Date of Last Revision: October 7, 2024

Customer (as defined below) and each Provider (as defined below) should read these Master Terms and Conditions (these “Terms”) carefully BEFORE USING ANY OF THE “ACCESSIBLE ITEMS” (as defined below) and BEFORE PLACING AN ORDER OR ACCEPTING ANY “ORDER QUOTATION” (as defined below) for any of the services, equipment, software, data or other items licensed, provided or sold by Denowatts Solar, LLC (“Denowatts”). Denowatts reserves the right to reject any order, or withdraw any Order Quotation, for any reason.

These Terms, together with the applicable order quotation issued by Denowatts (the “Order Quotation”), all Additional Terms of Service (as defined below) and other portions of the Contract (as defined below), set forth the legally binding terms and conditions under which Customer agrees to subscribe for the Services (as defined below), and Denowatts agrees to license the Software (as defined below), sell the Equipment (as defined below), and provide the other Accessible Items. Additional Denowatts’ terms and conditions, policies or other agreements may apply (including as a condition precedent to any access to, or use of, the Services, or other Accessible Items by Authorized Users (as defined below)), including the Authorized User Terms and Privacy Policy (each, as defined below) (collectively, the “Additional Terms of Service”).

BECAUSE “CUSTOMER’S” OR “PROVIDER’S” ACCEPTANCE OF THE “ORDER QUOTATION”, OR USE BY “CUSTOMER” OR ANY “PROVIDER” OF ANY OF THE “ACCESSIBLE ITEMS”, CONSTITUTES ITS AGREEMENT TO FOLLOW AND BE BOUND BY THESE “TERMS” AND THE OTHER PORTIONS OF THE “CONTRACT”, NEITHER “CUSTOMER” NOR ANY “PROVIDER” SHOULD ACCEPT OR AGREE TO THE “ORDER QUOTATION”, OR COMMENCE ANY SUCH USE, UNLESS AND UNTIL IT HAS READ CAREFULLY AND UNDERSTANDS THESE “TERMS” AND THE OTHER PORTIONS OF THE “CONTRACT”, INCLUDING THE PROVISIONS BELOW RELATING TO, AMONG OTHER THINGS, THE COLLECTION, USE AND DISCLOSURE OF INFORMATION AND DATA BY “DENOWATTS”. ACCEPTANCE BY “CUSTOMER” OR ANY “PROVIDER” OF THE “ORDER QUOTATION” (AND THE OBLIGATION OF “DENOWATTS” TO PROVIDE ANY OR ALL OF THE “ACCESSIBLE ITEMS” OR “EQUIPMENT” TO “CUSTOMER” OR SUCH “PROVIDER”, AS THE CASE MAY BE) IS EXPRESSLY CONDITIONED UPON THE ACCEPTANCE OF, AND AGREEMENT TO, THESE “TERMS” AND THE OTHER PORTIONS OF THE “CONTRACT” BY “CUSTOMER” OR SUCH “PROVIDER”, AS THE CASE MAY BE.

“CUSTOMER” AND EACH “PROVIDER” EACH HEREBY ACKNOWLEDGE AND AGREE THAT EACH OF ITS “AUTHORIZED USERS”: (A) MUST MEET CERTAIN ELIGIBILITY AND OTHER REQUIREMENTS SET FORTH IN CERTAIN OF THE “ADDITIONAL TERMS OF SERVICE” IN ORDER FOR SUCH “AUTHORIZED USER” TO BE ABLE TO USE THE APPLICABLE “ACCESSIBLE ITEMS”; AND (B) WITHOUT LIMITING ANY OTHER PROVISION OF THE “CONTRACT”, HAS ALL REQUIRED AUTHORIZATION AND AUTHORITY (UPON WHICH “DENOWATTS” HAS FULLY AND PERMISSIBLY RELIED) TO (I) ACCEPT, ENTER INTO AND AGREE TO THESE “TERMS” AND THE OTHER PORTIONS OF THE “CONTRACT” IN THE NAME, AND ON BEHALF, OF “CUSTOMER” OR SUCH “PROVIDER”, AS THE CASE MAY BE, AND (II) FULLY BIND “CUSTOMER” OR SUCH “PROVIDER”, AS THE CASE MAY BE, HERETO AND THERETO.

1. Certain Definitions.
   • “Accessible Items” means: (i) the Software, Denowatts Data (as defined below), Site (including the Portal) (each, as defined below), Services, Denowatts APIs (as defined below), Denowatts App (as defined below), Reports (as defined below), and Documentation (as defined below); (ii) solely in the case of each Provider, the Customer Data and Redacted Data (other than any portion of the Customer Data or Redacted Data to or of which such Provider has full and unrestricted ownership); and (iii) any other materials, content or items generated by, and provided by Denowatts in connection with the use of, the Services (including each API or access token or other verification, authorization, authentication or similar string, grouping or piece of code (an “Access Token”)).
   • “Authorized User” means, with respect to Customer or a Provider, an individual who (i) is at least 18 years of age and has full legal capacity, (ii) is a resident of the United States of America and will download, install, access and use (as applicable) the Accessible Items solely and exclusively from and within the United States of America, (iii) is an agent, officer or employee of Customer or such Provider, respectively, (iv) is duly authorized and empowered by Customer or such Provider, respectively, to download, install, access and use the applicable Accessible Items or, accept and agree to the Authorized User Terms, and accept and agree to the Contract in the name, and on behalf, of Customer or such Provider, respectively, and (v) otherwise meets all other eligibility and other requirements set forth in the Contract.
   • “Authorized User Terms” means the Denowatts Terms and Conditions of Use for Authorized Users available here: https://denowatts.com/terms-of-use.
   • “Confidential Information” means any and all technical, financial or business information, trade secrets or other intellectual property, or other data, information or property developed or possessed by Denowatts or its affiliates, including (i) all proprietary technology, industry know-how, financial information, employee lists, computer programming or software code (including object and source code), customer lists, business plans and business developments, product or service offerings or developments, pricing information, and any other information, data, technology or materials about, or belonging to, Denowatts or its business partners, customers, potential customers, Contractors (as defined below) or others, (ii) all Denowatts Technology and Data (including Methodologies), Developments, Feedback and Denowatts IP (each, as defined below), (iii) any other information, data, technology and materials if it would be apparent to a reasonable person, familiar with Denowatts’ business and the industry in which it operates, that such information, data, technology or materials are of a confidential or proprietary nature, the maintenance of which is important to Denowatts, (iv) the terms and conditions of the Contract, and (v) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by Customer or any Provider (or any of their respective personnel or Authorized Users) which contain, reflect or are based upon, in whole or in part, any information, data, property or other items described above; provided, however, that “Confidential Information” shall not include any Raw Equipment Data (as defined below).  
   • “Customer” means the entity that (i) owns the applicable solar photovoltaic (PV) power system (“PV System”) (A) that is located at the Equipment Location (as defined below) and (B) to which the Equipment is and shall be installed, and (ii) is named or designated as the Project Owner in the Order Quotation, Denowatts App or Portal.
   • “Customer Data” means all data and information relating in any way to Customer, each Provider, the Equipment Location or Customer’s solar equipment or assets (or the use thereof) that is provided or uploaded (in any form and by any method, including by electronic transmission, email, API or hard copy) by Customer or any Provider (or any Authorized User of Customer or any such Provider) or any of their respective equipment (other than the Equipment) to Denowatts’ (or its Contractors’) servers or databases via the Services or otherwise to Denowatts (or its Contractors), from time to time, including via placement of the original order submitted to Denowatts by Customer or any Provider (the “Order Form”). By way of example only, and without limiting the definition of Customer Data, “Customer Data” may include any or all of the following: (A) the performance model parameters and data, including predicted resource, energy generation and design parameters relating to Customer’s solar assets; (B) Customer’s name and address; (C) the name and address of each Provider; and (D) information regarding Customer’s applicable PV System, including its location, site plan, meter related information, commercial operation date (COD)/age, DC capacity, AC capacity, module manufacturer and type, inverter, meter and other equipment manufacturer and type, use and manufacturer of optimization equipment, array tilt and azimuth, size, module orientation and inclination, and the number of PV panels and inverters.
   • “Contract” means, collectively, the Order Quotation, these Terms and the Additional Terms of Service (including the Authorized User Terms and Privacy Policy), each, as may, from time to time, be revised by Denowatts or amended by the Customer and Denowatts (each, a “Party”) pursuant to Sections 4 or 17(b) below, or, with respect to any document comprising an Additional Terms of Service, as may be amended or revised, from time to time, as expressly provided therein. The Contract shall not include any third party terms and conditions or contract provided or required by any third party.
   • “Contractor” means any hosting or other service provider, supplier, manufacturer, vendor, licensor, contractor, subcontractor or other third party engaged, directly or indirectly, by Denowatts to perform services, provide or license products, services or technology, for, to or on behalf of, Denowatts.
   • “Denowatts App” means the Denowatts software application that is made available by Denowatts and downloaded by Customer or any Provider (or any Authorized User of Customer or any such Provider) in order to provide Customer, Provider or such Authorized Users (as the case may be) use and access to the Services (including for local network configuration for the Gateway and Deno commissioning) via a mobile or other Device (as defined below), as may be modified, changed, updated or upgraded, from time to time, by Denowatts in its sole discretion.
   • “Denowatts Data” means (i) all data produced by the Equipment, (ii) all data and information resulting from, or produced by, the processing or analysis conducted by the Equipment, Software or Services of or on Customer Data and on any data produced by the Equipment (including any such data and information included in any Reports or other performance analytics), and (iii) all data and information that is provided or made available by Denowatts, or is otherwise accessible, as part of the Services, including any timestamped or time-series data, Raw Equipment Data, or data or information provided or made available via: (1) one or more application programming interfaces (“APIs”) provided by Denowatts from time to time (each, a “Denowatts API”); (2) Modbus protocol transfer made available by Denowatts via the Modbus TCP server that is connected to the Gateway at the Equipment Location (the “Modbus Protocol”); (3) the Denowatts App; or (4) the Portal. By way of example only, and without limiting the definition of Denowatts Data, “Denowatts Data” may include any or all of the following: (A) irradiance and temperature data, (B) meter data and inverter data, (C) calculated rollup data, including availability, expected power, learned power and universal fault codes data, (D) plane of array reference irradiance, learned shade, learned soiling, learned snow, learned vegetation, effective irradiance, expected energy, electrical model losses, active curtailment, grid power quality, grid unavailability, measured generation, key performance indicator, event and event trigger data, and (E) remote weather data obtained by Denowatts from time to time from one or more Contractors.
   • “Denowatts Technology and Data” means the Software, Denowatts Data, Site, Portal, Services, Denowatts APIs, Access Tokens, Denowatts App, Documentation, Methodologies, reports containing any Denowatts Data or otherwise generated by, through the use of, or in connection with the Services (the “Reports”), or other materials, data, content, code, or items generated by, or provided by Denowatts in connection with, the use of, or access to, the Services.
   • “Device” means a desktop or laptop computer, tablet or mobile or other similar electronic device that Customer or any Provider (or any Authorized User of Customer or any such Provider), as applicable, owns or controls.  
   • “Equipment” means the hardware manufactured by Denowatts or its Contractors and sold by Denowatts to Customer or any Provider, as and to the extent specified on the Order Quotation. By way of example only, and without limiting the definition of Equipment, “Equipment” may include one or more (i) Deno® sensors (each, a “Deno”), (ii) gateway devices that serve as the Deno receiver and coordinator of all device data (each, a “Gateway”), and (iii) other pieces of peripheral equipment or products, including antennas, cables, clamps, brackets, Modbus converters, auxiliary pyranometers or temperature sensors.
