Date of Last Revision: October 7, 2024

These Terms and Conditions of Use, as may be amended or revised, from time to time (“Terms”), govern all access and use by You (as defined below) of the Services (as defined below) and all other related websites, applications, software, materials, reports, content, data and other items (including the Application, Portal, Site, Denowatts APIs, Access Tokens, Modbus Protocol, and Portal Software (each as defined below or in the Master Terms)) provided by Denowatts Solar, LLC (“Denowatts”) to You in connection with such Services and pursuant to these Terms (collectively, the “Denowatts Items”).

These Terms, together with the other portions of the Contract (as defined below), constitute, and set forth the full terms of, the legally binding agreement between the individual accessing and using the applicable Denowatts Items (“You” or “Your”) and Denowatts.

PLEASE READ THESE “TERMS” CAREFULLY BEFORE USING ANY “DENOWATTS ITEMS”. BY DOWNLOADING, USING OR ACCESSING ANY “DENOWATTS ITEMS”, OR BY CLICKING “YOUR” ACCEPTANCE OF THESE “TERMS”, “YOU” HEREBY CONFIRM THAT “YOU” HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY, THESE “TERMS” AND THE OTHER APPLICABLE PORTIONS OF THE “CONTRACT”.

IF “YOU” DO NOT ACCEPT OR AGREE WITH THESE “TERMS” OR ANY OTHER APPLICABLE PORTION OF THE “CONTRACT”, “YOU” SHOULD NOT, AND MAY NOT, DOWNLOAD, INSTALL, ACCESS OR USE ANY OF THE “DENOWATTS ITEMS”.

ALSO, IF “YOU” DO NOT MEET THE ELIGIBILITY AND OTHER REQUIREMENTS SET FORTH IN THESE “TERMS”, “YOU” ARE PROHIBITED FROM DOWNLOADING, ACCESSING OR USING ANY OF THE “DENOWATTS ITEMS”.

THE “DENOWATTS ITEMS” ARE INTENDED ONLY FOR DOWNLOAD, INSTALLATION, ACCESS AND USE BY BUSINESSES AND ENTITIES. ACCORDINGLY, “YOU” MAY DOWNLOAD, INSTALL, ACCESS AND USE THE “DENOWATTS ITEMS” ONLY FOR COMMERCIAL PURPOSES, AND SOLELY ON BEHALF OF “YOUR ENTITY” (AS DEFINED BELOW).

CONSUMERS ARE PROHIBITED FROM DOWNLOADING, ACCESSING OR USING ANY OF THE “DENOWATTS ITEMS”.

1. Certain Terms and Definitions. As used in these Terms, the following terms have the following meanings:
   • “Application” means the Denowatts software application that is made available by Denowatts and downloaded by You in order to provide You use and access to the Services via a mobile or other User Device, as may be modified, changed, updated or upgraded, from time to time, by Denowatts in its sole discretion.
   • “Contract” means, collectively, these Terms, the Privacy Policy referred to in Section 8 below, the Master Terms, the Order Quotation and all other Additional Terms of Service, each as may be amended or revised from time to time. The Contract shall not include any third party terms and conditions or contract provided or required by any third party.
   • “Master Terms” means the Denowatts Master Terms and Conditions available here: https://denowatts.com/terms-of-service.
   • “Portal” means the Denowatts online portal located at denowatts.com, as may be modified or changed, from time to time, by Denowatts in its sole discretion.
   • “Services” means Denowatts cloud-based and other solar performance management services, as offered and provided by Denowatts via the Portal, Application, Denowatts APIs, Modbus Protocol or otherwise, as may be modified or changed, from time to time, by Denowatts in its sole discretion.
   • “Portal Software” means the software, firmware or programming code (other than the Application), if any, that is made available by Denowatts and downloaded by You in order for you to use the Services via the Portal, as may be modified, changed, updated or upgraded, from time to time, by Denowatts in its sole discretion.
   • “User Device” means a desktop or laptop computer, tablet or mobile or other similar electronic device that You own or control.  
   • “Your Entity” means the entity (whether the Customer or one of its Providers) that (i) is Your employer or principal and (ii) has authorized You to access and use, on its behalf, the Services and other Denowatts Items.

All other terms used, but not defined in these Terms, shall have the respective meanings given to them in the Master Terms.

2. Applicability of Contract; Binding Upon Customer and its Providers.
   • These Terms are part of, and hereby incorporate by reference, all other portions of the Contract, including the Master Terms. You must read and understand all portions of the Contract. Certain portions of the Contract (including certain definitions therein and the Privacy Policy) are applicable directly to You. And, although other portions of the Contract (including many provisions of the Master Terms) are applicable only to Your Entity or the Customer (in the case where Your Entity is a Provider), You must still read and understand fully all of these other portions of the Contract (including so that You do not take any action that will cause Your Entity or the Customer (in the case where Your Entity is a Provider) to be in violation of the Contract).  
   • Your Entity (by operation of the Master Terms) is legally bound by these Terms.
