WattzOn

LINK ENERGY, SNAP, SNAP PLUS
SOFTWARE AS A SERVICE AGREEMENTS

LINK ENERGY AND SNAP

SOFTWARE AS A SERVICE AGREEMENT

THIS SOFTWARE AS A SERVICE AGREEMENT (“Agreement”) is a legal agreement between Ennovationz, Inc. dba WattzOn, a Delaware corporation (“WattzOn”, “we”, “us,” or “our”), and the user who has registered to use our Service (“Licensee”, “you,” or “your”) (each, a “Party”, and together, the “Parties”) for the use of the Link Energy and/or the SNAP API platforms and service offerings as defined below (“Service”).

BY ACCESSING OR USING OUR SERVICE, REGISTERING AN ACCOUNT WITH US, OR BY SUBMITTING ANY DOCUMENTS OR DATA IN CONNECTION WITH THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SERVICE AND MUST EXIT IMMEDIATELY.  WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE.  YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES.  UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR AGREEMENT WILL APPLY RETROACTIVELY.  IF YOU ARE ACCESSING AND USING THE SERVICE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS.  IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.

ARBITRATION NOTICE:  THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.

1. ACCESS AND SERVICE

1.1 Definitions. The following terms shall have the meanings set forth herein:

(a) “Documentation” means the documentation posted on our website at Wattzon.com/api/ that describes the functionality of the Service.

(b) “End User” means an individual customer of a utility whose utility data is provided to the Service.

(c) “Extracted Data” means data that is extracted from the Licensee Documents and Data by the Service and data presented on utility websites that is captured through our automated software tools.

(d) “Licensee Documents and Data” means any documents and data contained within (including Personal Data), and any data presented on utility websites that is captured by the Service, and other information provided by Licensee in connection with the Service.

(e) “Licensee Systems” means any server systems, mobile devices, personal computers, or other equipment owned, operated, or managed by Licensee on which the Service is accessed.

(f) “Service” means the LINK ENERGY™ software platform that extracts data from documents and utility websites, and delivers the data by means of the LINK ENERGY API and the SNAP software platform that extracts data from documents and utility websites and delivers the data by means of the SNAP API.

(g) “Service Plan” means the plans for use of the Service as set forth in Section 2.1.

(h) “Start Date” is the earlier of the date you register for or start using the Service.

(i) “Term” means the term of the Service as specified in Section 8.1.

(j) “Trial Period” means a temporary trial period for the Service defined in Section 8.1.

1.2 Access to Service; Utility Coverage. Subject to Licensee’s compliance with the restrictions and obligations set forth in in this Agreement and payment of all applicable Fees, Licensee will be granted non-exclusive access to the Service commencing on the Start Date through the applicable Term for the Trial Period or Service Plan selected.  Service access will be provided in accordance with WattzOn’s performance levels indicated noted in Section 3 below. Service coverage is not available for all utilities but we are consistently striving to add additional utilities. To see the latest Service coverage for utilities, visit our FAQ.

1.3 Registration. You will need to register and create an account with WattzOn and provide valid credit card information for payment to access the Service.  Licensee will need to create a username, password, and provide certain information as prompted by the registration form, including utility information for Service coverage confirmation, Licensee name and a valid email address.  If a utility is not covered by the Service, Licensee will see an error message and Licensee’s credit card will not be charged for the Service. Licensee agrees to provide full, complete, and accurate information when registering or creating an account and to update that information promptly if it should change.  We reserve the right to suspend or terminate Licensee’s account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement.  Licensee may not create more than one account without prior written approval from us.  Licensee will not transfer their account to any third party without our prior written consent.  The username and password for Licensee’s WattzOn account is WattzOn Confidential Information and Licensee may not to disclose or transfer such username or password to any third party.  Licensee is responsible for any use of Licensee’s account, whether authorized or not.

1.4 Data Collection and Privacy; Security.

(a) Data Privacy. Any personally identifiable information, including, but not limited to, any personal data protected under any applicable law (collectively, “Personal Data”), that Licensee or Licensee authorized users (including Licensee employees that access the account and any End Users that are prompted to access the Service) provide will be subject to our Privacy Policy, (except that End Users will be subject to the End User Privacy Policy) which you agree to as a condition to use of the Service.  You represent and warrant that you have all required rights, consents, and permissions to provide any and all Personal Data to WattzOn for processing in connection with providing the Service under this Agreement and that your provision of such Personal Data to WattzOn does not violate any applicable data privacy, data protection, or data security law, rule, regulation, or order.

(b) Security. WattzOn will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Documents and Data.  Those safeguards will include, measures designed to prevent unauthorized access to or disclosure of Licensee Documents and Data (other than by Licensee or its users), including include company-wide training, regular monitoring and testing for security vulnerabilities and additional technical protections including AWS-managed disk-level encryption of our report database using AES-256 algorithms and TLS 1.2 standard encryption for data in transit.

1.5 Extraction of Data from Licensee Documents and Data. Licensee hereby grants WattzOn a non-exclusive, royalty-free, fully paid-up, license (and the right to sublicense third-party service providers necessary to provide the Service) to use, store, reproduce, scan, process, and display Licensee Documents and Data during the Term for the purpose of (i) providing the Service, including creating and delivering the Extracted Data and (ii) developing, maintaining, supporting, or improving the Service.

1.6 Acceptable Use Policy. Licensee is solely responsible for any and all Licensee Documents and Data that it provides.  Licensee shall not provide, disclose, or deliver any Licensee Document to WattzOn or use the Service in any manner that violates WattzOn’s Acceptable Use Policy (“AUP”).  WattzOn reserves the right, but does not have the obligation, to monitor, remove, erase, block, edit, or refuse to process any Licensee Document that violates the AUP or this Agreement.

1.7 Restrictions.

(a) Licensee shall use the Service only in conformity with the Documentation.  Licensee shall not, and shall not permit any Licensee employees or contractors to, share any account or access credentials for the Service with third parties.  Licensee shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use.  Licensee shall notify WattzOn immediately of any suspected, actual or alleged unauthorized use of the Service.

(b) Licensee shall not (and not allow, permit, authorize, or assist any third party to):  (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Service; (ii) sell, resell, license, sublicense, distribute, rent, or lease any part of the Service or encumber the Service with any lien or grant a security interest in the Service; (iii) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (iv) access the Service for the purposes of monitoring its availability, performance, or functionality; or (v) access or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service or copy any features, functions, or graphics of the Service.

1.8 Licensee Systems. Licensee is solely responsible for the operation and maintenance of the Licensee Systems and for having and paying for all equipment and internet access necessary to access and use the Service.  WattzOn disclaims all warranties, express or implied, and shall have no liabilities to Licensee arising from or related to the operation or maintenance of the Licensee Systems or any incompatibilities, faults, defects, or damage attributable thereto.  To the extent Licensee’s cloud infrastructure provider implements any rate limiting restrictions on such activities, WattzOn shall not be liable for any decreased performance or failure of the Service in connection therewith.