   • “Equipment Price” means the purchase price charged by Denowatts for the Equipment, as set forth on the Order Quotation.
   • “Equipment Location” means the location specified on the Order Quotation or in the Portal or Denowatts App, where the Equipment (and Customer’s applicable PV System) will be physically installed, located and used during the Subscription Period.
   • “Privacy Policy” means the Denowatts Privacy Policy available here: https://denowatts.com/privacy-policy.
   • “Provider” means any third party contractor or provider of services relating to solar assets, including asset management, construction, development, operations, maintenance, repair, monitoring or installation services, that has been engaged by Customer for constructing, managing or operating its applicable PV System, and that is either identified on the Order Quotation or otherwise designated or authorized by Customer via the Portal or Denowatts App.
   • “Raw Equipment Data” means any data or information in its raw and original form (including raw temperature or irradiance data) that: (i) was originally and directly produced by the Equipment or any other piece of equipment (including any meter, inverter or tracker) that is (x) owned or operated by Customer or any Provider, (y) located at the Equipment Location and (z) connected to the Gateway; and (ii) is obtained by Customer, any Provider, or any Authorized User of Customer or any such Provider, during the Subscription Period, from Denowatts or through the Services (whether via the Modbus Protocol, the Denowatts APIs, the Portal, the Denowatts App or otherwise) in the same raw, original and unmodified form (except only for the addition by Denowatts or the Services of one or more (A) measurement, interval or other timestamps or (B) indicia or designations of Denowatts’ ownership (including any identification or proprietary rights notices)).
   • “Redacted Data” means any and all Customer Data; provided, however, that in no event shall “Redacted Data” include (i) Customer’s name or site name, Customer’s contact information, or the address of Customer or the Equipment Location (in each case, other than the state and zip code of such address), and (ii) the applicable Provider’s name, unless such Provider has consented to the inclusion of its name in such Redacted Data.
   • “Services” means Denowatts’ cloud-based and other solar performance management services, as offered and provided by Denowatts, and as may be modified or changed, from time to time, by Denowatts in its sole discretion. The Services (i) utilize, among other things, the Equipment, Software and other Methodologies, (ii) may include the features described on any of the Websites or available for use via the Denowatts online portal located at denowatts.com (the “Portal”, and collectively with the Websites, the “Site”) or the Denowatts App, each as may be modified or changed, from time to time, by Denowatts in its sole discretion, or as described on the Order Quotation, and (iii) may be provided and accessible, among other ways, via the Modbus Protocol, the Denowatts APIs, the Portal or the Denowatts App. For purposes of clarity, the Services do not include any membership in, or access to, the Denowatt’s data community or related redacted data database (or related services).
   • “Service Fee” means the initial setup fee (“Setup Fee”), other fees and ongoing subscription fees charged by Denowatts for the Services as set forth on the Order Quotation, in the Portal or Denowatts App, or on any invoice provided by Denowatts.
   • “Software” means, collectively, the software, firmware or programming code (in each case, other than the Denowatts App, and as it may be modified, changed, updated or upgraded, from time to time, by Denowatts in its sole discretion) that: (i) is required for the proper functioning of each Deno and Gateway and that runs or executes directly on such Deno and Gateway, respectively (the “Equipment Software”); or (ii) is made available by Denowatts (if at all), and downloaded by Customer or any Provider (or any Authorized User of Customer or any such Provider), in order to use the Services via the Portal (the “Portal Software”).
   • “Subscription Period” means the initial fixed subscription period for Services as then offered by Denowatts (for example, a one-year or multi-year period) and as specified on the Order Quotation, or in the Portal or Denowatts App, which period shall commence upon the earliest to occur of (i) the date of activation of the Equipment at the Equipment Location, (ii) the date that is 30 calendar days after the date of Denowatts’ invoice for the Services and Equipment described on such Order Quotation, or (iii) the commencement date set forth in the Portal or Denowatts App (the “Initial Period”). The Initial Period shall, subject to Section 6 below, automatically renew for succussive one-year periods (each, a “Renewal Period”).
   • “Virus” means any harmful, destructive, malicious, contaminating or unauthorized code, content, component, materials, routine, device or feature (including (i) any virus, malware, spyware, Easter egg, Trojan horse, worm, time, bomb, key, software or code lock, drop dead device, trap, back door, or (ii) that is designed to interfere, disrupt, hijack, infect, delay, destroy, obtain possession or control of, damage or make inaccessible, any computer or electronic software, applications, services, programs, systems, products, processes, networks, data, database or other similar items, or the equipment, hardware, software, programs or systems on or with which any of them operate, reside or run).
   • “Websites” means, collectively, (i) the Denowatts general information website located at denowatts.com and all other similar websites designed to provide general information about Denowatts, as may be offered and operated by Denowatts from time to time; (ii) the Denowatts technical-information websites located at support.denowatts.com and docs.denowatts.com that provide certain guides, documents and other materials with technical support information (including documentation for Denowatts APIs, guides for using the Portal and installation instructions for Deno and other related Equipment) that are made available by Denowatts from time to time; and (iii) all other websites, as may be offered and provided by Denowatts, from time to time, in connection with the provision by Denowatts of the Services.
2. Acceptance of Terms; Providers.
   • An Order Form may be originally submitted to Denowatts by Customer, itself, or by a Provider (if such Provider has been directed, or otherwise authorized, to do so by Customer); provided, however, that notwithstanding anything to the contrary contained in the Contract, no Order Quotation may be (or shall be deemed to have been) accepted, Denowatts shall have no obligation whatsoever under the Contract (including any obligation to provide Services, sell Equipment or license Software), and Customer and each Provider (and each Authorized User of Customer or such Provider) shall be prohibited from using any Accessible Items, until and unless Customer affirmatively agrees to, and accepts, these Terms and the other terms and documents comprising the Contract (either by signing or otherwise agreeing to the Order Quotation, or by agreeing to and accepting these Terms via the Portal or the Denowatts App). No acceptance of the Order Quotation, these Terms or the other terms and documents comprising the Contract by a Provider shall be effective as, or constitute, acceptance by the Customer. Upon agreement and acceptance by Customer as provided above, Customer shall be bound in full to these Terms and the other terms and documents comprising the Contract. Each Provider providing Denowatts with any information or data, including Customer Data, or Customer or Provider payment, account or other information, on the Order Form, in any application or otherwise, hereby (i) represents and warrants to Denowatts that such Provider and each of its applicable Authorized Users has full right, power, capacity and authority for itself and (as applicable) on behalf of Customer to do so, and that any and all such information is complete and accurate, and (ii) agrees that it shall take all actions reasonably requested by Denowatts, from time to time, in order to cause Customer to verify such power, capacity or authority, or cause Customer to agree to these Terms and the other terms and documents comprising the Contract.
   • Customer hereby acknowledges and agrees that, notwithstanding anything to the contrary contained in the Contract, with respect to each Provider: (i) by accepting an Order Quotation that identifies, or by otherwise designating via the Portal or Denowatts App, such Provider, Customer is, for and with respect to Customer’s applicable PV System, and subject to the other terms and conditions of the Contract, designating and authorizing such Provider and each of its Authorized Users to use and access, on Customer’s behalf, and directing and authorizing Denowatts to allow such Provider and each such Authorized User to use and access, on Customer’s behalf, the Accessible Items; (ii) Customer shall be and remain fully and directly responsible and liable to Denowatts for any and all acts and omissions of such Provider and each of its Authorized Users, including any breach by such Provider or any such Authorized User of the Contract, or other act or omission, which if conducted by Customer, itself, would constitute a breach of the Contract; (iii) Denowatts is neither imposing on such Provider, nor otherwise requiring such Provider to agree to, any provisions or protections for Customer’s benefit under the Contract or otherwise, including any requirements to maintain the confidentiality, privacy or security of Customer Data; (iv) Denowatts shall have no liability or responsibility whatsoever to Customer for any use, misuse or disclosure of any of Customer Data, or any other act, omission, misrepresentation, violation of law or failure (including any breach of the Contract or failure to pay Payment Amounts (as defined below) or other amounts required to be paid under the Contract), by such Provider or any of its Authorized Users; and (v) Customer is solely and exclusively responsible for obtaining any such protections from, or imposing any such provisions on, such Provider and its Authorized Users (via separate agreement or otherwise), including with respect to such Provider’s and each of its Authorized User’s use or disclosure of Customer Data.  
   • Without limiting any other provision of the Contract that applies to Providers, the following provisions shall apply directly to each Provider (and each of its Authorized Users):
     • Notwithstanding anything to the contrary contained in the Contract, to the maximum extent permitted by applicable law, Provider hereby acknowledges and agrees that: (A) Denowatts shall have no obligation or liability whatsoever directly to Provider under or in connection with the Contract, including any obligation to permit or allow (for any period of time, or at all) Provider or any of its Authorized Users to access or use any of the Accessible Items (except only as expressly provided in Section 2(c)(iv) below with respect to Raw Equipment Data); (B) Provider has no rights, benefits, protections or remedies whatsoever against, or in respect of, Denowatts under or in connection with the Contract, except only for the limited right to use or access such Accessible Items that may be granted to Provider and its Authorized Users by Denowatts pursuant to, and in accordance with, the express terms of the Contract; (C) any right to access or use such Accessible Items that are granted by Denowatts to Provider and its Authorized Users, shall be provided (if at all) solely and exclusively as a convenience and accommodation to Customer; (D) to the extent and for the period of time any such use or access is granted by Denowatts, Provider and each of its Authorized Users shall, except only as otherwise expressly permitted by Section 2(c)(iv) below with respect to Raw Equipment Data, access and use such Accessible Items (including Denowatts Data), solely for purposes of managing and operating Customer’s applicable PV System, and not for Provider’s or any such Authorized User’s own benefit or the benefit of any other person or entity; (E) Denowatts may (without liability or penalty) permanently or temporarily terminate, limit, restrict or suspend Provider’s or any and all of its Authorized Users’ access and use, at any time, for any reason, without notice (and any termination or expiration of the Contract, Subscription Period, or Customer’s rights to use and access the Accessible Items, shall, except only as expressly provided in Section 2(c)(iv) below with respect to Raw Equipment Data, cause the immediate and automatic termination of all use and access rights of Provider and its Authorized Users); (F) except as expressly provided in the Contract, Denowatts is not granting any right or license to Provider or any of its Authorized Users (by implication or otherwise, under the Contract) in or to (or to use) the Software, and all rights not expressly granted to Provider and its Authorized Users by Denowatts relating in any way to the Contract are reserved for Denowatts; and (G) as a condition precedent to any such use or access granted by Denowatts (and in consideration thereof), Provider shall be fully bound to and obligated under, and shall comply with, (I) the provisions contained above and below in this Section 2(c), (II) all other provisions of the Contract applicable to Providers or otherwise generally applicable, including Sections 14(a), 17(f) and 17(i), and (III) the following provisions of these Terms (as and to the same extent as Customer is bound, obligated and required to comply, and as if Provider were “Customer” thereunder): Sections 3(a); 5(b); 6(b); 7(e) and (f); 8(a); 8(b), (c) and (d) (in the case of each such subsection, to the extent that Provider’s name, or any other information or data of, owned or provided by, or pertaining to Provider, is included in any Customer Data or Redacted Data); 8(e) (other than (e)(iii)); 9; 11(j); 12; 14(b) and (c); 16; 17 (other than Sections 17(b), (c), (f) and (i)); and 18.
