for so long as a subscription for the ENER-i Platform or an Order is still in effect hereunder.
    • Subscription Renewals and Renewal Pricing. Subject to earlier termination as set forth in this Section, the initial Order Term of any Order shall be as set forth therein. An Order shall be automatically renewed for successive one (1) year periods (each a “Renewal Order Term”), subject to earlier termination as set forth herein, unless either party notifies the other party in writing that it wishes to terminate the Order on or before thirty (30) days prior to the end of the then existing term. The Initial Order Term and all Renewal Order Terms are collectively referred to herein as the “Order Term.”  Subject to earlier termination as set forth in this Section.   Upon each subsequent Renewal Term, the fees will be revised to reflect Ener-I’s then-current fees, or a four percent (4%) increase over the highest level of annual fees charged during the previous Order Term or Renewal Term, whichever is lower, for the applicable Services.
    • Termination. In the event that a party is in material breach of the terms of this Agreement and such party does not cure such breach within thirty (30) days following notice thereof, then the other party may immediately suspend performance (including delivery and/or access to the ENER-i Platform, in the case of ENER-i) or terminate the applicable Order and/or this Agreement by sending written notice to the breaching party.
    • Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) ENER-i shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems ENER-i directly or indirectly controls, provided that, for clarity, ENER-i’s obligations under this Section 11.4(b) do not apply to any De-Identified Data; (c) Customer shall immediately cease all use of any Service(s) and (i) promptly return to ENER-i, or at ENER-i’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any ENER-i’s Confidential Information; (ii) permanently erase all ENER-i’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to ENER-i in a signed written instrument that it has complied with the requirements of this Section 11.4(c); (d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the receiving party may retain the disclosing party’s Confidential Information; (ii) ENER-i may retain Customer Data; (iii) ENER-i may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 11.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; (e ) ENER-i may disable all Customer and Authorized User access to the Services; (f) if Customer terminates this Agreement pursuant to Section 11.3, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination; (g) if ENER-i terminates this Agreement pursuant to Section 11.3, Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of ENER-i’s invoice therefor.
    • Survival. Sections 2.2, 3.2, 3.3, 4, 5, 6.2, 8. 9. 10, 11.4, and 12 and any provision that, in order to give proper effect to its intent, shall survive any expiration or termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect.
11. GENERAL.
    • Publicity. Unless otherwise agreed to by Customer, ENER-i shall not publicize ENER-i’s relationship with Customer, except that ENER-i may publicly list or identify Customer as one of its clients, including use of Customer’s logo on ENER-i’s website and in its marketing collateral. For clarity, nothing herein precludes ENER-i from publicizing anonymized customer success stories, including successful projects and/or installations.
    • Entire Agreement. This Agreement, including the Order and any exhibits, schedules and/or attachments referenced herein or issued hereunder constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof, provided that with respect to Confidential Information disclosed thereunder this Agreement shall not affect any surviving provision of any NDA or other agreement by and between the parties. No waiver, alteration, or modification of any of the provisions of the Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto.
    • Governing Law and Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of Texas, without giving effect to any conflict of laws provisions thereof. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable.
    • Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each party may seek injunctive relief in any court of competent jurisdiction. The parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
    • Relationship of Parties. The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. ENER-i reserves the right to utilize subcontractors.
    • Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
    • Equitable Relief. The parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein would cause irreparable injury to ENER-i for which monetary damages alone would not be an adequate remedy, and therefore ENER-i shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
    • Force Majeure. Neither party shall be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, equipment failure, acts or omissions of third-party application or service providers or any other occurrences which are beyond the party’s reasonable control.
    • Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer (“Use”) of the Service(s), no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Service(s) was developed at ENER-i’s private expense and is commercial in nature. By using or receiving the Service(s), any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
    • Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, consolidation, amalgamation, sale of assets or similar transaction. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
    • Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.