3. Eligibility; Certain and Agreements.
   • You hereby represent, warrant and covenant to Denowatts that: (i) You are at least 18 years old and have full legal capacity; (ii) You are a resident of the United States of America and will download, install, access and use (as applicable) the Services and other Denowatts Items solely and exclusively from and within the United States of America; (iii) You are an agent, officer or employee of the Customer or one of its Providers; (iv) You are duly authorized and empowered by the Customer or such Provider, as the case may be, to download, install, access and use the Services and other Denowatts Items, as applicable (and accept and agree to these Terms and any and all Additional Terms of Service in connection therewith), (A) on behalf of yourself, and (B) in the name, and on behalf, of Customer or such Provider, as the case may be (as an Authorized User under the Master Terms); (v) You otherwise meet all other eligibility and other requirements set forth in these Terms; (vi) You will 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 to You; (vii) all information and data (including Customer Data) submitted by, or on behalf of, You to Denowatts, via the Application or Portal, or otherwise in connection with any Denowatts Item, (including in connection with setting up any account with Denowatts to use the foregoing) 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 (viii) You have full right, authority and permission (and have obtained all necessary consents, approvals and authorizations) to provide such information and data, and to grant all rights to Denowatts as are expressly provided in the Contract.
   • You may (i) download, install, access and use the Services and other Denowatts Items (as applicable) only during the Customer’s Subscription Period; and (ii) not download, install, access or use the Services or any other Denowatts Items for any household, family, consumer, personal or non-commercial purpose.
   • You hereby acknowledge and agree that Denowatts does not independently verify whether You meet any eligibility criteria or other requirements of these Terms or the Contract, and that Denowatts reserves the right, in its sole discretion, to change any such criteria or requirements at any time, without liability or notice to You.
   • To download, install, access and use (as applicable) the Services or other Denowatts Items, You will be required to set up an account with Denowatts and create and provide to Denowatts a username, password and other login information for that account (including an email address and mobile phone number for text messages). You are responsible for maintaining the confidentiality of all such account and login information and for restricting access to Your User Device, and You hereby accept sole and exclusive liability and responsibility for all activities that occur under Your account or login information. You should be sure to create a strong password (by using an arbitrary combination of upper and lower case letters, numbers and special characters, in each case that are unrelated to Your or any third party’s identity or any commonly used words, numbers or publicly available information), You should change Your passwords often, and You should always use a secure browser when accessing your account, the Services or other Denowatts Items. You may not share or disclose Your account or login information with any third party. You understand and agree that You have no expectation of privacy or confidentiality in any such information that You intentionally or unintentionally disclose or allow access to. You must notify Denowatts (as provided in Section 14 below) immediately of any actual or possible unauthorized use, access or disclosure of or to Your account or login information, or any other related breach of security. Denowatts shall have no liability or responsibility for any Damages that You may incur or suffer as a result of any third party using or accessing Your account or login information due to Your fault, either with or without Your knowledge.
4. Right to Use the Services and Other Denowatts Items; Certain Restrictions.
   • Provided that none of You, Customer, any of its Providers, or any other Authorized User of Customer or any such Provider are in breach of the Contract, and subject to the other provisions of these Terms and the Contract: (i) Denowatts hereby grants to You, during the Subscription Period only, a limited, revocable, terminable, royalty-free, non-exclusive, nontransferable and nonassignable license, without the right to sublicense, to access and use the Services and other Denowatts Items (other than the Application and Portal Software) provided to You by Denowatts or produced via the Services, solely and strictly in accordance with the requirements of these Terms and the Contract; and (ii) with respect to each of the Application and Portal Software, Denowatts hereby grants to You, during the Subscription Period only, a limited, revocable, terminable, royalty-free, non-exclusive, nontransferable and nonassignable license, to download, install and use, in object code format only, one copy of such Application and Portal Software, respectively, on each of Your User 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.
   • You may download, install, access and use (as applicable) the Services and other Denowatts Items, only (i) during the Subscription Period, (ii) in accordance with applicable laws (including export control laws), (iii) for their intended commercial purpose, (iv) on behalf of Your Entity, and for purposes of managing and operating the Customer’s applicable PV System, and (v) in accordance with any and all Denowatts’ Documentation, and all other requirements as may be specified on the Site (including the Portal), or the Application or otherwise by Denowatts, from time to time.
