Master Services Agreement

This Master Services Agreement ("Agreement") is entered into by and between WATTMORE Inc., a Delaware corporation, with its principal place of business at 3000 Lawrence St, #134, Denver, CO 80205 ("WATTMORE") and the customer identified on the Purchase Order ("Customer" or "You") (collectively, the "Parties," or individually, a "Party"), subject to the terms set forth in this Agreement and in any purchase order or similar ordering documents issued by WATTMORE and entered by and between Customer and WATTMORE (each, a "Purchase Order").

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT FORMS A LEGALLY ENFORCEABLE CONTRACT. BY CLICKING "I AGREE" (IF APPLICABLE), EXECUTING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT AND/OR ACCESSING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.

WATTMORE may update and modify the terms of this Agreement from time to time at its sole discretion and without prior notice. Any modifications to this Agreement will be effective immediately upon the posting of the updated Agreement to WATTMORE's website. Customer's continued use of the Services and/or Devices following a notice of updated terms constitutes Customer's acceptance to be bound by any changes to the Agreement.

1. Services and Devices.

1.1. Service.

WATTMORE offers its customer access to multiple proprietary software platforms. "Intellect Operate" is WATTMORE's proprietary energy management system that remotely monitors and manages the energy storage assets and enables the optimization of its customers' energy use. "Intellect PPC" is a power plant controller for battery energy storage systems and is add-on to Intellect Operate. "Intellect EnForm" is a solar monitoring and control solution for monitoring, managing and monetizing utility, commercial and residential solar project systems. Both Intellect Operate and Intellect EnForm, including any add-ons thereto, are comprised of on-premises software ("On-Prem Software") and software-as-a-service ("Software Services," and together with the On-Prem Software and Professional Services, the "Services"). The On-Prem Software and Software Services, as used herein, refer to the specific Service(s) purchased by Customer pursuant to the Purchase Order (s) entered by the Parties hereunder.

1.2. Professional Services.

In connection with the On-Prem Software, Software Services and Devices (as defined below), WATTMORE will provide Customer with commissioning, implementation, and other professional services described in more detail in a Purchase Order ("Professional Services"). WATTMORE is an independent contractor, and as such, shall have the right to determine the method, details, and means of performing the Professional Services. Nothing in this Agreement or any Purchase Order shall operate to create any employment relationship. Unless otherwise noted in a Purchase Order, WATTMORE may perform the Professional Services for Customer at: (i) WATTMORE's premises, or (ii) any other location as mutually agreed to between the Parties. WATTMORE shall have the sole right to designate the appropriate personnel necessary to accomplish the Professional Services to be performed under a Purchase Order. WATTMORE reserves the right to substitute personnel for any reason and in its own discretion, provided that the rates charged for the substituted personnel may not exceed the rates agreed to in the Purchase Order.

1.3. Authorized Users.

WATTMORE acknowledges that Customer may be acquiring the Services on its own behalf or on behalf of the specific end-user entity that is set forth on the applicable Purchase Order ("Authorized User"). Each Purchase Order may also set forth a specified location for each project/Authorized User. Customer represents and warrants that it has the authority to bind each Customer affiliate and Authorized User to the terms of this Agreement. Each Authorized User may be required to enter into separate terms of service or similar agreement directly with WATTMORE. Customer shall be responsible for ensuring its Authorized Users' compliance with this Agreement and for any acts or omissions of its Authorized Users.

1.4. Devices.

Customer may be required to purchase hardware, equipment or accessories developed, manufactured and/or sold by a third party and/or WATTMORE pursuant to a Purchase Order ("Devices", and together with the applicable Software Services and On-Prem Software, the "System") to use the Services. Additional terms provided with the Purchase Order may apply to the purchase and sale of such Devices. Except as expressly set forth herein, or in the Purchase Order, WATTMORE makes no warranties regarding the Devices and is not responsible for Customer's or any Authorized User's use of the Devices or any damages, harm or liability arising therefrom. WATTMORE will work with Customer if any updates or upgrades to the Services require any upgrades to or replacement of Devices to remain compatible with the Services. Customer will be responsible for replacing any Devices and/or for updating or upgrading any firmware in the Devices to maintain such compatibility; but WATTMORE will work with Customer to support such replacement of or upgrades to the Devices.