    • Waiver. The failure of either party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
    • Notices. All notices required or permitted under the Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in this Section or in the Order or to such other address as may be specified by either party to the other in accordance with this Section. Notices to ENER-i should be sent to ENER-i.AI, Inc., Attn: Legal Department, 13001 W. Hwy 71, Suite G100, Austin, TX
    • Export Regulation.
      • The Service(s), including any software, documentation, and any related technical data included with, or contained in, such Service(s) and any products utilizing any such Service(s), software, documentation, or technical data (collectively, “Regulated Products“) may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. The Customer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of any Regulated Products is prohibited by applicable federal or foreign law, regulation, or rule. The Customer shall be responsible for any breach of this Section 12.14 by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, partners, members. shareholders, customers, agents, distributors, resellers, or vendors. The Customer shall comply with all applicable federal and foreign laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Regulated Products
      • The Customer agrees that it shall not use or transmit materials or technical information except in compliance with the export regulations of the United States. Customer is not (a) directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control, US Department of the Treasury (“OFAC“) or other similar list maintained by any governmental entity (collectively, “SDN List“), or (b) directly or indirectly owned or controlled by any person or entity who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity. Customer shall promptly upon becoming aware thereof notify ENER-i when it becomes directly or indirectly owned or controlled by any person or entity included on the then-current SDN List, or located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity. The Customer agrees to indemnify and hold ENER-i harmless from and against all claims, losses, liabilities, and damages suffered or incurred by ENER-i resulting from or related to the Customer’s failure to comply with all export or import regulations and sanctions described herein.

ENER-i InSights

General Terms & Conditions

These GENERAL TERMS & CONDITIONS (“Terms”, and together with the Order Form(s) (“Order(s)”) associated herewith, the “Agreement“) set forth the terms and conditions pursuant to which ENER-i.AI, Inc., a Delaware corporation (“ENER-i“) shall provide the customer identified on the Order (“Customer”) access to the ENER-i Energy Intelligence Platform (“ENER-i Platform”) and the Other Services contemplated by the Order and hereby. Capitalized terms used but not defined herein shall have the meaning ascribed to them in the applicable Order. Each Order is subject to these Terms.

12. DEFINITIONS
    • “Authorized User” means any employee of Customer (and upon the prior written approval of ENER-i, any such approved contractor or consultant of Customer) authorized to access and use the Insights Data Solution on behalf of Customer subject to the number and designation of Authorized Users set forth in the applicable Order.
    • “Customer Data” means all electronic data or information that Customer or an Authorized User submits to be utilized in the Service(s).
    • “InSights Data” means the data made available to Customer via the Insights Dashboard, as described and selected in the applicable Order.
    • “InSights Dashboard” means ENER-i’s proprietary InSights dashboard, accessible through the Internet, that allows customers to access InSights Data.
    • “InSights Data Solution” means the InSights Dashboard together with the InSights Data.
    • “Other Services” means the customization services identified as such in the applicable Order.
    • “Service(s)” means the Insights Data Solution together with the Other Services.
    • “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to ENER-i.
13. SERVICES AND SUPPORT.
    • InSights Data Solution Licenses; Authorized Users. During the Order Term and subject to the terms and conditions of this Agreement, ENER-i hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license to (a) view, download and print hard copies of the InSights Data solely for its intended purposes and Customer’s internal business use, provided that all attribution, copyright and other proprietary notices are kept intact in all instances; and (b) access and use the InSights Dashboard in accordance with the applicable documentation solely for its intended purposes and Customer’s internal business use.  The licenses granted herein are limited to access and use of the Insights Data Solution by Authorized Users.  Authorized Users are required to abide by the terms of this Agreement. Any breach by an Authorized User will be deemed to be a breach by Customer. Customer shall be solely responsible for managing and administering Authorized User accounts, including issuing user names and passwords, provided that ENER-i may terminate or suspend any Authorized User’s access to the Service for any breach without notice.  Customer shall be solely responsible for the security and confidentiality of Customer’s account information, including user names and passwords, and will use reasonable efforts to prevent unauthorized access or use of the Insights Data Solution via its account or otherwise. Customer shall immediately notify ENER-i in the event that Customer becomes aware of any unauthorized access to the InSights Data Solution, or any part thereof, or any violation of the terms of this Agreement by Customer or any Authorized User.
