Infravoltaic

Terms of Use (Credits)

INFRAVOLTAIC INC

SERVICES AGREEMENT

July 11, 2024

PLEASE READ THE TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT, YOUR ORDER, AND OUR PRIVACY POLICY CAREFULLY BEFORE ACCESSING AND USING THE SERVICES.

This Services Agreement (this “ Agreement “), which incorporates your Order(s) and our privacy policy , govern access and use by you (“ you ” or “ Company ”) of Infravoltaic’s Platform (as defined below) and related services, including, without limitation, the Design Services and the Subscription Services (collectively, the “ Services ”), unless you and Infravoltaic Solar Inc. (“ Infravoltaic ” or “ we ”) have executed a separate agreement governing the access and use of the Services.

Infravoltaic is willing to provide the Services to you only upon the condition that you accept all the terms contained in this Agreement. By clicking on “Accept Terms” (or similar language) on the account creation, log-in or similar page, by signing or accepting an Order that refers to this Agreement, or by using the Services, you have indicated that you understand, accept and agree to be bound by this Agreement. If the Services are to be accessed or used by or on behalf of an entity, the individual accepting this Agreement represents that he or she has the authority to bind that entity to this Agreement, and references to “you ”or “Company ”in this Agreement will refer to that entity. If you do not accept this Agreement, then you may not use the Services.

  • 1. DEFINITIONS



    • 1.1 “ “Account” ” means a unique account with Infravoltaic that allows access and use of the Services.

    1.2 “ “Account Credentials” ” means user identifications, account numbers, profiles, credentials (such as API keys, bearer tokens or tenant IDs), login user IDs, passwords, or other access information for Company’s Account.

    1.3 “ “Account Data” ” means information relating to an employee or other authorized Representative of Company that is collected or received by Infravoltaic in connection with the procurement or use of, or payment for, the Services (for example, the names and email addresses of Company’s Authorized Users, account representatives and accounting personnel) and usage information generated by Infravoltaic regarding Company’s or its Authorized Users’ usage of the Services.

    1.4 “ “AI Design Enhanced Project” or “AIDE Project ” ” means a Project that has access to Infravoltaic AI.

    1.5 “ “Applicable Laws” ” means all applicable local, state, provincial, federal or international laws, regulations, orders or rules.

    1.6 “ “Infravoltaic Credits” ” means credits purchased by Company that, through their redemption, allow Company to access and use a Service or a specific add-on feature or functionality of a Service.

    1.7 “ “Infravoltaic Credit Bundle ” ” means the minimum number of Infravoltaic Credits Company must purchase per Order, determined in Infravoltaic’s sole discretion.

    1.8 “ “Infravoltaic Credit Cost” ” for a Service or separately purchasable add-on feature or functionality of a Service means the number of Infravoltaic Credits that the Company must redeem in order to access and use such Service or add-on Service feature or functionality, as set forth in the applicable Order.

    1.9 “ “Infravoltaic AI” ” means Infravoltaic’s technology that uses artificial intelligence and other automation algorithms to enhance the process of designing and selling a solar installation in the Infravoltaic Platform. Examples of such technology include, but are not limited to, algorithms that autonomously create 3D models and algorithms that generate an optimal solar panel configuration for a given site.

    1.10 “ “Authorized Users” ” means Company’s employees or contractors who Company has authorized to access Company’s Account. No persons or entities other than Company’s employees and contractors may be an Authorized User. A competitor of Infravoltaic may not be an Authorized User. Further, Infravoltaic reserves the right to limit the number of Authorized Users per Account at its discretion.

    1.11 “ “Beta Services” ” means a product, service or functionality provided by Infravoltaic that may be made available to Company to try at Company’s option, which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation, trial, or by a similar description.

    1.12 “ “Company Data” ” means all data and information input or submitted by Company or Authorized Users into the Services, other than Account Data.

    1.13 “ “Confidential Information” ” means any business, financial or technical information disclosed by one party to the other party that: (i) is marked or otherwise identified as “confidential” or “proprietary” at the time of disclosure; or (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Company Data is Company’s Confidential Information and the Services (other than Company Data) and Account Credentials are Infravoltaic’s Confidential Information. Confidential Information does not include any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure; (c) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.

    1.14 “ Design API” ” means the design application programming interface made available by Infravoltaic for the access and use of additional API endpoints not included in Sync API.

    1.15 “ “Design Mode ” ” means the functionality and user interface for creating detailed solar site models and designs.

    1.16 “ “Design Services” ” means (i) the services performed by Infravoltaic to generate solar site models via Infravoltaic’s Expert Design or Expedited Expert Design services and (ii) Plan Set Services.

    1.17 “ “Effective Date” ” means the first date that Company clicks on the checkbox marked “Accept Terms” (or similar language) or uses the Services, whichever is earlier.

    1.18 “ “Expedited Expert Design” ” means an Expert Design for which the target delivery time for the solar site model is 30 minutes for requests made other than through bulk upload.

    1.19 “ “Expert Design” ” means the service performed by Infravoltaic to manually create solar site models using the highest quality imagery and data available to Infravoltaic.