1.9 Service Parameters and Set Up. Upon payment for a Trial Period account, WattzOn will set up a customized user interface, a web page displaying the Licensee’s logo and brand colors, and including a web form for End Users that are utility customers to enter their utility account credentials. WattzOn will issue Licensee a unique API key (as more particularly described in the Documentation, the “API Key”), which must be referenced in Licensee’s API calls. Alternatively, Licensee can create its own web application (“Licensee Application) that accesses the Service through the API Key issued to Licensee. Licensee shall use best efforts to maintain the confidentiality of Licensee API Key. Each End User of Licensee will be prompted for zip code and utility confirming coverage and to enter credentials. End Users will be required to accept the Link Energy Terms of Service  and Privacy Policy, which is shown in Exhibit A. If a utility is not covered, the End User will get a “Not covered at this time” error message. If End User credentials are incorrect, or if an End User must take action on the utility site to gain access to data, the end user is provided an error message. Licensee needs to allow End Users to stop access to their utility accounts, bills and information through the Service at any time; End Users can request that the Service not access their utility accounts, bill and information by contacting WattzOn at customercare@wattzon.com. During the Trial Period, Extracted Data is sent to Licensee via email. After the Trial Period, Licensee can use the Link Energy API to receive Extracted Data and create a customized End User experience or continue to use the Link Energy hosted web page. Licensee acknowledges and agrees that its use of the API may be subject to volume and other restrictions imposed by WattzOn from time to time.

1.10 Data Retention. WattzOn retains all Licensee Documents and Data and corresponding Extracted Data for use in product development, product maintenance and customer service for a period of two years.  Licensee Documents and Data are never sold to third parties nor used for anonymized aggregated studies.

1.11 Feedback. If Licensee provide WattzOn recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), WattzOn may use that Feedback without obligation to Licensee and Licensee hereby irrevocably assigns to WattzOn all right, title and interest in the Feedback to WattzOn.

1.12 Changes to Service. Licensee understands and agrees that WattzOn may change or discontinue the Service or change or remove functionality of the Service at any time in WattzOn’s sole discretion. WattzOn will use commercially reasonable efforts to notify Licensee of any material change to or discontinuation of the Service.

1.13 Ownership. Except for the rights expressly granted in this Agreement, WattzOn retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Documentation.  No implied license or right is granted by WattzOn by estoppel, reliance, or otherwise.

1.14 Licensee Responsibilities. Licensee will (a) be responsible for its users compliance with this Agreement and Documentation, (b) be responsible for the accuracy, quality and legality of Licensee Documents and Data, the means by which Licensee acquired Licensee Documents and Data, and Licensee’s use of Licensee Documents and Data and any Extracted Data generated by the Service, (c) use the Service in accordance with this Agreement, the AUP and the Documentation and (d) use commercially reasonable efforts to prevent unauthorized access to or use of Service, and notify WattzOn promptly of any such unauthorized access or use.  Any use of the Service in breach of the foregoing by Licensee or its users that in WattzOn’s judgment threatens the security, integrity or availability of the Service, may result in WattzOn’s immediate suspension of the Service, however WattzOn will use commercially reasonable efforts under the circumstances to provide Licensee with notice and an opportunity to remedy such violation or threat prior to any such suspension.

2. SERVICE OFFERINGS AND FEES

2.1 Plans. WattzOn may offer trial, monthly, annual and enterprise service plans as detailed on the Service offerings page on the WattzOn website (“Service Plan”).  Licensee shall select one of the offered Trial Periods or Service Plans when registering to use the Service.  Licensee agrees to pay all usage fees and other service changes as detailed in the Service Plans and agrees to all limitations specified for the applicable Service Plan chosen by Licensee. 

2.2 Fees. Usage fees for the Service specified herein (“Usage Fees”) are to be paid in advance.  Usage Fees for the monthly Service Plan are due and will be automatically charged to Licensee’s credit card on the first on the month; Usage Fees for the annual Service Plan must be paid and will be automatically charged to Licensee on first day of each annual License Term.  Licensee agrees to abide by the limitations on number of User Accounts specified for each Service Plan.  If actual usage exceeds the limitations in the Usage Credit provided with Service Plan (“Excess Use”), Licensee shall pay the fees applicable to such Excess Use (“Excess Use Charges”), which shall be charged to the Licensee’s credit card every 14 days.  Any unused Usage Credit for a particular month will rollover for 90 days for active accounts, after which it expires.  WattzOn reserves the right to change any applicable Fees or elements of Service Plans upon thirty (30) days’ notice, provided that such changes will not take effect until the next applicable License Term (the next monthly period under a monthly Service Plan and the next annual period under the annual Service Plan).

2.3 Payment Method. Licensee shall provide a valid and unexpired credit card to pay any and all applicable Usage Fees, Excess Use Charges, and other charges (collectively the “Fees”) for the Service and authorizes WattzOn (or its designated payment processor) to charge Licensee’s credit card, debit card, or other approved payment mechanism for the Fees.  WattzOn shall have the right to suspend Service if any request to pay Fees is declined or returned unpaid. By providing Licensee’s credit card information, Licensee hereby agrees to all Fees and charges, including automatically recurring charges, as described in this Agreement and on the WattzOn website for the applicable Trial Period or Service Plan.

3. SERVICE LEVEL COMMITMENT AND DATA EXTRACTION

3.1 Availability. WattzOn will make the API for the Service available 99.5% of the time each month except for Excluded Time.  Excluded Time means any time period during the month when the Service is not available because of (a) factors outside of WattzOn’s reasonable control, including, without limitation, any force majeure event, telecommunications provider-related problems or issues, or Internet access or related problems occurring beyond the point in the network where WattzOn maintains access and control over the Service; (b) any actions or inactions of Licensee or any third party (other than WattzOn’s agents and subcontractors); (c) any Licensee applications, equipment, software, or other technology and/or third-party equipment, software, or other technology (except for equipment within WattzOn’s direct control); or (d) occurs during WattzOn’s scheduled maintenance for which WattzOn will provide at least twenty-four (24) hours prior notice; or (e) problems or issues related to alpha, beta, or not otherwise generally available WattzOn features or products.

3.2 Extraction. Data extracted is “as is,” and there is no guarantee of accuracy of results or compensation for any errors in Extracted Data, except that if during the Licensee setup the accuracy of the Extracted Data results is below 90%, and WattzOn fails to remedy within 60 days, Licensee will be provided a credit for the User on the applicable Service Plan.

4. CONFIDENTIALITY

4.1 Confidential Information. The term “Confidential Information” means any information disclosed by one Party (“Disclosing Party” to the other Party (“Receiving Party”), whether before or after the Effective Date, that:  (i) is in written, graphic, machine readable, or other tangible form and is marked “Confidential”, “Proprietary,” or in some other manner to indicate its confidential nature; (ii) should be reasonably understood by Receiving Party to be the confidential or proprietary information of Disclosing Party; or (iii) is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Disclosing Party within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party. The Service and Documentation shall be WattzOn’s Confidential Information.

4.2 Confidentiality. Receiving Party shall treat as confidential all Confidential Information of Disclosing Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, Receiving Party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information of Disclosing Party. Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information.

4.3 Exceptions. Confidential Information excludes information that Receiving Party can show: (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (iv) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of an obligation to keep such information in confidence.

