This Software as a Service Agreement (this “Agreement”) is effective as of the date of execution of the Pricing Outline by and between Speed of Light Ops, LLC, a Delaware limited liability company doing business as “Solo,” with offices located at 3049 Executive Parkway, Suite 200, Lehi, Utah 84043 (“Solo”), and Client, as defined in the Pricing Outline incorporated into this Agreement (“Client”).  Solo and Client each may also be referred to herein as a “Party” and collectively as the “Parties.” This Agreement consists of these terms and conditions and the terms and conditions in the Pricing Outline of equal date between the Parties. The Pricing Outline is subject to and shall be incorporated into this Agreement by reference.

WHEREAS, Solo has developed and uses software, online tools, business processes, expertise, and other intellectual property to host an online software-as-a-service (SaaS) platform on the Solo Systems (as defined below) to provide customers with a suite of services for preparing proposals, documentation automation and control, and CAD design and engineering services (“Solo Platform”);

WHEREAS, Client is in the business of planning, proposing, selling, reselling, permitting, installing, and servicing residential and/or commercial solar photovoltaic (“PV”) systems and/or roofing systems to third parties (each an “End User”) in coordination with various system installers and equipment suppliers; and

WHEREAS, Client desires to obtain access to certain services, and Solo desires to provide Client with access to such services as set forth herein.

NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and obligations contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be bound, hereby agree as follows:

1. Definitions

Terms with initial capitalized letters will have the meanings ascribed to them in this Section 1 or elsewhere in this Agreement.

1.1 “Access Credentials” means any username, identification number, password, license or security key, security token, password identification number (PIN), or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

1.2 “Action” means any claim, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, whether civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise.

1.3 “Additional Services” means all technical and non-technical services, excluding the SaaS Services, that are requested by Client in a Notice and agreed to be performed or delivered by Solo under this Agreement, including but not limited to modifications that Client requests to the Solo Systems, Operational Hours, or support services.

1.4 “Administrative User” means each Client employee designated by Client to serve as a technical administrator of the Services on Client’s behalf, and who has completed the training and qualification requirements reasonably required by Solo from time to time.

1.5“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person.  For purposes of this definition, the term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

1.6“Applicable Law” means all statutes, laws, common law theories, rules, regulations, orders, ordinances, or legal requirements of a governmental authority with jurisdiction over a Person.  

1.7 “Annual Period” means an annual period beginning on the Effective Date and ending on the day preceding the one-year anniversary of the Effective Date, and each successive one-year period thereafter.

1.8 “Authorized User” means Client’s employees, agents, and/or contractors who are granted access by Solo and authorized by Client to access and use the Services.

1.9 “Client Data” means information, data, and other content collected, downloaded, or received, directly or indirectly, from Client or Authorized Users (or on behalf of either of them) by or through the Services.  For purposes of clarity, Client Data includes Client Proposals, but does not include Resultant Data or any other information or metadata reflecting the access or use of the Services by or on behalf of Client or any Authorized User.

1.10 “Client Proposal(s)” has the meaning ascribed to it in Exhibit A. 

1.11 “Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services.

1.12 “Confidential Information” has the meaning ascribed to it in Section 8.1.1.

1.13 “Disclosing Party” has the meaning ascribed to it in Section 8.1.1.

1.14 “Documentation” means any manuals, procedures, or instructions that Solo provides or makes available to Client in any form or medium and that describe the functionality, components, features, or requirements of the Solo Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.  Documentation does not include advertising or marketing materials.

1.15 “Feedback” means ideas, enhancements, improvements, suggestions, or other feedback provided by Client or its Representatives concerning the Solo Materials.

1.16 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, Trojan horse, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Services or other Solo Materials as intended by this Agreement.  Harmful Code does not include any Solo Disabling Device.

1.17 “Initial Term” has the meaning ascribed to it in Section 7.1.

1.18 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), trademarks, service marks, copyrights, trade secrets, moral rights, know-how and any other intellectual and proprietary rights recognized in any country or jurisdiction in the world.

1.19 “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees.

1.20 “Minimum Monthly Spend” is defined in Exhibit A.

1.21 “Notice” means a notice directed to a Party at the addresses below or in the Pricing Outline, which a Party may change by giving Notice to the other Party, made in writing or by an electronic process in which the recipient confirms receipt (provided, however, that no confirmation of receipt is required for electronic Notices sent pursuant to Section 5.1).  Notices will be deemed received at the earlier of actual receipt, rejection, or three (3) days following deposit in the U.S. mail, postage prepaid, return receipt requested.

Notice Addresses:

1.22 “Operational Hours” means the days and periods of time during which the Services are provided by Solo, which exclusive of legal holidays are currently (1) for PaaS , 7:00 a.m. through 10:00 p.m. (Mountain Time), Mondays through Saturdays, and 8:00 a.m. through 4:00 p.m. (Mountain Time) on Sundays; (2) for DaaS,8:00 a.m. through 8:00 p.m. (Mountain Time), Mondays through Fridays, and Saturday 9:00 am through 5:00 pm, and Sunday 8:00 am through 4:00 pm (Mountain Time) (3) CaaS, Monday through Friday, 8:00 through 6:00 pm (Mountain Time) and (3) for roofing, 8:00 a.m. through 6:00 p.m. (Mountain Time), Mondays through Saturdays.  Solo may amend, modify, and update the Operational Hours from time to time in its sole discretion.  