    1.20 “ “Export Control Laws ” ” means all Applicable Laws regarding export and re-export control or sanctioned, embargoed or blocked persons or entities, including (i) the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department ’s Office of Foreign Assets Control (OFAC), (iii) the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State, or (iv) similar laws and regulations applicable in the jurisdiction(s) of Company’s and its Authorized Users’ domicile or access or use of the Services.

    1.21 “ “Fees ” ” means the fees payable by Company for Infravoltaic Credits that allow the access and use of the Services, as set forth in the applicable Order.

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

    1.23 “ “Order ” ” means an applicable service order, order form, invoice or any other form of an order confirmation document as provided by Infravoltaic. Your Order is the Infravoltaic-approved form created following your purchase of Infravoltaic Credits through our online payment process or via in-app purchase. It contains all of the details about your purchase, including your Subscription Term, Infravoltaic Credits purchased and your Fees. You’ll find your Order(s) in your Account. Each Order will form part of this Agreement and will be subject to the terms and conditions contained herein.

    1.24 “ “Plan Set ” ” means a set of calculations and drawings to be submitted to an authority or authorities having jurisdiction as part of the permit application for approval of a solar installation.

    1.25 “ “Plan Sets Services ” ”means the services performed by Infravoltaic to generate Plan Sets. Unless otherwise expressly agreed by Infravoltaic in a signed writing, Plan Set Services do not include the provision of an engineering stamp and Company is responsible for obtaining the engineering stamp.

    1.26 “ “Plan Tier ” ” means the subscription tier purchased by Company. The Plan Tier purchased determines the availability and Infravoltaic Credit Cost of Services and add-on Services features and functionality.

    1.27 “ “Platform ” ”means Infravoltaic’s cloud-based solar installation design and sales software, application programming interfaces, related tools and interfaces, and related code, documentation and materials.

    1.28 “ “Project ” ” means a location or address for which Company initiates creating a solar installation. The location or address of a Project needs not be unique and it is possible for multiple Projects to exist for a given location. The Project type(s) purchased by Company depend on the Subscription Service(s) purchased by Company.

    1.29 “ “Representative ” ” of a party means such party’s employees, directors, officers, consultants, professional advisors, representatives, or agents (and, in the case of Company, Authorized Users).

    1.30 “ “Sales Mode” ” means additional functionality (in addition to Design Mode functionality) and an additional user interface (in addition to the Design Mode user interface) for creating dynamic, interactive and customizable sales proposals for residential properties.

    1.31 “ “Service-Generated Output” ”means any reports, designs, drawings, images, documentation or other files or data that are generated by or through the Services and provided by or made available by Infravoltaic to Company.

    1.32 “ “Specifications ” ” means the design specifications and other information required from Company in order for Infravoltaic to perform the Design Services, to be supplied in the format specified by Infravoltaic.

    1.33 “ “Subscription Services” ” means Infravoltaic’s Platform and related materials or support provided by or made available by Infravoltaic to Company (other than the Design Services) pursuant to an Order and this Agreement.

    1.34 “ “Subscription Term” ” means, collectively, one (1) year from the purchase date of your initial Infravoltaic Credit Bundle purchase (“Initial Term” ) and each subsequent renewal term, which is one (1) year from the purchase date of any subsequent Infravoltaic Credits (each a “Renewal Term” ). Your “Current Term” is your then-current committed period of Subscription Services, as either an Initial Term or Renewal Term

    1.35 “ “Sync API ” ” means the generally available application programming interface made available by Infravoltaic for syncing Infravoltaic’s solar installation design and sales software with Company ’s systems.

    1.36 “ “Taxes ” ” means any sales, use, value-added (VAT), ad valorem, excise or other governmental taxes, duties, levies, tariffs, or other transactional charges levied or imposed as a result of this Agreement. Taxes do not include taxes based on Infravoltaic’s net income, net worth, asset value, property value or employment.”

    1.37 “ “Third-Party Materials” ” means any computer programs, technology, products, equipment, components, materials, content or information of third parties that are made available to Company in connection with the Services or that interoperate with or are used in connection with the Services, including, without limitation, via application programming interfaces.



    2. USE OF SERVICES

    2.1 “ Account. ” In order to access and use the Services, Company must register with Infravoltaic and create an Account and each request to the Platform’s application program interfaces must include one of the Account ’s unique API keys. Company shall obtain separate Account Credentials (e.g., user IDs and passwords) for each Authorized User. Company shall provide accurate and complete information required for Company’s Account and ensure that such information remains materially accurate and complete. Company is responsible for maintaining the confidentiality of Company’s Account and Account Credentials. Company is responsible for all activities that occur under Company’s Account or using Company’s Account Credentials, whether such action was taken by an Authorized User or other person or entity and whether Company authorized such action. Company shall ensure that its Authorized Users, employees and other Representatives comply with all of Company’s obligations under this Agreement. Company will not share (and will instruct and ensure each Authorized User not to share) any Account Credentials with any other person or entity or otherwise permit any unauthorized person or entity to access or use the Services. If Company or an Authorized User does so, or if any person or entity not authorized under this Agreement generates Service-Generated Output through Company’s Account or otherwise uses Company’s Account Credentials, such access and use shall be deemed to be a material breach of this Agreement and, without limiting any other remedies Infravoltaic may have, (i) Infravoltaic may immediately suspend Company’s and/or such unauthorized user’s access to the Services; and (ii) Company shall indemnify Infravoltaic for any losses arising out of such unauthorized use. Company shall (A) promptly notify Infravoltaic of any loss, theft, unauthorized disclosure or other compromise of Account Credentials or any unauthorized use of or access to the Services or Service-Generated Output of which Company becomes aware and (B) use commercially reasonable efforts to prevent and terminate any such unauthorized access or use.

