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OPTIRTC SOFTWARE LICENSE AND SERVICES AGREEMENT

This OptiRTC Software License and Services Agreement (“SLSA”), dated as of the Effective Date, is made by and between OptiRTC, Inc., a Delaware corporation, with offices located at 98 North Washington St. Suite 210 Boston, MA 02114 (“Opti”) and the company specified in the Order referencing this SLSA (“Company”). Each of Opti and Company may be referred to herein individually as a “Party” or collectively as the “Parties.” For purposes of this SLSA, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in Section 1 below.

WHEREAS, Opti is in the business of providing real-time data monitoring and control of stormwater infrastructure through its proprietary, subscription based, Opti SaaS Platform and related services; and

WHEREAS, Company desires to utilize the Opti SaaS Platform and receive the Services in accordance with the terms of this Agreement.

NOW, THEREFORE, subject to the terms and conditions set forth in this Agreement, for good and valuable consideration the sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. DEFINITIONS

1.1. “Agreement” means this SLSA, each corresponding Order, and all annexes, exhibits, and schedules hereto and thereto.

1.2. “Opti API” means Opti's proprietary application programming interface and other related materials provided or made available by Opti to Company pursuant to an Order.

1.3. “Opti SaaS Platform” means the Opti API, the Opti Software, and Opti's proprietary, subscription based software-as-a-service platform (in object code format only), and any documentation related to the Opti SaaS Platform, as made available by Opti to Company via the internet pursuant to an Order.

1.4. “Opti SaaS Platform Subscription” means the access and licenses to the Opti SaaS Platform provided pursuant to this Agreement.

1.5. “Opti Software” means Opti's proprietary software (in object code format only) embedded on certain hardware devices provided by Opti, which facilitates the collection of data, to the extent provided or made available by Opti to Company pursuant to a separate agreement between Company and Opti.

1.6. “Order” means each ordering document (including a renewal order) provided by Opti referencing this SLSA and executed by the Parties in writing relating to Company's license(s) to use the Opti SaaS Platform and/or the Services. Each Order shall identify (a) the Opti SaaS Platform Subscription type and/or the Services to be provided thereunder, (b) the associated fees, costs or expenses to be paid by Company for the Opti SaaS Platform Subscription (the “Subscription Fees”) and for the Services (the “Services Fees”, and together with the Subscription Fees, the “Fees”), (c) the corresponding Company “End Client” (if any) for which the Services are to be delivered (each a “Client”), and (d) any other terms mutually acceptable to the Parties.

1.7. “Services” means the services to be performed by Opti pursuant to Section 4 below, as further described in the proposal attached to the applicable Order.

1.8. “User” means an individual: (a) who is authorized to use the Opti SaaS Platform by Company; (b) for whom an active subscription to the Opti SaaS Platform has been purchased by Company and is in effect; (c) who has received identification credentials to use the Opti SaaS Platform from Opti; and (d) who agrees to the Opti SaaS Platform Terms of Use upon logging into the Opti SaaS Platform. Users may include but are not limited to employees, consultants, contractors and agents using the Opti SaaS Platform solely on behalf of Company and at Company's direction.

2. OPTI SAAS PLATFORM ACCESS, LICENSES AND RESTRICTIONS

2.1. Provision of Opti SaaS Platform. Subject to the terms and conditions of this Agreement, Opti will provide access to the Opti SaaS Platform to Company as set forth in each applicable Order, during the period from the Start Date specified in the Order and through the effective date of termination of this Agreement, or of the Opti SaaS Platform Subscription pursuant to Section 7.4 below, whichever is earlier (the “Subscription Term”). Company agrees that Company subscription purchases and corresponding licenses hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Opti regarding future functionality or features. Opti may make modifications, updates and improvements to the Opti SaaS Platform from time to time and will make available to Company such modifications, updates and improvements to the Opti SaaS Platform to the extent such modifications, updates and improvements are generally made available by Opti to its customers free of charge. Under no circumstances shall Opti have any obligation or be liable to perform any services hereunder not specified in a corresponding Order executed by both Parties.

2.2. License Grant to Company. During the Subscription Term, subject to the terms and conditions of this Agreement and the applicable Order, including but not limited to timely payment of the Fees, Opti hereby grants to Company a limited, non-exclusive, non-sublicensable, non-transferable right and license to permit its Users to (a) access and use the User accessible functionality and features of the Opti SaaS Platform solely for Company's internal business purpose; (b) install, run and use the Opti Software and related documentation made available to Company online or otherwise (“Documentation”) solely for Company's internal business purposes in connection with Company's use of the Opti SaaS Platform as authorized herein; and (c) use of the Opti API solely to access Derived Data (defined in Section 6.1.1 below) from the Opti SaaS Platform, in each case, subject to the applicable limitations and restrictions set forth herein.