1.5. Customer Responsibilities.

1.5.1. WATTMORE will supply an Internet router and switch to facilitate remote connectivity from WATTMORE's facilities to that of Customer. Subject to the foregoing, Customer is responsible for providing network connectivity with sufficient bandwidth between Customer's (or its Authorized User's) local environment and the Software Services. Further, Customer (or its Authorized Users) must provide WATTMORE with remote access to the On-Prem Software to perform any necessary updates, upgrades, bug fixes and otherwise to perform support and maintenance. To the extent necessary, Customer must secure all necessary rights and authority for WATTMORE to access the Authorized User premises as necessary to provide any on-site installation and ongoing support services that WATTMORE deems necessary or appropriate.

1.5.2. Customer or its Authorized Users must identify at least one contact point for customer support. Such individual must be familiar with the Services and capable of implementing any updates, upgrades or bug fixes supplied by WATTMORE and otherwise cooperating with WATTMORE to troubleshoot and resolve any issues with the On-Prem Software and/or the Software Services. WATTMORE will notify Customer prior to implementing or providing to Customer for implementation any updates, upgrades or bug fixes pursuant to WATTMORE's standard support processes; provided that Customer understands and agrees that in the event of time sensitive updates, upgrades or bug fixes (e.g., to address a security issue or significant error), the time frame for notice will be shortened.

1.5.3. Customer (or its Authorized Users) are solely responsible for maintaining any energy storage assets, including without limitation, batteries within their respective ownership, custody or control and for repairing or replacing any such energy storage assets that are not in proper working condition.

1.6. Support.

WATTMORE offers customer support services Monday through Friday, from 9:00 am – 5:00 pm Mountain Standard Time, except for federally recognized holidays. To contact WATTMORE customer support, please contact jw.postal@wattmore.com. WATTMORE may change the support contact from time to time upon notice to Customer.

1.7. Artificial Intelligence.

In the course of providing the Services, WATTMORE may utilize, incorporate into the Services or otherwise make available to Customer or its Authorized Users machine learning, large language models, generative, or other artificial intelligence from third parties (e.g., OpenAI) (collectively, "AI Technology"). Customer hereby authorizes WATTMORE to make Customer Data (as defined below) available to WATTMORE's third-party partners, including those providing AI Technology, to the extent necessary to provide the Services to Customer. WATTMORE makes no representations or warranties involving Customer's use of or the output Authorized Users generate from AI Technology ("Output"), including but not limited to the accuracy of Output or the accuracy or reliability of the AI Technology. As between Customer and WATTMORE, Customer retains ownership of Customer Data and other content input into the Services to the extent permitted by law. WATTMORE and its licensors retain all right, title and interest in and to all intellectual property right in the models, algorithms, and underlying technologies of the AI Technology. Between the Parties, WATTMORE shall be the sole and exclusive owner of the Output.

2. Grant of License.

2.1. On-Prem Software.

WATTMORE hereby grants to Customer (or, as applicable, Customer's Authorized Users) a limited term, non-exclusive, non-transferable license to use the On-Prem Software (in compiled format as provided by WATTMORE) during the term of the applicable Purchase Order at the identified location solely for Customer's or its Authorized User's internal business purposes and subject to the terms of this Agreement and the applicable Purchase Order. No right to use, copy, modify, create derivative works of, adapt, distribute, disclose, decompile, reverse engineer or discover the source code of the On-Prem Software is granted, except as expressly set forth in this Agreement. Customer (and its Authorized Users) is prohibited from making copies of On-Prem Software for any purpose. Customer shall approve access for all Authorized Users of the On-Prem Software and shall prevent unauthorized use of the On-Prem Software. Neither Customer, nor its Authorized Users, may use any component of the On-Prem Software to provide services to third parties as a service bureau or data processor. Customer's Authorized Users will have access to the On-Prem Software and Software Services that are applicable to that Authorized User's location.