    2.2 “ Right to Use the Services. ” Subject to Company’s compliance with the terms and conditions of this Agreement, including any payment due, during the Subscription Term, Infravoltaic will make the applicable Services, as described in the applicable Order, available to Company and its Authorized Users and grants Company and its Authorized Users a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to: (a) access and use the purchased Services solely for Company’s internal business purposes, and (b) reproduce and distribute to Company’s solar installation clients or prospective solar installation clients a reasonable number of copies of Service-Generated Output relating to such client, provided that Company does not modify the substantive content of, or remove any identifying legend or marking from such Service-Generated Output and does not distribute or sell Service-Generated Output separately from the other documents Company provides to its existing or prospective solar installation clients (i.e., as a stand-alone product for sale). Company’s rights in the Services and the Service-Generated Output will be limited to those expressly granted in this Section 2.2. Infravoltaic and its licensors reserve all rights and licenses in and to the Services not expressly granted under this Agreement. Company is responsible for compliance with this Agreement by its Authorized Users and other Representatives and any action or omission by any of them that would be a breach if done by Company will be deemed to be a breach by Company. Company understands and agrees that some of the Services might not be available in some international locations i.e., Infravoltaic AI, Expedited Expert Design, Expert Design and Plan Set are currently not available outside the US. Infravoltaic will update the Company via the Platform if any new Services is being activated in their location.

    2.3 “ Restrictions. ” Company shall not: (a) attempt to interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services under this Agreement); (b) provide Account Credentials to or allow access to or use of the Services by anyone other than Authorized Users or, except as expressly contemplated by the Order (for example, with respect to overages), for Services or Authorized Users in excess of the amounts or types specified in the applicable Order; (c) copy, modify, prepare derivative works based on, sell or distribute any portion of the Services or any results thereof, except as expressly provided in Section 2.2 above; (d) frame, mirror, sell, resell, rent, license, sublicense, lease, or provide access to the Services on a time-share, service bureau, software as a service or similar basis, whether for a fee or not; (e) transfer any of Company’s rights hereunder; (f) access or use the Services or Infravoltaic’s Confidential Information for purposes of monitoring the availability, performance or functionality of the Services, to develop, commercialize, license or sell any product, service or technology that could compete with the Services, or for any other benchmarking, comparative or competitive purposes; (g) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any part of the Services; (h) access or attempt to access the Services or Platform through any method other than authorized Account Credentials, access or attempt to access any features that were not purchased by Company in the applicable Order, or otherwise circumvent or attempt to circumvent any technical measures in the Services or Platform; (i) integrate, join, combine, or otherwise incorporate the Services, Infravoltaic’s software or any other intellectual property of Infravoltaic with and/or into Company’s or any third-party software, services, systems, hardware or platform, except with the prior written authorization of Infravoltaic; (j) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools), except using Services features provided by Infravoltaic expressly for such purposes; (k) use the Services or the results thereof in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable documentation (including but not limited to engaging in any form of harassment or offensive behavior; violating the privacy rights, Intellectual Property Rights, publicity rights or other rights of any person or entity; engaging in fraud, bait-and-switch tactics, misleading advertising or other unethical business practices; contacting a person who has requested not to be contacted; or engaging in false identification of caller/sender in its communications); (l) act in a manner intended to circumvent Service-specific usage limits; (m) transmit a virus or other malicious code to or through the Services or overload, flood, spam, or paralyze the Services or take any action or inaction that interferes or is designed to interfere with the integrity or performance of the Services; (n) remove any proprietary notices or identifying legend or marking from any portion of the Services or the Service-Generated Output; or (o) encourage, authorize, permit or enable anyone to do any of the foregoing. Company agrees to utilize Infravoltaic’s Services responsibly and within reasonable limits. Excessive or abusive use of Services, including but not limited to: continuous, disproportionate usage beyond typical needs, monopolizing resources to the detriment of other users, or any other behavior deemed by Infravoltaic as overuse, is strictly prohibited. Infravoltaic reserves the right to monitor usage patterns and take appropriate action, including but not limited to restricting or suspending Service access, if it is determined that the Company is engaging in such overuse.

    2.4 “ Acceptable Use Policies. ” Company acknowledges and agrees that Infravoltaic is not required to monitor or police communications or data transmitted through the Services and that Infravoltaic is not responsible for the content of any such communications or transmissions. Company and its Authorized Users shall use the Services and the results thereof exclusively for authorized and legal purposes, consistent with this Agreement, the applicable documentation, Export Control Laws and all other Applicable Laws, and the rights of others. Company and its Authorized Users shall not use the Services to transmit any bulk unsolicited commercial communications. Company acknowledges that the Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. Company shall not use, and the above license does not extend to the use of, the Services for such purposes or under such circumstances.