   • You shall not download, install, access or use the Services or any other Denowatts Item to: (i) act or assist with any illegal activities or activities in violation of applicable laws; (ii) use, store, share, host, copy, distribute, display, publish, transmit, send content, promote, support or facilitate a cause or action that is or could be deemed offensive, inflammatory, hateful, defamatory, threatening, harassing, intimidating, discriminatory, obscene, abusive, illegal, tortious, invasive of privacy, harmful to others or otherwise objectionable; (iii) distribute unwanted, unsolicited or harassing mass or other email, conduct phishing scams, or transmit unwanted promotional or commercial content, including spam; (iv) download, install, access or use, or attempt to download, install, access or use (including through any interfaces provided within the Services or any other Denowatts Item) any Denowatts product, website or service, or other third-party product, service or website, in a manner that violates the applicable terms for use thereof; (v) infringe on or misappropriate any rights of Denowatts or third parties, including intellectual property, privacy or ownership rights; (vi) mislead or confuse (or attempt to mislead or confuse) Denowatts or third parties (including by alleging to be someone other than who You are, alleging to represent an entity that You do not represent, or alleging to have authority as an Authorized User of any entity that do not have); or (vii) violate the rights (including privacy or publicity rights) of any person or entity, or distribute personal or confidential information without securing the necessary rights, permissions or consents to do so.
   • If Your Entity is a Provider, then, notwithstanding anything to the contrary contained in these Terms or the Contract, to the maximum extent permitted by applicable law, You hereby acknowledge and agree that: (i) any right to download, install, access or use (as applicable) any Denowatts Items that are granted by Denowatts to You under these Terms, shall be provided (if at all) solely and exclusively as a convenience and accommodation to the Customer, and for purposes of managing and operating the Customer’s applicable PV System; (ii) Denowatts shall have no obligation or liability whatsoever directly to You under or in connection with the Contract, including any obligation to permit or allow (for any period of time, or at all) You to download, install, access or use any of the Denowatts Items; and (iii) You have 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 download, install, use and access (as applicable) such Denowatts Items that may be granted to You by Denowatts pursuant to, and in accordance with, the express terms of the Contract.
   • Without limiting the foregoing provisions of this Section 4, You 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 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 (or attempt to do any of the foregoing); (ii) reverse engineer, decompile, decrypt, disassemble, access, disclose, or otherwise attempt to derive, extract 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 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 obscure (or attempt to remove or obscure) any identification or proprietary rights notices on any or all of the Denowatts Technology and Data; (v) use (or attempt to use) any or all of the Denowatts Technology and 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; (vi) 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; (vii) 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 or security measures; (viii)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; (ix) 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 (x) make (or attempt to make) any enhancements, modifications, improvements, derivative works, alterations or additions to any or all of the Denowatts Technology and Data (other than 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 “User Developments” (as defined below).
   • The Services, Site (including the Portal), Application, Denowatts APIs or other Denowatts Items may run on, require for operation or use (including on Your User Device), or otherwise be linked to or contain links for, one or more Third Party Items. Without limiting the foregoing sentence, if You desire to receive one or more of the types of Reports available through the Services, then You must, at Your cost, obtain the requisite license to use each Third Party Software as may be required to view and otherwise access such Reports. You hereby acknowledge and agree that You are solely and exclusively responsible for obtaining any and all Third Party Items (including complying with, agreeing to, and making all required payments under, all license or other agreements, terms and conditions, policies and other requirements of the manufacturer, licensor or provider thereof), and that Denowatts has no control over, or liability or responsibility for or in connection with, any such Third Party Items. You understand and agree that the only warranties (if any) applicable to Third Party Items shall be those (if any) provided to You by the applicable third party manufacturer, licensor or provider thereof. Without limiting the foregoing provisions of this Section 4(f), You hereby acknowledge and agree that downloading, installing, accessing or using any such Third Party Items or websites shall be at Your sole risk and responsibility.
   • For purposes of clarity, none of the licenses granted to You or other restrictions on Your use or access of the Denowatts Items under these Terms are intended to restrict, alter or prohibit Your Entity’s rights to use Raw Equipment Data as expressly permitted by, and provided under, the Master Terms.
5. Intellectual Property; Ownership; Confidentiality.
   • You hereby acknowledge and agree that: (i) Denowatts Data is generated by, or results from, use by Denowatts of certain proprietary Methodologies, which constitute valuable property of Denowatts; (ii) as between You and Denowatts, (A) all Denowatts Data (other than Raw Equipment Data), User Developments, User Feedback and Methodologies are Confidential Information of Denowatts, and (B) Denowatts retains all right, title and interest in and to all Denowatts Data, User Developments, User Feedback and Methodologies (and You are not receiving any license or right in or to any of the Methodologies, by implication or otherwise, under the Contract).
   • Notwithstanding anything to the contrary contained in these Terms or the Contract: (i) if and to the extent actually provided to, or downloaded, installed, accessed or used by, You under these Terms, the Application, Portal Software, Denowatts APIs, Access Tokens and all other Denowatts 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 You 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 Denowatts IP. You 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 Section 4(a) above. You shall not and may not create, incur, assume or allow to exist any 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), You shall promptly notify Denowatts thereof and shall use Your best efforts to diligently and promptly remove such Lien.