     • Provided that none of Customer, Provider or any Authorized User of Customer or Provider is in breach of the Contract (including the payment provisions thereof), and subject to the other provisions of these Terms and the Contract, Denowatts hereby grants to Provider, during the Subscription Period only, a limited, revocable, terminable, royalty-free, non-exclusive, nontransferable and nonassignable license, without the right to sublicense, to: (A) access and use the Services and other Accessible Items (other than the Denowatts App, Software and Raw Equipment Data) provided by Denowatts or produced via the Services, solely and strictly in accordance with the requirements of these Terms and the Contract; (B) download, install and use, in object code format only, one copy of the Denowatts App and Portal Software on each of its Authorized User’s Devices (I) solely in order to access and use the Services and (II) solely and strictly in accordance with the requirements of these Terms and the Contract; and (C) execute and run the Equipment Software, in object code format only, solely (I) on, and as an embedded component of, the Denos and Gateways purchased under the Order Quotation and installed on Customer’s applicable PV System at the Equipment Location (and never separate, apart or removed from such Equipment), (II) to enable such Equipment to function, and (III) solely and strictly in accordance with the requirements of these Terms and the Contract.
     • Without limiting any of the other provisions of this Section 2, and except only as expressly permitted by Section 2(c)(iv) below with respect to Raw Equipment Data, Provider shall use the Services and the other Accessible Items only (A) during the Subscription Period, (B) in accordance with applicable laws (including export control laws), (C) for their intended commercial purpose, (D) on behalf of Customer, for Customer’s own internal business purposes of managing and operating Customer’s applicable PV System, and (E) in accordance with all applicable Denowatts’ user guides, documentation, specifications, installation manuals, operating instructions and technical documents (collectively, the “Documentation”), and all other requirements as may be specified on the Site (including the Portal) or Denowatts App or otherwise by Denowatts.
     • Subject to the other provisions of these Terms and the Contract, and only if and as approved by Customer Denowatts hereby grants to Provider a non-exclusive, worldwide, royalty free, fully-paid, perpetual, irrevocable, non-terminable, assignable right and license (with the right to sublicense through multiple tiers) to, at any time (including after the termination or expiration of the Subscription Period or the Contract), and in accordance with applicable laws (including export control laws): (A) freely use, copy, analyze, reformat, translate, modify, prepare derivative works of, or otherwise fully exploit any Raw Equipment Data for any business or commercial purpose determined by Provider, in its sole discretion, including for developing or improving its products or services; and (B) disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent (or to authorize or permit its contractors to disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent) to any third party, the public, any government or any person or entity, for any business or commercial purpose, any or all Raw Equipment Data. For purposes of clarity, the foregoing provisions of this Section 2(c)(iv) shall apply only to Provider’s right to use Raw Equipment Data (in and of itself), and nothing in this Section shall, or shall be deemed to, (I) expand or alter Provider’s rights under the Contract to use or access any other Accessible Items (including any Denowatts Data, any Denowatts API, the Services, the Portal or the Denowatts App) or (II) eliminate or alter any limitations or restrictions imposed on, or applying or relating to, such rights.
     • Provider shall indemnify, hold harmless, reimburse and (upon request) defend Denowatts and each other Indemnified Party (as defined below), from and against, any and all Damages (as defined below) to the extent arising out of, or resulting from, any of the following: (A) any breach by Provider or any of its Authorized Users of the Contract; (B) any failure by Provider, any person or organization directly or indirectly employed by Provider, or anyone for whose acts Provider may be liable, including any of its Authorized Users, to comply with applicable laws; or (C) any injury, sickness or death to any person, or damage to or destruction of property (including any Loss (as defined below)), in connection with, relating to or arising out of any action, omission or failure of Provider or other person or entity described above in clause (B).  
     • Provider may not, except as expressly permitted by Section 2(c)(iv) above with respect to Raw Equipment Data, assign, delegate or subcontract the Contract or any of its rights or obligations thereunder, and any such assignment, delegation or subcontracting (or attempted assignment, delegation or subcontracting) shall be void ab initio. Provider may not, via the Portal, Denowatts App or otherwise, designate or authorize any other Provider.
     • Any changes, amendment or Revisions (as defined below) to the Terms or other terms or documents comprising the Contract that become effective under Section 4 or otherwise as indicated in Section 1(g) shall be immediately and automatically effective as to, and binding upon, Provider, without any approval, agreement or consent of Provider and whether or not any notice thereof was provided to Provider. No consent, approval, agreement of, or notice to, Provider shall be required with respect to any such change, amendment or Revisions.
     • Provider hereby acknowledges and agrees that (A) any and all acts of Provider taken in connection with the Services or the Contract, whether on the Site (including the Portal) or via the Denowatts App, any Denowatts API or otherwise, including acceptance of the Order Quotation, these Terms, any Additional Terms of Service or the other terms and documents comprising the Contract, shall be done only by its Authorized Users, (B) all acts or omissions of such Authorized Users shall be deemed to be the acts or omissions of Provider, (C) Provider shall, at all times, ensure the full compliance by each such Authorized User with all provisions of the Contract, (D) Provider shall be liable and responsible directly to Denowatts for any and all acts or omissions of each such Authorized User, including any violation of the Contract or applicable law, and (E) Denowatts shall have no duty or obligation to verify the matters set forth in the preceding clauses (A) or (C), and no liability for any failure of any such Authorized User to meet any eligibility or other requirements imposed by the Contract.
     • Provider hereby represents, warrants, covenants and agrees that: (A) each of its Authorized Users has full, actual and necessary right, power, capacity, authorization and authority to agree, accept or sign, on behalf of, and in the name of, Provider, and otherwise bind Provider to, these Terms and the other portions of the Contract; (B) Denowatts shall have no duty or obligation to investigate, verify, or confirm the foregoing matters; (C) Denowatts is hereby expressly entitled and authorized to (and may reasonably) rely on any such agreement, acceptance or signature by such Authorized User as full evidence of such Authorized User’s full, actual and necessary right, power, capacity, authorization and authority in connection therewith; and (D) without limiting the generality of the foregoing provisions of this Section 2(c)(ix), Provider shall take all actions, and provide all evidence, reasonably requested by Denowatts, from time to time, in order to demonstrate and verify such right, power, capacity, authorization and authority of each Authorized User.

3. Customer Eligibility for Services; Use of Services.
   • Customer is eligible to use the Services and other Accessible Items only for their intended commercial purposes; they are not intended for use (and may not be used) by consumers or for any household, family, personal or non-commercial purpose. Customer must be an entity (including an association), validly and duly registered, established, formed or incorporated under the applicable state and federal law of, and located in, the United States of America. Customer hereby acknowledges and agrees that Denowatts does not independently verify whether Customer meets any such eligibility criteria, and Customer represents and warrants to Denowatts that (i) it meets each of the applicable eligibility criteria, (ii) all information submitted by, or on behalf of, Customer (including all Customer Data) is (A) complete, truthful and accurate, and (B) does not infringe on or misappropriate any rights of third parties, including intellectual property, privacy or ownership rights, and (iii) it has full right, authority and permission to provide such information and Customer Data, and to grant all rights to Denowatts as are expressly provided in the Contract. Denowatts accepts only domestic orders from entities within the United States of America (and for use of the Equipment, Software, Services, Reports and other Accessible Items solely from and within the United States of America). Denowatts reserves the right, in its sole discretion, to change its eligibility criteria at any time, without liability or notice.
   • Customer hereby acknowledges and agrees that (i) any and all acts of Customer taken in connection with the Services or the Contract, whether on the Site (including the Portal) or via the Denowatts App, any Denowatts API or otherwise, including acceptance of the Order Quotation, these Terms, any Additional Terms of Service or the other terms and documents comprising the Contract, shall be done only by its Authorized Users, (ii) all acts or omissions of such Authorized Users shall be deemed to be the acts or omissions of Customer, (iii) Customer shall, at all times, ensure the full compliance by each such Authorized User with all provisions of the Contract, (iv) Customer shall be liable and responsible directly to Denowatts for any acts or omissions of each such Authorized User, including any violation of the Contract or applicable law, and (v) Denowatts shall have no duty or obligation to verify the matters set forth in the preceding clauses (i) or (iii), and no liability for any failure of any such Authorized User to meet any eligibility or other requirements imposed by the Contract.
   • Customer hereby represents, warrants, covenants and agrees that: (i) each of its Authorized Users has full, actual and necessary right, power, capacity, authorization and authority to agree, accept or sign, on behalf of, and in the name of, Customer, and otherwise bind Customer to, these Terms and the other portions of the Contract; (ii) Denowatts shall have no duty or obligation to investigate, verify, or confirm the foregoing matter; (iii) Denowatts is hereby expressly entitled and authorized to (and may reasonably) rely on any such agreement, acceptance or signature by such Authorized User as full evidence of such Authorized User’s full, actual and necessary right, power, capacity, authorization and authority in connection therewith; and (iv) without limiting the generality of the foregoing provisions of this Section 3(c), Customer shall take all actions, and provide all evidence, reasonably requested by Denowatts, from time to time, in order to demonstrate and verify such right, power, capacity, authorization and authority of each Authorized User.
4. Revisions to the Contract. Denowatts may (without liability or penalty of any kind) change or modify the Contract (including these Terms) at any time and from time to time (“Revisions”) by posting such Revisions to the applicable Site (including the Portal) or the Denowatts App and, in the case of these Terms, changing the “Date of Last Revision” above. Revisions will be effective (and become part of the Contract) immediately upon such posting; provided, however, that (i) Denowatts shall provide written notice of such Revisions to Customer by sending notice via email to the email address provided by Customer to Denowatts on the Order Form or at anytime thereafter, (ii) Customer shall have 15 days after the date of such notice to notify Denowatts in writing of any objections that Customer may have with such Revisions (and Customer shall be deemed to have agreed to such Revisions if such objection notice is not provided to Denowatts within such 15-day period), and (iii) in the event of any such objections, Denowatts and Customer shall use commercially reasonable efforts to resolve such objections within 30 days after receipt by Denowatts of such objection notice; provided further that (A) any waiver, modification or amendment to such Revisions that are agreed to by Denowatts and Customer in connection with such resolution shall be set forth in a jointly executed written amendment to the Contract, and (B) in the event Denowatts and Customer fail to reach resolution within such 30‑day period, (x) the Contract shall automatically terminate effective as of the expiration of such 30-day period and (y) Denowatts will, within 30 days after the effective date of such termination, refund a pro-rata portion of the Service Fee (excluding the Setup Fee), based on the number of days remaining in the then current Initial Period or Renewal Period (as the case may be), as determined by Denowatts in its sole discretion. In no event shall the Equipment Price or (except as provided in the preceding sentence) other Payment Amounts required to be paid under the Contract (or any portion thereof) be refunded.