    2.5 “ Data Maintenance and Backup. ” Data Maintenance and Backup. In the event of any loss or corruption of Company Data, Infravoltaic will use commercially reasonable efforts to restore the lost or corrupted Company Data from the latest backup of such Company Data maintained by Infravoltaic’s third party hosted services provider. Infravoltaic will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Company Data caused by any third party. Infravoltaic’S EFFORTS TO RESTORE LOST OR CORRUPTED COMPANY DATA PURSUANT TO THIS SECTION 2.5 WILL CONSTITUTE Infravoltaic’S SOLE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF COMPANY DATA IN CONNECTION WITH THE SERVICES.

    2.6 “ Changes to the Services. ” Infravoltaic reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful, including changes to maintain or enhance the Services or to comply with Applicable Laws. Company acknowledges and agrees that Company has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality.

    2.7 “ Beta Services. ” Infravoltaic may provide Beta Services at its discretion from time to time either under this Agreement or by executing a specific Order. Infravoltaic may charge Infravoltaic Credits for use of Beta Services as provided in the applicable Order (if any). Company’s access and use to Beta Services will terminate on the end date set forth in the applicable Order Form or immediately upon notice from Infravoltaic or at Infravoltaic’s sole discretion without any notice. COMPANY ACKNOWLEDGES AND AGREES THAT THE BETA SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT ANY INDEMNIFICATION, SERVICE LEVELS, SUPPORT, OR WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. Except to the extent such terms conflict with this Section, all other terms of this Agreement apply to the Beta Services.



    3. FEES; PAYMENT; TAXES

    3.1 “ Infravoltaic Credits. ” During a Subscription Term, Company and its Authorized Users can redeem Company’s Infravoltaic Credits for any Service or add-on Service feature or functionality available in the applicable Plan Tier. The applicable Order will set forth the aggregate number of Infravoltaic Credits purchased by Company. Your Account will provide (a) the Fees payable for such Infravoltaic Credits and for any consumed, but unpaid Infravoltaic Credits used by Company during a Subscription Term; (b) the expiration date for such Infravoltaic Credits (provided that, if no such expiration date is stated, Infravoltaic Credits expire one year from the purchase date); and (c) the Infravoltaic Credit Cost for each Service and add-on Service feature or functionality that will apply during such Subscription Term. Infravoltaic reserves the right to increase the price per Infravoltaic Credit, Infravoltaic Credit Costs, and Infravoltaic Credit Bundle for any Renewal Term (“Permitted Changes”). If Company does not agree with the applicable Permitted Changes for a Renewal Term, Company may elect not to renew by providing notice before the applicable deadline for notice of non-renewal. Any such Permitted Change will become effective on the first day of the Renewal Term. All Infravoltaic Credit redemptions are non-refundable, and any refunds will be provided only in Infravoltaic Credits. For the avoidance of doubt, Company’s Infravoltaic Credits are usable only by Company and its Authorized Users and are not transferable or usable by any other party, including but not limited to affiliated companies of Company. If Company has exceeded its use of the total Infravoltaic Credits purchased by the Company, Infravoltaic will charge the Company for the overage and also add a balance of minimum Infravoltaic Credits to the Company’s account. Infravoltaic shall have the right to charge the Company as it deems necessary for such use of Infravoltaic Credits. Company cannot deny Infravoltaic’s right to charge the Company for (i) any Infravoltaic Credits used by the Company and (ii) for the addition of minimum Infravoltaic Credits to Company’s balance.

    3.2 “ Fees. ” In consideration for Infravoltaic providing the Services, Company shall pay the Fees to Infravoltaic in accordance with this Agreement and the applicable Order. Unless otherwise provided by the payment terms specified in the applicable Order, Infravoltaic will process Company’s payment of Fees upon submission or renewal of Company’s order and will accept Company’s order upon verified payment. Infravoltaic reserves the right to change Infravoltaic’s prices, Infravoltaic Credit Cost, Plan Tiers and/or Services offered for purchase at any time prior to accepting Company’s order. All Fees and payments are non-refundable except as required by Applicable Laws.

    3.3 “ No Rollover of Infravoltaic Credits. Company understands and agrees that Company may not carry over any unused portion of Infravoltaic Credits during any applicable Subscription Term to any Renewal Terms. Infravoltaic Credits are used in the order in which they were purchased and shall expire one (1) year from the date of purchase unless otherwise provided in an applicable Order.