4.4 Compelled Disclosure. If the Confidential Information of Disclosing Party must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall:  (i) provide prompt notice thereof to Disclosing Party; (ii) use its commercially reasonable efforts to cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Confidential Information (or portion thereof) required to be disclosed.

4.5 Confidentiality of Agreement. Receiving Party agrees that the terms and conditions, but not the existence, of this Agreement shall be treated as Disclosing Party’s Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of Disclosing Party; provided, however, that Receiving Party may disclose the terms and conditions of this Agreement:  (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of Receiving Party; (iv) in connection with the requirements of an initial public offering or securities filing; (v) in confidence to accountants, banks, and financing sources and their advisors; (vi) in confidence in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence in connection with a merger or acquisition or proposed merger or acquisition, or the like.

4.6 Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party may have in its possession or control or, at Disclosing Party’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of Receiving Party.

4.7 Resultant Data. Notwithstanding anything to the contrary in this Agreement, WattzOn shall have the right to collect and analyze data and other information in an aggregate or de-identified form only relating to the provision, use, and performance of various aspects of the Service and related systems and technologies  (collectively, “Resultant Data”), and WattzOn will be free use such Resultant Data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other WattzOn offerings.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

5.1 Organization; Authority. Licensee and WattzOn each represent and warrant to the other that they have all necessary rights, power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby, and that such Party will comply with all applicable laws, rules, regulations and orders in performing its obligations or exercising its rights in connection with providing or using the Service under this Agreement.

5.2 WattzOn Warranties. WattzOn represents and warrants that the Service (excluding Licensee Documents and Data and any other information or materials provided by Licensee in connection with the Service) if used in strict accordance with this Agreement and the Documentation will not infringe, violate, or misappropriate any intellectual property rights of a third party.

5.3 Licensee Warranties. Licensee represents and warrants to WattzOn that:  (i) Licensee’s Applications and WattzOn’s use, reproduction, modification, distribution, performance, and display of the Licensee Documents and Data will not infringe, violate, or misappropriate any intellectual property, privacy, publicity, or other rights of a third party; (ii) Licensee has all rights necessary to grant to WattzOn the rights and licenses contained in this Agreement to the Licensee Documents and Data; (iii) Licensee’s providing, disclosing, and delivering of Licensee Documents and Data will not violate the AUP or any applicable laws, regulations, contractual commitments, or privacy commitments; (iv) Licensee will comply with any and all applicable data privacy, protection and security laws with respect to an Personal Data (“Data Privacy Laws”), including utility data, collected from any End User; and (v) the Licensee Documents and Data does not include any viruses, trap doors, time bombs, Trojan horses, or other malicious code.

5.4 Disclaimer. THE SERVICE IS PROVIDED BY WATTZON “AS IS,” AND NEITHER WATTZON NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND WATTZON HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON‑INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE.  WATTZON DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET LICENSEE’S REQUIREMENTS, OR BE SECURE.

6. INDEMNIFICATION

6.1 WattzOn Indemnity. WattzOn, at its expense, shall defend, or at WattzOn’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Licensee, its affiliates, and its and their directors, employees, agents, and representatives (the “Licensee Indemnified Parties”) alleging that Licensee’s use of the Service (excluding the Licensee Documents and Data and Licensee Systems) infringes, violates, or misappropriates any intellectual property right of any third party (each a “Claim Against Licensee”), and shall indemnify and hold harmless the Licensee Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Licensee Indemnified Party arising out of or in connection with a Claim Against Licensee. The applicable Licensee Indemnified Party shall notify Licensee promptly in writing of the Claim Against Licensee, provide reasonable assistance in connection with the defense and settlement thereof, and permit Licensee to control the defense and settlement thereof. WattzOn shall not settle any Claim Against Licensee without Licensee’s prior written consent. A Licensee Indemnified Party may, at its expense, participate in any Claim Against Licensee with counsel of its choice.

6.2 Licensee Indemnity. Licensee, at its expense, shall defend, or at Licensee’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against WattzOn, its affiliates, and its and their directors, employees, agents, and representatives (the “WattzOn Indemnified Parties”) alleging:  (i) facts, that if true, would constitute a breach of Licensee’s representations, warranties, and covenants under this Agreement; (ii) Licensee’s violations of any Data Privacy Laws; and (iii) Licensee’s Applications or WattzOn’s using, reproducing, modifying, distributing, performing, or displaying of the Licensee Documents and Data infringes, violates, or misappropriates any intellectual property, privacy, or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against WattzOn”), and shall indemnify and hold harmless the WattzOn Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against a WattzOn Indemnified Party arising out of or in connection with a Claim Against WattzOn.  The applicable WattzOn Indemnified Party shall notify Licensee promptly in writing of the Claim Against WattzOn, provide reasonable assistance in connection with the defense and settlement thereof, and permit Licensee to control the defense and settlement thereof.  Licensee shall not settle any Claim Against WattzOn without WattzOn’s prior written consent.  A WattzOn Indemnified Party may, at its expense, participate in any Claim Against WattzOn with counsel of its choice.

7. LIMITATION OF LIABILITY

7.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, SECURITY, OR DATA BREACH, LOSS OF REVENUE OR PROFIT, OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, WATTZON’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO WATTZON IN THE 12 MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  THE DISCLAIMERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

8. TERM AND TERMINATION

8.1 Term. The term of this Agreement shall commence on the Start Date and continue until the expiration of the Trial Period or the applicable Service Plan Term, whichever is later, or as earlier terminated in connection with this Section 8.  For a monthly Service Plan, the Term is one month from the Start Date for that plan and for the annual Service Plan the Term is one (1) year from the Start Date for that plan and for both plans, the Term includes any renewals as set forth in Section 8.2.

8.2 Renewals; Notice of Termination. The monthly Service Plan will automatically renew for successive one (1) month periods unless either Party provides written notice of termination fifteen (15) days before the end of the then-applicable monthly Service Plan Term.  The annual Service Plan will automatically renew for successive one (1) year periods unless either Party provides written notice of termination thirty (30) days before the end of the then-applicable annual Service Plan Term.

8.3 Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party in the event that the other Party materially breaches this Agreement and fails to cure such material breach within 30 days after receipt of written notice thereof. A failure by Licensee to pay Fees when due shall be considered a material breach of this Agreement.

8.4 Effect of Termination; Survival. Expiration or termination of this Agreement will not relieve Licensee of its obligations to pay any amounts accrued or otherwise owed under this Agreement. Upon expiration or termination of this Agreement, all licenses or rights granted to Licensee hereunder shall terminate and Licensee shall not, and shall not attempt to, access or use the Service.  The provisions of Sections 1.7(b), 1.11, 1.13, 2.2, 4, 5, 6, 7, 8.4, 9 and 10, and any claims for amounts due, shall survive any expiration or termination of this Agreement.

9. DISPUTE RESOLUTION

9.1 Arbitration. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either Party initiating a lawsuit or arbitration.  Except for claims for injunctive relief or disputes relating to WattzOn’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) (“Excluded Claims”), all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.  Such arbitration shall take place in San Francisco, California.  Except for Excluded Claims, the arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.  The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement.  The arbitrator’s award shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.  You agree not to participate in claims brought in a private attorney general or representative capacity or consolidated claims involving another person’s account.  This dispute resolution provision will be governed by the Federal Arbitration Act.