5. Payment, Shipping, Inspection and Return.
   • Customer or Provider (as applicable) shall pay the Service Fee, Equipment Price and any other fees and charges (including any applicable shipping and handling charges), and the Taxes (as defined below), each as described, and at the time(s) specified, on the Order Quotation, in the Portal or Denowatts App, or on any invoice provided by Denowatts to Customer (collectively, the “Payment Amounts”). Customer or Provider (as applicable) shall pay, and be fully responsible for, all fees, sales, use, excise and other taxes, customs, duties, tariffs, and other charges of any nature which may be imposed in connection with the Contract, Services or Equipment, other than any taxes upon, or measured by, Denowatts income (“Taxes”). Service Fees are subject to increase with respect to any Renewal Period or extension of the then-current Subscription Period. Customer (or any Provider responsible for payment hereunder) shall pay to Denowatts, from time to time, upon request, interest on overdue amounts under the Contract at the rate of 1.5% per month or the maximum amount allowed by law, whichever is less. In addition, Customer (or any Provider responsible for payment hereunder) shall, immediately upon request and from time to time, reimburse Denowatts for all costs and expenses incurred by Denowatts (including attorneys’ fees) in connection with collecting any such undisputed overdue amounts. Acceptable forms of payment are by ACH, electronic fund transfer, credit card or check, as identified during the checkout process on the applicable Site, or on any invoice provided by Denowatts, or otherwise acceptable to Denowatts.
   • Denowatts shall have no obligation to provide any Services or other Accessible Items, or to sell or ship any Equipment, (and may, at the sole discretion of Denowatts and without any liability, delay or suspend the provision of any Services or other Accessible Items or sale or shipping any Equipment) until Denowatts is in receipt of all Payment Amounts and other amounts required to be paid under the Contract. Denowatts reserves the right to ship via USPS or any other carrier of equal or lesser cost. If expedited shipping is required, Customer shall select that as its shipping choice on the Order Form. Customer hereby agrees that Denowatts (i) will not be able to change the shipping address once the shipment has been prepared or has shipped, (ii) shall not be responsible for any delays or problems with shipping or delivery once the Equipment has been shipped, (iii) does not provide insurance on any Equipment during shipment and delivery, and (iv) may require its carriers to obtain a signature upon delivery for all orders. Shipping charges are based on the shipping address specified on the Order Quotation and desired shipping method.
   • Customer (or the Provider ordering and receiving the Equipment), as the case may be, shall fully inspect the Equipment upon receipt thereof, and prior to installation or use thereof. Customer or such Provider (as the case may be) shall have the right, at any time within 30 days after its receipt of the Equipment (the “Return Period”) to return to Denowatts (at Customer’s or such Provider’s (as the case may be) sole cost, expense and risk of loss) any or all such Equipment that is defective or not conforming to the Order Quotation. No such return shall be valid or accepted by Denowatts unless such Equipment is actually received by Denowatts in new, unused, uninstalled condition (and without any damage caused by Customer or such Provider) during the Return Period. Unless Customer or such Provider (as the case may be) so returns such Equipment to Denowatts within the Return Period, it shall be conclusively presumed that the Equipment is in good condition, repair and working order satisfactory in all respects, and suitable for the intended purpose, and shall constitute acceptance of such Equipment. Neither Customer nor any Provider shall have any right to revoke acceptance. Denowatts, in its sole discretion, may reject any return of Equipment if it, in its sole discretion, finds that such Equipment is not defective and otherwise conforming to the Order Quotation. Denowatts’ sole and exclusive liability, and Customer’s or such Provider’s (as the case may be) sole and exclusive remedy, in connection with any defective or non-conforming Equipment properly and timely returned to Denowatts (and accepted for return by Denowatts) in accordance with this Section 5(c) shall be, at Denowatts’ option and cost, to replace or exchange such Equipment with the same or substantially similar Equipment in a reasonably prompt manner.
6. Term of the Contract; Termination.
   • The term of the Contract shall commence upon the date of acceptance of the Order Quotation by Customer or Provider (as the case may be) and expire upon the termination or expiration of the Subscription Period, unless the Contract is earlier terminated in accordance with this Section 6(a), pursuant to Section 4 above or pursuant to any other express provision contained in the Contract. Denowatts may: (i) terminate the Contract and Customer’s and each Provider’s’ right to use the Accessible Items immediately upon written notice in the event that Customer or any Provider (or any Authorized User of Customer or any such Provider) is in breach of, or default under, any provision of the Contract (with the termination of the Subscription Period becoming effective upon such termination of the Contract); and (ii) elect to stop the Subscription Period from automatically renewing by providing written notice of non-renewal to Customer during the then-current Initial Period or Renewal Period, as the case may be, and at least 30 days prior to the commencement of the next Renewal Period (with the expiration of the Subscription Period (and term of the Contract) becoming effective upon the expiration of the then-current Initial Period or Renewal Period, as the case may be). Customer may terminate the Subscription Period at any time, for any reason or no reason, by providing at least 30 days’ prior written notice thereof to Denowatts (with the termination of the Subscription Period (and term of the Contract) becoming effective upon the date that is 30 days after the date of receipt by Denowatts of such notice or, if later, the date of termination (if any) specified in such notice).
   • The expiration or termination of the Contract for any reason shall automatically and immediately result in the termination of the Subscription Period, Services and Customer’s right and license to use the Accessible Items (other than the Raw Equipment Data). Without limiting the foregoing, upon any such termination or expiration, Customer (i) shall immediately cease use of all Software, Services, Reports, Denowatts Data and other Accessible Items (other than Raw Equipment Data), and (ii) may (but shall not be obligated to) return the Equipment to Denowatts (at Denowatts’ reasonable cost). Customer hereby acknowledges and agrees that upon expiration or termination of the Contract, or upon termination or suspension of the Services, neither the Deno(s) nor the Gateway(s) purchased will continue to operate or send or receive data. No termination by Denowatts of the Contract or any Services shall release Customer from any then outstanding or surviving obligations to Denowatts under the Contract. In the event of any such expiration or termination (other than as provided in Section 4 above), no Service Fee or other Payment Amounts (including any such amounts paid in advance) shall be refundable. Each of the following provisions of these Terms shall survive any expiration or termination of the Contract: Sections 1; 2 (other than 2(c)(ii)); 3; 5(a); 6(b); 7(c), (d), (e) and (f); 8 (other than Sections 8(a) and (c)); 9; 10; 11(e), (f), (g), (h), (i) and (j); and 12 through 18, inclusive.
7. Use of Equipment, Accessible Items and Confidential Information.
   • Customer shall be responsible, at its cost, for the installation of Equipment at the Equipment Location. Customer shall, except with the prior written consent of Denowatts, maintain and operate the Equipment only at the Equipment Location. Customer shall provide Denowatts with reasonable advance notice in writing of any desire by Customer to change the Equipment Location. Customer hereby acknowledges and agrees that any consent provided by Denowatts to change the Equipment Location may result in, and be contingent upon, the payment to Denowatts by Customer of additional charges and fees. Denowatts shall have the right (and Customer hereby grants Denowatts permission) to enter the Equipment Location at all reasonable times, during normal business hours, and with at least 24 hours’ advance notice to Customer, for purposes of inspecting, maintaining, upgrading or testing the Software or Services, or for any other legitimate business reason of Denowatts.
   • Provided that none of Customer, any of its Providers, or any Authorized User of Customer or any such Provider is in breach of the Contract (including the payment provisions thereof), and subject to the other provisions of these Terms and the Contract, Denowatts hereby grants to Customer, during the Subscription Period only, a limited, revocable, terminable, royalty-free, non-exclusive, nontransferable and nonassignable license, without the right to sublicense, to: (i) access and use the Services and other Accessible Items (other than the Denowatts App, Software and Raw Equipment Data) provided by Denowatts or produced via the Services, solely and strictly in accordance with the requirements of these Terms and the Contract; (ii) download, install and use, in object code format only, one copy of the Denowatts App and Portal Software on each of its Authorized User’s Devices (A) solely in order to access and use the Services and (B) solely and strictly in accordance with the requirements of these Terms and the Contract; and (iii) execute and run the Equipment Software, in object code format only, solely (A) on, and as an embedded component of, the Denos and Gateways purchased under the Order Quotation and installed on Customer’s applicable PV System at the Equipment Location (and never separate, apart or removed from such Equipment), (B) to enable such Equipment to function, and (C) solely and strictly in accordance with the requirements of these Terms and the Contract. Except as expressly provided in the Contract, Denowatts is not granting any right or license to Customer or any of its Authorized Users (by implication or otherwise, under the Contract) in or to (or to use) the Software, and all rights not expressly granted to Customer and its Authorized Users by Denowatts relating in any way to the Contract are reserved for Denowatts.
   • Except only as otherwise expressly permitted by Section 7(d) below with respect to Raw Equipment Data, Customer shall use the Services and other Accessible Items, only (i) during the Subscription Period, (ii) in accordance with applicable laws (including export control laws), (iii) for their intended commercial purpose, (iv) for Customer’s own internal business purposes of managing and operating Customer’s applicable PV System, and (v) in accordance with all Documentation and all other requirements as may be specified on the Site (including the Portal), or the Denowatts App or otherwise by Denowatts.
   • Subject to the other provisions of these Terms and the Contract, Denowatts hereby grants to Customer a non-exclusive, worldwide, royalty free, fully-paid, perpetual, irrevocable, non-terminable, assignable right and license (with the right to sublicense through multiple tiers) to, at any time (including after the termination or expiration of the Subscription Period or the Contract), and in accordance with applicable laws (including export control laws): (i) freely use, copy, analyze, reformat, translate, modify, prepare derivative works of, or otherwise fully exploit any Raw Equipment Data for any business or commercial purpose determined by Customer, in its sole discretion, including for developing or improving its products or services; and (ii) disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent (or to authorize or permit its contractors to disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent) to any third party, the public, any government or any person or entity, for any business or commercial purpose, any or all Raw Equipment Data. For purposes of clarity, the foregoing provisions of this Section 7(d) shall apply only to Customer’s right to use Raw Equipment Data (in and of itself), and nothing in this Section shall, or shall be deemed to, (A) expand or alter Customer’s rights under the Contract to use or access any other Accessible Items (including any Denowatts Data, any Denowatts API, the Services, the Portal or the Denowatts App) or (B) eliminate or alter any limitations or restrictions imposed on, or applying or relating to, such rights.
   • Without limiting the foregoing provisions of Section 7(a) or (c), Customer shall not (whether directly or indirectly (including on behalf of or in association with any other person or entity)) (i) sell, transfer, assign, license, sublicense, loan, lease, distribute, copy, reproduce, otherwise make available, allow any download, installation or use by, or provide access to, third parties, display, publicly perform or otherwise exploit all or any portion of the Denowatts Technology and Data (other than the Raw Equipment Data), or attempt to do any of the foregoing, (ii) reverse engineer, decompile, decrypt, disassemble, access, disclose, or otherwise attempt to derive or access any of the source code of any or all of the Denowatts Technology and Data (or attempt to do any of the foregoing), (iii) create, incur, assume or allow to exist any Lien (as defined below) on, or with respect to, any or all of the Denowatts Technology and Data (or attempt to do any of the foregoing), (iv) remove or extract (or attempt to remove or extract) the Equipment Software from any Equipment or otherwise, (v) remove or obscure (or attempt to remove or obscure) any identification or proprietary rights notices on any or all of the Denowatts Technology and Data, (vi) use (or attempt to use) any or all of the Denowatts Technology and Data (other than the Raw Equipment Data) for timesharing or service bureau purposes, as an application service provider, on behalf of third parties, or to make competing products, software, services, equipment or other items, (vii) conduct, or publish or disclose (or attempt to do any of the foregoing) to any third party the results of, any benchmark, capacity, performance, security or vulnerability tests or other evaluations run on any or all of the Denowatts Technology and Data, (viii) interfere (or attempt to interfere) with the operation of any or all of the Denowatts Technology and Data or its use by others, or circumvent (or attempt to circumvent) its access restrictions, (ix) transmit or use any Virus (or attempt to transmit any Virus to, or use any Virus with) any or all of the Denowatts Technology and Data, (x) use (or attempt to use) any robot, spider, data scraping or extraction tool, or similar mechanism with or in connection with any or all of the Denowatts Technology and Data, or (xi) make (or attempt to make) any enhancements, modifications, improvements, derivative works, alterations or additions to any or all of the Equipment or Denowatts Technology and Data (other than the Raw Equipment Data), but, in any event, all such enhancements, modifications, improvements, derivative works, alterations or additions (regardless of being made in contravention of the Contract) shall be deemed to be “Developments” (as defined below).