2.2. Software Services.

WATTMORE grants to Customer a nonexclusive, non-assignable, non-sublicensable (except as set forth below) and nontransferable license, during the term of the applicable Purchase Order, to access and use the Software Services in compliance with the terms set forth in this Agreement and the applicable Purchase Order. Each Purchase Order will identify the project(s) (i.e., separate battery systems on a single site that perform different functions) covered by the Purchase Order and will set forth the number of licenses to the Services that are necessary to support such project(s). The rights granted hereunder include: (i) Customer's right to access the Software Services on a subscription basis for all of Customer's Authorized Users; and (b) the right to sublicense and make available the Software Services on the Devices to Customer's Authorized User as set forth in the applicable Purchase Order.

2.3. Prohibited Uses.

Customer shall not and shall not permit any third party (including any Authorized User) to use the Services for purposes other than as set forth in the Agreement. In furtherance thereof, Customer will not, and will ensure that its Authorized users will not, (i) resell the Services or any data received in connection therewith or otherwise disclose, disseminate, reproduce or publish any portion of the Services in any manner or permit the same; (ii) use the Services to create derivative products or other derivative works; (iii) modify, translate, alter, disassemble, decompile, manipulate, reverse engineer or attempt to discover or access the source code of any portion of the Services; (iv) except for Authorized Users set forth in a Purchase Order, permit any third party to access or use the Services; (v) create Internet "links" to or from the Services, or "frame" or "mirror" any content forming part of the Services, other than on its Authorized Users' own intranets or otherwise for its own internal business purposes; (vi) send spam or other duplicative or unsolicited messages in violation of applicable laws using the Services; (vii) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (viii) send through, store in or otherwise introduce to the Services, through its use or otherwise, a computer virus or malicious code; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (x) attempt to gain unauthorized access to the Services or its related systems or networks.

2.4. Modifications.

WATTMORE may modify, enhance, or otherwise change the Software Services or any component thereof at any time during the term of the applicable Purchase Order without materially adversely affecting the Software Services features or functionality.

3. Proprietary Rights; Data.

3.1. Services.

WATTMORE is and will remain the exclusive owner of all right, title and interest in and to the Services, and its Confidential Information, including all associated intellectual property rights. Trademarks, trade names, product names and logos contained in or used by the Services are the trademarks or registered trademarks of their respective owners, and the use of such trademarks shall inure to the benefit of the trademark owner. All rights not expressly granted herein are reserved to WATTMORE.

3.2. Work Product.

"Work Product" shall mean all documentation and information, developed, created and/or delivered by WATTMORE to Customer in connection with the Professional Services, including but not limited to installation and operator plans manuals, plans, designs, configurations, reports, documents, templates and communications diagrams (including all copies, modifications and derivative works thereof, by whomever produced). All Work Product and all intellectual property rights and goodwill associated with it, shall be owned by WATTMORE and nothing in this Agreement or any Purchase Order shall operate to transfer ownership to Customer. During the Term, WATTMORE grants Customer a limited, royalty-free, sublicenseable (only to Authorized Users designated on the Purchase Order), nontransferable and non-assignable license to access and to use the Work Product provided to Customer for its internal business purposes solely in connection with Customer's use of the Services and Devices.

3.3. Customer Data.

Customer grants to WATTMORE a non-exclusive, license solely during the term of this Agreement to use, publish, manipulate, create derivative works of and otherwise disclose any data uploaded, submitted or provided by Customer to WATTMORE, whether directly, indirectly or by means of the Services, the Devices or otherwise ("Customer Data"), for any lawful purpose. Customer is responsible for the substance, legality and appropriateness of the data that Customer or its Authorized Users submit to the Services. Customer is the sole and exclusive owner of Customer Data.