10. GENERAL PROVISIONS

10.1 Force Majeure. Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

10.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles.  Subject to Section 9, each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in Santa Clary County, California with regard to any dispute arising out of or relating to this Agreement.  The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

10.3 Injunctive Relief. Licensee acknowledges and agrees that any breach of its obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to WattzOn, which could not be remedied by payment of damages alone.  Accordingly, Licensee hereby agrees that WattzOn will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.

10.4 Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

10.5 Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns. 

10.6 Amendments. No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties.

10.7 Partial Invalidity. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable.  If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.

10.8 No Waiver. No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties.  The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions nor in any way affect the ability of either Party to enforce each and every such provision thereafter.

10.9 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement.  No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto.  The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.”

10.10 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter. 

10.11 Assignment. Licensee shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of WattzOn, and any purported assignment shall be void and of no force or effect.  WattzOn may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in WattzOn’s sole discretion.

10.12 Electronic Communications. As part of the Service we provide, you may (if enabled) receive notifications, alerts, or other types of messages via email or the messaging functionality provided by the Service (“Messages”). You have control over the Messages settings and can opt in or out of these Messages (with the exception of service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the email you receive.

10.13 Notices. Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by email to the email address provided in your account.  Notices to WattzOn shall be sent via email to the following address: Customercare@wattzon.com. Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered.

SNAP PLUS
SOFTWARE AS A SERVICE AGREEMENT

THIS SOFTWARE AS A SERVICE AGREEMENT (“Agreement”) is a legal agreement between Ennovationz, Inc. dba WattzOn, Glynt, a Delaware corporation (“WattzOn” “Glynt”, “we”, “us,” or “our”), and the user who has registered to use our Service (“Licensee”, “you,” or “your”) (each, a “Party”, and together, the “Parties”) for the use of WattzOn platform and service offering as defined below (“Service”).

[Please note that Ennovationz Inc. does business as WattzOn and as Glynt. WattzOn offers SNAP PLUS.  Glynt offers GLYNT.  SNAP PLUS uses the same machine learning system and software codebase as GLYNT. The API is offered through GLYNT. SNAP PLUS includes an additional service, Verification service to increase data accuracy. This is not currently available through GLYNT. This Verification service is enabled by a special branch of the GLYNT API.]

BY ACCESSING OR USING OUR SERVICE, REGISTERING AN ACCOUNT WITH US, OR BY SUBMITTING ANY DOCUMENTS OR DATA IN CONNECTION WITH THE SERVICE,  YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS SOFTWARE AS A SERVICE AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR AGREEMENT WILL APPLY RETROACTIVELY. IF YOU ARE ACCESSING AND USING THE SERVICE ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.

ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH WATTZON.

1. ACCESS AND SERVICE

1.1 Definitions. The following terms shall have the meanings set forth herein:

(a) “Documentation” means the documentation posted on WattzOn and Glynt website that describes the functionality of the Service.

(b) “Extracted Data” means data that is extracted from the Licensee Documents by the Service.

(c) “Licensee Documents” means any documents and data contained within (including Personal Data) and other information provided by Licensee or End Users (including End User utility bills) in connection with the Service.

(d) “Licensee Systems” means any server systems, mobile devices, personal computers, or other equipment owned, operated, or managed by Licensee on which the Service is accessed.

(e) “Service” means the GLYNT™ machine learning system that extracts data from documents by means of the GLYNT API.

(f) “Service Plan” means the plans for use of the Service as set forth in Section 2.1.

(g) “Start Date” is the earlier of the date you register for or start using the Service.

(h) “Term” means the term of the Service as specified in Section 8.1.

(i) “Trial Period” means a temporary trial period for the Service defined in Section 8.1.

1.2 Access to Service. Subject to Licensee’s compliance with the restrictions and obligations set forth in in this Agreement and payment of all applicable Fees, Licensee will be granted non-exclusive access to the Service commencing on the Start Date through the Trial Period or applicable License Term depending on the Service Plan selected.

1.3 Registration.

You will need to register and create an account with WattzOn to access the Service. You will need to create a username, password, and provide certain information about yourself as prompted by the registration form, including your name and a valid email address. You agree to provide full, complete, and accurate information when registering or creating an account and to update that information promptly if it should change. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of this Agreement. You may not create more than one account without prior written approval from us. You will not transfer your account to any other party without our prior written consent. You agree that your username and password is WattzOn’s Confidential Information and not to disclose or transfer your username or password to any third party. You are responsible for any use of your account, whether authorized or not. You agree to immediately notify WattzOn if there is any unauthorized use of your account.

1.4 Data Collection and Privacy.

(a) Any personally identifiable information, including, but not limited to, any personal data protected under any applicable law (collectively, “Personal Data”), that you or your authorized users (including Licensee employees that access the account and any End Users that are prompted to access the Service) provide will be subject to our Privacy Policy (except that End Users will be subject to the End User Privacy Policy which you agree to as a condition to use of the Service. You represent and warrant that you have all required rights, consents, and permissions to provide any and all Personal Data to WattzOn for processing in connection with providing the Service under this Agreement and that your provision of such Personal Data to WattzOn does not violate any applicable data privacy, data protection, or data security law, rule, regulation, or order.  An End User may terminate the data collection at any time by contacting CustomerCare@WattzOn.com.

(b) Security. WattzOn will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Documents. Those safeguards will include, measures designed to prevent unauthorized access to or disclosure of Licensee Documents (other than by Licensee or its users), including include company-wide training, regular monitoring and testing for security vulnerabilities and additional technical protections including AWS-managed disk-level encryption of our report database using AES-256 algorithms and TLS 1.2 standard encryption for data in transit.

1.5 Extraction of Data from Licensee Documents. Licensee hereby grants WattzOn a non-exclusive, royalty-free, fully paid-up, license (and the right to sublicense third-party service providers necessary to provide the Services) to use, store, reproduce, scan, process, and display Licensee Documents during the Term for the purpose of (i) providing the Service, including creating and delivering the Extracted Data and (ii) developing, maintaining, supporting, or improving the Service.

1.6 Acceptable Use Policy. Licensee is solely responsible for any and all Licensee Documents that it provides. Licensee shall not provide, disclose, or deliver any Licensee Document to WattzOn or use the Service in any manner that violates the WattzOn Acceptable Use Policy (“AUP”). WattzOn reserves the right, but does not have the obligation, to monitor, remove, erase, block, edit, or refuse to process any Licensee Document that violates the AUP or this Agreement.

1.7 Restrictions.

(a) Licensee shall use the Service only in conformity with the Documentation. Licensee shall not, and shall not permit any Licensee employees or contractors to, share any account or access credentials for the Service with third parties. Licensee shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use. Licensee shall notify WattzOn immediately of any actual or alleged unauthorized use of the Service.

(b) Licensee shall not (and not allow, permit, authorize, or assist any third party to): (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Service; (ii) sell, resell, license, sublicense, distribute, rent, or lease any part of the Service or encumber the Service with any lien or grant a security interest in the Service; (iii) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (vi) copy, frame, or mirror any part of the Service; (iv) access the Service for the purposes of monitoring its availability, performance, or functionality; or (v) access or use any materials, content, technology, information, or data available via or forming a part of the Service in order to build a competitive product or service or copy any features, functions, or graphics of the Service.