1.23 “Person” means any individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

1.24 “Pricing Outline” means the online pricing terms and conditions for CaaS, DaaS, PaaS, and RaaS as of the Effective Date and between the Parties, as further described in Exhibits A, B, and C. 

1.25 “Pricing Tier” means the pricing structure for the volume ranges of Client Proposals outlined in the Pricing Outline.

1.26 “Privacy Policy” means Solo’s privacy policy as amended, modified, or updated by Solo, in its sole discretion, from time to time, which is incorporated herein by reference. 

1.27 “Prohibited Activity” is activity in which Client, directly or indirectly, in whole or in part, as an employee, employer, owner, operator, manager, advisor, consultant, contractor, agent, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity uses for itself or contributes information or materials to an entity engaged in the same or substantially similar business as Solo, including any business engaged in the business of providing software or services that automate or facilitate the preparation and delivery of (a) business proposals or (b) CAD or engineering drawings or standard documents used to complete a solar or roofing transaction, to Persons within the Restricted Territory. Prohibited Activity also includes activity that may require or inevitably require disclosure or use of trade secrets, proprietary information, or Confidential Information.  Nothing in this Agreement shall prohibit Client from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation or publicly traded partnership, provided that such ownership represents a passive investment and that Client is not a controlling person of, or a member of a group that controls, such corporation or publicly traded partnership. 

1.28 “Receiving Party” has the meaning ascribed to it in Section 8.1.1.

1.29 “Renewal Term” has the meaning ascribed to it in Section 7.1.

1.30 “Representative” means an officer, director, member, manager, agent, employee, affiliate, partner, or representative of a Party.

1.31“Resultant Data” means data and information related to Client’s access and use of the Services which is used by Solo in an aggregate and/or anonymized manner for purposes including, without limitation, to compile statistical, performance, and other information related to the provision and operation of the Services. 

1.32 “SaaS Services” means the proposals as a service described in Exhibit A (“PaaS”), the documents as a service described in Exhibit A (“DaaS”), the CAD as a service described in Exhibit B (“CaaS”), the roofing proposals as a service described in Exhibit C (“RaaS”) and any other services (except for the Additional Services) that Solo provides to Client through the Solo Platform. 

1.33 “Scheduled Downtime” has the meaning ascribed to it in Section 5.1. 

1.34 “Services” means the Additional Services and the SaaS Services. 

1.35 “Solo Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Solo or its designee to disable Client’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the control of Solo or its designee.

1.36 “Solo Materials” means the Services, Documentation, Solo Systems, Solo Platform, and Work Product and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are created, developed, provided, or used by Solo or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Solo Systems.  For the avoidance of doubt, Solo Materials include Resultant Data and any information, data, or other content derived from Solo’s monitoring of Client’s access to or use of the Services, but do not include Client Data. 

1.37 “Solo Systems” means the information technology infrastructure used by or on behalf of Solo in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Solo or through the use of third-party services.

1.38 “Subcontractor” has the meaning ascribed to it in Section 2.7.

1.39 “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Solo or Client.  

1.40 “Work Product” means any and all documents, software, work product, and materials that Solo is required to or otherwise does create or provide to Client in connection with the Additional Services. 

2. Services

2.1 Access and Use.  Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Solo will use commercially reasonable efforts to provide Client with access to the Services, solely for use by Authorized Users, in accordance with the terms and conditions of this Agreement and the Documentation.  Such use is limited to Client’s internal use.     

2.2 Licenses.  Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Solo hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 13.8), worldwide license to (a) use the Documentation; and (b) print, copy, and use the Client Proposals and other documents generated by the SaaS Services, each of (a)-(b) solely for Client’s internal business purposes in connection with its authorized use of the Services.    

2.3 Service and System Control.  Except as otherwise expressly provided in this Agreement, as between the Parties: (a) Solo has and will retain sole control over the operation, provision, maintenance, and management of the Solo Materials; and (b) Client has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Solo Materials by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Solo; (ii) results obtained from any use of the Solo Materials; and (iii) conclusions, decisions, or actions based on such use.

2.4 Reservation of Rights.  Except as expressly set forth in Section 2.1 or 2.2, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Solo Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise.  All right, title, and interest in and to the Services, the Solo Materials, and the Third-Party Materials are and will remain with Solo and the respective rights holders in the Third-Party Materials. 

2.5 Administrative User.  During the onboarding process for Client’s access to the Services, Client will identify Client’s Administrative User and the Access Credentials for the Administrative Users’ account.  Upon Notice to Client, Solo reserves the right to refuse registration of any Administrative User and to cancel Access Credentials if and when it deems inappropriate.  Client will be solely responsible for the acts and omissions of its Administrative Users.  Solo will not be liable for any loss of data or functionality caused directly or indirectly by Client or its Administrative Users.

2.6 Changes.  Solo may, in its sole reasonable discretion, make any changes to the Solo Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Solo’s services to its customers; (ii) the competitive strength of or market for Solo’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with Applicable Law.  

2.7 Subcontractors.  Solo may from time to time in its sole discretion engage third parties to perform the Services, in whole or in part (each, a “Subcontractor”).