2.3. License Restrictions. Except as expressly permitted under an applicable Order, Company will not, and will not permit or authorize any User or third party to: (a) copy, modify, alter, reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any part of the Opti SaaS Platform; (b) translate or create derivative works based on any part of the Opti SaaS Platform; (c) license, sublicense, sell, resell, rent, lease, transfer, lend, assign, distribute, time share, or otherwise commercially exploit or make any part of the Opti SaaS Platform available to any third party; (d) access any part of the Opti SaaS Platform to develop or build a competitive product or service; (e) use or operate the Opti SaaS Platform on behalf of a third party; (f) bypass, delete or disable any copy protection mechanisms or any security mechanisms in the Opti SaaS Platform; (g) alter or remove any copyright or other proprietary notices contained in the Opti SaaS Platform; (h) use the Opti SaaS Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (i) use the Opti SaaS Platform to store or transmit malicious code; (j) interfere with or disrupt the integrity or performance of the Opti SaaS Platform or third party data associated therewith; (k) attempt to gain unauthorized access to the Opti SaaS Platform or its related systems or networks; or (l) use the Opti SaaS Platform with unauthorized Third-Party Products (defined in Section 9.4). Company will use and only permit its Users to use the Opti SaaS Platform only as authorized herein, and in accordance with all applicable laws and government regulations, and the corresponding Order and Documentation, including, without limitation, by complying with limits on data storage space, number of permitted Users and number of requests that Company or an application under its control is permitted to make to the Opti API. Company will take all reasonable precautions to prevent unauthorized or improper use of the Opti SaaS Platform by Company's Personnel (defined in Section 12.1 below) and other users for which it requests or provides access to the Opti SaaS Platform, and notify Opti promptly of any such unauthorized access or use. Company may authorize Users to use the Opti SaaS Platform on its behalf in accordance with the terms and conditions of this Agreement (including any subscription limits set forth herein); provided that Company is responsible for each User's compliance with this Agreement and use of the Opti SaaS Platform.

3. OPTI SAAS PLATFORM SUPPORT

During the Subscription Term, Opti will provide the maintenance and support services for the Opti SaaS Platform specified in Exhibit A hereto.

4. SERVICES

4.1. Services. Subject to the terms and conditions of this Agreement, Opti hereby agrees to provide to Company, or to its Clients on behalf of Company, the Services, as further described in the proposal as attached to the applicable Order (the “Proposal”), during the period from the Services Start Date specified in the Order and through the effective date of termination of this Agreement, or of the Services pursuant to Section 7.4 below, whichever is earlier (the “Services Term”). In the event of any express conflict or inconsistency between the SLSA and the terms of the Proposal, the SLSA shall prevail to the extent necessary to resolve such conflict or inconsistency.

4.2. Scope of Services. Each Proposal shall include a detailed description of the Services and any specific tasks to be performed by Opti as part of such Services, and may specify (a) corresponding obligations or assumptions of the Parties and/or the Client (b) the location or facility where the Services are to be performed; (c) applicable Services Fees (or estimates thereof), including but not limited to for professional and design services, implementation and installation services, consulting services, and hardware and software procurement; (d) associated milestones; (e) associated reporting requirements, documentation requirements, assumptions or contingencies and relevant acceptance testing procedures and criteria, and/or (f) other terms mutually acceptable to the Parties.

4.3. Changes. Either Party may request changes to any Proposal by written request to the other Party (a “Change Proposal”). The Parties shall work together in good faith to evaluate the impact of such proposed changes on the terms of each applicable Proposal, and Opti shall prepare a written description detailing the nature and scope of any additional Services required to implement such changes (a “Change Order”). Each Change Order shall (to the extent applicable) specify any additional resources required, modified or additional Services Fees, and any other material and relevant information. Change Orders shall not be effective until executed by both Parties, and upon such execution shall be deemed to be incorporated into and part of the corresponding Proposal. Change Proposals for services outside the scope of or materially different from those set forth in the applicable Proposal shall require a mutually acceptable new Proposal.

4.4. Subcontracting. Opti may subcontract the performance of any of the Services to one or more third parties; provided, however, that Opti shall remain primarily liable and responsible to Company for the performance of such Services by its subcontractors as described in the Proposal.