1.8 Licensee Systems. Licensee is solely responsible for the operation and maintenance of the Licensee Systems and for having and paying for all equipment and internet access necessary to access and use the Service. WattzOn disclaims all warranties, express or implied, and shall have no liabilities to Licensee arising from or related to the operation or maintenance of the Licensee Systems or any incompatibilities, faults, defects, or damage attributable thereto. Licensee is responsible for assigning login credentials and passwords to authorized users of the Service on Licensee’s behalf and for maintaining the confidentiality of such login credentials and passwords. To the extent Licensee’s cloud infrastructure provider implements any rate limiting restrictions on such activities, WattzOn shall not be liable for any decreased performance or failure of the Service in connection therewith.

1.9 Service Parameters and Set Up.Pricing for the Service is based on several variables relating to the documents for which data extraction is to be performed:

(a) Publisher: A “Utility” is the entity that issues the document for which data extraction is requested by Licensee. There will be a Utility assigned for each distinct layout requiring a customized SNAP PLUS training model for best results. For example, if a regulated utility issued seven distinct bill types, WattzOn may need to provide one or up to seven customized SNAP PLUS models. WattzOn shall have the sole discretion to determine the number of Utilities to be assigned to the documents submitted by Licensee to the Service for data extraction.

(b) Data Field: A “Data Item” typically corresponds to a single text block, such as an account number, or adjacent text blocks, such as a two-part Account Number. A name can be divided by the user into First Name and Last Name, and thus two adjacent text blocks would be counted as two Data Items. Licensee can choose the data to be extracted from each document submitted; WattzOn will then its sole discretion determine the number of Data Items to be assigned to Licensee’s data extraction request.

(c) Page: A “Page” is a distinct page in each document, whether or not numbered. All pages in a document, including blank pages, submitted to the Service are included in the page count. Pages must be submitted in the size and format specified by WattzOn in the Documentation.

(d) Bounding Boxes: A “Bounding Box” is an imaginary box drawn around each data item, denoted by the location of the corners on the document Page. Location is given in terms of coordinates based off of origin being at the top-left corner of the Page.

(e) Initial Set-up: Licensee shall follow the set-up instructions by WattzOn in setting up Licensee’s use of the Service hereunder.

1.10 Data Retention. WattzOn deletes all Licensee Documents and corresponding Extracted Data at the end of thirty (30) days after the Extracted Data has been delivered to Licensee, with the exception of Licensee Documents and Extracted Data used in creating models and training documents for Licensee (“Training Documents and Data”). Training Documents and Data are retained by WattzOn for the entire Term and destroyed after six months of inactivity after the Term.

1.11 Feedback. If Licensee provide WattzOn recommendations or feedback for new features, functionality, or other improvements to the Service (“Feedback”), WattzOn may use that Feedback without obligation to Licensee and Licensee hereby irrevocably assigns to WattzOn all right, title and interest in the Feedback to WattzOn.

1.12 Changes to Service. Licensee understands and agrees that WattzOn may change or discontinue the Service or change or remove functionality of the Service at any time in WattzOn’s sole discretion. WattzOn will use commercially reasonable efforts to notify Licensee of any material change to or discontinuation of the Service.

1.13 Ownership. Except for the rights expressly granted in this Agreement, WattzOn retains all right, title, and interest, including all intellectual property rights, in and to the Service and the Documentation. No implied license or right is granted by WattzOn by estoppel, reliance, or otherwise.

1.14 Licensee Responsibilities. Licensee will (a) be responsible for its users compliance with this Agreement and Documentation, (b) be responsible for the accuracy, quality and legality of Licensee Documents, the means by which Licensee acquired Licensee Documents, and Licensee’s use of Licensee Documents and any Extracted Data generated by the Service, (c) use the Service in accordance with this Agreement, the AUP and the Documentation and (d) use commercially reasonable efforts to prevent unauthorized access to or use of Service, and notify WattzOn promptly of any such unauthorized access or use. Any use of the Service in breach of the foregoing by Licensee or its users that in WattzOn’s judgment threatens the security, integrity or availability of the Service, may result in WattzOn’s immediate suspension of the Service, however WattzOn will use commercially reasonable efforts under the circumstances to provide Licensee with notice and an opportunity to remedy such violation or threat prior to any such suspension.

2. SERVICE OFFERINGS AND FEES

2.1 Plans. WattzOn may offer trial, monthly, annual and enterprise service plans as detailed on the Service offerings page on the WattzOn website (“Service Plan”). Licensee shall select one of the Service Plans when registering to use the Service. Licensee agrees to pay all usage fees and other service changes as detailed in the Service Plans and agrees to all Utility, Page, document and Data Field limitations specified for the applicable Service Plan chosen by Licensee. 

2.2 Fees. Usage fees for the Service specified herein (“Usage Fees”) are to be paid in advance.  Usage Fees for the monthly Service Plan are due and will be automatically charged to Licensee’s credit card on the first on the month; Usage Fees for the annual Service Plan must be paid and will be automatically charged to Licensee on first day of each annual License Term. Licensee agrees to abide by the limitations on number of Utilities, Data Fields, and Pages specified for each Service Plan.  If actual usage exceeds the limitations in the Data Extraction Credit provided with Service Plan (“Excess Use”), Licensee shall pay the fees applicable to such Excess Use (“Excess Use Charges”), which shall be charged to the Licensee’s credit card every 14 days.  Any unused Data Extraction or Publisher Credit for a particular month will rollover for 90 days for active accounts, after which it expires. Utilities reserves the right to change any applicable Fees or elements of Service Plans upon thirty (30) days’ notice, provided that such changes will not take effect until the next applicable License Term (the next monthly period under a monthly Service Plan and the next annual period under the annual Service Plan).

2.3 Payment Method. Licensee shall provide a valid and unexpired credit card to pay any and all applicable Usage Fees, Excess Use Charges, and other charges (collectively the “Fees”) for the Service and authorizes WattzOn (or its designated payment processor) to charge Licensee’s credit card, debit card, or other approved payment mechanism for the Fees. WattzOn shall have the right to suspend Service if any request to pay Fees is declined or return unpaid.

3. SERVICE LEVEL COMMITMENT AND DATA EXTRACTION

3.1 Availability.  WattzOn will make the API for the Service available 99.5% of the time each month except for Excluded Time.  Excluded Time means any time period during the month when the Service is not available because of (a) factors outside of WattzOn’s reasonable control, including, without limitation, any force majeure event, telecommunications provider-related problems or issues, or Internet access or related problems occurring beyond the point in the network where WattzOn maintains access and control over the Service; (b) any actions or inactions of Licensee or any third party (other than WattzOn’s agents and subcontractors); (c) any Licensee applications, equipment, software, or other technology and/or third-party equipment, software, or other technology (except for equipment within WattzOn’s direct control); or (d) occurs during WattzOn’s scheduled maintenance for which WattzOn will provide at least twenty-four (24) hours prior notice; or (e) problems or issues related to alpha, beta, or not otherwise generally available WattzOn features or products.