3. Use Restrictions and Data Storage

3.1 Restrictions.  Client will not, and will not permit or encourage its Administrative Users, Authorized Users, or any other Person to, directly or indirectly, access or use the Solo Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement.  For purposes of clarity and without limiting the generality of the foregoing, Client will not, except as this Agreement expressly permits: (a) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to derive, discover, or gain access to the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Solo Materials, in whole or in part; (b) copy, modify, translate, or create derivative works or improvements of the Solo Materials; (c) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property Rights Notices from any Solo Materials, including any copy thereof; (d) make the Solo Materials available to any Person other than an Authorized User; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, share, or otherwise make available any Solo Materials to any Person except Authorized Users, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (f) access or use the Solo Materials for purposes of competitive analysis of the Solo Materials; for the development, provision, or use of a competing software service or product; or for any other purpose that is to Solo’s detriment or commercial disadvantage; (g) bypass or breach any security device or protection used by the Solo Materials or access or use the Solo Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (h) input, upload, transmit, or otherwise provide to or through the Services or Solo Platform any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (i) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Solo Platform, or Solo’s provision of services to any Person, in whole or in part; (j) access or use the Solo Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party; or (k) input, upload, or use any Client Data that (1) infringes or misappropriates the Intellectual Property Rights of any Person; (2) contains anything that is obscene, defamatory, harassing, offensive, or malicious; (3) disrupts another client’s use of the Solo Materials; (4) violates or tampers with the security of the Solo Materials; or (5) violates Applicable Law.

3.2 Backup and Recovery of Client Data.  Solo will maintain a backup of Client Data and Client Proposals, and will, upon request, provide Client with a copy of such Client Data and Client Proposals, in accordance with Solo’s then-current backup, retention, and recovery policies.  Solo will provide Client with a copy of such policies upon request. Notwithstanding the foregoing, the Services do not replace the need for Client to maintain its own regular data backups or redundant data archives and SOLO HAS NO OBLIGATION OR LIABILITY FOR, AND MAKES NO WARRANTY OR REPRESENTATION REGARDING, ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CLIENT DATA. 

3.3 Notice of Security Incidents.  Upon becoming aware of any material security incident, breach, or intrusion involving Client or Client Data, Solo will use commercially reasonable efforts to: (a) promptly investigate the circumstances surrounding such security incident; (b) identify and mitigate vulnerabilities that were exploited; remove Harmful Code, inappropriate materials, and associated components; (c) implement security measures in an effort to prevent the occurrence of a similar security incident; and restore the Service to normal operation; (d) provide Client with timely Notice of the material security incident and its actions in response thereto; (e) provide a written report to Client summarizing (to the extent known) when and how the breach was discovered; the Client Data that was accessed, used, or disclosed; the person(s) who accessed, used, and disclosed and/or received the Client Data; and the corrective action taken by Solo; (f) contain and remediate the harmful effects of the subject security incident; (g) consult in good faith with Client regarding further remediation efforts; and (h) assist and cooperate with Client or any governmental body’s investigation of any security incident. 

4. Client Obligations

4.1 Client System and Cooperation.  Client will: (a) set up, maintain, and operate in good repair and in accordance with the Documentation all Client Systems on or through which the Services are accessed or used; (b) provide Solo with such access to Client’s premises and Client Systems as is necessary for Solo to perform the Services in accordance with this Agreement; and (c) provide all cooperation and assistance as Solo may reasonably request to enable Solo to exercise its rights and perform its obligations under and in connection with this Agreement.  

4.2 Access and Security.  Solo will provide Client with Access Credentials within a reasonable period of time following the Effective Date.  Each Authorized User will have his/her own unique Access Credentials, which cannot be shared or used by more than one individual user.  Client will be responsible for all uses of its Access Credentials and Solo Platform account and the acts and omissions of its Authorized Users, and will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Client Data, including the uploading or other provision of Client Data for processing by the Services.  

4.3 Corrective Action and Notice.  If Client becomes aware of any actual or threatened activity prohibited by Section 3.1, any unauthorized use of any Access Credentials, a security breach, or a breach of this Agreement by an Authorized User or another Person, as applicable, Client will immediately provide Solo with Notice of any such actual or threatened activity, and will cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Solo Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) use reasonable efforts to stop any unauthorized access or use of the Solo Materials.

4.4 Compliance with Applicable Law.  Client will comply with all Applicable Law in connection with its use of the Solo Materials, including but not limited to those related to data privacy, international communications, and the transmission of technical or personal data. 

4.5 Conditions to Use.  As a condition to access and use the Solo Platform, Client will cause each Authorized User to agree to abide by: (1) the terms of use for the Solo Platform, as they may be amended from time to time; and (2) this Agreement

5. Service, Training, and Support

5.1 Scheduled Downtime.  Solo will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 11:00 p.m. and 6:00 a.m. (Mountain Time ); and (b) give Client at least twenty-four (24) hours’ prior Notice of all scheduled outages of the Services (“Scheduled Downtime”).  

5.2 Training.  Solo will use commercially reasonable efforts to provide Client with sufficient onboarding training on the use of the SaaS Services.  Such onboard training will include up to eight (8) free test proposals to ensure the accuracy of Client’s Solo Platform account.  Upon Client’s request, the Parties may discuss Solo providing additional training for a fee as part of the Additional Services.  

5.3 Support.  Solo will use commercially reasonable efforts to provide Client with technical support during Operational Hours, which Solo may change due to seasonal demands upon Notice to Client.  Client may purchase enhanced support for an additional fee as part of the Additional Services. 

6. Fees, Payments, and Invoicing

6.1 New Client Fee.  Client will pay a new customer one-time, nonrefundable, onboarding fee as listed in the Pricing Outline to customize Client’s Solo Platform account. 