4.5. Opti Personnel. Opti shall have sole authority to hire, fire, direct, control, discipline, reward, evaluate, schedule, supervise, promote, suspend and/or terminate, all Opti employees, agents, representatives, and subcontractors utilized by Opti in connection with its performance of the Services (collectively, “Opti Personnel”). Opti shall be solely responsible for the compensation of all Opti Personnel, including but not limited to payment of any corresponding and applicable worker's compensation, disability and other income and other similar benefits, unemployment and other similar insurance and for withholding income and other taxes and social security.

4.6. Obligations. Under no circumstances shall either Party have any obligation or be liable for any Services Fees or provision of the Services in connection with an Order until the Order or applicable Change Order has been executed by both Parties.

5. FEES AND PAYMENTS

5.1. Fees. In consideration of the licenses, rights and Services to be provided by Opti pursuant to the Agreement, Company agrees to pay Opti the applicable Fees specified in each Order and Change Order.

5.2. Invoicing. Opti will invoice Company for the Fees specified in the applicable Order or Change Order, and unless otherwise specified therein, each such invoice will be due net thirty (30) days from the invoice date. Unless otherwise specified in the applicable Order, Opti will invoice Company for all Subscription Fees on an annual basis, in advance. Company's obligation to pay Fees, to the extent attributable to any period of time prior to the effective date of termination of an applicable Order, shall survive such termination.

5.3. Expenses. Except as otherwise expressly set forth in the applicable Order, Opti shall invoice Company in arrears on a calendar monthly basis for all costs and expenses incurred directly by Opti in connection with the performance of the Services.

5.4. Payment Terms. Except as otherwise expressly set forth in the applicable Order, all Fees and expenses will be paid in United States dollars and due net thirty (30) days from receipt of the corresponding invoice. Payment must be made by wire transfer or as otherwise directed by Opti. Any amount which is not paid when due will bear interest at the rate of one and one-half percent (1½%) per month, or the maximum allowable rate, whichever is less, from the date such payment was due until the date paid. Notwithstanding anything to the contrary, to the extent Company in good faith disputes the amount of any Fees or expenses specified in a given invoice, the amount so disputed shall not be payable until such dispute has been resolved and such payment shall be subject to such resolution.

5.5. Invoice Dispute. If Company in good faith disputes any portion of an invoice, Company shall pay the undisputed portion of the invoice and submit written notice to Opti regarding the disputed amount, which notice shall include documentation supporting the alleged billing error (each such notice, a “Fee Dispute Notice”). A Fee Dispute Notice must be submitted to Opti within thirty (30) days from the date the invoice at issue is received by the Company. Company waives the right to dispute any Fees not disputed within such thirty (30) day period. The Parties shall negotiate in good faith to attempt to resolve any such disputes within thirty (30) days after Company's delivery of the applicable Fee Dispute Notice.

5.6. Taxes. The Fees payable hereunder do not include any foreign, federal, state or local sales, use or other similar taxes, however designated, levied against the services, licenses or access to be provided hereunder. Company will pay, or reimburse Opti for, all such taxes associated with the performance by Opti under the corresponding invoice, provided, however, that Company will not be liable for any taxes based on the Opti's net income. To the extent Opti has the legal obligation to collect such taxes, the appropriate amount will be added to the applicable invoice and paid by the Company unless the Company provides Opti with a valid and applicable tax exemption certificate authorized by the appropriate taxing authority.

5.7. Suspension of Service and Acceleration. If Company is thirty (30) days or more overdue in paying Opti with respect to any Fees or expenses payable hereunder, Opti may, without limiting Opti's other rights and remedies and without notice, suspend Company's use of the Opti SaaS Platform until such Fees and expenses are paid in full.

5.8. Project Contacts. Each Party will designate a “Project Contact” who will be the principal point of contact for such Party for all matters relating to this Agreement. A Party may designate a new Project Contact by written notice to the other Party. The applicable Project Contact will have overall responsibility for managing and coordinating relations and communications between the Parties in connection with this Agreement, and have the power and authority to make decisions with respect to actions to be taken by the Parties in the ordinary course of day-to-day management of the performance of this Agreement.

6. PROPRIETARY RIGHTS

6.1. Company Data.

6.1.1. Company owns all electronic data or information submitted by Company directly or made otherwise available to Opti through Company's use of the Opti SaaS Platform (“Company Data”). Notwithstanding the foregoing, during the Term, Company hereby grants to Opti a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to (a) copy, transmit, distribute, display, modify, create derivative works of and otherwise use the Company Data to perform Opti's obligations under this Agreement, including to create information automatically computed by the Opti SaaS Platform based on Company Data and other inputs, (b) derive data therefrom (“Derived Data”), and (c) allow third-party providers of Third-Party Products to access Company Data solely as required for the interoperation and troubleshooting of such Third-Party Products with the Opti SaaS Platform.