   • Customer shall hold in confidence all Confidential Information at all times, use the Confidential Information solely for the purposes expressly permitted under the Contract, and not disclose any or all of Confidential Information to any third party. Customer shall maintain the Confidential Information in confidence using at least the same degree of care as it employs in maintaining in confidence its own confidential or proprietary information, but in no event less than a reasonable degree of care. Customer shall promptly notify Denowatts of any actual or suspected violation of the terms of this Section 7(f) and shall take (at its sole cost and expense) all reasonable further steps requested by the Denowatts to prevent, control or remedy any such violation. Upon termination or expiration of the Contract, or upon the request of Denowatts, Customer shall return to Denowatts or destroy, or do some combination thereof (and certify in writing to Denowatts as to such return or destruction, as applicable) with respect to, all of the Confidential Information received by, or in the possession or control of, the Customer, including any notes, reports or other documents prepared by the Customer which contain Confidential Information, in each case, as elected by Denowatts, in its sole discretion. Notwithstanding the return or destruction of the Confidential Information, Customer shall continue to be bound by its obligations of confidentiality and other obligations under this Section 7(f). Any Confidential Information (or portion thereof) shall not (i) be excluded from Customer’s obligations under this Section 7(f), (ii) lose its status as “Confidential Information” or otherwise have such status undermined in any way, or (iii) be deemed to be generally known or available to the public, in each case, merely because (A) such Confidential Information (or portion thereof) is embraced by more general information or embodied in general disclosures or (B) individual components of such Confidential Information (or portion thereof) is or becomes published or known to the public, including any such component that consists of, reflects or otherwise relates to any Raw Equipment Data.
8. Certain Services and Use by Denowatts of Customer Data.
   • Customer hereby acknowledges, consents and agrees that: (i) as part of the Services, Denowatts will collect Customer Data and transmit it (including via the Equipment) to Denowatts’ servers, databases and Contractors; (ii) if Customer desires to receive (or have its Providers receive) Denowatts Data from Denowatts, then Denowatts must be furnished with all requisite Customer Data; (iii) Customer shall provide to Denowatts, from time to time, all other information and data requested or otherwise required by Denowatts in order for Denowatts to provide the Services; and (iv) if Customer desires to receive one or more of the types of Reports available through the Services, then Customer must, at its cost, obtain the requisite license to use each such third party software (each, a “Third Party Software”), as may be required to view and otherwise access such Reports.
   • Customer hereby consents, acknowledges and agrees that any and all Customer Data may be collected, used and disclosed by Denowatts as provided in this Section 8, Section 2, Section 14 and elsewhere in the Contract.
   • Customer hereby grants to Denowatts an unlimited, non-exclusive, worldwide, royalty free, fully-paid, irrevocable, assignable right and license (with the right to sublicense through multiple tiers), during the Subscription Period, to (i) freely use, copy, analyze, reformat, translate, modify, or prepare derivative works of any and all Customer Data and (ii) disclose, display, provide access to, transfer, license or sublicense (or to authorize or permit its Contractors to disclose, display, provide access to, transfer, license or sublicense) any and all Customer Data to any Contractor; in each case, solely for purposes of providing the Services, including for generating or producing Denowatts Data or Reports.
   • Customer hereby grants to Denowatts an unlimited, non-exclusive, worldwide, royalty free, fully-paid, perpetual, irrevocable, non-terminable, assignable right and license (with the right to sublicense through multiple tiers) to, at any time (including after the termination or expiration of the Subscription Period or the Contract): (i) freely use, copy, analyze, reformat, translate, modify, prepare derivative works of, or otherwise fully exploit any Redacted Data for any business, commercial or other purpose determined by Denowatts, in its sole discretion, including for developing or improving its products or services, or providing products or services to Denowatts’ other customers; and (ii) disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent (or to authorize or permit its Contractors to disclose, display, provide access to, transfer, sell, resell, license, sublicense or rent) to any third party, the public, any government or any person or entity, for any business, commercial or other purpose, any or all Redacted Data (whether alone, in aggregated form, or together with Denowatts Data or information or data of other customers of Denowatts).
   • Customer hereby acknowledges and agrees that: (i) Denowatts Data is generated by, or results from, use by Denowatts of certain proprietary, patent-pending or patent-protected technology, methodologies, know-how, systems, processes, devices, inventions, algorithms, procedures or techniques (collectively, “Methodologies”), which constitute valuable property of Denowatts; (ii) as between Customer and Denowatts, (A) all Denowatts Data (other than Raw Equipment Data) and Methodologies are Confidential Information, and (B) except only for the limited licenses expressly granted by Denowatts under the Contract, Denowatts retains all right, title and interest in and to all Denowatts Data and Methodologies (and Customer is not receiving any license or right in or to any of the Methodologies, by implication or otherwise, under the Contract); (iii) Customer will use all Denowatts Data (other than the Raw Equipment Data) only for managing and operating Customer’s own applicable PV System (and will not sell, resell, lease, assign, distribute or otherwise transfer any Denowatts Data (other than the Raw Equipment Data) or Methodologies); and (iv) Customer shall not disclose any Denowatts Data (other than the Raw Equipment Data) or Methodologies to any person or entity (other than Denowatts).
9. Ownership of Equipment, Software and Services.
   • Notwithstanding anything to the contrary contained in the Contract: (i) if and to the extent actually provided to, or downloaded, installed, accessed or used by, Customer, all Software and other Accessible Items are being licensed (and not sold) by Denowatts, as and only to the extent expressly provided elsewhere in these Terms; and (ii) as between Customer and Denowatts, Denowatts (or its Contractor(s)) retain sole and exclusive (A) ownership of, and title to, all Denowatts Technology and Data, and (B) copyright, trade secret, patent, trademark, intellectual property and other proprietary rights in and to all Equipment, Denowatts Technology and Data and other property of Denowatts or its Contractor(s) (collectively, the “Denowatts IP”). Customer shall have no right, license title, or interest in or to (I) any Denowatts IP, by implication or otherwise, or (II) any Denowatts Technology and Data, except as expressly granted in each of Sections 7 and 8 above or elsewhere in the Contract. Customer shall not create, incur, assume or allow to exist any claim, lien, attachment, restriction, encumbrance or other right of others (whether arising by agreement, operation of law or otherwise) (each, a “Lien”) on, or with respect to, any Denowatts IP or Denowatts Technology and Data. In the event that any Denowatts IP or Denowatts Technology and Data becomes subject to any such Lien (and without limiting any of Denowatts’ rights or remedies), Customer shall promptly notify Denowatts thereof and shall use its best efforts to diligently and promptly remove such Lien.
   • Customer shall promptly disclose to Denowatts all software, other works of authorship, formulas, processes, databases, enhancements, modifications, improvements, derivative works, developments, designs and other inventions or ideas, whether or not patentable, that Customer makes, conceives, reduces to practice, or creates, either alone or jointly with others, relating in any way to any of the Equipment, Denowatts Technology and Data (other than the Raw Equipment Data), or Denowatts IP (collectively, “Developments”). Customer hereby assigns to Denowatts, as and when made, conceived, reduced to practice, or created, all of Customer’s ownership, right, title, and interest in and to all Developments, including: (i) all copyright, trade secret, patent, trademark, intellectual property and other rights in and to the Developments; (ii) all goodwill associated with Developments; and (iii) all benefits, privileges, causes of action, and remedies relating to any of the foregoing, whether before or hereafter accrued (including the right to sue for all past infringements or violations). Without limiting the foregoing provisions of this Section 9(b), Customer hereby assigns to Denowatts (without monetary compensation of any kind) all ownership, right, title, and interest in and to all feedback, comments or suggestions that Customer (or any Authorized User of Customer), may make or provide to Denowatts from time to time relating in any way to the Denowatts Technology and Data (other than the Raw Equipment Data) or Denowatts IP (collectively, “Feedback”).
   • Denowatts shall retain a security interest in all Equipment (including replacements thereof) and all proceeds therefrom, until the Payment Amounts and other amounts required to be paid under the Contract are paid in full. At Denowatts’ request, Customer shall execute financing statements or other documents deemed necessary or desirable by Denowatts to perfect such security interest. In addition, Customer hereby authorizes Denowatts to file a photocopy or other electronic or photo reproduction of these Terms as a financing statement. Customer hereby acknowledges and agrees that financing statements may be filed on the basis of these Terms without Customer’s signature where allowed by law. In the event Customer fails to pay Denowatts any of the Payment Amounts or other amounts required to be paid under the Contract, when due, Denowatts (i) may repossess any such Equipment and (ii) shall have all rights and remedies of a secured party under the Uniform Commercial Code.
10. Risk of Loss. Risk of loss to the Equipment (including replacement Equipment) passes from Denowatts to Customer or Provider purchasing the Equipment, as the case may be, upon delivery by Denowatts to the carrier (and with respect to any returned Equipment, remains with Customer or such Provider (as the case may be) until delivery to Denowatts). Customer or such Provider (as the case may be) shall bear, and hereby assumes, all risks of loss, disappearance, theft, damage or destruction, from any cause whatsoever, of or to the Equipment (“Loss”) from and after such delivery by Denowatts to the carrier, and no such Loss shall relieve any obligations of Customer or such Provider (as the case may be) under the Contract, including the payment of the Payment Amounts or other amounts required to be paid under the Contract. Customer or such Provider (as the case may be) shall immediately notify Denowatts in writing of any Loss occurring while Equipment is in the possession or control of Customer or such Provider (as the case may be). Customer or such Provider (as the case may be) shall immediately notify Denowatts of each accident, injury, sickness, or death to persons, or damage to property that involves, is alleged to involve or appears to involve in any way the Equipment while in the possession or control of Customer or such Provider (as the case may be), any defect or unsafe condition in the Equipment manifesting while in the possession or control of Customer or such Provider (as the case may be), or any improper installation, use, functioning or maintenance of the Equipment (each, an “Occurrence”). Customer or such Provider (as the case may be) agrees to secure and maintain in a safe manner all Equipment and surrounding premises in the condition existing at the time of any Occurrence until such time as Denowatts, or any of its authorized agents, investigators, attorneys, or other designated persons, inspects or investigates said Equipment or premises (and Customer or such Provider (as the case may be) shall immediately provide all permissions necessary for such inspection or investigation). Denowatts shall have the exclusive right to reclaim any Equipment involved in any Occurrence and to thereafter replace same with comparable equipment. Customer or such Provider (as the case may be) shall also provide to Denowatts, upon request, all information requested by Denowatts concerning any Occurrence, and shall promptly provide to Denowatts copies of all correspondence, papers, notices and documents whatsoever received by Customer or such Provider (as the case may be) in connection with such Occurrence or any claim or demand relating thereto.