6.2 SaaS Services Fees.  The fees for the SaaS Services are set forth more particularly in the Pricing Outline.  In addition, Client will be subject to the Minimum Monthly Spend listed in the Pricing Outline for all SaaS Services each month. Solo may change any of the fees set forth in this Agreement, including but not limited to those for CaaS, DaaS, and PaaS at the end of the Initial Term or any Renewal Term, upon thirty (30) days’ prior Notice to Client.  Client agrees that following Notice period it will pay the new fee(s) for any subsequent SaaS Services.  

6.3 Additional Services Fees.  The fees for the Additional Services will be calculated on a time and materials basis in accordance with Solo’s then-current hourly billing rates.

6.4 Invoices.  Early each calendar month, Solo will provide Client with an invoice (along with any supporting documentation) outlining the fees for the Services provided to Client during the preceding month.  

6.5 ACH Payment.  Client agrees to pay all undisputed invoices via an automated clearing house (“ACH”) payment on the tenth (10^th) day of the month.  Within five (5) business days of the Effective Date, Client agrees to authorize its bank to make such monthly ACH payments, and Client will keep such arrangements in place (with its existing bank or a replacement bank) during the Term of the Agreement.  Except as expressly provided otherwise, all fees are nonrefundable.  All invoices are stated in United States Dollars and must be paid in United States Dollars.  Notwithstanding the foregoing, in the event that Client desires and Solo agrees in writing to allow Client to pay its monthly invoice by credit card, then Client agrees to pay an additional convenience fee equal to three percent (3%) of such invoice amount. 

6.6 Declined Payments.  Solo will impose an additional processing fee of Twenty-Five Dollars ($25.00) for any ACH or credit card payment that is declined. 

6.7 Disputed Invoices.  Any invoice dispute Client may have will be provided in writing to Solo within thirty (30) days after Client’s receipt of such invoice.  Failure to provide any such Notice within thirty (30) days will be deemed to constitute Client’s acceptance of the fees due to Solo and will bar Client from raising any future payment dispute with respect to such invoice.

6.8 Expenses.  Client will reimburse Solo for its reasonable, out-of-pocket travel and other expenses incurred in performing Additional Services (if any).  Solo will notify Client prior to incurring any such travel or related expenses.  Solo will comply with Client’s travel and expense policy provided that Client delivers such policy in writing to Solo prior to any such travel.

6.9 Interest on Unpaid Invoices.  If Client is delinquent in paying any invoice, then Solo is entitled to charge a late fee in a total amount not to exceed the lesser of one and a half percent (1.5%) per month or the maximum extent permitted by Applicable Law on the unpaid balance.

6.10 Taxes.  Solo will invoice Client for applicable taxes as a separate line item on each invoice.  Client will be responsible for payment of all sales and use taxes, value-added taxes (VAT), or similar charges relating to Client’s purchase and use of the Services, but Client will not be liable for taxes based on Solo’s income.

6.11 Services Fees Adjustments. During the Initial Term and any Renewal Term, Solo may, upon 30 days written notice, and no more than once per Annual Period, increase the fees for any of the SaaS Services by an amount no greater than the sum of (i) the increase in the consumer price index published by the Bureau of Labor and Statistics for the previous twelve months, and (ii) four percent.   

7. Term and Termination

7.1 Term.  Unless otherwise terminated according to the provisions of this Section 7, this Agreement will have an initial term beginning on the Effective Date and continuing for the period of time specified in the Pricing Outline (“Initial Term”).  At the end of the Initial Term, this Agreement will automatically renew for subsequent consecutive periods of time equal to the Initial Term (each a “Renewal Term,” and each Renewal Term, if any, together with the Initial Term, the “Term”) unless and until one Party provides the other Party with Notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.  

7.2 Termination for Convenience.  Notwithstanding anything in this Agreement to the contrary, Solo may terminate this Agreement for convenience at any time, with or without cause, by giving thirty (30) days’ Notice. 

7.3 Termination for Cause, Insolvency, or Force Majeure.  

7.3.1 Termination for Cause.  Either Party may terminate this Agreement for cause effective immediately on Notice (a) for any breach of Section 3.1, 8, or 9; or (b) if the other Party breaches any other provision of this Agreement and fails to cure the breach within thirty (30) days after receipt of written Notice from the non-breaching Party specifying the nature of the breach.    

7.3.2 Termination for Insolvency.  Upon written Notice, either Party may terminate this Agreement immediately if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, becomes subject to a proceeding under any bankruptcy or insolvency law, or has wound up or been liquidated.

7.3.3 Termination for Force Majeure.  To the extent provided in Section 13.3, either Party may terminate this Agreement on written Notice in the case of a Force Majeure Event. 

7.4 Suspension or Termination of Services.  Solo may, directly or indirectly, and by use of a Solo Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Client fails to pay any undisputed amounts when due and such failure, in whole or in part, continues for ten (10) days after Client’s receipt of written Notice thereof; (b) Solo receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Solo to do so; or (c) Solo believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Documentation; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated.  This Section 7.4 does not limit any of Solo’s other rights or remedies, whether at law, in equity, or under this Agreement.  Client agrees that Solo will not be liable to Client or to any third party for any liabilities, claims, or expenses arising from or relating to the suspension of Services arising from this Section 7.4.