6.1.2. During the Term and thereafter, Company hereby grants to Opti a perpetual, irrevocable, unrestricted, transferable, non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to copy, use, modify, distribute, display and disclose Company Data on an aggregate and anonymized basis.

6.1.3. Company is solely responsible for the accuracy, quality, integrity and legality of Company Data and of the means by which Company acquires Company Data.

6.1.4. Upon written request by Company made to Opti within thirty (30) days after the effective date of termination of this Agreement, Opti will make available to Company for download a file of the Derived Data in comma separated value (.csv) format. After such thirty (30) day period, Opti will have no obligation to maintain or provide any Company Data or Derived Data and may thereafter, at Opti's option, delete such Company Data and Derived Data in Opti's possession or under Opti's control.

6.2. Opti Property. Company acknowledges that, as between the Parties: (a) all right, title and interest in and to the Opti SaaS Platform and all Intellectual Property and other proprietary rights embodied therein or associated therewith are and will remain with Opti; and (b) no right or interest in the Opti SaaS Platform is conveyed to Company other than the limited licenses and rights granted herein. Opti acknowledges that, as between the Parties: (i) all right, title and interest in and to the Company Data and all Intellectual Property and other proprietary rights embodied therein or associated therewith are and will remain with Company; and (ii) no right or interest in the Company Data is conveyed to Opti other than the limited licenses granted herein.

6.3. Feedback. Company acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information provided by Company to Opti relating to the Opti SaaS Platform or the Services to be performed by Opti under this Agreement, or associated enhancements, improvements or functionality (“Feedback”) are deemed to be Confidential Information (defined in Section 8 below) of Opti, and Company hereby grants to Opti an unrestricted, perpetual, irrevocable, non-exclusive, transferable, worldwide, royalty-free, fully paid up, sublicensable right and license to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Company. Opti will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality relating to the Opti SaaS Platform or the Services.

6.4. Reservation of Rights. Except for the rights and licenses expressly set forth herein, nothing in this Agreement grants, conveys or shall be construed to grant or convey to either Party any license, right, title or interest in or to any property of the other Party or any portion thereof, and each Party hereby reserves all right, title and interest in and to its own property.

6.5. Definitions. For purposes of the foregoing, “Intellectual Property” means any and all drawings, specifications, reports, summaries, samples, photographs, memoranda, notes, calculations, and other documents and materials, and all Intellectual Property Rights in any of the foregoing; and “Intellectual Property Rights” means all worldwide patents, copyrights, trademarks, trade names, service marks, trade secrets, database rights and other intellectual property rights (whether or not registered or registerable).

7. TERM; TERMINATION

7.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and, subject to Section 7.2 below, shall terminate at the end of the Initial Subscription Term specified in the Order; provided, that the Term (a) shall automatically extend for successive renewal terms equal in length to the Initial Subscription Term if “Automatic Renewal” is selected on the Order (for either the Opti SaaS Platform Subscription or the Services), and (b) otherwise, may be extended for one or more renewal terms as specified in a corresponding renewal Order executed by both Parties.

7.2. Termination of Agreement. Either Party may terminate this Agreement: (a) if the other Party breaches any material term or condition of this Agreement and fails to cure such breach to the reasonable satisfaction of the non-breaching Party within thirty (30) days after written notice of such breach, except payment obligations, for which there is no cure period; (b) immediately upon written notice if the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; (c) immediately upon written notice if the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors and such petition or proceeding is not dismissed within sixty (60) days of filing; (d) immediately upon written notice if the other Party ceases to do business, or otherwise terminates its business operations; or (e) upon at least sixty (60) day's written notice to the other Party, effective as of the end of the then current Term.

7.3. Effect of Termination. Upon any termination of this Agreement other than by Opti pursuant to Section 7.2(a), Opti will refund to Company any prepaid and unused Fees paid to Opti under the Agreement attributable to the period of the then current Term remaining after the effective date of such termination. In no event will any such termination relieve the Company of its obligation to pay any Fees or Expenses then payable hereunder for the period prior to the effective date of termination. Upon any termination or expiration of this Agreement, each Party will return or destroy the other Party's Confidential Information at the request of the other Party, Company shall immediately cease all use of the Opti SaaS Platform, and the respective rights and obligations of the Parties pursuant to Sections 5 (Fees and Payment); 6 (Proprietary Rights); 7.3 (Effect of Termination); 8 (Confidentiality); 9.3 (Representations and Warranties; Disclaimers); 9.4 (Third-Party Products); 10 (Indemnification); 11 (Limitation of Liability); and 12 (General) shall survive.