11. Limited Warranty; Related Matters.
    • Denowatts warrants to Customer only that: (i) when given normal, proper and intended installation, operation and usage, (A) each Deno will be free from material or significant defects in materials and workmanship (including any such defect caused by lightning strikes to Customer’s applicable PV System located at the Equipment Location) during the Subscription Period, but in no event for a period longer than ten years after the commencement date of the Initial Period (the “Deno Limited Warranty”), and (B) each Gateway will, during the one-year period from the date of such installation (with no extensions to such one-year period for any repaired or replacement Gateway), be free from material or significant defects in materials and workmanship (the “Gateway Limited Warranty”); and (ii) during the Subscription Period, Denowatts shall use commercially reasonable efforts to provide the Services in a professional and businesslike manner and in all material respects as described in the Documentation (the “Services Limited Warranty”). The Deno(s), Gateway(s) and Services that are subject to the applicable foregoing limited warranty (the “Limited Warranty”) are referred to herein as the “Warranted Items”.
    • Each of the Deno Limited Warranty, Gateway Limited Warranty and Services Limited Warranty is conditioned on Denowatts receiving, during the applicable warranty period therefor (the “Applicable Warranty Period”), prompt written notice from customer of such Limited Warranty claim, and Denowatts ability to inspect the applicable Warranted Items and re-create the defect or non-conformity prior to any change, movement or disturbance thereto or to any surrounding property or materials. Any notice of such claim received by Denowatts after the Applicable Warranty Period will not be honored and shall be void and ineffective. With respect to any defective or non-conforming Services that are covered by the Services Limited Warranty, Denowatts may, in its sole discretion and at its sole option (but without any obligation whatsoever), extend the Subscription Period by a period of time (as determined by Denowatts, in its sole discretion) not to exceed the time during which such Services remained so defective or non-conforming. Customer’s sole and exclusive remedy, and Denowatts’ sole and exclusive liability, for a breach of the Limited Warranty shall be, at Denowatts’ option and cost, and within a reasonable period of time after receipt of timely and effective written notice from Customer of the Limited Warranty claim, the repair, replacement or re-performance of the applicable defective or non-conforming Warranted Items covered by the Limited Warranty, or extension of the Subscription Period as and only to the extent provided in the preceding sentence. Customer shall provide Denowatts with all information, access and cooperation requested by Denowatts in connection with determining Limited Warranty eligibility or with repairing, replacing or re-performing Warranted Items covered by the Limited Warranty. Repaired, replaced or re-performed Warranted Items shall be subject to the same Limited Warranty to the same extent as it was applicable to the original Warranted Items so repaired, replaced or re-performed; provided, however, that any repaired, replaced or re-performed Warranty Item shall not be afforded a new warranty period, and shall, instead, be covered only for the duration remaining, if any, on the Applicable Warranty Period for the original Warranted Item so repaired, replaced or re-performed. Denowatts may, at its option and expense, require Warranted Items to be shipped to Denowatts or elsewhere (and subsequently returned to Customer) for Limited Warranty service to be performed.
    • The Limited Warranty shall not cover, and Denowatts shall have no obligation to make repairs, replacements or re-performance which result (in whole or in part) from, (i) normal or ordinary wear and tear (including corrosion or battery depletion), (ii) catastrophe, fault, negligence, abuse, acts or omissions of Customer, any Provider, any Authorized User or any third party, (iii) improper or unauthorized installation, operation or use of the Warranted Items, (iv) use of Warranted Items in a manner for which they were not designed, (v) hardware, products, materials, equipment, designs, software, code (including open source software or code), application, services (training, professional or otherwise), websites, data, content, information or other items that were manufactured, licensed or provided by any person or entity (other than Denowatts) even if purchased through Denowatts (including any Third Party Equipment (as defined below), Internet access, mobile Device service (including cellular service), operating systems (including the Android™ platform and iOS® operating system software for mobile Devices), WiFi and other networks, digital distribution platforms for applications and other software (including the Google Play™ store and App Store® online store), or Third Party Software required to view or access Reports via the Services) (collectively, “Third Party Items”), (vi) any defect in any such Third Party Item, (vii) routine, scheduled, emergency or unavoidable downtime or maintenance to be performed by Denowatts or its Contractors; (viii) causes external to the Warranted Items or beyond the control of Denowatts, including any blocked or interfering signals, network problems or any Force Majeure Event (as defined below), or (ix) use of Warranted Items in combination with any Third Party Items. Denowatts reserves the right to refuse any repairs, replacements, re-performance, or extensions, or charge replacement, repair or re-performance fees for any Warranted Items that it determines are not subject to, or eligible for, the Limited Warranty.
    • In the event of any sale or transfer of the applicable PV System by Customer, or of any or all of the Equipment, to a third party (“Successor”), (i) Customer shall provide Denowatts with reasonable advance written notice of such sale or transfer (which notice shall include the name and contact information of the Successor, and any other information reasonably requested by Denowatts), and (ii) subject to Denowatts’ prior written consent, the Limited Warranty may be assigned in its entirety by Customer to the Successor in such sale or transfer transaction. The provision (or not) of such consent by Denowatts shall be in its sole discretion, and may be contingent upon any reasonable requirements or conditions imposed by Denowatts, including the agreement by such Successor to be bound by the Contract as the “Customer” thereunder, or the payment to Denowatts of additional charges and fees. Any such sale or transfer (or attempted sale or transfer) of the applicable PV System by Customer, or any or all of the Equipment, in violation of the foregoing provisions of this Section 11(d), shall constitute a breach by Customer of the Contract, and without limiting any of Denowatts’ other rights or remedies (including the right of Denowatts to terminate the Contract under Section 6(a) above), immediately cause the Limited Warranty (and all obligations of Denowatts under this Section 11) to be void ab initio.    
    • The Limited Warranty obligations of Denowatts shall run solely to Customer; Denowatts shall have no obligation to customers of Customer, any Provider, any Authorized User of Customer or Provider, or other users (whether or not authorized) of Warranted Items. Customer hereby acknowledges and agrees that: (i) Denowatts is not the manufacturer of any Third Party Equipment; (ii) except with respect to any Third Party Equipment that has been in service for 10 years or more following installation, to the extent permitted by the manufacturer of the applicable Third Party Equipment (and the warranties (if any) provided by such manufacturer), Denowatts will, during the Subscription Period, (A) to the extent it is free to do so without any required additional action of, or payment by, Denowatts or consent or approval of such manufacturer, pass on to Customer all manufacturer warranties relating to such Third Party Equipment, and (B) use reasonable efforts to assist Customer, administratively, in seeking any replacement or repair of defective Third Party Equipment covered by such warranties directly from such manufacturer; (iii) the only warranties (if any) applicable to Third Party Equipment shall be those (if any) provided by the applicable manufacturer thereof; and (iv) Denowatts shall have no warranty or other obligation or liability under these Terms with respect to Third Party Equipment. “Third Party Equipment” means all Equipment other than Denos.
    • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT ONLY FOR THE “LIMITED WARRANTY” PROVIDED ABOVE IN THIS SECTION 11, (i) THE “EQUIPMENT”, “SITE” (INCLUDING “PORTAL”), “DENOWATTS APIs”, “DENOWATTS APP”, “SERVICES”, “SOFTWARE”, “REPORTS”, “DENOWATTS DATA” (INCLUDING “RAW EQUIPMENT DATA”) AND ALL OTHER “ACCESSIBLE ITEMS” ARE PROVIDED “WHERE IS”, “AS IS” AND “AS AVAILABLE”, AND (ii) ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING (A) RELATING TO THE “SITE” (INCLUDING “PORTAL”), “DENOWATTS APIs”, “DENOWATTS APP”, “SERVICES”, “SOFTWARE”, “REPORTS”, “DENOWATTS DATA” (INCLUDING “RAW EQUIPMENT DATA”), OTHER “ACCESSIBLE ITEMS”, OR “EQUIPMENT” (INCLUDING “THIRD PARTY EQUIPMENT”), OR (B) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, COURSE OF DEALING OR USAGE OF TRADE, ARE EACH EXPRESSLY DISCLAIMED BY “DENOWATTS”, WAIVED BY “CUSTOMER” AND EXCLUDED FROM THESE “TERMS” AND THE “CONTRACT”. WITHOUT LIMITING THE PREVIOUS SENTENCE, “DENOWATTS” DOES NOT REPRESENT, WARRANT OR GUARANTY THAT THE “EQUIPMENT”, “SITE” (INCLUDING “PORTAL”), “DENOWATTS APIs”, “DENOWATTS APP”, “SERVICES”, “SOFTWARE”, “REPORTS”, “DENOWATTS DATA” (INCLUDING “RAW EQUIPMENT DATA”) OR OTHER “ACCESSIBLE ITEMS”, AS APPLICABLE, WILL: (I) BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, CURRENT, UPDATED OR FREE FROM “VIRUSES”, OR WILL (WHERE REQUIRED FOR USE) MAINTAIN CONNECTIVITY TO THE INTERNET (INCLUDING VIA CELLULAR SERVICE, OR WIFI OR OTHER NETWORK), (II) BE AVAILABLE OR “UP” FOR ANY PERIOD OF TIME OR AT ALL, (III) MEET “CUSTOMER’S” REQUIREMENTS, EXPECTATIONS OR NEEDS, (IV) MAINTAIN “CUSTOMER DATA” OR OTHER DATA WITHOUT LOSS, (V) PREVENT, OR OPERATE WITHOUT, ANY DATA LOSS, (VI) ACHIEVE “CUSTOMER’S” INTENDED OR ANY OTHER RESULTS (WHETHER OR NOT KNOWN OR COMMUNICATED TO “DENOWATTS”), OR (VII) BE COMPATIBLE WITH, DISPLAY CORRECTLY ON, OR OTHERWISE WORK PROPERLY WITH, ANY “DEVICE” OR ANY OTHER EQUIPMENT, HARDWARE, SYSTEM OR SOFTWARE.
    • NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE “TERMS” OR THE “CONTRACT”, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, “DENOWATTS” MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND IN RESPECT OF, AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY WHATSOEVER (I) TO ANY “PROVIDER” OR “AUTHORIZED USER” THEREOF; OR (II) RELATING TO, OR IN CONNECTION WITH, (A) ANY “THIRD PARTY ITEM”, INCLUDING ANY TRANSACTIONS BY “CUSTOMER” IN CONNECTION THEREWITH, OR (B) THE USE BY “CUSTOMER” OF ANY “EQUIPMENT”, “SERVICES”, “REPORTS”, “DENOWATTS DATA” (INCLUDING “RAW EQUIPMENT DATA”), “SOFTWARE” OR OTHER “ACCESSIBLE ITEM” REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF ANY OF THE FOREGOING COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL OR PROPERTY DAMAGE, OR ASSET FAILURE, UNDERPERFORMANCE OR INACCURACIES. Customer understands and agrees that the only warranties (if any) applicable to Third Party Items shall be those (if any) provided by the applicable third party manufacturer, provider or licensor thereof.