3.2 Extraction. Data extracted through automated machine learning (“Straight-Through Processing”) and the results and the accuracy thereof are shared with the Customer. In addition, SNAP PLUS includes a Verification step, in which WattzOn, through automated software and human review, audits the Straight-Through Processing results, corrects all errors found and delivers extracted data with 99.5% accuracy per 10,000 pages of data extraction. WattzOn to provide demonstration of this accuracy during the Utility setup phase and to provide validation that the accuracy is maintained upon Customer request.  Customer may make such a request no more than four times per year per Utility.  If the accuracy of the results falls below 99.5% for more than 60 days, Customer will be provided a credit for the affected data.  WattzOn, in its sole judgement, shall apply the credit. In addition, if during the Licensee setup the accuracy of the Straight-Through Processing Extracted Data results is below 90%, Licensee may choose to “Not Accept” the Utility, in which case that Publisher will not count against the Publisher limit in the applicable Service Plan.

3.3 Response Time. WattzOn will respond to customer inquiries and issues within one (1) business day. The first response may be limited to acknowledgement of the issue, or it may be a response that addresses and/or resolves the issue. If the issue is not resolved within one (1) business day, WattzOn will respond to the customer within 4 business days with a plan to resolution and an estimate of time to resolution. 

4. CONFIDENTIALITY

4.1 Confidential Information. The term “Confidential Information” means any information disclosed by one Party (“Disclosing Party” to the other Party (“Receiving Party”), whether before or after the Effective Date, that: (i) is in written, graphic, machine readable, or other tangible form and is marked “Confidential”, “Proprietary,” or in some other manner to indicate its confidential nature; (ii) should be reasonably understood by Receiving Party to be the confidential or proprietary information of Disclosing Party; or (iii) is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by Disclosing Party within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party.  The Service and Documentation shall be WattzOn’s Confidential Information.

4.2 Confidentiality. Receiving Party shall treat as confidential all Confidential Information of Disclosing Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, Receiving Party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information of Disclosing Party.  Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information.

4.3 Exceptions. Confidential Information excludes information that Receiving Party can show:  (i) was in the public domain at the time it was disclosed or has become in the public domain through no act or omission of Receiving Party; (ii) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) was independently developed by Receiving Party without any use of Disclosing Party’s Confidential Information; or (iv) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of an obligation to keep such information in confidence.

4.4 Compelled Disclosure. If the Confidential Information of Disclosing Party must be disclosed by Receiving Party pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall:  (i) provide prompt notice thereof to Disclosing Party; (ii) use its commercially reasonable efforts to cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information; and (iii) limit the disclosure to the exact Confidential Information (or portion thereof) required to be disclosed.

4.5 Confidentiality of Agreement. Receiving Party agrees that the terms and conditions, but not the existence, of this Agreement shall be treated as Disclosing Party’s Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of Disclosing Party; provided, however, that Receiving Party may disclose the terms and conditions of this Agreement:  (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of Receiving Party; (iv) in connection with the requirements of an initial public offering or securities filing; (v) in confidence to accountants, banks, and financing sources and their advisors; (vi) in confidence in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence in connection with a merger or acquisition or proposed merger or acquisition, or the like.

4.6 Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party may have in its possession or control or, at Disclosing Party’s option, shall destroy all such Confidential Information and certify such destruction in a writing signed by an authorized officer of Receiving Party.

4.7 Resultant Data. Notwithstanding anything to the contrary in this Agreement, WattzOn shall have the right to collect and analyze data and other information in an aggregate or de-identified form only relating to the provision, use, and performance of various aspects of the Service and related systems and technologies  (collectively, “Resultant Data”), and WattzOn will be free use such Resultant Data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other WattzOn offerings.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

5.1 Organization; Authority. Each Party represents and warrants to the other Party that such Party is a corporate entity duly organized, validly existing, and in good standing under the laws of the state or country first indicated above as such Party’s state or country of incorporation, such Party has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement, and to consummate the transactions contemplated hereby, and such Party will comply with all applicable laws, rules, regulations and orders in performing its obligations and providing or using the Service under this Agreement.

5.2 WattzOn Warranties. WattzOn represents and warrants that the Service (excluding Licensee Documents) if used in strict accordance with this Agreement and the Documentation will not infringe, violate, or misappropriate any intellectual property rights of a third party.

5.3 Licensee Warranties. Licensee represents and warrants to WattzOn that:  (i) WattzOn’s use, reproduction, modification, distribution, performance, and display of the Licensee Documents will not infringe, violate, or misappropriate any intellectual property, privacy, publicity, or other rights of a third party; (ii) Licensee has all rights necessary to grant to WattzOn the rights and licenses contained in this Agreement to the Licensee Documents; (iii) Licensee’s providing, disclosing, and delivering of Licensee Documents will not violate the AUP or any applicable laws, regulations, contractual commitments, or privacy commitments; and (iv) the Licensee Documents does not include any viruses, trap doors, time bombs, Trojan horses, or other malicious code.

5.4 Disclaimer. THE SERVICE IS PROVIDED BY WATTZON “AS IS,” AND NEITHER WATTZON NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE, AND WATTZON HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON‑INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE.  WATTZON DOES NOT GUARANTEE OR WARRANT THAT THE SERVICE WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED, MEET LICENSEE’S REQUIREMENTS, OR BE SECURE.

6. INDEMNIFICATION

6.1 WattzOn Indemnity. WattzOn, at its expense, shall defend, or at WattzOn’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against Licensee, its affiliates, and its and their directors, employees, agents, and representatives (the “Licensee Indemnified Parties”) alleging that Licensee’s use of the Service (excluding the Licensee Documents) infringes, violates, or misappropriates any intellectual property right of any third party (each a “Claim Against Licensee”), and shall indemnify and hold harmless the Licensee Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Licensee Indemnified Party arising out of or in connection with a Claim Against Licensee. The applicable Licensee Indemnified Party shall notify Licensee promptly in writing of the Claim Against Licensee, provide reasonable assistance in connection with the defense and settlement thereof, and permit Licensee to control the defense and settlement thereof.  WattzOn shall not settle any Claim Against Licensee without Licensee’s prior written consent.  A Licensee Indemnified Party may, at its expense, participate in any Claim Against Licensee with counsel of its choice.

6.2 Licensee Indemnity. Licensee, at its expense, shall defend, or at Licensee’s option, settle, any third-party claim, demand, suit, action, or proceeding made or brought against WattzOn, its affiliates, and its and their directors, employees, agents, and representatives (the “WattzOn Indemnified Parties”) alleging:  (i) facts, that if true, would constitute a breach of Licensee’s representations, warranties, and covenants under this Agreement; and (ii) WattzOn’s using, reproducing, modifying, distributing, performing, or displaying of the Licensee Documents infringes, violates, or misappropriates any intellectual property, privacy, or other right, or any law, regulation, or order relating to privacy of personal data (each a “Claim Against WattzOn”), and shall indemnify and hold harmless the WattzOn Indemnified Parties from and against any and all costs, damages, liabilities, losses, judgments, and expenses (including reasonable attorneys’ fees) incurred by or awarded against a WattzOn Indemnified Party arising out of or in connection with a Claim Against WattzOn.  The applicable WattzOn Indemnified Party shall notify Licensee promptly in writing of the Claim Against WattzOn, provide reasonable assistance in connection with the defense and settlement thereof, and permit Licensee to control the defense and settlement thereof.  Licensee shall not settle any Claim Against WattzOn without WattzOn’s prior written consent.  A WattzOn Indemnified Party may, at its expense, participate in any Claim Against WattzOn with counsel of its choice.