   • You shall hold in confidence all Confidential Information at all times, use the Confidential Information solely for the purposes expressly permitted under these Terms, and not disclose any or all of Confidential Information to any third party, except for disclosure to Your Entity or the Customer (in the case where Your Entity is a Provider), in each case, solely as required to manage and operate the Customer’s applicable PV System. You shall maintain the Confidential Information in confidence using at least the same degree of care as You employ in maintaining in confidence Your own confidential or proprietary information, but in no event less than a reasonable degree of care. You shall promptly notify Denowatts of any actual or suspected violation of the terms of this Section 5(c) and shall take (at Your 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 Services, the Contract or these Terms, or upon the request of Denowatts, You shall immediately 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 You, or in Your possession or control, including any notes, reports or other documents prepared by You which contain Confidential Information, in each case, as elected by Denowatts, in its sole discretion. Notwithstanding the return or destruction of the Confidential Information, You shall continue to be bound by Your obligations of confidentiality and other obligations under this Section 5(c). Any Confidential Information (or portion thereof) shall not (i) be excluded from Your obligations under this Section 5(c), (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.
   • You 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 You make, conceive, reduce to practice, or create, either alone or jointly with others, relating in any way to any of Denowatts’ property, the Denowatts Technology and Data (other than Raw Equipment Data) or the Denowatts IP (collectively, “User Developments”). You hereby assign to Denowatts (without monetary compensation of any kind), as and when made, conceived, reduced to practice, or created, all of Your ownership, right, title, and interest in and to any and all User Developments, including: (i) all copyright, trade secret, patent, trademark, intellectual property and other rights in and to the User Developments; (ii) all goodwill associated with User 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 5(d), You hereby assign to Denowatts (without monetary compensation of any kind) all of Your ownership, right, title, and interest in and to all feedback, comments or suggestions that You may make or provide to Denowatts from time to time relating in any way to the Denowatts Technology and Data or Denowatts IP (“User Feedback”).
6. No Obligation to Support; No Warranties.
   • Denowatts may (but shall not be obligated to) modify, upgrade or otherwise update the Services, Application, Modbus Protocol, Denowatts APIs and any or all of the Portal Software or other Denowatts Items at any time, and from time to time, with or without notice to You. Denowatts may, at any time or from time to time, provide You with 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 to You. In no event shall Denowatts have any obligation or liability to Support, or otherwise in connection with, any of Your or Your Entity’s computers, equipment, hardware, Devices, User Devices, software or other property, or any Third Party Items.
   • “YOU” UNDERSTAND AND AGREE THAT “YOUR” ACCESS TO AND USE OF THE “SERVICES” OR OTHER “DENOWATTS ITEMS” ARE SOLELY ON BEHALF OF “YOUR ENTITY”, NOT FOR “YOUR” BENEFIT OR PERSONAL USE, AND ARE PROVIDED TO “YOU” SOLELY AS A CONVENIENCE TO, AND TO ASSIST, “YOUR ENTITY” WITH MANAGING AND OPERATING THE APPLICABLE “PV SYSTEM” OF THE “CUSTOMER”. ACCORDINGLY, EXCEPT ONLY TO THE EXTENT EXPRESSLY PROVIDED IN THE “MASTER TERMS” AND RUNNING DIRECTLY AND EXCLUSIVELY TO THE “CUSTOMER”, OR AS OTHERWISE PROVIDED IN SECTION 10(d) BELOW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (i) THE "SERVICES” AND OTHER “DENOWATTS ITEMS” ARE PROVIDED ON A "WHERE IS", "AS IS" AND “AS AVAILABLE” BASIS, AND (ii) ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING (A) RELATING TO THE "SITE" (INCLUDING “PORTAL”), "SERVICES", “APPLICATION”, “DENOWATTS APIs”, "PORTAL SOFTWARE", “MODBUS PROTOCOL”, "REPORTS", "THIRD PARTY ITEMS" OR OTHER “DENOWATTS ITEMS” (AND INCLUDING ANY INFORMATION OR DATA PROVIDED ON OR THROUGH THE “SITE” (INCLUDING THE “PORTAL”), “APPLICATION”, “DENOWATTS APIs”, “MODBUS PROTOCOL” OR “SERVICES”), 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 "YOU" AND EXCLUDED FROM THESE "TERMS" AND THE “CONTRACT”.
   • WITHOUT LIMITING THE ABOVE PROVISIONS OF THIS SECTION 6, "DENOWATTS" DOES NOT REPRESENT, WARRANT OR GUARANTY THAT: (i) THE "SITE" (INCLUDING “PORTAL”), "SERVICES", “APPLICATION”, “DENOWATTS APIs”, “MODBUS PROTOCOL”, "PORTAL SOFTWARE", "REPORTS", OR OTHER "DENOWATTS ITEMS", AS APPLICABLE, WILL (A) BE UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, CURRENT, UPDATED, OR FREE OF “VIRUSES”, OR WILL (WHERE REQUIRED FOR USE) MAINTAIN CONNECTIVITY TO THE INTERNET (INCLUDING VIA CELLULAR SERVICE, OR WIFI OR OTHER NETWORK), (B) BE AVAILABLE OR "UP" FOR ANY PERIOD OF TIME OR AT ALL, (C) MEET “YOUR” REQUIREMENTS, EXPECTATIONS OR NEEDS, (D) PREVENT, OR OPERATE WITHOUT, ANY DATA LOSS, OR (E) ACHIEVE "YOUR" INTENDED OR ANY OTHER RESULTS (WHETHER OR NOT KNOWN OR COMMUNICATED TO "DENOWATTS"); OR (ii) the “Services” or other “Denowatts Items” will be compatible with, display correctly on, or otherwise work properly with, “YOUR” “USER DEVICE” OR ANY OTHER equipment, HARDWARE, SYSTEM OR SOFTWARE.