7.5 Effect of Termination or Expiration.  Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by Solo to Client hereunder will immediately terminate; (b) Client will immediately cease all use of any Solo Materials and (i) within thirty (30) days return to Solo, or at Solo’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Solo Materials; (ii) permanently erase all Solo Materials from all systems Client directly or indirectly controls; and (iii) certify to Solo in a signed written instrument that it has complied with the requirements of this Section 7.5(b); (c) subject to Section 7.5(d), the Receiving Party will (i) within thirty (30) days return to the Disclosing Party, or at the Disclosing Party’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any of the Disclosing Party’s Confidential Information; (ii) permanently erase all of the Disclosing Party’s Confidential Information from all systems that the Receiving Party directly or indirectly controls; and (iii) certify to the Disclosing Party in a signed written instrument that it has complied with the requirements of this Section 7.5(c); (d) Solo may retain and use Client Data in accordance with this Agreement and its Privacy Policy, solely to the extent and for so long as permitted by Applicable Law; and (e) Solo may disable all Client and Authorized User access to the Solo Materials. If requested by Client, and subject to Section 3.2, Solo will assist Client in transferring Client Data from the Solo systems at Solo’s then-standard hourly rates for such services. 

7.6 Survival.  Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. 

8. Restrictive Covenants

8.1 Confidentiality.

8.1.1 In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”).  “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, processes, templates, features, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.”  Without limiting the foregoing, all Solo Materials and the terms of this Agreement are the Confidential Information of Solo.

8.1.2 Obligations.  The Receiving Party will keep all Confidential Information confidential and, as applicable, will not disclose any of it to any person other than its Representatives who: (a) need to know such Confidential Information for purposes of Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and Receiving Party’s obligations under this Section 8.1.2; and (c) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth herein.  Receiving Party will not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement.  In complying with this Agreement, Receiving Party will use care commensurate with the degree of care that it uses to protect its own comparably sensitive information but will in no case use less than a reasonable degree of care to safeguard the Confidential Information from unauthorized use, access, or disclosure.  Notwithstanding the foregoing, Receiving Party may disclose and use the Disclosing Party’s Confidential Information: (1) with the prior written consent of Disclosing Party; (2) to the extent required by Applicable Law, provided, however, that to the extent practicable and legally permissible, Receiving Party will give prompt written Notice of any required disclosure to Disclosing Party and will reasonably cooperate with Disclosing Party, at Disclosing Party’s expense, to limit the scope of the disclosure, or assist in challenging the requested disclosure; and (3) with respect to Solo as the Receiving Party, to the extent and for the purposes set forth in the Privacy Policy.

8.2 Non-Competition.  As additional consideration for Solo providing Client with access to the SaaS Services and the Additional Services including, without limitation, Solo’s Confidential Information incorporated therein, during the Term and for a period of two (2) years thereafter (the “Restricted Period”), whether terminated for any reason or no reason, by either Party, Client agrees and covenants not to engage in or permit any of its Representatives to engage in, whether directly or indirectly through other Persons, Prohibited Activity within any country, province, state, city, or other similar political subdivision of the world in which Solo conducts business during the Restricted Period (the “Restricted Territory”).  During the Term, Client further agrees not to undertake or permit any of its Representatives to undertake preparations for Prohibited Activity. 

8.3 Non-Solicitation of Employees.  Client covenants and agrees that during the Restricted Period, regardless of the reason for termination, Client will not, and will not encourage or permit its Representatives to, directly or indirectly through other Persons, solicit, hire, or recruit, or attempt to solicit, hire, or recruit, any current or former officer, director, or employee of Solo, other than pursuant to a general advertisement not directed specifically to any such officer, director, or employee. This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement. 

8.4 Non-Disparagement.  During the Restricted Period, Client covenants and agrees that any officer-level employee then-currently employed by Client will not make critical, negative, or disparaging remarks about Solo, including any of its officers, employees, agents, or representatives, in any medium, including social media or on the Internet, or make or solicit any comments, statements, or the like to the media that are derogatory or detrimental to the good name or business reputation of Solo and any of its Representatives, including, but not limited to, comments about any of its products, services, business, sales practices or employment practices.    

8.5 Independent Covenants.  Each of the covenants set forth in this Section 8 will be construed as a separate and independent covenant, independent of the other covenants and all other terms of this Agreement, and not as dependent covenants, and the existence of any claim or cause of action of or by a Party against the other Party, whether predicated upon an alleged breach by a Party of this Agreement or otherwise, will not constitute a defense to the enforcement by a Party of any of the covenants set forth in this Section 8 against the other Party.

9. Intellectual Property Rights

9.1 Solo Materials and Work Product.  All right, title, and interest in and to the Solo Materials, including all Intellectual Property Rights therein, are and will remain with Solo and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials.  To the extent that Client acquires or previously acquired any right, title, or interest in any Solo Materials, Client agrees to assign, and hereby assigns, all such right, title, and interest in and to such Solo Materials, including all Intellectual Property Rights in the foregoing, to Solo.  Client has no right, license, or authorization with respect to any of the Solo Materials except as expressly set forth in Section 2 or the applicable third-party license, in each case subject to Section 3.1 and the other terms of this Agreement.  All other rights in and to the Solo Materials are expressly reserved by Solo. 