3.4. System Data.

For the avoidance of doubt, Customer Data excludes Anonymized Data and Aggregate Data (each defined as follows). Notwithstanding the foregoing, the above license includes the right of WATTMORE to use Customer Data during the term of the Agreement to create anonymized data sets ("Anonymized Data") and to aggregate such Anonymized Data with similar data provided by other WATTMORE customers ("Aggregate Data"). WATTMORE is the sole and exclusive owner of Anonymized Data and Aggregate Data. Further, WATTMORE owns all information generated by the System including but not limited to information relating to system installation and configuration and system analytics and software and system performance ("System Data"). WATTMORE may use System Data for any lawful purpose, including to enhance or improve the Services and to aggregate the System Data with similar data of other customers.

3.5. Customer Responsibilities.

Customer represents and warrants that it has all rights necessary to provide data and other materials that it may make available to WATTMORE under this Agreement and that WATTMORE may use, copy and otherwise manipulate such data and other materials as necessary for WATTMORE to perform its obligations under this Agreement. Customer understands and agrees that it is Customer's responsibility to back up any data and that the Services and Devices are not intended to be for record retention.

3.6. Feedback.

WATTMORE shall own all feedback, comments, suggestions, ideas, concepts and changes that Customer or its Authorized Users provide to WATTMORE relating to the System, Devices, Work Product and all associated intellectual property rights ("Feedback") and Customer hereby assigns all of its right, title and interest in the Feedback to WATTMORE. WATTMORE may use Feedback for any purpose, including incorporating Feedback into the System, without the obligation to attribute the Feedback to Customer (or its Authorized User) or compensate Customer (or the applicable Authorized User) in any way for such use.

4. Payment.

4.1. Fees.

Customer shall pay WATTMORE the fees for the Services and Devices set forth in the applicable Purchase Order ("Fees"). Customer shall pay the Fees within thirty (30) days of the date of the applicable invoice issued by WATTMORE, unless otherwise set forth in the applicable Purchase Order. WATTMORE may increase any recurring Fees once per calendar year following the first anniversary of this Agreement; provided, that any such increase shall not exceed three percent (3%) and that WATTMORE will provide Customer with no less than thirty (30) days' prior written or electronic notice of such fee increase.

4.2. Late Payment.

If payment for an invoice is not made in compliance with this Agreement or the applicable Purchase Order, WATTMORE may assess a late charge of 1.5% of the unpaid amount per month, or the maximum limit permitted by law, whichever is less. If Customer is thirty (30) or more days past due and fails to pay all past due Fees within ten (10) days of WATTMORE'S notice of delinquency, WATTMORE may suspend access to any Services provided under this Agreement until all past due amounts and any related interest are paid or terminate the Agreement. During any period for which access of the Services is suspended, Customer shall continue to incur and pay any Fees due. Customer shall pay WATTMORE all costs of collection of past due amounts owed to WATTMORE hereunder, including without limitation, attorney fees, collection agency fees and court costs.

4.3. Taxes.

Fees are exclusive of sales, use, excise, ad valorem and other taxes. When WATTMORE has the legal obligation to collect such taxes, the appropriate amount shall be added to Customer's invoice and paid by Customer, unless Customer provides WATTMORE with a valid tax exemption certificate prior to issuance of the invoice.

4.4. No Set Off.

Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with WATTMORE, for any reason.

5. Warranties; Disclaimer.

5.1. Mutual Warranties.

Each Party represents and warrants that (i) it is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under this Agreement, in accordance with applicable law and its articles of incorporation, bylaws, and/or other governance documents; (ii) it has obtained all required consents, licenses, approvals and/or permission to authorize it to enter and perform its obligations under this Agreement; (iii) it and its performance of its duties under this Agreement shall in no way conflict with or violate any applicable law or any other agreement of it; and (iv) those persons signing this Agreement are authorized to execute this Agreement.