    3.4 “ Payment. ”
    Company shall provide complete and accurate billing and contact information to Infravoltaic and shall promptly notify Infravoltaic of any changes to such information.
    If Company orders Services through an online signup/activation process that provides for payment with a credit card or other online payment method (or if Infravoltaic otherwise agrees that Company may pay by credit card or other online payment method), on the applicable payment date Infravoltaic will charge the payment method provided by Company for Fees and any applicable service charge. If Infravoltaic cannot charge Company’s payment method for any reason (such as card expiration or insufficient funds), (i) Company will remain responsible for any uncollected amounts and (ii) if Company updates its payment information, Infravoltaic will attempt to charge the payment method again. In accordance with Applicable Laws, Infravoltaic may update payment method information notified to Infravoltaic by Company’s financial institution. Company authorizes Infravoltaic to charge and update Company’s payment method as described in this Section. If Infravoltaic is unable to process payment through Company’s payment method on file, or if you file a chargeback disputing charges made to your payment method and the chargeback is granted, Infravoltaic may suspend or terminate your subscription.
    Company may purchase additional Infravoltaic Credits at any time. If Company exhausts the number Infravoltaic Credits purchased and continues to purchase Services during a given Subscription Term, Infravoltaic shall immediately charge Company’s credit card on file and Company shall pay Infravoltaic for the cost of the excess Infravoltaic Credits equal to Company’s negative Infravoltaic Credit balance plus Infravoltaic Credit Bundle.
    D. All payments shall be made in United States Dollars.

    3.5 “ Taxes. ” All Fees and other amounts stated or referred to in this Agreement are exclusive of any Taxes. Company shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder. All payments hereunder shall be made to Infravoltaic without any reduction for any Taxes. If Infravoltaic has the legal obligation to collect and remit Taxes for which Company is responsible under this agreement, Infravoltaic will invoice Company for such Taxes, as a separate line item, and Company shall pay such Taxes. If Company is exempt from any applicable Taxes, Company will provide a tax exemption certificate authorized by the appropriate taxing authority, after receipt of such evidence, Infravoltaic will not charge Company any Taxes from which it is exempt.



    4. OWNERSHIP; USAGE LICENSE; FEEDBACK

    4.1 “ Infravoltaic Materials. ” As between Infravoltaic and Company, Infravoltaic owns all worldwide right, title and interest in and to the Services, Infravoltaic’s name, trademarks and logos, any data, information, analysis and statistics generated by the Services (subject to Company’s rights in underlying Company Data), and any code, tools, utilities, processes, inventions, system, devices, methodologies, documentation, techniques and materials of any kind used or developed by Infravoltaic or its personnel in connection with performing Services, and all modifications, improvements, enhancements, upgrades and derivative works related to any of the foregoing (collectively “Infravoltaic Materials”), including all Intellectual Property Rights therein. Company will have no rights in any Infravoltaic Materials except as expressly set forth in this Agreement.

    4.2 “ Company Data. ” As between Company and Infravoltaic, Company owns all worldwide right, title and interest in and to all Company Data and Infravoltaic will not obtain any ownership rights or interests in the Company Data except as expressly set forth in this Agreement. Company hereby grants and shall grant to Infravoltaic a non-exclusive, royalty-free, worldwide, transferable, sublicensable license to use, reproduce, modify, and make derivative works based upon the Company Data: (a) as is reasonably necessary to provide the Services for the term of this Agreement; (b) for internal business purposes to maintain, evaluate, develop, and improve the Services and for accounting, legal and recordkeeping purposes; (c) to comply with Applicable Laws; and (d) to create, distribute or otherwise use sets of data derived from the data from multiple customers that are in an aggregated form that does not personally identify an individual person or Company. The license in subsections 4.2(b)-(d) is irrevocable and perpetual.

    4.3 “ Feedback; Account Data. ” To the extent Company provides to Infravoltaic any feedback, suggestions, ideas, algorithms, design, code or any other materials about the Services (collectively, “Feedback”), Company hereby irrevocably assigns and shall assign to Infravoltaic all right, title and interest Company may have in and to such Feedback without compensation or other obligation to Company, and to the extent such assignment is not valid or complete, Company hereby grants and shall grant to Infravoltaic an exclusive, royalty-free, fully-paid, transferable, sublicensable, worldwide, irrevocable and perpetual license under all Intellectual Property Rights to use and practice such Feedback in any manner. Infravoltaic may process Account Data in accordance with its Privacy Policy available at https://www.infravoltaic.com/privacy_policy/. Account Data is not Company Data and, for clarity, Infravoltaic’s privacy policy does not apply to Company Data.



    5. NO WARRANTY; DISCLAIMER.

    5.1 “ Disclaimer. ” THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. INFRAVOLTAIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. No advice or information, whether oral or written, obtained from Infravoltaic or elsewhere will create any warranty not expressly stated in this Agreement. Company acknowledges and agrees that Service-Generated Output or other deliverables provided by Infravoltaic are not to be construed as engineering, financial, construction or regulatory advice, and that Company will consult with its own engineering, financial, construction or regulatory advisors and will not use the Service-Generated Output or other deliverables as the sole basis for any design, engineering, bidding, construction or installation decisions. Company assumes sole responsibility and liability for results obtained from the use of the Services or the Service-Generated Output) and for conclusions drawn from such use. Infravoltaic will have no liability for any claims, losses, or damages caused by errors or omissions in any Company Data provided to Infravoltaic by Company or any results or Service-Generated Output produced by the Services based upon Company Data. Company acknowledges and agrees that the results and Service-Generated Output produced by the Services based upon the processing of Company Data are estimates only, that Infravoltaic does not guarantee that these estimates will match actual measurements taken at a given site or that estimated energy production or financial analysis results will be realized, that Infravoltaic does not guarantee the accuracy of any engineering designs, Plan -Sets or customer proposals based on the results or Service-Generated Output produced by the Services, and that the Services shall not be deemed a substitute for an actual in-person analysis conducted at a given site. In addition, Infravoltaic does not warrant or guarantee any sales or other outcomes that Company may obtain, that the Services or Service-Generated Output will be available, error-free, secure, accurate, or complete, or that all errors will be corrected. Except as otherwise agreed in writing by Infravoltaic, no refunds, credits or additional Services will be provided as a result of unavailability of Services. Infravoltaic cannot and will not be liable for third-party criminal intrusions into the Services, despite its efforts to prevent the same.