    • Restrictions. Customer may not use the InSights Data Solution in any manner not expressly permitted hereby.  Without limitation, Customer may not (and will not allow any third party to): (a) rent, lease, lend, sell, redistribute, reproduce, make available or sublicense the InSights Data Solution, or use any component of the InSights Data Solution as a service bureau, (b) copy, decompile, reverse-engineer, disassemble, attempt to derive the source code, underlying structure, ideas or algorithms of, or modify or create derivative works of, the InSights Data Solution, or any part thereof, including without limitation using or attempting to use data generated thereby to create algorithms or models of similar functionality or purpose, (c) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the InSights Data Solution or any part thereof, or substantially download, reproduce or archive any portion of the InSights Data Solution, or (d) use the Insights Data Solution or any part thereof (i) in any way that infringes upon the intellectual property, privacy or other rights of others, (ii) in any way that is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity, (iii) to upload or transmit viruses or malicious code, or (iv) to engage in any other conduct that restricts or inhibits users’ use or enjoyment of the InSights Data Solution. If for some reason these restrictions are prohibited by applicable law or by an agreement ENER-i has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
    • Hosting and Maintenance. Customer acknowledges that ENER-i may host the InSights Data Solution using its own infrastructure or it may engage a third party to host on its behalf. Updates may be provided at ENER-i’s discretion at no additional charge, and ENER-i may, in its sole discretion, make any changes that it deems necessary or useful to maintain or enhance the quality or delivery of the InSights Data Solution or to comply with applicable law, rule or regulation.  Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by ENER-i.  During such time, the InSights Data Solution may be unavailable.  Emergency maintenance may be required at other times in the event of system failure.
    • Support; System Requirements. During the Order Term, ENER-i will provide Customer with support in accordance with Ener-I’s standard practice outlined in Exhibit A to these Terms.
    • Other Services. During the Order Term and subject to the terms and conditions of this Agreement, ENER-i will provide Customer with the Other Services, if any, set forth on the applicable Order.
14. CUSTOMER ACKNOWLEDGEMENTS AND RESPONSIBILITIES.
    • Customer Responsibilities. Customer shall provide ENER-i with all information, materials and assistance as reasonably required for ENER-i to provide the Services for Customer and its Authorized Users pursuant to this Agreement.
    • Compliance with Applicable Law. Customer and each Authorized User uses the Services at its own initiative and is responsible for compliance with any applicable laws, rules and regulations. ENER-i may also impose limits on the use or access to the Services as required by law, rule or regulation.
    • Customer Data. Customer and its Authorized Users are solely responsible for the Customer Data submitted to be utilized in the Service by Authorized Users.  Customer represents, warrants and agrees that it has received proper consent and permission of any third party to submit data of such third party (“Third-Party Data”) to the Services.
15. INTELLECTUAL PROPERTY.
    • Reservation of Rights. All intellectual property rights in and to the Service(s) (excluding any Customer Data) remain the sole property of ENER-I and/or its licensors. If Customer or any of its Authorized Users submits to ENER-i comments, suggestions, or other feedback regarding the Service(s) (“Feedback”), Customer agrees that ENER-i will be free to use such Feedback for any purpose without accounting or obligation.