5.2. WATTMORE's Warranties.

WATTMORE represents and warrants that during the term of this Agreement, WATTMORE will implement and maintain an industry-standard, commercially reasonable information security program with appropriate administrative, technical and physical safeguards to protect the type of data collected and maintained by WATTMORE. WATTMORE represents and warrants that the Professional Services will be performed (i) by personnel of required skill, experience and qualifications; and (ii) in a professional and workmanlike manner in accordance with applicable industry standards.

5.3. Customer's Warranties.

Customer represents and warrants that (i) Customer will, and will cause its Authorized Users to, access and use the Services in accordance with all applicable laws and this Agreement; (ii) it has all necessary rights and authority to bind its Authorized Users to the terms of this Agreement and that Customer will enforce (or will assist WATTMORE in enforcing) the terms of this Agreement; and (iii) Customer has either the sole right, or has obtained all necessary consents, permissions or approvals, to provide the Customer Data to WATTMORE and to allow WATTMORE to use the Customer Data for the purposes set forth in this Agreement.

5.4. Disclaimers.

THE SERVICES, THE AI TECHNOLOGY, OUTPUT, WORK PRODUCT AND ANY DEVICES ARE PROVIDED "AS-IS" AND "AS AVAILABLE". EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN ANY PURCHASE ORDER, WATTMORE AND ITS AFFILIATES, AGENTS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE AI TECHNOLOGY, OUTPUT, WORK PRODUCT AND DEVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WATTMORE MAKES NO WARRANTY THAT THE SERVICES, AI TECHNOLOGY, OUTPUT, WORK PRODUCT AND DEVICES WILL MEET CUSTOMER'S REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT THE RESULTS OBTAINED FORM THE USE OF THE FOREGOING WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE SERVICE, AI TECHNOLOGY, OUTPUT, WORK PRODUCT OR DEVICES WILL BE CORRECTED, THAT THE SERVICES, AI TECHNOLOGY, OUTPUT, WORK PRODUCT AND DEVICES WILL BE VIRUS FREE. WATTMORE SHALL NOT BE LIABLE FOR ANY LOSS OF DATA. The warranties herein do not extend to problems caused by Customer's or Authorized User's acts (or failures to act), the acts (or failures to act) of others, including but not limited to, modifications or implementations made by Customer or any third party acting on Customer's behalf.

6. Confidentiality.

6.1. Obligations.

During the term of this Agreement, either Party may receive information about the business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information about the other Party that is treated or designated by the other party as confidential or proprietary or would reasonably be viewed as confidential or as having value to the other party's competitors ("Confidential Information"). Without limiting the foregoing, the Services and any nonpublic information or materials provided or accessible to Customer by WATTMORE, as well as the terms and conditions of this Agreement, constitute Confidential Information. The receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the Parties' respective rights therein, at all times exercising at least a reasonable level of care. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees, staff or agents who require access to perform hereunder and who are bound by confidentiality obligations consistent with those set forth herein. Except as otherwise expressly provided herein, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party. The receiving Party will promptly report to the disclosing Party any unauthorized use or disclosure of any Confidential Information.

6.2. Exclusions.

Confidential Information shall not include any information that the receiving Party can demonstrate is: (i) already known to the receiving party at the time of the disclosure as evidenced by written records and not obtained by the receiving party on a confidential basis; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving Party; (iii) subsequently disclosed to the receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other Party that rightfully acquired such information; (iv) communicated to a third party by the receiving Party with the express written consent of the disclosing Party; or (v) was independently developed by the receiving Party without use or reference to the disclosing Party's Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided that the receiving Party gives the disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperates with the disclosing Party to obtain a protective order or otherwise to contest such required disclosure, at the disclosing Party's expense.

6.3. Destruction or Return of Confidential Information.

Upon expiration or termination of this Agreement for any reason, each Party shall promptly return to the other Party, or destroy, as the Parties agree in writing, all copies of the other Party's Confidential Information under the receiving Party's direct possession or control. The confidentiality obligations of this Section will survive the termination or expiration of this Agreement.