   • WITHOUT LIMITING THE ABOVE PROVISIONS OF THIS SECTION 6, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (i)"DENOWATTS" MAY MAKE CHANGES TO THE “APPLICATION”, “DENOWATTS APIs”, “PORTAL SOFTWARE”, “MODBUS PROTOCOL”, "SITE" (INCLUDING “PORTAL”), “SERVICES” OR OTHER “DENOWATTS ITEMS”, FROM TIME TO TIME AND AT ANY TIME, WITHOUT NOTICE TO “YOU”; (ii)"DENOWATTS" ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION OR MIS-DELIVERY OF ANY “REPORTS”, DATA, INFORMATION OR OTHER COMMUNICATIONS SUBMITTED VIA THE "SITE" (INCLUDING “PORTAL”), THE “APPLICATION”, “MODBUS PROTOCOL”, ANY “DENOWATTS API” OR OTHERWISE IN CONNECTION WITH THE “SERVICES”; (iii) DOWNLOADING, INSTALLATION, ACCESS AND USE (AS APPLICABLE) OF THE “APPLICATION”, “MODBUS PROTOCOL”, “DENOWATTS APIs”, “PORTAL SOFTWARE”, “PORTAL”, "SITE", OR “SERVICES”, OR ANY CONTENT, DATA, INFORMATION, “REPORTS”, MATERIALS OR OTHER ITEMS THROUGH THE "SITE" (INCLUDING “PORTAL”), “APPLICATION”, “MODBUS PROTOCOL”, “DENOWATTS APIs” OR IN CONNECTION WITH THE “SERVICES”, IS DONE SOLELY AT "YOUR" OWN DISCRETION AND RISK AND WITH “YOUR” UNDERSTANDING AND AGREEMENT THAT “YOU” SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO “YOUR” OR “YOUR ENTITY’S” COMPUTER SYSTEM, “DEVICE”, “USER DEVICE”, EQUIPMENT, PROPERTY OR DATA (INCLUDING ANY “CUSTOMER DATA”) THAT RESULTS FROM SUCH ACTIVITIES (AND “YOU” SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ADEQUATE PROTECTION AGAINST COMPUTER “VIRUSES”, AND FOR BACKING UP ALL DATA, SOFTWARE AND EQUIPMENT USED WITH THE “SERVICES” OR OTHER “DENOWATTS ITEMS”; AND (iv) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE “CONTRACT”, "DENOWATTS" MAKES NO GUARANTY OR PROMISE OF CONFIDENTIALITY OR PRIVACY WITH RESPECT TO ANY COMMUNICATION TRANSMITTED THROUGH THE "SITE" (INCLUDING “PORTAL”), “APPLICATION”, “MODBUS PROTOCOL”, “DENOWATTS APIs” OR OTHERWISE IN CONNECTION WITH THE "SERVICES".
   • 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 “AUTHORIZED USER” OF A “PROVIDER”; OR (ii) RELATING TO, OR IN CONNECTION WITH, (A) ANY "THIRD PARTY ITEM", INCLUDING ANY TRANSACTIONS BY “YOU” IN CONNECTION THEREWITH, OR (B) THE USE BY “YOU” OF ANY “SERVICES” OR OTHER “DENOWATTS ITEMS” 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.
7. Electronic Communications. By downloading, installing, accessing or using the Services or any other Denowatts Items, You hereby consent and authorize Denowatts to send You electronically (including by email, text message or push notification) information regarding the Services and other Denowatts Items or the Contract, including: (a) notices about Your use of such Denowatts Items or any violations of these Terms or the Contract; (b) updates to the Services, other Denowatts Items, these Terms or the Contract; and (c) marketing and promotional information and materials regarding Denowatts or its products and services. You hereby accept and agree that all agreements, notices, disclosures and other communications that Denowatts provides to You electronically satisfy any and all legal or contractual requirements that such communications be in writing or provided to a particular address or person. You may be able to adjust certain of Your notification and messaging preferences by contacting Denowatts as provided below in Section 14.
8. In order to provide the Services and other Denowatts Items, Denowatts may collect certain information about You and Your User Device(s) and other equipment, including information relating to Your use of the Services and other Denowatts Items. To understand what information Denowatts collects from You and how that information may be used and shared by Denowatts, please review Denowatts’ Privacy Policy available here: https://denowatts.com/privacy-policy. You hereby consent to Denowatts’ collection, use and disclosure of such information as provided in, and are hereby bound by, the Privacy Policy.