    • Rights in Data. As between ENER-i and Customer, Customer shall own all right, title, and interest in and to any Customer Data. Customer grants and agrees to grant to ENER-i a non-exclusive, transferable, sublicensable, royalty free license during the Order Term to use Customer Data in order to provide the Service(s) to Customer (including monitoring and improving the same).  Customer acknowledges and agrees that such usage may incidentally improve ENER-i’s algorithms given the machine learning nature of the Service(s). In addition, Customer hereby grants to ENER-i a non-exclusive, sublicensable, royalty free license to use Customer Data to compile and synthesize aggregated and/or de-identified information (“De-Identified Data”) for so long as any subscription for the Service(s) or an Order is still in effect between the parties. Notwithstanding anything in this Agreement to the contrary, to the extent that ENER-i collects or generates De-Identified Data, such De-Identified Data will be owned solely by ENER-i and may be used to monitor and improve the Service(s), without a duty of accounting or other obligation. ENER-i shall ensure that Customer is not identified or identifiable as the source of any such De-Identified Data. Customer agrees and acknowledges that it may not have access to the De-Identified Data.
16. PAYMENT TERMS.
    • Fees. Applicable fees (“Fees”) and pricing for the Service(s) are set forth in the applicable Order. Subscription renewal pricing is specified in Section 11.2 (Subscription Renewals and Renewal Pricing).
    • Payment Terms. Unless otherwise specified on an Order, Customer hereby agrees to pay ENER-i annual Fees within 30 days of the invoice date.   Fees for Other Service(s) will be invoiced as delivered and are payable within 30 days of the invoice date.  Fees are payable by check or other electronic payment method on file with Customer’s account (“Customer Payment Method”). Except to the extent otherwise provided in the Order, all Fees are non-refundable and are payable in U.S. dollars. Any Fees remaining unpaid past their due date shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. ENER-i may also (at its discretion, without notice and in addition to other remedies it may have) suspend any Service(s) and Customer’s and its Authorized Users’ access to the Service(s) if any invoice remains unpaid for more than 15 days past its due date.
    • Taxes. The Fees set forth on the Order do not include local, state or federal sales, use, value-added, transactional excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of ENER-i. ENER-i shall have no liability for any taxes owed by Customer or its Authorized Users as a result of their use of the Service(s).
17. WARRANTIES AND DISCLAIMER.
    • Mutual Warranties. Each party represents that it is an entity that is duly organized, validly existing, and in good standing in the jurisdiction in which it is formed, and that it has the requisite corporate or similar power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
    • Service Level Warranty. ENER-i will use commercially reasonable efforts to keep the InSights Data up-to-date.
    • Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 6.1 AND SECTION 6.2, ALL SERVICES AND ENER-I.AI MATERIALS ARE PROVIDED “AS IS.” ENER-I.AI AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO THAT CERTAIN ESRI CLICK-THROUGH MASTER AGREEMENT (E204CS), SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ENER-I AND ITS LICENSORS (INCLUDING BUT NOT LIMITED TO THAT CERTAIN ESRI CLICK-THROUGH MASTER AGREEMENT (E204CS), MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
18. CONFIDENTIALITY.
    • Definition. “Confidential Information” means any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed by a disclosing party hereunder.  Except as otherwise provided for herein, ENER-i’s Confidential Information includes, without limitation, the InSights Data Solution, any ENER-i software comprising the same (if applicable), and the terms and conditions of this Agreement. Customer’s Confidential Information includes, without limitation, the Customer Data.
    • Exclusions. Notwithstanding Subsection 8.1, nothing received by a receiving party shall be construed as Confidential Information which: (a) is now available or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality; (c) is known to the receiving party prior to such disclosure; or (d) is, at any time, developed by the receiving party independent of any such disclosure(s).
    • Non-Use and Non-Disclosure. The receiving party shall not disclose the disclosing party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing party, or as otherwise expressly set forth herein. Both parties shall protect Confidential Information from disclosure or misuse by using the same degree of care as for their own Confidential Information of like importance, but shall at least use reasonable care. It is understood that said Confidential Information shall remain the sole property of the disclosing party unless otherwise expressly set forth herein.
    • Disclosure Required by Law. Notwithstanding Subsection 8.3 above, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure.