9.2 Feedback.  If and to the extent Client provides Feedback, then Client agrees to assign, and hereby assigns, all such right, title, and interest in and to such Feedback, including all Intellectual Property Rights in the foregoing, to Solo.  To the extent that any such Intellectual Property Rights are not assignable under Applicable Law or otherwise, Client hereby grants to Solo a license to make, use, sell, offer to sell, import, practice, reproduce, display, perform, modify, improve, create derivative works based on, distribute, and otherwise exploit Feedback without any obligation to Client and without any restriction under this Agreement.  This license is exclusive, perpetual, assignable, irrevocable, fully paid-up, and royalty-free, and includes the right to grant sublicenses.

9.3 Client Data.  As between the Parties, Client owns all right, title, and interest in and to the Client Data.  To the extent that Client Data is owned by Client, Client hereby grants to Solo a license to reproduce, display, perform, modify, improve, create derivative works based on, distribute, use, and otherwise exploit the Client Data for any purpose set forth in this Agreement, in the Privacy Policy, or otherwise permitted under Applicable Law.  This license is exclusive, perpetual, irrevocable, fully paid-up, and royalty-free, and includes the right to grant sublicenses.

10. Representations and Warranties

10.1 Organization and Authority.  Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing under the laws and regulations of its jurisdiction formation and will retain the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution and delivery of this Agreement and the obligations contemplated by it do not violate, conflict with, or constitute a default under its organizational document, or any material agreement or judgment to which it is bound; and (c) this Agreement constitutes a legal, valid, and binding obligation of such Party, enforceable in accordance with its terms and conditions.

10.2 Additional Solo Limited Warranty.  Solo represents and warrants that (a) it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.  Solo’s sole and exclusive obligation, and Client’s sole and exclusive remedy, for a breach of this Section 10.2 is for Solo, in its sole discretion, to either reperform the deficient Services for Client or refund the fees, on a pro rata basis, that Client paid to Solo for the deficient Services. 

10.3 Additional Client Warranty.  Client represents and warrants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Solo and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any Applicable Law.

10.4 Warranty Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 10.1, 10.2, and10.3, ALL SOLO MATERIALS ARE PROVIDED “AS IS.”  SOLO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, SOLO MAKES NO WARRANTY OF ANY KIND THAT THE SOLO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.  SOLO DOES NOT WARRANT THE CAPACITY, PRODUCTION ESTIMATES, OR PRODUCTION OF ANY SYSTEM DESIGNED OR INSTALLED USING THE SOLO MATERIALS. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS,” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

11. Indemnification

11.1 Solo Indemnification.  Solo will indemnify, defend, and hold harmless Client and Client’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Client Indemnitee”) from and against any and all Losses incurred by Client Indemnitee resulting from any Action by a third party that Client’s or an Authorized User’s use of the Services (excluding Client Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s U.S. Intellectual Property Rights.  The foregoing obligation does not apply to the extent that the alleged infringement or misappropriation arises from: (a) Third-Party Materials or Client Data; (b) access to or use of the Solo Materials in combination with any hardware, system, software, network, or other materials or service not provided by Solo or specified for Client’s use in the Documentation; (c) modification of the Solo Materials other than: (i) by or on behalf of Solo; or (ii) with Solo’s written approval in accordance with Solo’s written specification; or (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Client by or on behalf of Solo; or (e) Client’s breach of this Agreement or violation of Applicable Law.

11.2 Indemnification by Client.  Client will indemnify, defend, and hold harmless Solo and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Solo Indemnitee”), from and against any and all Losses incurred by such Solo Indemnitee resulting from any Action by a third party that arise out of or result from, or are alleged to arise out of or result from: (a) Client Data, including any use of Client Data by or on behalf of Solo in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Solo’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by Solo; and (c) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement. In addition, Client will indemnity, defend, and hold harmless the Solo Indemnities against any and all Losses incurred by such Solo Indemnitee resulting from any Action by a third party that alleges that any solar system installed using the Solo Materials is not fit for a particular purpose or fails to meet capacity, power production, reliability, or other stated or unstated performance metrics.

11.3 Indemnification Procedure.  Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be.  The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense.  The Indemnitor will promptly assume control of the defense and will employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense.  The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitor will not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed.  If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee will have the right, but no obligation, to defend against such Action, including settling such Action after giving Notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.  The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

11.4 Mitigation.  If any of the Solo Materials are, or in Solo’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Solo Materials is enjoined or threatened to be enjoined, Solo may, at its option and sole cost and expense: (a) obtain the right for Client to continue to use the Solo Materials materially as contemplated by this Agreement; (b) modify or replace the Solo Materials, in whole or in part, to seek to make the Solo Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Solo Materials, as applicable, under this Agreement; or (c) by written Notice to Client, terminate this Agreement and require Client to immediately cease any use of the Solo Materials or any specified part or feature thereof, provided that Client will be entitled to a pro rata refund of any prepaid, but unused fees paid to Solo.

11.5 Sole Remedy.  THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SOLO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOLO MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12.Limitations on Damages and Liability

12.1 EXCLUSION OF DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SOLO NOR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS WILL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2 CAP ON MONETARY LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF SOLO AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF (A) ONE-HUNDRED THOUSAND DOLLARS ($100,000) OR (B) THE ACTUAL FEES PAID BY CLIENT TO SOLO FOR NON-CONFORMING SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.  THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.3 Allocation of Risk.  EACH PARTY ACKNOWLEDGES THAT THE FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SUCH PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH DAMAGES AND LIABILITY EXPRESSLY SET FORTH IN THIS AGREEMENT.   