7.4. Termination of Opti SaaS Platform Subscription or Services. Notwithstanding anything to the contrary, either Party may terminate either the Opti SaaS Platform Subscription or the Services, effective as of the end of the then current Term, upon at least sixty (60) day's written notice to the other Party.

8. CONFIDENTIALITY

8.1. Definition. As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible form, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is either (a) marked as confidential or proprietary, (b) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (c) would be reasonably understood by the Receiving Party as the Disclosing Party's Confidential Information at the time of disclosure. Without limiting the foregoing, the Opti SaaS Platform and all modifications, enhancements, improvements and derivative works thereof shall be Opti's Confidential Information, and all Company Data shall be Company's Confidential Information. Information shall not be deemed Confidential Information if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes generally publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information.

8.2. Obligations. Each Receiving Party shall use reasonable measures, and at least a reasonable degree of care, to protect the confidentiality of and avoid disclosure and unauthorized use or reproduction of the other Party's Confidential Information. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to: (a) those employees and agents of the Receiving Party who have a need to know such information in connection with the performance of this Agreement; and (b) legal or financial advisors or potential acquirers of the Receiving Party on a need to know basis; provided, that, in each case, such legal and financial advisors are bound by professional ethical duties, and such employees, agents or potential acquirers are bound by written confidentiality obligations, which are at least as restrictive as those set forth herein. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority (provided that the Receiving Party delivers reasonable notice to the Disclosing Party and use commercially reasonable efforts to cooperate with Disclosing Party's attempt to obtain a protective order). Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party.

8.3. Remedies. Each Receiving Party acknowledges and agrees that any breach of this Section 8 may give rise to irreparable injury to the Disclosing Party and accordingly agrees that, in addition to all other rights and remedies that the Disclosing Party may have, the Disclosing Party may seek injunctive relief in connection with any such breach.

9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

9.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

9.2. Opti Warranties. Opti warrants to Company that the Services will be performed in a workmanlike and professional manner, in accordance with applicable industry standards, and that the Opti SaaS Platform, as delivered, will perform materially in accordance with the Documentation for the Opti SaaS Platform. Subject to Section 7 (Termination) and Opti's support obligations with respect to the Opti SaaS Platform pursuant to this Agreement, in the event of a breach of the foregoing warranty with respect to the Opti SaaS Platform while this Agreement is in effect, Opti's sole obligation and liability, and Company's sole remedy, will be for Opti to use commercially reasonable efforts to correct the applicable deficiency that causes the Opti SaaS Platform to not conform to this warranty within a commercially reasonable time, provided that Company reports any corresponding warranty claims to Opti within thirty (30) days of discovery of a breach of the foregoing warranty. If Opti determines that it is unable to remedy such deficiency, Opti may terminate this Agreement and refund to Company a pro rata amount of the Subscription Fees previously paid by Company to Opti for the unused portion of the Term. Notwithstanding anything to the contrary, Opti shall have no liability for, and all Opti warranties hereunder shall be null and void and not apply to the extent the breach of such warranty is caused in whole or in part by (i) any act or omission of any person or entity other than Opti's Personnel (defined in Section 12.1 below), (ii) any failure of Company or the applicable User (if any) to comply with written instructions or recommendations of Opti, the terms of this Agreement, or any corresponding specifications or requirements for the Opti SaaS Platform or associated hardware, equipment or software as set forth herein or in the Documentation, or by the applicable manufacturer or vendor, or (iii) any Force Majeure Event (defined in Section 12.11 below) or Uncontrollable Events (defined in Exhibit A hereto).

9.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE OPTI SAAS PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND OPTI DISCLAIMS ANY AND ALL WARRANTIES. NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, AND ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY'S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

9.4. Third-Party Products.

9.4.1. In connection with the Opti SaaS Platform and associated Company project using the Opti SaaS Platform (the “Project”), Company or Users (if applicable) may purchase, lease, license or otherwise procure certain hardware or other products or services manufactured or provided by third parties (collectively, “Third-Party Products”). To the extent specified in the applicable Order, Opti may offer or procure for Company or Users (if applicable) certain Third-Party Products that are certified by Opti (collectively, “Opti-Certified Third-Party Products”). The current list of Opti-Certified Third-Party Products (the “Opti-Certified Product List”) and corresponding product types (each a “Type”), and description of Opti's program, specifications, rules and requirements for Opti certification of Third-Party Products, are available on request.