19. LIMITATION OF LIABILITY.
    • DISCLAIMER OF DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) AND LIABILITIES RESULTING FROM A BREACH OF SECTIONS 2.2 (RESTRICTIONS) OR 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
    • MAXIMUM LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) AND LIABILITIES RESULTING FROM A BREACH OF SECTIONS 2.2 (RESTRICTIONS), 5 (PAYMENT TERMS) OR 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN THE AGGREGATE EXCEED THE FEES RECEIVED BY ENER-I HEREUNDER FOR THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
    • Allocation of Risk. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s use of the Service(s) and, but for this provision, ENER-i would not have made the Service(s) available to Customer hereunder. ENER-i’s compensation reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.
20. INDEMNIFICATION.
    • By ENER-i. ENER-i shall defend Customer from and against any claim, demand, or action in any form brought by a third party against Customer, and indemnify and hold Customer harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from or related to any allegation that the InSights Dashboard, as provided to Customer and used within the scope of this Agreement, infringes any U.S. patent, copyright, or trade secret. Notwithstanding the forgoing, ENER-i will have no liability for any infringement claim of any kind if the claim results from: (a) unauthorized use; (b) any third-party products or services; (c) the combination, operation or use of any component of the InSights Dashboard with products or services not supplied by ENER-i, to the extent such a claim would have been avoided if the Insights Dashboard was not used in such combination; (d) use of information, materials, or Customer Data provided to ENER-i furnished by or on behalf of Customer; or (e) compliance with designs, plans or specifications furnished by or on behalf of Customer.
    • By Customer. Customer shall defend ENER-i from and against any claim, demand, or action in any form and indemnify and hold ENER-i harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees in each case arising from or related to: (a) unauthorized use of the InSights Data Solution by Customer or any Authorized User; (b) any Customer Data; or (c) violation of applicable law, rule or regulation, including accessing or using CEII without prior written consent from ENER-i..
    • Rights Upon Infringement. If Customer’s use of the Service(s) is, or in ENER-i’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection 10.1 above, ENER-i may, at its sole option and expense: (a) procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite ENER-i’s commercially reasonable efforts, then ENER-i may terminate Customer’s rights and ENER-i’s obligations hereunder with respect to the Service(s) and refund a pro-rated portion of any pre-paid Fees paid therefor, based upon Customer’s use to date.
    • Conditions Precedent. The indemnifying party will have no obligation under this Section as to any claim, suit, or proceeding unless:  (a) the indemnified party promptly notifies the indemnifying party in writing of such claim, suit, or proceeding; (b) the indemnifying party has sole control of its defense and settlement; and (c) the indemnified party, upon request of the indemnifying party, cooperates in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnifying party keeps the indemnified party informed of and consults with the indemnified party in connection with the progress of such litigation or settlement; and the indemnified party may choose to participate in the defense or settlement of the claim at its own expense.
    • Sole Remedy. The provisions of this Section set forth ENER-i’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any proprietary or intellectual property rights of any kind.
21. TERM AND TERMINATION.
    • Order Term. This Agreement will commence on the Activation Date (which is the date the initial Order is signed by Customer) and unless terminated as set forth herein, will continue for so long as a subscription for the InSights Data Solution or an Order is still in effect hereunder.
    • Subscription Renewals and Renewal Pricing. Subject to earlier termination as set forth in this Section, the initial Order Term of any Order shall be as set forth therein. An Order shall be automatically renewed for successive one (1) year periods (each a “Renewal Order Term”), subject to earlier termination as set forth herein, unless either party notifies the other party in writing that it wishes to terminate the Order on or before [thirty (30)] days prior to the end of the then existing term.  The Initial Order Term and all Renewal Order Terms are collectively referred to herein as the “Order Term.”  Subject to earlier termination as set forth in this Section.  Annual Maintenance Fees shall increase by five percent (5%) for each Renewal Term.
    • Termination. In the event that a party is in material breach of the terms of this Agreement and such party does not cure such breach within thirty (30) days following notice thereof, then the other party may immediately suspend performance (including delivery and/or access to the InSights Data Solution, in the case of ENER-i) or terminate the applicable Order and/or this Agreement by sending written notice to the breaching party.
    • Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) ENER-i shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems ENER-i directly or indirectly controls, provided that, for clarity, ENER-i’s obligations under this Section 11.4(b) do not apply to any De-Identified Data; (c) Customer shall immediately cease all use of any Service(s) and (i) promptly return to ENER-i, or at ENER-i’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any ENER-i’s Confidential Information; (ii) permanently erase all ENER-i’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to ENER-i in a signed written instrument that it has complied with the requirements of this Section 11.4(c); (d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the receiving party may retain the disclosing party’s Confidential Information; (ii) ENER-i may retain Customer Data; (iii) ENER-i may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 11.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; (e ) ENER-i may disable all Customer and Authorized User access to the Services; (f) if Customer terminates this Agreement pursuant to Section 11.3, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination; (g) if ENER-i terminates this Agreement pursuant to Section 11.3, Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of ENER-i’s invoice therefor.
    • Survival. Sections 2.2, 3.2, 4, 8, 9, 10, 11.4, 11.5,12 and 13, and any provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect.
22. GENERAL.
    • Publicity. Unless otherwise agreed to by Customer, ENER-i shall not publicize ENER-i’s relationship with Customer, except that ENER-i may publicly list or identify Customer as one of its clients, including use of Customer’s logo on ENER-i’s website and in its marketing collateral. For clarity, nothing herein precludes ENER-i from publicizing anonymized customer success stories, including successful projects and/or installations.
    • Entire Agreement. This Agreement, including the Order(s) and any schedules and/or attachments referenced herein or issued hereunder constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof, provided that with respect to Confidential Information disclosed thereunder this Agreement shall not affect any surviving provision of any NDA or other agreement by and between the parties.  No waiver, alteration, or modification of any of the provisions of the Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto.
    • Governing Law and Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of Texas, without giving effect to any conflict of laws provisions thereof.  The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable.
    • Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association (“Rules”) then in effect.  Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) Texas law shall apply, (b) the arbitration will be conducted by a single arbitrator; however, at the request of either party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the parties and the third appointed by the other two arbitrators, (c) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (d) the proceedings shall be in the English language and shall take place in Austin, Texas or another location reasonably convenient to both parties.  The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Notwithstanding this provision, each party may seek injunctive relief in any court of competent jurisdiction. The parties agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis.  If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
    • Relationship of Parties. The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. ENER-i reserves the right to utilize subcontractors.
    • Attorneys’ Fees. In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
    • Equitable Relief. The parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein would cause irreparable injury to ENER-i for which monetary damages alone would not be an adequate remedy, and therefore ENER-i shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
    • Force Majeure. Neither party shall be deemed to have breached any provision of the Agreement or be liable in any way for any delay, failure in performance, loss, damage or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruption or failures of communication systems or Internet equipment or service, other catastrophes, equipment failure, acts or omissions of third-party application or service providers or any other occurrences which are beyond the party’s reasonable control.
    • Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer (“Use”) of the Service(s), no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Service(s) was developed at ENER-i’s private expense and is commercial in nature. By using or receiving the Service(s), any Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
    • Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, provided that no consent is required in connection with a merger, reorganization, consolidation, amalgamation, sale of assets or similar transaction. Any purported assignment in violation of this Section shall be null and void. The Agreement shall be binding on all permitted successors and assigns.
    • Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.
    • Waiver. The failure of either party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
    • Notices. All notices required or permitted under the Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in this Section or in the Order or to such other address as may be specified by either party to the other in accordance with this Section.  Notices to ENER-i should be sent to ENER-i.AI, Inc., Attn: Legal Department, 13001 W. Hwy 71, Suite G100, Austin, TX
    • Export Regulation.