7. Term; Termination.

7.1. Term.

This Agreement is effective as of the date of last signature below (the "Effective Date") and unless earlier terminated as provided herein, shall remain in full force and effect until the expiration or termination of all Purchase Orders. The term of each Purchase Order shall be specified therein.

7.2. Termination for Breach.

Either Party may terminate this Agreement upon thirty (30) advance written notice to the other Party if the non-notifying Party breaches any material term or condition of this Agreement and fails to cure such breach within the thirty (30) day cure period. The termination of this Agreement shall automatically terminate all Purchase Orders between the Parties, unless otherwise agreed to by the Parties.

7.3. Survival.

The following sections shall survive the expiration or termination of this Agreement: §2.3 Prohibited Uses; §3 Proprietary Rights; Data, §4 Payment, §5 Warranties; Disclaimer, §6 Confidentiality, §7 Term; Termination, §8 Limitation of Liability, §9 Indemnification, and §10 General, and any other sections which, by their nature, are intended to survive the expiration or termination of this Agreement.

8. Limitation of Liability.

EACH PARTY'S TOTAL LIABILITY UNDER OR RELATED TO THIS AGREEMENT, THE SERVICES, AI TECHNOLOGY, OUTPUT, WORK PRODUCT OR DEVICES OR FOR ANY OTHER CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY CUSTOMER TO WATTMORE DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES OR THIRD PARTY PROVIDERS, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, COMPENSATORY, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICES, AI TECHNOLOGY, OUTPUT, WORK PRODUCT OR DEVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL OR USE, LOST OR DAMAGED CONTENT OR OTHER INTANGIBLE LOSSES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF A PARTY IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SECTION 8 SHALL NOT APPLY TO OR IN ANY WAY LIMIT THE LIABILITY OR RESPONSIBILITY OF EITHER PARTY FOR ITS (I) INDEMNIFICATION OBLIGATIONS HEREUNDER; (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) AS TO CUSTOMER, CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER.

9. Indemnification.

9.1. Indemnification by WATTMORE.

WATTMORE shall defend Customer against any third party claim alleging that the On-Prem Software or Software Services infringe a United States patent, copyright or trademark or misappropriate a third party's trade secret information (each, an "Infringement Claim") and will pay the amount of any settlement or adverse final judgment. If an Infringement Claim has been made, or in WATTMORE's opinion is likely to be made, WATTMORE may, at its sole option and expense, either: (i) procure for Customer the right to continue using the affected On-Prem Software or Software Service; (ii) replace or modify the affected On-Prem Software or Software Service so that it becomes non-infringing; or (iii) terminate both Parties' respective rights and obligations under this Agreement with regard to the affected On-Prem Software or Software Service, and refund to Customer a pro-rata amount of any prepaid fees actually paid by Customer for the unused portion of such affected On-Prem Software or Software Service. Notwithstanding the foregoing, WATTMORE shall have no obligation to indemnify Customer to the extent an Infringement Claim arises from (i) the combination, operation or use of the On-Prem Software or Software Services with any other software, data, products or materials not supplied by WATTMORE; (ii) the use of the On-Prem Software or Software Services in violation of the terms and conditions of this Agreement; (iii) the alteration or modification of the On-Prem Software or Software Services by any individual or entity other than WATTMORE; (iv) WATTMORE's compliance with Customer's designs, specifications or instructions; or (v) Customer's continued use of the On-Prem Software or Software Services after WATTMORE has informed Customer of modifications or changes to the On-Prem Software or Software Services required to avoid the Infringement Claim.

9.2. Indemnification by Customer.

Customer shall indemnify, defend and hold WATTMORE harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) arising from a claim, suit or proceeding brought against WATTMORE by a third party arising out of or related to Customer's or its Authorized User's: (i) use or misuse of or modifications to the Work Product, Devices, On-Prem Software, Software Services, Professional Services or the Output; (ii) provision of or WATTMORE's use (in accordance with the Agreement) of any data submitted or provided by Customer or its Authorized Users, including but not limited to Customer Data; (iii) breach of this Agreement; (iv) violation of applicable law or the rights of any third party; and (v) gross negligence or willful misconduct.