9.4.2. Any such purchase, lease, license or other procurement of Third-Party Products, and any exchange of data between Company and such Third-Party Products or their providers (each a “Third-Party Provider”) (whether or not such Third-Party Products are Opti-Certified Third-Party Products) is solely between Company and such Third-Party Provider; provided that, to the extent specified in the applicable Order, such Third-Party Products shall be delivered to Company (or the applicable User) by Opti pursuant to and in accordance such Order.

9.4.3. Notwithstanding anything to the contrary, Company acknowledges and agrees that due to significant variation in the quality, durability, and other attributes of Third-Party Products of the Types specified in the Opti-Certified Product List, except as otherwise expressly and separately agreed to by Opti in writing, Opti will not support Projects that use Third-Party Products of the Types specified in the Opti-Certified Product List that are not Opti-Certified Third-Party Products; and that, accordingly, to the extent Company or any User (if applicable), in connection with any Project, utilizes any Third-Party Products of the Types specified in the Opti-Certified Product List that are not Opti-Certified Third-Party Products, all Opti product, support and maintenance warranties and obligations pursuant to this Agreement shall be null and void and no longer apply.

9.4.4. OPTI IS NOT AND SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, LIABILITIES AND INDEMNITIES WHATSOEVER WITH RESPECT TO ANY AND ALL THIRD-PARTY PRODUCTS, WHETHER OR NOT OPTI-CERTIFIED THIRD-PARTY PRODUCTS. COMPANY HEREBY EXPRESSLY WAIVES ANY AND ALL WARRANTIES, REPRESENTATIONS, LIABILITIES AND INDEMNITIES ON THE PART OF OPTI WITH RESPECT TO ALL THIRD-PARTY PRODUCTS, AND HEREBY ACKNOWLEDGES AND AGREES THAT ANY SUCH REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION OBLIGATIONS, IF PROVIDED AT ALL, SHALL BE PROVIDED SOLELY BY THE APPLICABLE THIRD-PARTY PROVIDER. SUCH REPRESENTATIONS, WARRANTIES AND INDEMNITIES (IF ANY) PROVIDED BY SUCH THIRD-PARTY PROVIDERS WILL BE THE SOLE AND EXCLUSIVE REMEDY OF COMPANY OR THE APPLICABLE USER (IF ANY) WITH RESPECT TO THE USE AND OPERATION OF THE THIRD-PARTY PRODUCTS.

9.4.5. If Company installs or enables Third-Party Products for use with the Opti SaaS Platform, Company acknowledges and agrees that Opti may allow the applicable third-party providers of those Third-Party Products to access Company Data as required for the interoperation and troubleshooting of such Third-Party Products with the Opti SaaS Platform. Opti is not and will not be responsible for any disclosure, modification or deletion of Company Data resulting from any such access by Third-Party Product providers. The Opti SaaS Platform may allow Company to restrict such access by restricting Users from installing or enabling certain Third-Party Products for use with the Opti SaaS Platform, but such restrictions may impact associated functionality of the Opti SaaS Platform available to such Users.

10. INDEMNIFICATION

10.1. Opti Indemnification. Opti will defend Company against any claim, demand, suit, or proceeding (each, a “Claim”) made or brought against Company by a third party alleging that the use of the Opti SaaS Platform in accordance with this Agreement infringes upon any third-party copyright or U.S. patent, and will indemnify Company for any damages finally awarded against, and for reasonable attorney's fees incurred by, Company in connection with any such Claim; provided, that Company (a) promptly gives Opti written notice of the Claim; (b) gives Opti sole control of the defense and settlement of the Claim (provided that Opti may not settle any Claim unless the settlement unconditionally releases Company of all liability); and (c) provides to Opti all reasonable assistance requested by Opti, at Opti's expense. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or arising from (i) use of the Opti SaaS Platform in breach of this Agreement or any applicable Documentation, (ii) any modification of the Opti SaaS Platform by any party other than Opti, (iii) any use of the Opti SaaS Platform in combination with hardware or software not provided or authorized by Opti, or (iv) use of the Opti SaaS Platform, when use of a subsequent software release which Opti has made commercially available would have avoided such infringement. Opti may, at Opti's option, either procure for Company the right to continue using the allegedly infringing Opti SaaS Platform or replace or modify the same so that it becomes non-infringing (so long as the functionality is not materially changed). In the event that neither of the foregoing is reasonably available, Opti may require Company to cease the use of the alleged infringing Opti SaaS Platform and refund to Company a prorated portion of any fees Company has paid to Opti in advance.