      • The Insights Data, Insights Solutions and Services, including any software, documentation, and any related technical data included with, or contained in, such Insights Data, Insights Solutions and Services and any products utilizing any such Insights Data, Insights Solutions or Services, software, documentation, or technical data (collectively, “Regulated Products“) may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. The Customer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of any Regulated Products is prohibited by applicable federal or foreign law, regulation, or rule. The Customer shall be responsible for any breach of this Section 12.14 by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, partners, members. shareholders, customers, agents, distributors, resellers, or vendors. The Customer shall comply with all applicable federal and foreign laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Regulated Products.
      • The Customer agrees that it shall not use or transmit materials or technical information except in compliance with the export regulations of the United States.  Customer is not (a) directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control, US Department of the Treasury (“OFAC“) or other similar list maintained by any governmental entity (collectively, “SDN List“), or (b) directly or indirectly owned or controlled by any person or entity who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity. Customer shall promptly upon becoming aware thereof notify ENER-i when it becomes directly or indirectly owned or controlled by any person or entity included on the then-current SDN List, or located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity.  The Customer agrees to indemnify and hold the ENER-i harmless from and against all claims, losses, liabilities, and damages suffered or incurred by the ENER-i resulting from or related to the Customer’s failure to comply with all export or import regulations and sanctions described herein.
23. ESRI Flow Down Use Restrictions. The Customer agrees to the following flow-down restrictions from ESRI:
    • Customer disclaims, to the extent permitted by applicable law, Esri and its licensors’ liability for any damages or loss of any kind, whether direct, special, indirect, incidental, or consequential, arising from the use of the Hosted Solutions including, but not limited to, liability for use of Hosted Solutions in high-risk activities or liability related to any Data supplied by Esri.
    • Customer at the time of termination shall (i) cease access and use of the terminated Authorized Sublicense Material in Hosted Solutions, and (ii) clear any client-side data cache derived from the terminated Authorized Sublicense Material in Hosted Solutions.
    • Customer shall not remove or obscure any patent, copyright, trademark, proprietary rights notices, or legends contained in or affixed to any Authorized Sublicense Material, output, metadata file, or online or hard-copy attribution page of any Data with respect to Authorized Sublicense Material.
    • Customer disclaim all terms in the ESRI Click-Through Master Agreement (E204CW) (“ESRI MSA”) included with Authorized Sublicense Material. Esri and its licensors do not warrant that Data and Authorized Sublicense Material will meet the Solution Delivery End User’s needs or expectations; that the use of Data, Authorized Sublicense Materials, and Hosted Solutions will be uninterrupted; or that all nonconformities can or will be corrected. Esri and its licensors are not inviting reliance on Data in Authorized Sublicense Materials, and Solution Delivery End User should always verify actual Data in Authorized Sublicense Materials. Any warranty offered by Partner for the Partner Hosted Solutions shall only apply between Partner and its Solution Delivery End Users. Esri does not offer any warranties or indemnities to Solution Delivery End User for the Authorized Sublicense Material.
    • Customer shall not use Authorized Sublicense Material for any revenue­generating activities. Authorized Sublicense Material in Hosted Solution is for the internal use of Customer only.
    • Customer shall not use Authorized Sublicense Material independently from Hosted Solution or in any other product or service.
    • Customer shall not store, cache, use, upload, distribute, or sublicense content or otherwise using Authorized Sublicense Material in violation of Esri’s or a third­party’s rights, including intellectual property rights, privacy rights, nondiscrimination laws, export laws, or any other applicable law or regulation.
    • Prohibit sharing of Named User login credentials. These are for Customers only and may not be shared with other individuals. A license may be reassigned to another Solution Delivery End User if the former user no longer requires access to the Hosted Solution.
    • Capitalized terms not defined in Section 13 shall have the meanings set forth in the ESRI MSA or those terms contained the Esri Partner Network Definitions and General Terms and Conditions for Reseller and Solution Delivery Program Addendums which are incorporated herein by this reference and available at: https://www.esri.com/content/dam/esrisites/en-us/media/pdf/private/definitions-and-general-terms-and-conditions-for-reseller-and-solution-delivery-program-addendum.pdf