9. You shall indemnify, hold harmless, reimburse and (upon request) defend Denowatts and each other Indemnified Party, from and against, any and all Damages to the extent arising out of, or resulting from, any of the following: (a) any breach by You of these Terms or the Contract; (b) any failure by You to comply with applicable laws; or (c) any injury, sickness or death to any person, or damage, loss, disappearance, theft or destruction of property, in connection with, relating to, or arising out of, any of action, omission or failure of or by You in connection with any Denowatts Item or the Contract.
10. Limitation of Liability; Certain Provisions May Not Apply to You.
    • NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE “TERMS”, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT (AND WHETHER ARISING UNDER CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY) SHALL: (i) "DENOWATTS" BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, OR IN CONNECTION WITH, ANY "THIRD PARTY ITEMS"; (ii) "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 ANY PROPERTY, OR LOSS OF PRIVACY), WHETHER OR NOT FORESEEABLE AND EVEN IF ADVISED OF THE POSSIBILITY THEREOF; (iii) “DENOWATTS” BE RESPONSIBLE OR LIABLE FOR ANY DIRECT DAMAGES, COSTS OR LOSSES; (iv) WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 10(a), THE LIABILITY OF "DENOWATTS" TO “YOU” UNDER THESE “TERMS” OR THE "CONTRACT", OR IN CONNECTION WITH ANY OR ALL “DENOWATTS ITEMS”, OR THE ACCESS OR USE THEREOF, EXCEED $100.00; AND (v) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE “TERMS” OR THE "CONTRACT" MAY BE BROUGHT BY "YOU" MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
    • THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTION 6 AND ABOVE IN THIS SECTION 10 CONSTITUTE AN ESSENTIAL PART OF THESE “TERMS” AND THE “CONTRACT”. “YOU” HEREBY ACKNOWLEDGE AND AGREE THAT, BUT FOR THESE PROVISIONS, “DENOWATTS” WOULD NOT GRANT “YOU” ANY OF THE RIGHTS (INCLUDING THE RIGHT TO ACCESS AND USE ANY “DENOWATTS ITEMS”) PROVIDED IN THESE “TERMS” OR THE “CONTRACT”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, “YOUR” SOLE AND EXCLUSIVE RIGHT AND REMEDY WITH RESPECT TO ANY FAILURES, PROBLEMS OR ISSUES WITH THE “SERVICES” OR ANY OTHER “DENOWATTS ITEM” IS TO CEASE ALL USE THEREOF.
    • THE LIMITATIONS IN THIS SECTION 10 SHALL APPLY WHETHER OR NOT ANY ACTUAL OR ALLEGED BREACH OR DEFAULT IS A BREACH OR DEFAULT OF A FUNDAMENTAL OR MATERIAL CONDITION OR PROVISION, OR OTHERWISE A FUNDAMENTAL OR MATERIAL BREACH OR DEFAULT.
    • SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE IN SECTION 6 AND IN THIS SECTION 10, SO THESE PROVISIONS MAY NOT APPLY TO “YOU” OR MAY ONLY APPLY TO “YOU” IN PART. THESE DISCLAIMERS AND LIMITATIONS SHALL NOT APPLY TO ANY DEATH OR BODILY INJURY TO THE EXTENT CAUSED DIRECTLY BY THE GROSS NEGLIGENCE OF “DENOWATTS” OR TO ANY FRAUD OR INTENTIONAL MISCONDUCT BY “DENOWATTS”.
    • Without limiting any of the foregoing provisions of this Section 10 or Section 6 above or any other provision of the Contract that limits or eliminates Denowatts’ liability, Denowatts shall not be liable for any delay in performance or failure to perform under these Terms or 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 Force Majeure Event.
11. Term; Termination. You may, download, install, access and use the Services and other Denowatts Items only during the Subscription Period. Denowatts may terminate or suspend these Terms or Your right to download, install, access and use the Services and any and all of the other Denowatts Items at any time, with or without cause, for any reason or no reason, with or without notice to You, including in the event that You, the Customer, any of its Providers or any other Authorized User of Customer or any such Provider breach any provision of these Terms or the Contract. Without limiting the foregoing, Your right to download, install, use and access the Services and other Denowatts Items shall terminate automatically (and without notice to You) immediately upon any suspension, termination or expiration of (a) the Contract or (b) Your Entity’s or the Customer’s (in the case Your Entity is a Provider) rights to access and use the Services or other Denowatts Items. Upon suspension, termination or expiration of these Terms, the Contract or Your right to download, install, access and use the Services or other Denowatts Items under these Terms, You shall immediately cease all access and use of the Services and all other Denowatts Items. No such suspension, termination or expiration shall release You from any of Your then outstanding or surviving obligations under these Terms or the Contract. Without limiting the foregoing provisions of this Section 11, each of the following provisions of these Terms shall survive any such suspension, expiration or termination: 1 – 3, 4(b) – (g), 5 – 11, 12(b), and 14 – 16.