10.2. Mutual Indemnification. Each Party (the “Indemnifying Party”) will defend and hold harmless the other Party and its directors, officers, employees, agents, attorneys, successors and assigns (the “Indemnified Parties”) from and against, and pay all costs (including reasonable attorneys' fees) and damages finally awarded against the Indemnified Parties by a court of competent jurisdiction or any settlement amounts finally agreed to by the Indemnifying Party, as a result of any and all third party Claims arising out of or resulting from personal injury, death or damage to personal property occurring as a direct result of any act or omission of the Indemnifying Party or any of its directors, officers, employees, contractors, agents, attorneys, successors and assigns in connection with this Agreement; provided, that the Indemnified Party complies with the requirements stated in Section 10.1(a) through (c).

10.3. Exclusive Remedy. The foregoing indemnities represent Opti's entire liability and obligation, and Company's sole and exclusive remedy, with respect to any actual or alleged infringement of any Intellectual Property Rights in connection with the Opti SaaS Service or any Claim under Section 10.1.

11. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO DAMAGES DUE TO BREACH OF THE TERMS OF ANY LICENSE GRANTED HEREIN OR SECTION 8 (CONFIDENTIALITY) HEREOF, AND EXCEPT FOR THE INDEMNITIES PROVIDED FOR IN SECTION 10 (INDEMNIFICATION), TO THE EXTENT ALLOWED BY LAW, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS AGREEMENT OR WITH RESPECT TO ANY SUBJECT MATTER HEREOF OR TERMS OR CONDITIONS RELATED HERETO, REGARDLESS OF THE FORM OF ACTION (WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY) OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR BUSINESS); (B) ANY LOSSES, LIABILITIES, COSTS, EXPENSES OR DAMAGES RESULTING FROM ANY FORCE MAJEURE EVENT OR ANY CORRESPONDING DELAY OR FAILURE OF PERFORMANCE; OR (C) ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID BY COMPANY TO OPTI UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT OR OCCURRENCE THAT GAVE RISE TO SUCH LIABILITY, CLAIM OR DAMAGES.

12. GENERAL

12.1. Independent Contractor. Each Party is an independent contractor, and this Agreement will not be construed as constituting either Party as partner, joint venturer or fiduciary of the other or to create any other form of legal association that would impose liability on one Party for the act or failure to act of the other or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other. Except as otherwise expressly provided in this Agreement, each Party has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed by it pursuant to this Agreement. Each Party shall have sole authority to hire, fire, direct, control, discipline, reward, evaluate, schedule, supervise, promote, suspend and/or terminate, all of its own employees, contractors, subcontractors, representatives and agents (“Personnel”). Additionally, as between the Parties, each Party shall have sole responsibility for its own Personnel and for the compensation of its Personnel assigned to perform in connection herewith, including but not limited to payment of worker's compensation, disability and other income and other similar benefits, unemployment and other similar insurance and for withholding income and other taxes and social security.

12.2. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in performing hereunder and utilizing the Opti SaaS Platform.

12.3. Publicity. Company agrees that Opti may list Company's name (including by displaying any Company trademark provided by Company) and identify the business relationship between the Parties on Opti's website and in other marketing and advertising collateral, together with a list of other customers. Notwithstanding the above, the Parties agree that any press release or other announcement specific to the Parties' relationship will be subject to the mutual written agreement of both Parties.

12.4. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.5. Assignment. Neither Party may assign this Agreement or assign or delegate its rights or obligations under this Agreement without the other Party's prior written consent; provided however, that either Party may assign this Agreement without such consent to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section shall be null and void.

12.6. Entire Agreement. The Parties agree that this Agreement, including all Orders and all exhibits, annexes, schedules and addenda hereto and thereto, each of which is hereby incorporated into and made a part of this Agreement, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

12.7. Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both Parties.

12.8. Conflicts. To the extent of any express conflict or inconsistency between the provisions in the body of this SLSA and any exhibit, addendum, schedule or Order hereto, the terms of this SLSA shall prevail to the extent necessary to resolve such conflict or inconsistency.

12.9. Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.

12.10. Notices. All notices under this Agreement will be in writing and sent to the intended recipient's address set forth in the applicable Order, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Either Party may change its address for notice purposes by notice in accordance with this Section.

12.11. Force Majeure. Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, pandemics, fire, communication line failures, power failures, Uncontrollable Events (defined in Exhibit A), earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.

12.12. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Boston, MA and waives any jurisdictional, venue, or inconvenient forum objections to such courts.

12.13. No Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Opti and Company, and will not be deemed to create any rights in third parties, including suppliers, Clients, customers or subcontractors of either Party, or to create any obligations of a Party to any such third parties.