9.3. Indemnification Procedures.

The obligations with respect to this Section 9 are conditioned upon: (i) the indemnified Party providing the indemnifying Party with prompt written notice of the claim (provided that failure to provide the indemnifying Party with such prompt notice shall not release the indemnifying Party of its obligations unless the indemnifying Party is materially prejudiced by such failure); (ii) the indemnified Party giving the indemnifying Party full and exclusive authority for the conduct of the defense and settlement of the claim and any subsequent appeal; and (iii) the indemnified Party giving the indemnifying Party all information and assistance reasonably requested by the indemnifying Party connection with the conduct of the defense and settlement of the claim and any subsequent appeal.

10. General.

10.1. Publicity.

WATTMORE may identify Customer as a customer of WATTMORE's and may use Customer's name and logo to identify Customer as a customer of WATTMORE's in its marketing and advertising materials.

10.2. Relationship of Parties.

The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such.

10.3. Entire Agreement.

This Agreement and any Purchase Order that references this Agreement is the complete agreement between the Parties and supersedes any prior or contemporaneous oral or written communications between the Parties concerning the subject matter thereof. If there is a conflict between the terms of a Purchase Order and the terms of this Agreement, the Agreement shall govern and prevail. This Agreement may only be modified by a written document expressly stated for such purpose and executed by the Parties. The terms and conditions of this Agreement shall control and supersede any end user license agreements, terms of use, click-through or shrinkwrap terms, purchase order terms, invoice terms, or other similar documents provided by or on behalf of Customer, in any format, including terms located on Customer's website or provided with its ordering documents, whether signed before or after this Agreement. Such other terms shall be void to the extent they relate to the subject matter contemplated by this Agreement.

10.4. Notices.

All notices required under this Agreement shall be sent to the addresses on the signature page of this Agreement, with a copy to the Legal Department of the Party. All notices under this Agreement shall be deemed given: (i) when delivered by hand; (ii) one (1) day after being sent by commercial overnight courier with written verification of receipt; or (iii) five (5) days after being sent by registered or certified mail, return receipt requested, postage prepaid. Either Party may from time to time change its address for notification purposes by giving the other Party written notice of the new address and the date upon which it will become effective.

10.5. Assignment.

Customer shall not assign or transfer this Agreement, any Purchase Order or any rights or obligations therein without WATTMORE's prior written consent. A change in control constitutes an assignment under this Agreement. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

10.6. Severability.

If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.

10.7. No Waiver.

Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this Agreement shall constitute a subsequent or continuing waiver of such right or any other rights under this Agreement.

10.8. Equitable Relief.

Customer acknowledges that the Services are valuable commercial products, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of WATTMORE's intellectual property rights therein shall be deemed a material breach of the Agreement, for which WATTMORE may not have adequate remedy in money or damages, and WATTMORE shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.

10.9. Force Majeure.

Except for Customer's obligation to pay Fees, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, pandemic/epidemic and any resulting orders, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.

10.10. Governing Law.

This Agreement together with the Purchase Order is governed by and construed in accordance with the laws of the State of Colorado, without effect to its principles of conflicts of law. Any litigation arising out of this Agreement shall be brought by either Party in a court of competent jurisdiction located in Denver County, Colorado, and each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing party shall be awarded its reasonable attorneys' fees and costs in any proceeding arising out of or related to this Agreement.

10.11. No Third-Party Beneficiaries.

WATTMORE and Customer agree that this Agreement is for the benefit of the entities executing this Agreement and is not intended to confer any rights or benefits on any third party, and that there are no third-party beneficiaries as to this Agreement.

10.12. Counterparts.

The Purchase Order may be executed in any number of counterparts, each of which is deemed an original, and all taken together constitute one and the same instrument.