    5.2 “ Additional Disclaimer for Engineering Stamps. ” IN THE EVENT THAT COMPANY WANTS TO ACCESS AND PURCHASE THE ENGINEERING STAMPS IN PLAN SETS FEATURE UNDER COMPANY’s APPLICABLEPLAN TIER, THE FOLLOWING DISCLAIMER SHALL APPLY. COMPANY UNDERSTANDS AND AGREES THAT INFRAVOLTAIC IS A SAAS PLATFORM ONLY AND DOES NOT DIRECTLY PROVIDE ENGINEERING STAMPS, NEITHER DOES INFRAVOLTAIC RESELL ANY ENGINEERING STAMPS. INFRAVOLTAIC IS A MERE PASS-THROUGH ENTITY THAT CAN CONNECT COMPANY TO AN ENGINEERING STAMP PROVIDER. UNDER THIS AGREEMENT AND UNDER THE PLATFORM, INFRAVOLTAIC IS ONLY PASSING-THROUGH THE ENGINEERING STAMPS FROM THE PROFESSIONAL ENGINEER/STAMP PROVIDER. ANY AND ALL LIABILITY WITH RESPECT TO A PLAN SET WITH AN ENGINEERING STAMP SHALL BE BORNE BY THE ENGINEERING STAMP PROVIDER OR ENGINEER WHOES NAME IS LISTED ON THE PLAN SET. COMPANY UNDERSTANDS AND AGREES THAT ALL LIABILITY ASSOCIATED WITH ANY ENGINEERING STAMPS IN PLAN SETS IN ITS ENTIRETY RESTS WITH THE THIRD-PARTY PROFESSIONAL ENGINEER NAMED IN THE PLAN SET DOCUMENTS, AND INFRAVOLTAIC SHALL NOT BE LIABLE FOR ANY ACTS OR OMISSIONS BY ANY THIRD-PARTY PROFESSIONAL ENGINEER.


    ”INFRAVOLTAIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, OR FITNESS FOR A PARTICULAR PURPOSE OF THE ENGINEERING STAMPS. IN NO EVENT SHALL INFRAVOLTAIC BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR MISUSE OF ENGINEERING STAMPS REQUESTED BY THE COMPANY. COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS INFRAVOLTAIC FROM ANY CLAIMS, DAMAGES, OR LIABILITIES ARISING FROM THE USE OF ENGINEERING STAMPS, INCLUDING BUT NOT LIMITED TO LEGAL FEES AND EXPENSES INCURRED IN DEFENDING AGAINST SUCH CLAIMS.



    6. COMPANY OBLIGATIONS.

    6.1 “ Setup. ” Company is responsible for (i) the accuracy and completeness of Company’s initial and ongoing configuration and setup of the Subscription Services; (ii) ensuring that the Services are compatible with Company’s business and systems requirements; (iii) ensuring that the information Company provides in connection with the Services is current, accurate, and complete; (iv) the provision, maintenance, and use of Company’s hardware, network, internet connectivity, and software; and (v) any consents and notices required to permit Company to submit Company Data to Infravoltaic and for Infravoltaic to process such Company Data as contemplated by the Services and this Agreement.

    6.2 “ Cooperation and Assistance. ” As reasonably required by Infravoltaic to provide the Services, Company shall: (a) timely make available Company Data, Specifications and other necessary information and any agreed-upon software interfaces to Company’s business applications or website, and otherwise carry out in a timely manner Company’s responsibilities set forth in this Agreement; and (b) provide Infravoltaic with good faith cooperation and assistance as reasonably requested by Infravoltaic, including (as applicable), personnel assistance and any necessary access to Company facilities, equipment or systems related the Services.

    6.3 “ Suspension. ” Infravoltaic may suspend Company’s access to the Services in the event of (i) a material risk caused by Company or its Authorized Users or Representatives to the integrity or performance of the Services or the network (a “System Threat”); (ii) use of the Services in violation of this Agreement; or (iii) Company is delinquent in its payment obligations for any undisputed amounts. In addition, Infravoltaic may suspend or terminate any Authorized User’s access to the Services in the event that Infravoltaic reasonably determines that such Authorized User has breached this Agreement or violated the terms and conditions of any other agreement between Infravoltaic and such Authorized User pursuant to which such Authorized User is permitted to access and use the Services.

    6.4 “ Company Data Representations. ” Company represents and warrants to Infravoltaic that: (a) Company has all rights, power and authority that are necessary for Company’s collection, use and processing of the Company Data as contemplated by this Agreement; and (b) Company’s use and provision of Company Data to Infravoltaic pursuant to this Agreement will not breach any agreement between Company and any third party or violate any Applicable Laws.