    • Without limiting Section 11(f) or 11(g) above:
      • Although Denowatts endeavors to provide descriptions, images and other information regarding the Equipment and Services in the Documentation or on the Site (including the Portal) or the Denowatts App accurately, to the fullest extent permitted by law, Denowatts does not warrant that such descriptions, images, information or other content of the Documentation, Site (including the Portal) or the Denowatts App (including any Reports) is or are accurate, complete, reliable, current, or error-free, that the displayed images of the Equipment or Services on Customer’s (or any Provider’s) Device or equipment will accurately portray the actual appearance of the Equipment or Services, or that all or any Equipment is in stock or available. In the event of an error, whether in the Documentation, on the Site (including the Portal), the Denowatts App, in an Order Quotation, in processing an Order Form or otherwise, Denowatts reserves the right to correct such error and charge the correct price or reject or cancel the Order Quotation and/or Order Form, without liability.
      • TO THE FULLEST EXTENT PERMITTED BY LAW: (A) THE “SITE” (INCLUDING “PORTAL”), THE “DENOWATTS APP” AND OTHER “ACCESSIBLE ITEMS” (INCLUDING ANY “REPORTS”) MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; (B) “DENOWATTS” MAY MAKE CHANGES TO THE “SITE” (INCLUDING “PORTAL”), “SERVICES”, “DENOWATTS APP” OR OTHER “ACCESSIBLE ITEMS” AT ANY TIME AND FROM TIME TO TIME, WITHOUT NOTICE; (C) “DENOWATTS” ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION OR MIS‑DELIVERY OF ANY "REPORTS", “ORDER FORMS”, “ORDER QUOTATIONS”, DATA, INFORMATION OR OTHER COMMUNICATIONS SUBMITTED VIA THE “SITE” (INCLUDING “PORTAL”), THE “DENOWATTS APP” OR OTHERWISE IN CONNECTION WITH THE "SERVICES”; (D) ANY DOWNLOADING, INSTALLATION, ACCESS AND USE (AS APPLICABLE) OF THE “DENOWATTS APIs”, “DENOWATTS APP", "SOFTWARE", "PORTAL", "SITE", OR "SERVICES", OR ANY CONTENT, DATA, INFORMATION, "REPORTS", MATERIALS OR OTHER ITEMS THROUGH ANY “DENOWATTS API”, THE "SITE" (INCLUDING “PORTAL”), THE "DENOWATTS APP", VIA THE “MODBUS PROTOCOL”, OR IN CONNECTION WITH THE "SERVICES", IS DONE SOLELY AT “CUSTOMER’S” AND EACH “PROVIDER’S” OWN DISCRETION AND RISK AND WITH ITS UNDERSTANDING AND AGREEMENT THAT IT SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO ITS OR ITS “AUTHORIZED USERS’” COMPUTER SYSTEM, "DEVICE", EQUIPMENT, PROPERTY OR DATA (INCLUDING ANY "CUSTOMER DATA") THAT RESULTS FROM SUCH ACTIVITIES (AND “CUSTOMER” AND EACH “PROVIDER” SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ADEQUATE PROTECTION AGAINST ALL "VIRUSES", AND FOR BACKING UP ALL DATA, SOFTWARE AND EQUIPMENT USED WITH THE "SERVICES" OR OTHER "ACCESSIBLE ITEMS"; AND (E) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE "CONTRACT", “DENOWATTS” MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY WITH RESPECT TO ANY COMMUNICATION TRANSMITTED THROUGH ANY “DENOWATTS API”, ANY “MODBUS PROTOCOL”, THE "SITE" (INCLUDING “PORTAL”), THE "DENOWATTS APP" OR OTHERWISE IN CONNECTION WITH THE "SERVICES" (INCLUDING ON ANY “ORDER FORM” OR “ORDER QUOTATION”).
    • Without limiting the provisions above in this Section 11 relating to the Limited Warranty: (i) Denowatts may (but shall not be obligated to) modify, upgrade or otherwise update the Services, Site (including Portal), Denowatts App and any or all of the Software or other Accessible Items at any time, and from time to time, with or without notice to Customer or any Provider; (ii) Denowatts may, at any time or from time to time, provide Customer or any Provider with support, maintenance, upgrades, modifications or new releases for the Services, Denowatts App, Site (including Portal), Software or other Accessible Items (collectively, “Support”), but has no obligation to do so, and, with respect to any such Support provided by Denowatts (if at all), Denowatts may cease to offer or provide, or suspend (temporarily or permanently) such Support at any time, and from time to time, with or without notice; and (iii) in no event shall Denowatts have any obligation or liability to Support, or otherwise in connection with, any Third Party Items, or any computers, equipment, hardware, Devices, software or other property of Customer or any Provider (or any Authorized User of Customer or any such Provider).
    • Customer hereby represents and warrants to Denowatts that: (a) Customer has all requisite rights, power and authority (and has obtained all requisite consents, approvals and authorizations) necessary for it to enter into the Contract, to perform its obligations thereunder, to allow Denowatts to perform its Services and other obligations under these Terms and the Contract (including all rights, power, authority, consents, approvals and authorizations necessary for, or with respect to, the provision by Customer of, and access and use by Denowatts and the Services of, all Customer Data as provided under these Terms and the Contract), and to grant all rights to Denowatts as are expressly provided in the Contract; (b) the Contract shall constitute a valid and binding obligation of Customer, enforceable against it in accordance with its terms; and (c) neither the entering into the Contract by Customer, nor the performance of its obligations thereunder, shall cause a breach or default under any other agreement or instrument to which Customer is a party or by which it is bound.
12. Default and Breach. Customer shall be in default and breach under the Contract if (a) Customer fails to pay any Payment Amounts or other amounts required to be paid under the Contract, when due; (b) Customer (or any Authorized User of Customer), fails to perform or observe, is in default under, or breaches any provision of the Contract; (c) Customer (or any Authorized User of Customer), causes or permits any Denowatts IP or Denowatts Technology and Data to become subject to any Lien; (d) Customer files or has filed against it a petition in bankruptcy, or becomes insolvent, or makes an assignment for the benefit of creditors, or consents to the appointment of a trustee or receiver, or a trustee or receiver shall be appointed for it or for a substantial part of its property without its consent; or (e) Customer consummates or otherwise undergoes an Extraordinary Transaction (as defined below). Upon breach or default by Customer (or any Authorized User of Customer), Denowatts may, at its sole election and option (and without limiting in any way any other rights and remedies available to Denowatts), take any one or more of the following actions: (i) declare all sums due and to become due under the Contract immediately due and payable, (ii) terminate the Contract, or (iii) utilize self-help to the maximum extent permitted by law, including electronic remedies. “Extraordinary Transaction” means, with respect to a Party or any Provider, (A) the termination of its existence by merger, consolidation, dissolution or otherwise, or (B) the sale or transfer (whether by way of merger, consolidation, sale of ownership interests or otherwise) by such Party or Provider of (I) all or any controlling interest in its voting capital stock or ownership interests or (II) all or substantially all of its assets or business to which the Contract relates, including any sale or transfer of the applicable PV System.
13. Indemnification. Customer shall indemnify, hold harmless, reimburse and (upon request) defend Denowatts and its owners, officers, members, affiliates, employees, agents and Contractors (each, an “Indemnified Party”), from and against, any and all claims, demands, damages, injuries, losses, liabilities, Liens, costs and expenses, including attorneys’ fees, of any nature or type, whether direct, indirect or other (including the loss of profit, use or business, or business delay, downtime or interruption) (“Damages”), to the extent arising out of, or resulting from, any of the following: (a) any breach by Customer or any Provider (or any Authorized User of Customer or any such Provider) of the Contract; (b) any failure by Customer, any Provider, any person or organization directly or indirectly employed by Customer or Provider (including any Authorized Users of Customer or Provider), or anyone for whose acts Customer or Provider may be liable, to comply with applicable laws; or (c) any injury, sickness or death to any person, or damage to or destruction of property (including any Loss), in connection with, relating to or arising out of any action, omission or failure of Customer, any Provider or any other person or entity described above in clause (b).
14. Transaction Information; Use of Customer Information by Denowatts; Third Party Items.
    • Denowatts collects any payment information that is provided for processing of payments for the Service Fee, Equipment Price and other Payment Amounts (such as payments made by check or ACH), except for credit card information. Credit card payments are handled by one or more third-party payment-related service providers, including payment gateway service providers and payment processors) that may be engaged by Denowatts, from time to time (each, a “Payment Service Provider”). Such credit card payment information is not stored on any servers of Denowatts.
    • Customer hereby acknowledges and agrees that certain information of Authorized Users that is collected from Authorized Users of Customer or Providers shall be used, disclosed and handled in accordance with the Privacy Policy. With respect to all Customer and Provider names, addresses (including Equipment Location, mailing address and email address), phone or facsimile numbers, and other contact information or information that can specifically identify Customer or any Provider that is provided by or on behalf of Customer or any Provider to Denowatts in connection with the Order Form, any communications with Denowatts or otherwise during the course of the Subscription Period, whether done via the Site (including the Portal), Services, Denowatts App, email, text, mail, phone, facsimile or otherwise (but specifically excluding information of Authorized Users covered by the Privacy Policy), and the content of any such communication, (i) Denowatts will collect such information; (ii) Denowatts may use such information, as well as Customer Data and Redacted Data, in any of the ways permitted by the Contract, including any of the following ways: (A) to interact with its agents, Contractors, and other third parties that provide Denowatts with certain fulfillment and other services in connection with running and providing the Services (including Reports, Equipment and Software), the Denowatts APIs, the Denowatts App and the Site (including the Portal), including processing payment transactions or refunds, (collectively, “Vendors”), (B) to facilitate communications with Customer, Providers and the Authorized Users of Customer and each such Provider, and (C) to send periodic emails, including to notify Customer any order acceptances, confirmation of payments after processing and any Revisions; (iii) Denowatts may share such information with its Vendors in any of the ways permitted by the Contract, including in order to allow them to provide certain fulfillment and other services, including handling or processing payment transactions or refunds, or shipping or delivering Equipment; provided that such agents, Contractors and other third parties have agreed to use such information only in order to provide or perform their respective service; (iv) Denowatts reserves the right to disclose such information or any Customer Data or Redacted Data in any of the ways permitted by the Contract, including when Denowatts, in its sole discretion, believes that disclosure is necessary to: (A) comply with laws, (B) comply with subpoenas, warrants, court orders, government investigations or other legal processes, enforce or apply the Contract, (C) investigate, prevent or respond to allegations of fraud, intellectual property infringement or other unlawful activity, (D) protect the rights, property or safety of Denowatts, its agents, employees, personnel or others, or (E) respond to an emergency or protect the personal safety of any person; (v) Denowatts reserves the right to disclose such information or any Customer Data or Redacted Data when Denowatts, in its sole discretion, believes that disclosure is permitted under Sections 2 or 8 above or elsewhere under the Contract; and (vi) in the event of an Extraordinary Transaction, Denowatts may sell, assign or transfer all or any portion of such information, Customer Data or Redacted Data to the purchaser in an Extraordinary Transaction (including in order to permit the purchaser to continue to provide the Services to Customer). By using the Services and providing information through the Site (including the Portal) or the Denowatts App, or via the other methods described in this Section 14(b) or Section 14(a) above, Customer hereby consents to the use, disclosure, sale or transfer of such information, or any or all Customer Data or Redacted Data, as described in this Section
    • Denowatts makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of any Payment Service Provider services, any Third Party Software required for viewing or otherwise accessing any Reports, or any other Third Party Item or website accessible by hyperlink from, or otherwise available on or from using, the Site (including the Portal) or the Denowatts App. Customer hereby acknowledges and agrees that (i) none of such Third Party Items or websites are under the control of Denowatts, and Denowatts has not reviewed and is not responsible for the content, function, accuracy, legality, appropriateness or any other aspect of any such Third Party Items or websites, including any errors or omissions in any content, information, websites, products or services; (ii) Customer’s access and use of any such Third Party Items or websites, including any disclosure of the types of information described in Sections 14(a) and (b) above in connection therewith, shall be at its sole risk and responsibility, and (iii) all transactions relating to any such Third Party Items or websites, including any purchase terms, payment terms, privacy or security terms, warranties, guaranties, maintenance and delivery terms relating to such transactions, are agreed to solely between the provider or manufacturer of such Third Party Items and Customer.