13. General Conditions

13.1 Further Assurances.  On a Party’s reasonable request, the other Party will, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

13.2 Insurance.  Solo will obtain and maintain throughout the Term, at its own cost and expense, from a qualified and licensed insurance company licensed to do business in the state in which it does business, insurance in the following amounts and coverage: (i) Worker’s Compensation, in statutory amounts, with Employers’ Liability Limits not less than One Million Dollars ($1,000,000) each accident, injury, or illness; (ii) Commercial General Liability Insurance with limits not less than One Million Dollars ($1,000,000) per occurrence Combined Single Limit for Bodily Injury, Property Damage, including Contractual Liability, Personal Injury, Products and Completed Operations; and (iii) Professional Liability Insurance, including Errors and Omissions, with limits not less than One Million Dollars ($1,000,000) per occurrence.  

13.3 Force Majeure.  In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, pandemic, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, or riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.  In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written Notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.  Either Party may terminate this Agreement pursuant to Section 7.3.3 if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more. 

13.4 No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

13.5 Sub-Dealers. If Solo permits Client to sign up sub-licensees under this Agreement, these sub-licensees shall be bound to the terms of this Agreement. Client may not sign up any sub-licensees without the written consent of Solo and agreement by sub-licensees to be fully responsible for their acts and omissions as if they were an original party to the Agreement. The foregoing shall not relieve Client from any responsibility for acts and omissions of its sub-licensees.

13.6 No Authority.  Neither Party will be considered a partner, agent, or employee of, or have the power or authority to bind, the other.  Without limiting the foregoing, each Party is and will be acting at all times as an independent contractor of the other Party.

13.7 Entire Agreement.  This Agreement, together with Exhibits A-C and any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 

13.8 Amendment and Modification; Waiver.  No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized Representative of each Party.  No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.9 Assignment.  Client will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Solo’s prior written consent.  For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Client (regardless of whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Solo’s prior written consent is required.  No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under this Agreement.  Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void.  This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

13.10 Jurisdiction.  This Agreement will be construed and enforced according to the internal laws of the State of Utah, regardless of any laws on choice of law or conflicts of law of any jurisdiction.  Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in Salt Lake City and Salt Lake County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.  Service of process, summons, Notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

13.11 Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3.1, Section 8, and Section 9 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

13.12 Severability.  Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement.  The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, by adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law.  The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.

13.13 Rules of Interpretation.  This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting it.  Each Party acknowledges that it has had an opportunity to have legal counsel review and approve this Agreement prior to execution.  The Exhibits referred to in this Agreement, along with any other document specifically incorporated herein or therein, will be construed with, and form an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.  The captions and headings used in this Agreement are for convenience of reference only and will not be deemed to limit, characterize, or in any way affect the interpretation of this Agreement.

13.14 Execution. BY CLICKING ITS ACCEPTANCE IN AN ONLINE FORM OR OTHERWISE ELECTRONICALLY ACKNOWLEDGING ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS, THE CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE TERMS OF THE PRICING OUTLINE. SUCH ELECTRONIC ACKNOWLEDGEMENT SHALL BE EFFECTIVE AS CLIENT’S ELECTRONIC SIGNATURE OF THIS AGREEMENT AND EACH PARTY MAY RELY UPON SUCH ELECTRONIC SIGNATURE AS IF IT WAS AN ORIGINAL SIGNATURE. Each Party agrees that an electronic signature page or system-generated files evidencing Client’s electronic acceptance may be introduced into evidence in any proceeding arising out of or related to this Agreement as if it were an original signature page. 

EXHIBIT A

Proposal as a Service (PaaS) and Documents as a Service (DaaS)

1. PaaS.  PaaS is an online template that can be customized by Client to facilitate providing solar proposals to its End Users (“Client Proposals”).  As of the Effective Date, the proposal template includes the following customizable features: company logo, customized color scheme (primary and secondary colors), virtual selling features, personalized onboarding meeting, dynamic in-proposal adjustment tools, customization for solar panels and inverters, applicable rebates, personalized training, event-based customer relationship management (CRM) sync, custom incentives, twenty-five (25) year savings analysis, system production and offset, panel degradation, real-time proposal staffing, integrated loan application and approval, and subsequent updates and features.   
2. DaaS.  DaaS is an online tool that can be used by Client to automate the creation of standard documents that are required by the applicable utility, jurisdiction, installer, and lender (excluding the fund agreement) to complete a solar transaction (collectively the “Closing Packet”).  Client will provide to Solo the documents necessary for the Closing Packet.  Solo is not responsible for editing or formatting any documents in the Closing Packet. 
3. Additional Customization.  As part of the Additional Services, Solo can develop and implement additional customization to the Client’s proposal template.  Such additional customization is provided on a time and materials basis at Solo’s quoted hourly rate.   
4. Proposal Redesigns.  “Proposal Redesigns” are defined as any modification to a proposal that is material enough to cause the proposal to iterate.  These changes include, but are not limited to, moving solar panels to a new roof plane, adding a new roof plane, changing panel type, updating usage, and changing production offset.  If Client requests that Solo make a material change to an existing proposal, then Solo will charge, and Client will pay, an additional ten dollars ($10.00) for such change.
5. Solar Fee Schedule.  For each solar Client Proposal prepared for Client using the Solo Systems, will pay a fee as specified in the Pricing Outline at the rate associated with Client’s Pricing Tier, and subject to any Minimum Monthly Spend identified in the Pricing Outline.  
6. Shade Report.  Upon Client’s request, Solo will provide a report of the shade values on the roof of an End User’s home to determine its solar capacity (“Shade Report”).  The fee for each Shade Report is Ten Dollars ($10.00).
7. Services Credits. In the event (i) the Initial Term or Renewal Term is at least twelve (12) months, and (ii) the calculated fees pursuant to Sections 4 and 5 of this Exhibit A, plus the calculated fees pursuant to Sections 3 and 4 of Exhibit C, are less than the Monthly Minimum Spend, then the difference between the Monthly Minimum Spend and the calculated fee (the “Monthly Services Credit”) shall be available to use as a credit against future SaaS Services that exceed the Monthly Minimum Fee. Services Credits may not be used as a credit against fees that exceeded the Monthly Minimum Spend prior to the accrual of the Monthly Services Credit.
8. One-Time Pricing Tier Adjustment. Client may, within the first 45 days following the Effective Date of this Agreement, select a different Pricing Tier for any of the Services listed in Exhibits A, B, or C (a “One-Time Pricing Tier Adjustment”). The Pricing Tier selected must be at a level above the “Monthly” Pricing Tier for any Services so adjusted, and Client may only elect one One-Time Pricing Tier Adjustment during the Term of this Agreement. If Client selects a different Pricing Tier, Solo will work with Client in good faith to adjust the Minimum Monthly Spend to reflect the impact of the One-Time Pricing Tier Adjustment.