7. LIMITATION OF LIABILITY

7.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, SECURITY, OR DATA BREACH, LOSS OF REVENUE OR PROFIT, OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, WATTZON’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO WATTZON IN THE 12 MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THE DISCLAIMERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

8. TERM AND TERMINATION

8.1 Term. The term of this Agreement shall commence on the Start Date and continue until the expiration of the Trial Period or the applicable License Term, whichever is later, or as earlier terminated in connection with this Section 8. For a Monthly Service Plan, the License Term is one month from the Start Date for that plan and for the Annual Service Plan the License Term is one (1) year from the Start Date for that plan and for both plans, the License Term includes any renewals as set forth in Section 8.2.

8.2 Renewals. The Monthly Service Plan will automatically renew for successive one (1) month periods unless either Party provides written notice of termination fifteen (15) days before the end of the then-applicable monthly License Term.  The Annual Service Plan will automatically renew for successive one (1) year periods unless either Party provides written notice of termination thirty (30) days before the end of the then-applicable annual License Term.

8.3 Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party in the event that the other Party materially breaches this Agreement and fails to cure such material breach within 30 days after receipt of written notice thereof.  A failure by Licensee to pay Fees when due shall be considered a material breach of this Agreement.

8.4 Effect of Termination; Survival. Expiration or termination of this Agreement will not relieve Licensee of its obligations to pay any amounts accrued or otherwise owed under this Agreement.  Upon expiration or termination of this Agreement, all licenses or rights granted to Licensee hereunder shall terminate and Licensee shall not, and shall not attempt to, access or use the Service. The provisions of Sections 1.7(b), 1.11, 1.13, 2.2, 4, 5, 6, 7, 8.4, 9 and 10 shall survive any expiration or termination of this Agreement.

9. DISPUTE RESOLUTION

9.1 Arbitration. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either Party initiating a lawsuit or arbitration. Except for claims for injunctive relief or disputes relating to WattzOn’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) (“Excluded Claims”), all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules.  Such arbitration shall take place in San Francisco, California.  Except for Excluded Claims, the arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.  The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. You agree not to participate in claims brought in a private attorney general or representative capacity or consolidated claims involving another person’s account. This dispute resolution provision will be governed by the Federal Arbitration Act.

10. GENERAL PROVISIONS

10.1 Force Majeure. Notwithstanding anything else in this Agreement, no default, delay, or failure to perform on the part of either Party will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Party charged with a default, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

10.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without reference to conflict of laws principles.  Subject to Section 9, each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in Santa Clary County, California with regard to any dispute arising out of or relating to this Agreement.  The Parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

10.3 Injunctive Relief. Licensee acknowledges and agrees that any breach of its obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to WattzOn, which could not be remedied by payment of damages alone.  Accordingly, Licensee hereby agrees that WattzOn will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.

10.4 Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

10.5 Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties hereto, their successors, and permitted assigns. 

10.6 Amendments. No modification of, or amendment to, this Agreement will be effective unless in writing signed by an authorized representative of both Parties.

10.7 Partial Invalidity. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the Parties as closely as possible and remain enforceable.  If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect.

10.8 No Waiver. No waiver of any term or condition of this Agreement will be valid or binding on either Party unless the same will have been mutually assented to in writing by an officer of both Parties.  The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions nor in any way affect the ability of either Party to enforce each and every such provision thereafter.

10.9 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement.  No rule of construction resolving any ambiguity in favor of the non-drafting Party shall be applied hereto.  The word “including,” when used herein, is illustrative rather than exclusive and means “including, without limitation.”

10.10 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and supersedes all prior and contemporaneous communications, representations, discussions, and agreements between the Parties with respect to such subject matter. 

10.11 Assignment. Licensee shall not assign or delegate this Agreement or any of its licenses, rights, or duties under this Agreement (whether by merger, sale of assets, sale of equity, or otherwise) without the prior written consent of WattzOn, and any purported assignment shall be void and of no force or effect.  WattzOn may freely assign or delegate this Agreement or any of its licenses, rights, or duties hereunder in WattzOn’s sole discretion.

10.12 Electronic Communications. As part of the Service we provide, you may (if enabled) receive notifications, alerts, or other types of messages via email or the messaging functionality provided by the Service (“Messages”).  You have control over the Messages settings and can opt in or out of these Messages (with the exception of service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the email you receive.

10.13 Notices. Any notice or other communication required or permitted to be delivered hereunder must be in writing and sent by email to the email address provided in your account. Notices to WattzOn shall be sent via email to the following address: Such notice will be deemed to have been given when delivered, or, if delivery is not accomplished as a result of some action or inaction by the recipient, when tendered.

EXHIBIT A

Terms of Use for Link Energy Service and  SNAP Service

Your access to and use of this website (the “Site”) and the Link Energy service, along with any reports, recommendations, analyses, statements, or other products or services provided to you through the Site or Link Energy service (collectively, the “Service”) is subject to these Terms of Use (“Terms”) and our Privacy Policy available at  www.wattzon.com/privacy-policy/.  If forms a binding agreement between you (“you” or “your”) as the user of the Site and Service and Ennovationz, Inc. dba WattzOn, a Delaware corporation (“WattzOn”, “we”, “us” or “our”).

You will not use the Site or Service for any purpose that is unlawful or prohibited by these Terms. By using the Site you are fully accepting the terms, conditions and disclaimers contained in this notice. If you do not accept these Terms you must immediately stop using the Site.

THE SERVICE IS NOT AVAILABLE TO PERSONS UNDER THE AGE OF 18, OR TO ANY PERSON SUSPENDED OR REMOVED FROM THE SERVICE BY WATTZON. BY ACCESSING, BROWSING, OR USING THE SERVICE YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE.

FOR LINK ENERGY: YOU MAY REQUEST THAT WATTZON TERMINATE ACCESS TO YOUR UTILITY ACCOUNT AT ANY TIME. PLEASE CONTACT CUSTOMERCARE@WATTZON.COM.

1.  Changes to Site and Service & Notice

WattzOn reserves the right to:

  • change or remove (temporarily or permanently) the Site or Service any part of
  • change, remove, or discontinue any service, or promotion (including but not limited to any parts thereof, licensing, pricing) as advertised on this

We may provide notices to you either by posting them on the Site or by email to the address you provided when you registered for the Service. All notices are effective upon posting or when sent. Additionally, we may modify these Terms of Service and/or our Privacy Policy at any time by posting the modified version on the Site or by sending you a copy by email. Please check the Terms periodically for changes. By continuing to access or use the Service after we have posted or emailed any such modifications, you agree to be bound by the modified Terms of Service or Privacy Policy (as applicable), but solely on a going forward basis. Material changes to the Terms will automatically become effective, on a going forward basis, thirty (30) days after they are posted to the Site or sent to you via email.