15. Limitation Liability and Remedies; Force Majeure.
    • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE “CONTRACT”, IN NO EVENT (AND WHETHER ARISING UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY) SHALL: (I) “DENOWATTS” BE RESPONSIBLE OR LIABLE IN ANY WAY TO ANY “PROVIDER”; (II) THE LIABILITY OF “DENOWATTS” UNDER THE “CONTRACT”, OR IN CONNECTION WITH THE “SITE” (INCLUDING “PORTAL”), “DENOWATTS APIs”, “DENOWATTS APP”, “EQUIPMENT”, “SOFTWARE”, “REPORTS”, “SERVICES” AND OTHER “ACCESSIBLE ITEMS”, OR THE USE THEREOF, EXCEED THE TOTAL “SERVICE FEE” AND “EQUIPMENT PRICE” PAID UNDER THE “CONTRACT”; (III) “DENOWATTS” BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, OR IN CONNECTION WITH, ANY “THIRD PARTY ITEMS”; OR (IV) “DENOWATTS” BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, LIQUIDATED, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR ANALOGOUS DAMAGES, COSTS OR LOSSES (INCLUDING DOWNTIME, INTERRUPTION OF BUSINESS OR USE, LOSS OF USE, DATA, REVENUE, PROFITS OR CREDITS, DAMAGE TO SOLAR PANELS OR OTHER PROPERTY OF “CUSTOMER”, OR LOSS OF PRIVACY), WHETHER OR NOT FORESEEABLE AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
    • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (I) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE “CONTRACT”, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE “CONTRACT” MAY BE BROUGHT BY “CUSTOMER” OR ANY “PROVIDER” MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED; (II) THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTION 11 AND ELSEWHERE IN THIS SECTION 15 CONSTITUTE AN ESSENTIAL PART OF THESE “TERMS” AND THE “CONTRACT”; AND (III) “CUSTOMER” AND EACH “PROVIDER” HEREBY ACKNOWLEDGE AND AGREE THAT, BUT FOR THESE PROVISIONS, “DENOWATTS” WOULD NOT GRANT ANY OF THE RIGHTS (INCLUDING THE RIGHT TO ACCESS AND USE ANY “ACCESSIBLE ITEMS”) PROVIDED IN THESE “TERMS” OR THE “CONTRACT”.
    • Without limiting any other provisions of these Terms or the Contract that limit or eliminate Denowatts’ liability or responsibility, Denowatts shall not be liable for any delay in performance or failure to perform under the Contract (or for any resulting or related Damages), if such delay or failure is due, in whole or in part, to factors beyond its reasonable control (whether or not foreseeable), including any delay in transportation or delivery by Denowatts’ Contractors, act of God or nature, weather, hail, snow, lightning, fire, flood, earthquake, hurricane, storm, tornado, natural disaster, falling branches, debris or other objects, casualty, theft, vandalism, strike, lock out, labor trouble, failure of public utilities, blocked or interfering signals, denial of service attack, cyberattack, computer hacking, Virus, power failure, electric power surge, accident, failure of, or problems with, networking, telecommunication or the internet (or internet services), Third Party Item, act or omission of Customer, any Provider or any third party, injunction, act, exercise, assertion or requirement of any governmental authority, change in governmental laws or regulations, epidemic, pandemic, quarantine, destruction of production facilities, breakdown of equipment, electronics or machinery, inability to procure materials, services, labor, equipment, transportation or energy sufficient to meet the needs of Denowatts or its Contractors, shortage of goods, raw materials or fuel, civil disturbance, war (declared or not), hostility, blockade, insurrection, riot, sabotage, revolution or terrorism (each, a “Force Majeure Event”). In the event of any Force Majeure Event, Denowatts’ required time for performance under the Contract shall be reasonably extended by a period of time at least as long as the period of delay or failure caused by the Force Majeure Event.
16. Electronic Communications. Customer hereby consents to receive communications relating to the Contract from Denowatts electronically. Denowatts may communicate with Customer by email, text message, push notification or other electronic communication. Customer hereby agrees that all agreements, notices, disclosures and other communications that Denowatts provides to Customer electronically satisfy any and all legal or contractual requirements that such communications be in writing or provided to a particular address or person.
17. Miscellaneous.
    • The Contract (and any dispute hereunder) shall be governed by the laws of the Commonwealth of Massachusetts. Denowatts and Customer each hereby agree that the courts of the Commonwealth of Massachusetts, or any federal courts located within the Commonwealth of Massachusetts, shall have exclusive jurisdiction over any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to the Contract, Equipment, or any related matters. Customer hereby agrees (i) to appear in any such action and hereby consents to the exclusive jurisdiction of such court and waives any objection thereto, including any defense of inconvenient forum, (ii) that any breach by Customer of the Contract may cause Denowatts substantial and irreparable damages, and, therefore, in the event of any such breach, in addition to other remedies which may be available, Denowatts shall have the right to seek specific performance and other injunctive and equitable relief, without the necessity of proving actual damages or posting bond.
    • Customer may not assign, delegate or subcontract the Contract or any of its rights or obligations thereunder, except only as expressly permitted under Section 7(d) above with respect to Raw Equipment Data. Any such assignment, delegation or subcontracting (or attempted assignment, delegation or subcontracting) shall be void ab initio. Denowatts may freely subcontract or delegate any of its rights or obligations under the Contract, and may freely assign or transfer the Contract or any or all of its rights or obligations thereunder to any affiliate, or any purchaser or transferee in an Extraordinary Transaction. Any waiver of, supplement to, or modification of, the terms of the Contract shall not be effective unless (i) specifically stating that it is intended to waive, supplement or modify specific provisions of the Contract, and listing such provision(s) to be so waived, supplemented or modified, and executed in writing and signed by Denowatts and Customer or (ii) set forth in, and made effective as part of, any Revisions (and any such waiver, supplement or modification that becomes so effective (under either of the foregoing clauses (i) or (ii)) shall automatically apply to each Provider, without any approval, agreement or signature of such Provider).
    • No other agreements, representations, warranties, conditions or indemnities, or other terms or conditions proposed or stated by Customer or any Provider, in connection with any Equipment, Software, Reports, Denowatts Data, Services, other Accessible Item or otherwise, shall apply or be enforceable against Denowatts. Without limiting the foregoing sentence, and notwithstanding anything to the contrary contained in any of the other provisions of the Contract, Customer or any Provider may, from time to time (whether before, on or after the effectiveness of the Contract), issue one or more purchase, service or other order documents relating to the Equipment, any Accessible Items or the Contract (or the subject matter thereof) (each, an “Order”) to Denowatts solely for its own administrative or bookkeeping purposes; but in no event (and whether or not timely or otherwise accepted (or deemed accepted), rejected or executed by Denowatts) shall: (i) any Order be valid or effective (or binding upon Denowatts); (ii) any standard, legal or other terms and conditions (other than the terms of the Contract) attached or linked to, or referenced in or incorporated into, any Order have any force or effect, be binding on Denowatts, or be (or be deemed to be) an amendment to, additional or different terms of, or otherwise a part of, the Contract (and any and all such terms and conditions shall be void ab initio); and (iii) without limiting the generality of the foregoing clause (ii), any reference in any Order to any such terms and conditions shall be, and be deemed to be, solely and exclusively a reference to the terms and conditions of the Contract. Customer and each Provider hereby acknowledge and agree that (A) the provisions of this Section 17(c) are a material inducement to Denowatts’ decision to enter into the Contract and provide the Accessible Items and other items contemplated under the Contract, and (B) but for the inclusion of this Section 17(c), Denowatts would not have entered into or agreed to the Contract or agreed to provide any of the Accessible Items or other items contemplated under the Contract.
    • The various terms and documents comprising the Contract shall be interpreted and construed, to the maximum extent possible, as being complimentary. In the event of any conflict or inconsistency between or among the provisions of such documents or the provisions within a single such document, the provision providing the greater duty or obligation on Customer, or the greater benefit, right or protection to Denowatts, as the case may be, shall govern and control.
    • The Contract shall constitute the full and complete agreement between Denowatts and Customer with respect to the subject matter of the Contract (i.e., Equipment and Services for use with the applicable PV System), and supersede all other prior and contemporaneous written and oral agreements, promises, understandings and representations by or between Denowatts and Customer with respect to such subject matter (including any of the foregoing contained on the Site (including the Portal), Denowatts App or in any marketing materials); provided that all confidential or proprietary information of Denowatts covered and protected by the terms of any written confidentiality, nondisclosure or similar agreements between Denowatts and Customer shall be deemed to be Confidential Information under the Contract. The Order Quotation and Additional Terms of Service are hereby incorporated by reference in, and made a part of, these Terms, as if fully set forth in these Terms.
    • If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, such holding shall not affect the legality, validity or enforceability of the other provisions of the Contract. Any reference in these Terms to: (i) “including” shall be interpreted as “including without limitation”, (ii) words of gender shall include each other gender, unless the context requires otherwise, (iii) words using the singular or plural number shall also include the plural or singular number, unless the context requires otherwise, or (iv) to “laws” shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
    • The relationship between Customer and Denowatts is that of independent contractors, and nothing in the Contract shall be construed as creating any other relationship between them, including any agency, employment, partnership, joint venture or franchise relationship.
    • The Denowatts Technology and Data and Equipment are "Commercial Products" and "Commercial Services" (which may include "Commercial Computer Software" and " Computer Software Documentation"), as applicable and each as defined in, 48 C.F.R. §2.101, and are each customarily licensed or provided to the public (i.e., business entities and their Authorized Users) by Denowatts pursuant to these Terms and the other provisions of the Contract. Accordingly, in the event that Customer is a governmental agency, entity or instrumentality, then each item of Denowatts Technology and Data shall be licensed to Customer (if at all), and each piece of Equipment shall be sold to Customer (if at all), solely and exclusively pursuant to these Terms and the other terms of the Contract. To the fullest extent permitted by law, in no event shall any Federal Acquisition Regulation ("FAR"), Defense FAR Supplement or other federal, state, local or other government laws, clauses or provisions that address Customer’s rights in or to any Denowatts Technology and Data or any Equipment apply or take precedence over these Terms and the other terms of the Contract.
    • “Android” and “Google Play” are trademarks of Google LLC. “iOS” is a registered trademark, and “App Store” is a registered service mark, of Apple Inc.
18. Contacting Denowatts. If Customer has any questions regarding these Terms, the Contract or otherwise relating to the Accessible Items, please contact Denowatts here: (a) by email at support@denowatts.com, (b) by phone at 978-309-6688, (c) via the Portal, by utilizing the Portal Ticketing System or Portal Feedback Form available therein, or (d) by mail at 1600 Osgood Street, Suite 2056, North Andover, MA 01845. With respect to any notice permitted to be made to Denowatts under these Terms or the Contract, such notice must be sent to Denowatts solely as provided in the preceding clause (a), (c) or (d).