12.14. Further Assurances. The Parties will execute and deliver such other instruments and documents, and take such other actions, as either Party reasonably requests to evidence or effect the transactions contemplated by this Agreement.

12.15. Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which together will constitute one instrument.

[End of Opti Software License and Services Agreement - Exhibits Follow]

EXHIBIT A

SUPPORT/SERVICE LEVEL AGREEMENT

1. Definitions

“Available” means that the user accessible functionality, features or communications of the Opti SaaS Platform are substantially available to Company in accordance with the Documentation via the Internet portal or other method prescribed by Opti for access to the Opti SaaS Platform.

“Availability” means the percentage of time (measured in minutes, during the applicable monthly period) when the Opti SaaS Platform is Available, excluding Scheduled Downtime, calculated as follows for each month:

Availability \= (minutes in the applicable month - Scheduled Downtime - Non-Scheduled Downtime) / (minutes in the applicable month - Scheduled Downtime)

“Non-Scheduled Downtime” means minutes when the Opti SaaS Platform is not Available, excluding Scheduled Downtime.

“Scheduled Downtime” means minutes of Planned Maintenance, Emergency Maintenance and Uncontrollable Events.

“Planned Maintenance” means minutes when the Opti SaaS Platform is not Available, due to ongoing patches, upgrades, updates, or other ongoing maintenance activities. Planned Maintenance is typically communicated to Company at least 48 hours in advance. Planned Maintenance in excess of four (4) hours per week or (16) hours per month is counted as Non-Scheduled Downtime.

“Emergency Maintenance” means minutes when the Opti SaaS Platform is not Available, due to non-routine or emergency patches, upgrades, or updates that are critical to system performance and/or security of the Opti SaaS Platform. Emergency Maintenance in excess of four (4) hours per month is counted as Non-Scheduled Downtime.

“Uncontrollable Events” means minutes when the Opti SaaS Platform is not Available, due to outages beyond the reasonable control of Opti, including without limitation the following:

• Force Majeure Event(s);

• Power, internet or cellular outages that impact the Opti SaaS Platform or control of related hardware or equipment on site;

• Acts or omissions of Company or any third party or user who has access through Company;

• Issues arising from use of the Opti SaaS Platform or any portion thereof by Company or any of its agents, users or third-party contractors not in accordance with the Agreement;

• Failure by Company or any of its agents, users or third-party contractors to comply with their respective obligations or duties under the Agreement or any other agreement regarding the Opti SaaS Platform or any portion thereof;

• Interruptions caused by any third-party service or third-party provider of any portion of the Opti SaaS Platform (collectively, “Third Party Interruptions”), such as Microsoft Azure, National Weather Service web services, Darksky web services, or Particle.io web services (but excluding power, internet or cellular outages); provided that Third-Party Interruptions in excess of seven (7) days per month are counted as Non-Scheduled Downtime.

2. Availability Target

2.1. Availability. Opti shall use commercially reasonable efforts to ensure that the Opti SaaS Platform achieves Availability 99% of the time (the “Availability Target”).

2.2. Ongoing Outages. If the Opti SaaS Platform has Availability of less than 99% for three (3) consecutive months or for more than three (3) months in any given six (6) month period, Company may terminate the Agreement on written notice and upon such termination shall be entitled to a prorated refund of any unused Fees paid in advance for access to the Opti SaaS Platform.

2.3. Remedies. The termination rights specified in Section 2.2 above shall be Company's sole remedy and Opti's sole obligation, in the event of failure to meet the Availability Target.

3. Support

3.1. Subject to payment of applicable Fees, Opti will provide Users with helpdesk, product, and technical support for the Opti SaaS Platform for the following (“Support”):

  • Addressing and/or implementing configuration changes to sensor calibrations
  • Software parameters
  • Fail-safes states
  • Alarms
  • User permission management
  • Remote troubleshooting of the Opti Control Panel and Opti Certified Hardware
  • Software patches and upgrades

Support will be provided by phone at 1-844-678-4782 extension 2 or via email at support@optirtc.com. As part of Opti support, Opti will provide an initial response to any support inquiry within one (1) business day.

3.2. Opti's regular support hours are 9 am to 5 pm Eastern time, Monday through Friday. Opti support is also available 24/7 for emergency situations and can be contacted outside of regular hours through the Opti support phone number (1-844-678-4782 extension 2) for emergency assistance. For extreme weather events, such as hurricanes and widespread flooding, Opti support may extend regular support hours and will notify impacted parties of extended operational hours.

3.3. Opti may change its phone number and/or email address for support from time to time upon notice.

3.4. Opti will only provide Support to authorized Users.

These Software License and Services Terms are effective as of 2 October 2024.