2.  Links to Third Party Websites

The Site may include links to third party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that we are not responsible for the content or availability of any such sites. Any use of third party websites is subject to those website’s own terms and policies.

3.  Site Content

a. Content you Post or Submit. “Content” means text, images, graphics, photos, audio, video, location data, information, suggestions, guidance, and all other forms of data, communication, or materials. You may have the opportunity to submit Content, including feedback regarding your experiences with the Service including by participating in the interactive and community features of the Service. It is important that you act responsibly when providing Content. When participating in other interactive or community aspects of the Service, please do not post any information that another user may use to identify you as an individual, but please do include all relevant information in a concise manner to help us provide you with a helpful

b. Copyright Ownership. You shall be solely responsible for your Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish your Content.  You retain your rights to your Content. but you agree to and hereby do license to WattzOn, and its contractors an irrevocable, perpetual, royalty-free, fully sublicensable, fully paid up, fully transferable, worldwide license to reproduce, distribute, publicly perform, publicly display, publish, make available, communicate to the public, translate, prepare derivative works of, and otherwise use and exploit your Content, solely as is necessary for WattzOn to provide the Service to you, to improve the Service, and/or provide the Content you entered therein to the third party provider of energy products and/or related products and services (“Vendor”), its affiliates, and sales agents who you were made aware when you submitted such Content and subject to the terms of the agreement governing the use of such Content between Vendor and WattzOn.

If you are a copyright owner or an agent thereof and believe that any Content posted to the Site infringes upon your copyrights, or any other intellectual property rights you own, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent at info@wattzon.com with a written notification (see 17 U.S.C 512(c)(3) for further detail). WattzOn will terminate a user’s access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer. WattzOn reserves the right to decide whether user Content violates these Terms for reasons other than copyright infringement. WattzOn may at any time, without prior notice, and in its sole discretion, remove such user Content and/or terminate a user’s account for submitting such material in violation of these Terms.

c. Restrictions on Posted Content. We reserve the right to remove your Content for any reason. We are not responsible for any failure or delay in removing Content. Keep in mind that the Content of others is simply opinion and should not be relied The following is a partial list of the kind of Content and communications that are illegal or prohibited on or through the Service. You may not post Content that: (i) is false or intentionally misleading; (ii) harasses or advocates harassment of another person; (iii) involves the transmission of unsolicited mass mailing or “spamming”; (iv) violates the intellectual property or other rights of any person; (v) is threatening, obscene, defamatory or libelous; (vi) is pornographic or sexually explicit in nature; (vii) is unlawful or promotes or encourages illegal activity; or (viii) falsely implies that it is sponsored or endorsed by WattzOn. WattzOn reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision.

4.  WattzOn Property

The Intellectual Property Rights in this Site and the materials on or accessible via it belong to WattzOn or its licensors. This Site and the materials on or accessible via it and the Intellectual Property Rights therein may not be copied, distributed, published, licensed, used or reproduced in any way (save to the extent strictly necessary for, and for the purposes of, accessing and using this Site). WattzOn and the WattzOn Logo are trademarks which belong to WattzOn and they may not be may not be used, copied or reproduced in any way without written consent from WattzOn. “Intellectual Property Rights” includes the following (wherever and whenever arising and for the full term of each of them): any patent, trademark, trade name, service mark, service name, design, design right, copyright, database right, moral rights, know how, trade secret and other rights in confidential information, rights in the nature of any of these items in any country, rights in the nature of unfair competition rights and rights to sue for passing off or other similar intellectual or commercial right (in each case whether or not registered or registrable) and registrations thereof and applications therefor.

5.  Your Registration Information

a. Registering Your Account. You must register in order to use some features of the Service. The registration currently requires your email address and zip code.

b. Connecting Your Utility Account. By connecting the Service with your utility account, you give us permission to access and use your information from that service as permitted by that service, and store your log-in credentials for that service.  You agree that your utility data may be collected and analyzed by us and sent to the provider of energy products and/or services that has requested you to provide such information in connection with your potential purchase or use of energy products and/or services.  PLEASE NOTE THAT YOU CAN REQUEST THAT WE CEASE ACCESS TO YOUR UTILITY ACCOUNT AND DATA AT ANY TIME BY CONTACTING US AT customercare@wattzon.com.

c. Accuracy. By providing us with your email address, you agree to receive periodic notices electronically, to that email address. It is your responsibility to update or change that address, as appropriate; we will have no liability for failure to deliver notices that result from inaccurate account information.

d. Utility data. LINK ENERGY: By connecting the Service with your utility account, WattzOn will provide the designated third-party your historical utility bills, historical energy use data (whether on the bill or on the utility website) and updates of the same thereafter during the term of the contract between WattzOn and the third-party.

6.  Disclaimer & Limitation Of Liability

The Service is provided on an “AS IS” and “AS AVAILABLE” basis without any representation or endorsement made and without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.

You acknowledge and agree that the quality of the Service provided by WattzOn is limited by the quality of the data provided to WattzOn. Any reports, suggestions, analyses, statements, or other comments provided by WattzOn or any third party are merely recommendations and WattzOn cannot and does not guarantee any particular results.  In particular, we do not guarantee any energy or monetary savings from use of the Service of any products or services of any third party.  Actual results may vary. 

You acknowledge and agree that you shall not hold WattzOn liable for any actions you may take based on WattzOn’s reports or recommendations. To the extent permitted by law, WattzOn will not be liable for any indirect or consequential loss or damage whatsoever (including without limitation loss of business, opportunity, data, profits) arising out of or in connection with the use of the Service.

WattzOn makes no warranty that the functionality of the Site or Service will be uninterrupted or error free, that defects will be corrected or that the Site or the server that makes it available are free of viruses or anything else which may be harmful or destructive. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability in certain circumstances. Accordingly, some of the above limitations may not apply to you.

7.  Indemnity

You agree to indemnify and hold WattzOn and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against WattzOn arising out of any material breach by you of these Terms.

8.    Severability

In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications of the same are received by either you or us from any relevant competent authority, such provision shall be deemed amended in such reasonable manner as achieves the intention of the parties without illegality or, at our discretion, such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. 

9.    Limitation on Liability

IN NO EVENT SHALL WATTZON BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, LOSS OF USE, SAVINGS OR REVENUE, OR THE CLAIMS OF THIRD PARTIES, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE POSSESSION, USE, OR PERFORMANCE OF THIS SERVICE OR SOFTWARE.  SOME STATES RESTRICT THE LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES AND SO THE FOREGOING MAY NOT APPLY TO YOU.

10.  Applicable Law and Dispute

This Agreement and all matters arising from it are governed by and construed in accordance with the laws of the State of California whose courts shall have exclusive jurisdiction over all disputes arising in connection with this Agreement and the place of performance of this Agreement is agreed by you to be the State of California.

11.  Headings

Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.

12.  Entire Agreement

These Terms together with any documents expressly referred to in them, contain the entire Agreement between us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these Terms. In agreeing to these Terms, you have not relied on any representation other than those expressly stated in these Terms and you agree that you shall have no remedy in respect of any representation that has not been made expressly in this Agreement.

Last Updated:  January 30, 2019

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