    6.5 “ Telecommunications and Internet Services. ” Telecommunications and Internet Services. Company acknowledges and agrees that Company and Authorized Users’ use of the Services is dependent upon access to telecommunications and Internet services. Company is solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Infravoltaic will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.



    7. INDEMNIFICATION

    ” Company shall indemnify, defend and hold Infravoltaic, its affiliated companies and its and their Representatives and successors in interest harmless from and against any claims, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and other professional fees, arising out of or in any way connected with an action, suit, investigation or proceeding brought by a third party in connection with Company’s or an Authorized User’s use of the Services (other than any claim to the extent based on Infravoltaic’s gross negligence or willful misconduct), including but not limited to a claim that Company has violated Export Control Laws or other Applicable Laws or that the Company Data, its provision to Infravoltaic, or Company’s use of the Services or Service-Generated Output in violation of this Agreement violate, infringe or misappropriate any Intellectual Property Rights, privacy rights or any other proprietary rights of a third party, provided that Infravoltaic: (a) promptly notifies Company in writing of the claim; and (b) provides Company, at Company’s expense, with all assistance, information and authority reasonably required for the defense of the claim.



    8. CONFIDENTIAL INFORMATION

    8.1 “ Use and Disclosure Restrictions. ” A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement, the exercise of any rights under this Agreement or as otherwise expressly provided under this Agreement and will not disclose such Confidential Information to any third party except to those of its Representatives and service providers who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement or the exercise of any rights under this Agreement; provided that each such Representative or service provider is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts at least as protective as the efforts that the receiving party ordinarily uses with respect to its own confidential information of a similar type and in no event less than a reasonable standard of care.

    8.2 “ Return of Confidential Information. ” Each party shall return, destroy or delete Confidential Information of the other party upon written request by the other party. Notwithstanding the foregoing, a party shall not be required to return, destroy or delete Confidential Information of the other party that is required to perform its obligations or exercise its rights under this Agreement, that is contained in automatic computer backups or historical archives, or that must be retained for regulatory, legal, or audit purposes, or in the case of Infravoltaic, for compliance with Infravoltaic’s internal data retention policy. For purposes of this Agreement, “deletion” of information means either deletion or anonymization or de-identification such that the source of such data is not identifiable.

    8.3 “ Permitted Disclosures. ” The provisions of this Section 8 will not restrict either party from disclosing Confidential Information as required by Applicable Laws or the order or other legal requirement of a court, administrative agency, or other governmental body of competent jurisdiction, provided that the party required to make such a disclosure gives reasonable notice to the other party (if legally permitted to do so) to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required by law to be disclosed.

    8.4 “ Survival. ” The provisions of this Section 8 will remain in effect with respect to particular Confidential Information received from the other party during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement or after the destruction or disposal of such Confidential Information, whichever is later; provided, however, that a party’s obligations under this Section 8 with respect to any Confidential Information of the other party that constitutes a trade secret under Applicable Laws shall survive termination of this Agreement for so long as such information continues to be a trade secret under Applicable Laws.



    9. LIMITATION OF LIABILITY


    9.1 “ Exclusion of Damages. ” IN NO EVENT WILL INFRAVOLTAIC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR COST OF COVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SERVICES OR THE SERVICE-GENERATED OUTPUT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT INFRAVOLTAIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

    9.2 “ Total Liability. ” INFRAVOLTAIC’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE TOTAL FEES PAID BY COMPANY IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY HEREUNDER.

    9.3 “ Reliance. ” Company acknowledges that Infravoltaic has entered into this Agreement in reliance upon the limitations of liability and the disclaimers of damages set forth in this Agreement, and the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.



    10. TERM AND TERMINATION

    10.1 “ Agreement Term. ” This Agreement commences on the Effective Date and unless terminated earlier by either party in accordance with the terms of this Agreement, will continue for the term specified in the applicable Order. The Subscription Term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, each subscription will automatically renew for a Renewal Term under the terms of the expiring Order (subject to any applicable Permitted Change), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the Current Term or unless Company and Infravoltaic execute a new Order for the renewal.

    10.2 “ Termination for Breach. ” Either party will have the right to terminate this Agreement upon written notice to the other party if the other party breaches any material term of this Agreement and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice thereof; provided that the cure period for any default with respect to payment shall be five (5) business days. For the avoidance of doubt, violations of Section 2.3 are breaches that are not capable of cure.

    10.3 “ Effect of Termination. ” Upon the expiration or termination of this Agreement: (a) Company’s and its Authorized Users’ right to access and use the Services will immediately terminate and Company and its Authorized Users will immediately cease all use of the Services; and (b) Company will promptly destroy or return to Infravoltaic all of Infravoltaic’s Confidential Information in Company ’s possession or under Company ’s control. Subject to the obligations of Section 8, Infravoltaic may, but is not required to: (i) retain Company Data after termination or expiration of this Agreement for the purpose of facilitating Company’s reengagement of the Services and for the purposes specified in Section 4.2(b)-(d) or (ii) delete, destroy or otherwise dispose of any Company Data in its possession in accordance with Infravoltaic’s internal data retention policy.