EXHIBIT B

CAD as a Service

1. CaaS

CaaS is an online tool that can be used by Client to automate by using computer-aided design (CAD) services to prepare the necessary drawings that are required by the applicable utility, jurisdiction, and installer to complete a solar transaction.

A. CaaS.  Upon Client’s request, and subject to Client providing the information set forth in Section 1.B below, Solo will provide the following CaaS as part of the SaaS Services:

1. CAD design set;
2. Engineering letter certifying the home’s structural integrity to support the solar PV system; and
3. A completed permit application for the applicable government authority having jurisdiction (“Authority”), unless such application is an online application.

B Client Submissions.  In order for Client to access Solo’s CaaS, Client must submit the following photographs (all photographs must be in focus, legible, and appropriately lighted):

1. Roof and panel placement (required only if Client is not using PaaS);
2. Rafter depth (not thickness), shown with a measuring tape;
3. Rafter spacing (distance from rafter to rafter), shown with a measuring tape;
4. Overall view of the attic showing ridge board and support spans;
5. Close-up of the service disconnect of the main breaker;
6. Proximity of main service panel showing all breakers (taken from 10’-15’ back);
7. Close-up of the entire electric meter, but clearly showing the meter numbers;
8. Close-up of the main service panel;
9. Proximity photo of the main service panel (taken from 10’-15’ back); and
10. The entire service panel sticker showing the service rating.

C. Electrical Stamp.  If MPU avoidance approach is rejected by the Authority, Solo will provide an electrical engineering stamp for the electrical diagram of the CAD design.

D. No Qualifying of Roof Type or Condition.  It is the End User’s responsibility to qualify the End User’s roof in terms of type and condition.  If at install, the installation company refuses to install because of the roof type or condition, it is up to the End User to resolve the issue.

E. Service Level.  Solo will use commercially reasonable efforts to provide the CaaS services as set forth below:

1. If requested before 12:00 p.m. (noon), it will be provided before 12:00 p.m. (noon) three (3) business days later;
2. If requested after 3:00 p.m., it will be provided before close of business three (3) business days later;
3. If Client submits more than five percent (5%) of its prior monthly CaaS volume in one (1) day, two (2) additional business days will be added; and
4. If Client submits more than five percent (5%) of its prior monthly CaaS volume for three (3) consecutive days, three (3) additional business days will be added.   

EXHIBIT C

Roofing (Proposals) as a Service (RaaS)

RaaS

1. RaaS is an online template that can be customized by Client to facilitate providing roofing proposals to its End Users (“Client Proposals”).  As of the Effective Date, the proposal template includes the following customizable features: company logo, customized color scheme (primary and secondary colors), virtual selling features, personalized onboarding meeting, dynamic in-proposal adjustment tools,, customization for shingle type, adders, additional services, applicable rebates, personalized training, event-based customer relationship management (CRM) sync, custom incentives, real-time proposal staffing, integrated loan application and approval, and subsequent updates and features.   
2. Additional Customization.  As part of the Additional Services, Solo can develop and implement additional customization to the Client’s proposal template.  Such additional customization is provided on a time and materials basis at Solo’s quoted hourly rate.   
3. Proposal Redesigns.  “Proposal Redesigns” are defined as any modification to a proposal that is material enough to cause the proposal to iterate.  If Client requests that Solo make a material change to an existing proposal, then Solo will charge, and Client will pay, an additional ten dollars ($10.00) for such change.
4. Roofing Fee Schedule.  For each roofing-related Client Proposal prepared for Client using the Solo Systems, will pay a fee according to the schedule below, per Client Proposal, up to the maximum number of Client Proposals associated with Client’s Pricing Tier in the Pricing Outline, and subject to the Minimum Monthly Spend identified in the Pricing Outline. For any calendar month in which Client Proposals exceed the maximum associated with Client’s Pricing Tier, Client shall pay a fee on such incremental Client Proposals as identified in the next highest Pricing Tier(s).
5. Services Credits. As specified in Exhibit A.