PowerFlex Platform Terms of Use

These Terms of Use (“Terms of Use”) govern the use of the PowerFlex Platform and related Services and/or Deliverables by (“User”).

1. PowerFlex Platform Services Warranty. PowerFlex Systems, LLC (“PowerFlex”) shall use reasonable efforts consistent with prevailing industry standards to maintain the PowerFlex Platform and provide the Services and Deliverables in a manner which minimizes errors and interruptions. The PowerFlex Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by PowerFlex or by third-party providers, or because of other causes beyond PowerFlex’s reasonable control, including but not limited to cellular, data network or equipment failures, but PowerFlex shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, POWERFLEX DOES NOT WARRANT THAT THE  POWERFLEX PLATFORM OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE POWERFLEX PLATFORM OR THE ACCURACY OF THE DATA AND INFORMATION PROVIDED VIA THE POWERFLEX PLATFORM EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE POWERFLEX PLATFORM IS PROVIDED “AS IS” AND, WITH RESPECT TO THE POWERFLEX PLATFORM, POWERFLEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERUPTED SERVICE, WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE AND NON-INFRINGEMENT.
   
2. User Responsibilities; Limits on Use. User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the PowerFlex Platform; modify, translate, or create derivative works based on the PowerFlex Platform (except to the extent expressly permitted by PowerFlex or authorized within the PowerFlex Platform); sell, resell, rent, lease or otherwise transfer the PowerFlex Platform or any data collected or maintained by PowerFlex in connection with the operation of the PowerFlex Platform to any third party; use the PowerFlex Platform for timesharing or service bureau purposes or otherwise for the benefit of a third-party; interfere with disrupt the integrity of the PowerFlex Platform; copy, frame or mirror any part of the PowerFlex Platform, other than copying or framing on User’s own intranets or otherwise solely for User’s own internal business use and purposes; access or allow a third party to access the PowerFlex Platform, for any competitive purpose or for any improper purpose whatsoever; upload, transmit or introduce any malicious code to the PowerFlex Platform; utilize the PowerFlex Platform for any purpose other than User’s internal business purposes; or remove any proprietary notices or labels.
3. User Covenants. User represents, covenants, and warrants that User will use the PowerFlex Platform only in compliance with PowerFlex’s standard published policies then in effect and all applicable laws and regulations, including but not limited to regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. User hereby agrees to indemnify and hold harmless PowerFlex against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User’s use of the PowerFlex Platform. Although PowerFlex has no obligation to monitor User’s use of the PowerFlex Platform, PowerFlex may do so and may prohibit any use of the PowerFlex Platform if it believes may be (or alleged to be) in violation of the foregoing.
4. Internet Connectivity. If PowerFlex has procured Internet Connectivity in order to connect the separate control mechanisms for the System (the “Nexus”) to the PowerFlex Platform, User shall be responsible for any damage to equipment used to provide the Internet Connectivity, unless such damage was due to the negligence of PowerFlex. User shall also be responsible for maintaining the security of the equipment used to provide the Internet Connectivity, User account, User passwords and files, and for all uses of User account or the equipment used to provide the Internet Connectivity. User shall provide to PowerFlex sufficient physical access to the Site to enable PowerFlex to trouble shoot or remedy and issues with the Internet Connectivity.
   
5. Electricity Use. User represents and warrants that it has the power and authority to utilize, without restriction, the electricity connected to its Equipment.
6. Retention of Ownership.  PowerFlex shall own and hold all right, title and interest in and to (a) the PowerFlex Platform, all improvements, enhancements or modifications thereto, (b) all PowerFlex marks, (c) all other PowerFlex-supplied material developed or provided by PowerFlex for User’s use in connection with the PowerFlex Platform and (b) all intellectual property rights related to any of the foregoing.
   
   
7. Data. Notwithstanding anything to the contrary, PowerFlex shall have the right to collect and analyze data and other information relating to the System, Nexus and use thereof, electrical meters and provision, use and performance of various aspects of the PowerFlex Platform and related systems and technologies and any other data transmitted to the PowerFlex Platform (collectively, “Data”), and PowerFlex has the right to use the Data consistent with applicable law. No rights or licenses are granted except as expressly set forth herein. If the Data or any data or information provided to User in connection with User’s provision of the Services & Deliverables contains personal information, each of PowerFlex’s and User’s access and use of any such shall comply with PowerFlex’s privacy policy set forth at https://powerflex1.wpengine.com/privacy and with applicable law.
8. Access. User acknowledges and agrees that PowerFlex, its affiliates and/or its designated agent may check and access and provide instructions to the Nexus or their components and may provide upgrades or supplements to such software that may be automatically downloaded to the Nexus.
9. License to PowerFlex.  User hereby grants to PowerFlex a royalty-free, non-assignable, non-transferable, and non-exclusive license to use User trademarks, logos and domain names, and any content or services that User provides for use in connection with PowerFlex’s provision of Services and or to advertise that User is using the PowerFlex Platform. PowerFlex shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the PowerFlex Platform services any suggestions, enhancement requests, recommendations or other feedback provided by User relating to the PowerFlex Platform.
10. PowerFlex may temporarily suspend User’s access to any portion or all of the Services if: (i) PowerFlex reasonably determines that (A) there is a threat or attack on the PowerFlex Platform; (B) User’s use of the PowerFlex Platform disrupts or poses a security risk to the PowerFlex Platform or to any other customer or vendor of PowerFlex; (C) User is using the PowerFlex Platform for fraudulent or illegal activities; (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) PowerFlex’s provision of the Services to User is prohibited by applicable law; (ii) any vendor of PowerFlex has suspended or terminated User’s access to or use of any third-party services or products required to enable User to access the Services; or (iii) User is in breach of its agreement with PowerFlex (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). PowerFlex shall use commercially reasonable efforts to provide written notice of any Service Suspension to User and to provide updates regarding resumption of access to the Services following any Service Suspension. PowerFlex shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. PowerFlex will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber may incur as a result of a Service Suspension.

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