12. Changes; No Assignment or Delegation.
    • Denowatts may (without liability or penalty of any kind) make Revisions to the Contract (including these Terms), at any time and from time to time by posting such Revisions to the applicable Site (including the Portal) and the Application 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. In addition, Denowatts may (without liability or penalty of any kind) terminate, suspend, limit, change or modify the Services or other Denowatts Items, at any time and from time to time, without any notice to You (“Denowatts Items Changes”). Denowatts may (but shall not be obligated to) provide written notice of such Revisions or Denowatts Items Changes to You, by sending notice via email to the email address provided by You to Denowatts at the time of Your original acceptance of these Terms or anytime thereafter. In the event that You do not agree with, or do not want to comply with, any such Revisions or Denowatts Items Changes, Your sole and exclusive right and remedy shall be to cease all download, installation, access and use of the Services and other Denowatts Items. Any such Revisions or Denowatts Items Changes shall be immediately and automatically effective as to, and binding upon, You, without Your approval, agreement or consent and whether or not any written or other notice thereof was provided to You. “YOU” AGREE THAT “YOUR” CONTINUED USE OF THE “SERVICES” OR ANY OTHER “DENOWATTS ITEMS” FROM AND AFTER THE EFFECTIVE DATE OF ANY SUCH “REVISIONS” OR “DENOWATTS ITEMS CHANGES” SHALL BE DEEMED TO BE “YOUR” AGREEMENT TO, AND ACCEPTANCE OF, EACH SUCH “REVISION” OR “DENOWATTS ITEMS CHANGES”.
    • You may not assign, delegate, sublicense or subcontract these Terms or the Contract, or any of Your rights or obligations hereunder or thereunder, and any such assignment, delegation, sublicense or subcontracting (or attempted assignment, delegation, sublicense or subcontracting) shall be void ab initio.
13. Miscellaneous.
    • These Terms and the Contract (and any dispute hereunder or thereunder) shall be governed by the laws of the Commonwealth of Massachusetts. Denowatts and You 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 these Terms, the Contract, the Denowatts Items, or any related matters or disputes. You hereby agree (i) to appear in any such action and hereby consent to the exclusive jurisdiction of such court and waive any objection thereto, including any defense of inconvenient forum, (ii) that any breach by You may cause Denowatts substantial and irreparable damage and harm, 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.
    • Denowatts may freely subcontract or delegate any or all of its rights or obligations under these Terms or the Contract, and may freely assign or transfer these Terms or the Contract or any or all of its rights or obligations thereunder to any affiliate or third party, including any purchaser or transferee in an Extraordinary Transaction. No other representations, warranties, conditions or indemnities, or other terms or conditions proposed or stated by You or Your Entity, in connection with any Denowatts Item, these Terms, the Contract or otherwise shall apply or be enforceable against Denowatts.
    • 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 You, or the greater benefit, right or protection to Denowatts, as the case may be, shall govern and control.
    • These Terms and the other provisions of the Contract shall constitute the full and complete agreement between Denowatts and You with respect to the subject matter of the Agreement (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 You with respect to such subject matter (including any of the foregoing contained on the Site (including the Portal), the Application or in any marketing materials).
    • If any provision, clause or subclause of these Terms or the Contract are held to be illegal, invalid or unenforceable, in whole or in part, then (i) such provision, clause or subclause shall be interpreted and modified by the applicable court so as to be enforceable to the maximum extent permitted and (ii) such holding (even if providing for the complete unenforceability or elimination of such provision, clause or subclause) shall not affect the legality, validity or enforceability (or cause any elimination) of the other provisions, clauses or subclauses of the Contract. Any reference in these Terms to: (A) "including" shall be interpreted as "including without limitation", (B) words of gender shall include each other gender, unless the context requires otherwise, (C) words using the singular or plural number shall also include the plural or singular number, unless the context requires otherwise, or (D) to "laws" shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
    • The Denowatts Items 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 customarily licensed or provided to the public (i.e., private business entities and their Authorized Users) by Denowatts pursuant to these Terms and the other provisions of the Contract. Accordingly, in the event that Your Entity is a governmental agency, entity or instrumentality (or the Customer (in the case where Your Entity is a Provider) is a governmental agency, entity or instrumentality), then each Denowatts Item shall be licensed to You, Your Entity and such 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 Your, Your Entity’s or such Customer’s rights in or to any Denowatts Items apply or take precedence over these Terms and the other terms of the Contract.
    • The relationship between You and Denowatts is that of independent contractors, and nothing in the Contract shall be construed as creating any other relationship between You and Denowatts, including any agency, employment, partnership, joint venture or franchise relationship.
14. Contacting Denowatts. If You have any questions regarding these Terms, the Contract or otherwise relating to the Denowatts 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).