    10.1 “ Survival. ” The rights and obligations of the parties contained in Sections 1, 2.3, 2.4, 3, 4, 5, 7, 8, 9, 10.3, 10.4, 11 and 13 will survive the expiration or termination of this Agreement.



    11. PUBLICITY

    ”Company agrees that Infravoltaic may identify Company as a customer, and display Company’s name, logo (if any), city, state, country and website address in connection with such identification, on Infravoltaic’s website and in other online and offline marketing materials. Infravoltaic will use good-faith efforts to comply with any reasonable trademark usage guidelines Company provides to Infravoltaic in connection with Company’s name and logo. Upon request, Infravoltaic will provide specimens of such identification. Any goodwill arising from the use of Company’s name, logo or other trademarks shall inure to Company, the owner.



    12. THIRD PARTY MATERIALS

    12.1 “ Third Party Materials. ” Infravoltaic is not responsible for and does not in any way endorse any Third-Party Materials. Any exchange of data or other interaction between Company and Third-Party Materials is solely between customer and the operator of such Third-Party Materials and is governed by such operator’s terms and conditions for the Third-Party Materials. If Company does not agree to abide by the terms and conditions for any such Third-Party Materials, then Company should not install or use such Third-Party Materials.

    12.2 “ 12.2 Map Providers. ” Without limiting the generality of Section 12.1, Infravoltaic uses content from certain third-party map providers (“Map Providers ”) to provide the Services. The following links provide information on the Map Provider’s terms and conditions and policies with which the parties must comply. By using the Services or agreeing to be bound by this Agreement, you agree to be bound by the following Map Provider terms: Google Maps/Google Earth Additional Terms of Service (https://www.google.com/help/terms_maps.html); Google Privacy Policy (https://www.google.com/intl/ALL/policies/privacy/index.html); and Microsoft Bing Maps and Embedded Maps Service Terms of Use (https://www.microsoft.com/en-us/maps/product/enduserterms) or as those links and/or terms and conditions and policies are updated from time to time.



    13. GENERAL

    13.1 “ Applicability of Agreement. ” This Agreement applies to all Services provided by Infravoltaic to Company, whether on a Fee basis or on a free trial, evaluation or similar basis.

    13.2 “ Governing Law; Venue. ” This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles, and the parties submit to the exclusive jurisdiction of the courts located in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods will not apply.

    13.3 “ Assignment; Successors and Assigns. ” Neither party may assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without the other party’s prior written consent, except that Infravoltaic may assign or transfer this Agreement, without the Company’s consent, to an affiliated company or to a successor or acquirer, as the case may be, in connection with a merger or acquisition or the sale of all or substantially all of Infravoltaic’s assets, provided that Infravoltaic must provide notice to Company of the assignment. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.

    13.4 “ Notices. ” Infravoltaic shall communicate announcements of general interest by email or by posting on its website or in the console for the Services. All legal notices or approvals required under this Agreement will be in writing and delivered by confirmed electronic mail, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt or, in the case of email delivery, upon confirmation. Infravoltaic’s email address for legal notices is legal@infravoltaic.com and its physical address for legal notices is Infravoltaic Solar Inc., P.O. Box 7775, PMB 14534, San Francisco, CA 94120-7775 (or such other address as may be specified by Infravoltaic to Company in accordance with this Section); provided that Company shall email to legal@infravoltaic.com a copy of any legal notice that is sent to Infravoltaic’s physical address. Company’s email address(es) and physical address for legal notices will be those set forth in Company’s Account.

    13.5 “ Remedies; Waiver; Severability. ” Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.

    13.6 “ Force Majeure. ” Infravoltaic shall not be liable for any failure or delay in performing its obligations under this Agreement, or for any alleged loss or damages resulting from failure or delay to perform, due to natural disasters, power outages, denial of service attacks, weather, strikes, riots, war, governmental action or other reasons beyond Infravoltaic’s reasonable control.

    13.7 “ Entire Agreement. ” This Agreement (including all Orders and any exhibits attached to this Agreement or the applicable Order(s) and, with respect to Account Data, Infravoltaic’s privacy policy) is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements, proposals, understandings or communications between the parties, oral or written, regarding its subject matter. Any terms accepted by Company’s Authorized Users through the Platform are superseded by this Agreement. Any terms or conditions contained in Company’s purchase order or any other ordering document (other than Infravoltaic’s Order) are void. In case of inconsistency between this Agreement and any other policy or statement on Infravoltaic’s website or materials, this Agreement will control. In case of inconsistency between the Order and this Agreement, this Agreement will control.

    13.8 “ Modification. ” We may update this Agreement from time to time. If we do, we will let you know by posting the updated Agreement on our website and we may notify you by another method. It’s important that you review this Agreement whenever we update it and whenever you use the Services. If you continue to access and/or use the Services after we have posted an updated Agreement, it means that you accept and agree to the modifications.

    13.9 “ Independent Contractors. ” The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf.

    If you have any questions or concerns about this agreement, please contact us at:

    support@infravoltaic.com

    Last updated on: July 11, 2024