15. Additional Google and Apple Terms Applicable to the Application.
    • Apple. If You are downloading or using the Application on a Device that runs on the Apple Inc. (“Apple”) iOS®, iPadOS® or macOS® operating systems, then the following additional terms shall apply:
      • Acknowledgement. You and Denowatts each hereby acknowledge and agree that: (A) these Terms are between You and Denowatts; (B) Apple is not a party to these Terms or the Contract, and Apple has no liability or responsibility for the Application or the content thereof; and (C) Denowatts is solely responsible (as and to the extent expressly provided above in these Terms and elsewhere in the Contract) for the Application and the content thereof. These Terms may not provide (and shall not be interpreted as providing) for usage rules for the Application that are in conflict with, the Apple Media Services Terms and Conditions or the Volume Content Terms (each of which, You hereby acknowledge and agree that You have had the opportunity to review and have, in fact, reviewed).
      • Scope of License. Without in any way expanding the license and rights granted to you above in these Terms, the license granted to You for the Application is limited to a non-transferable license to use the Application on any Apple-branded iOS, iPadOS or macOS Device that You own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
      • Maintenance and Support. Denowatts is solely responsible (as and to the extent expressly provided above in these Terms and elsewhere in the Contract, or as required under applicable law) for providing maintenance and support services with respect to the Application. Each of Denowatts and You hereby acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
      • Warranty. Denowatts is (as and to the extent expressly provided above in these Terms and elsewhere in the Contract) solely responsible for any product warranties relating to the Application, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, You may notify Apple, and Apple will refund to You the purchase price (if any) paid by You for the Application; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be (as and to the extent expressly provided above in these Terms and elsewhere in the Contract) Denowatts’ sole responsibility.
      • Product Claims. Each of Denowatts and You hereby acknowledges and agrees that Denowatts (and not Apple) is (as and to the extent expressly provided above in these Terms and elsewhere in the Contract) responsible for addressing any of Your claims or the claims of any third party relating to the Application or Your possession or use of the Application, including: (A) product liability claims; (B) any claim that the Application fails to conform to any applicable legal or regulatory requirement; or (C) claims arising under consumer protection or similar legislation. These Terms and the other provisions of the Contract may not limit (and shall not be interpreted as limiting) Denowatts’ liability to You beyond what is permitted by applicable law.
      • Intellectual Property Rights. Each of Denowatts and You hereby acknowledges and agrees that, in the event of any third-party claim that the Application or Your possession and use of the Application infringes that third party’s intellectual property rights, Denowatts (and not Apple) will be (as and to the extent expressly provided above in these Terms and elsewhere in the Contract) solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
      • Legal Compliance. Without limiting any of Your other covenants or any of the other requirements applicable to You as provided above in these Terms, You hereby represent and warrant to each of Denowatts and Apple that You are not: (A) located in a region that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” region; or (B) listed on any U.S. Government list of prohibited or restricted parties.
      • Developer Name and Address. Denowatts’s name and address, and the contact information (telephone number; E-mail address) to which any of Your questions, complaints, issues or claims with respect to the Application should be directed, are each set forth in Section 14 above in these Terms.
      • Third-Party Terms of Agreement. You must comply with all applicable third-party terms of agreement when using the Application, and must not be in violation of any wireless data service or other applicable third-party agreements to which You are a party when using the Application.
      • Third-Party Beneficiary. Each of Denowatts and You hereby acknowledges and agrees that Apple and Apple’s subsidiaries are each intended third-party beneficiaries of these Terms and the Contract, and that, upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and the Contract against You as a third-party beneficiary thereof.
      • Consent and Collection and Use of Personal Data. Without limiting any of the foregoing provisions of these Terms or the other provisions of the Contract, prior to downloading or using the Application, You hereby consent and agree to Denowatts’ collection, use and disclosure of Your Personal Data (as defined in the Privacy Policy) and other information (including information and data relating to, or constituting, Your (A) geographical location, (B) Device or Device information and (C) network information and any filtering of Your network data) as specifically provided in the Privacy Policy.
    • Google. If You are downloading or using the Application on a Device that runs on the Google LLC (“Google”) Android™ operating system, then the following additional terms shall apply:
      • Contacting Denowatts. Denowatts’s name and address, and the contact information (telephone number; E-mail address) to which any of Your questions, complaints, issues or claims with respect to the Application should be directed, are each set forth in Section 14 above in these Terms.
      • Consent and Collection and Use of Personal Data. Without limiting any of the foregoing provisions of these Terms or the other provisions of the Contract, prior to downloading or using the Application, You hereby consent and agree to Denowatts’ collection, use and disclosure of Your Personal Data and other information as specifically provided in the Privacy Policy.
      • No Google Representations, Warranties or Liability. You hereby acknowledge and agree that, to the maximum extent permitted by applicable law: (A) Google expressly disclaims any and all representations, warranties or guaranties, whether express or implied, relating to the Application, including any warranties of merchantability, fitness for a particular purpose or non-infringement, and makes no such representations, warranties or guaranties to You; and (B) Google shall have no liability or responsibility to You of any kind arising out of, or relating to, the Application (including any liability for claims made by any third parties).
    • “Android” is a trademark of Google. “iOS”, “iPadOS” and “macOS” are registered trademarks of Apple.