CPOWER SERVICE TERMS AND CONDITIONS

Last Modified: May 5, 2016

The CPower technology platform (the “CPower Service”) is a service operated by or on behalf of Enerwise Global Technologies, Inc. d/b/a CPower, a Delaware corporation, with a principal place of business at 111 Market Place, Baltimore, MD, 21202 (“CPower”) that, among other things, allows customers of CPower to schedule their curtailable load on a daily basis. CPower and Customer are each sometimes referred to in these terms and conditions as a “Party” and collectively as the “Parties.”

Please read these CPower Service Terms and Conditions very carefully.

By accessing the CPower Service, whether through the CPower website, wireless application or otherwise, you, both individually and on behalf of the organization (collectively, the “Customer”) are deemed to have agreed to these terms and conditions, without modification by Customer. CPower reserves the right to modify these terms and conditions at any time and Customer’s continued use of the CPower Service constitutes Customer’s agreement to all such modified terms and conditions. As these terms and conditions may change periodically, it is Customer’s responsibility to periodically review these terms and conditions for updates. If at any time Customer chooses not to accept these terms and conditions, Customer’s sole remedy is to cease use of the CPower Service.

1. ADDITIONAL CONDITIONS TO PARTICIPATION

1.1. Other Agreements. In addition to these terms and conditions, Customer is only eligible to make use of the CPower Service if CPower has issued to Customer a user ID and password for use with the CPower Service and if Customer (i)has entered into one or more separate agreements with CPower providing for the supply of energy to Customer or curtailment of Customer’s load in the applicable regional transmission organization’s or independent system operator’s service territory (each, an “Energy Agreement”); and/or (ii) Customer has entered into a CPower Energy Manager Agreement with CPower (each, an “Energy Manager Agreement”). Customer agrees that Customer’s right to access the CPower Service shall terminate immediately and without notice upon the expiration or sooner termination of the Energy Agreement or Energy Manager Agreement, as applicable.

1.2. Order of Precedence. In the event of a conflict between these terms and conditions and the terms of any Energy Agreement or Energy Manager Agreement, with respect to the use of the CPower Service, these terms and conditions shall control.

2. LICENSE GRANTED

2.1. Right to Use. Subject to Customer’s compliance with these terms and conditions, CPower hereby grants Customer a limited non-exclusive, non-transferable, revocable right to access the CPower Service (including the CPower software and the data associated with the CPower Service) during the term of the applicable Energy Agreement or Energy Manager Agreement solely for Customer’s internal business purposes and solely in connection with performance of the applicable Energy Agreement or Energy Manager Agreement. Customer is responsible for any use of the CPower Service by all user IDs and passwords issued to Customer by CPower (whether or not such use was by, or authorized by, Customer) and it is Customer’s responsibility to ensure no unauthorized use of the same. CPower may rely on any requests for the performance of activities or execution of transactions submitted through the CPower Service using any user IDs and passwords issued to Customer as having been authorized by Customer. Customer may create sub-accounts for individual locations or groups of locations of Customer covered by an Energy Agreement or Energy Manager Agreement and assign user IDs and passwords to such sub-account. These user IDs and passwords will be linked to Customer’s main user ID and password to employees of Customer designated for the management of curtailment or other services in connection with performance of the Energy Agreement or Energy Manager Agreement, with such locations or groups of locations of Customer (“Secondary Users”). Customer is solely responsible for the creation of Secondary Users and the scope of rights it permits Secondary Users to exercise on Customer’s behalf. Customer shall cause all of its Secondary Users to comply with these terms and conditions and shall be responsible for all acts and omissions of its Secondary Users. By accessing the CPower Service, any Secondary User is deemed to have agreed to these terms and conditions, which shall apply to the Secondary User.

2.2. Restrictions. Customer shall not, nor shall it permit any Secondary User or third party to: (1) translate, decompile, disassemble, extract or otherwise reverse engineer the software made available through the CPower Service (or the data provided to Customer as a part of the CPower Service); (2) access the CPower Service (or the data provided to Customer as a part of the CPower Service) in any manner other than through the method designated by CPower; (3) grant any license or sublicense to the CPower Service (or the data provided to Customer as a part of the CPower Service); or (4) rent, lease, assign, or transfer to a third party use of the CPower Service (or the data provided to Customer as a part of the CPower Service). Customer further acknowledges and agrees that it shall comply with such other restrictions regarding use of the CPower Service that CPower may, from time to time, issue in an acceptable use policy applicable to the use of the CPower Service. CPower shall provide, or otherwise make available, a copy of any such acceptable use policy to Customer.

2.3. CPower Right to Modify the CPower Service. Customer acknowledges and agrees that CPower does not commit to maintaining any certain features and functionality of the CPower Service or methods of access to the CPower Service, or to make any improvements or enhancements to the same, or to maintain any or all of the platforms through which the CPower Service is provided and that CPower may, in its sole discretion, cease to make all or any part of the CPower Service available. CPower may, in its sole discretion, modify the CPower Service, including methods of access to the CPower Service. If Customer finds the modified CPower Service or access thereto unsatisfactory, Customer’s sole remedy is to cease use of the CPower Service.

3. ADDITIONAL CUSTOMER RESPONSIBILITIES

3.1. Current Contact Information. Customer is responsible for keeping the “administration” section of its CPower account up-to-date and current with all requested information, including the telephone and email contacts of individuals designated by Customer as primary points of contacts (“Primary Contacts”) in the event that CPower must contact Customer in connection with an event or otherwise as necessary for the performance of any Energy Agreement or Energy Manager Agreement. Customer agrees that the Primary Contacts are hereby deemed to have all necessary authority to act on behalf of Customer and make binding decisions in connection with Customer’s use of the CPower Service.

3.2. No Exceeding Authority. Customer shall not attempt to exceed the authority granted by CPower regarding access and use of the CPower Service. Additionally, Customer shall ensure that its Secondary Users do not attempt to exceed the authority granted by CPower regarding access and use of the CPower Service. Without limiting the generality of the foregoing, Customer shall not attempt to access the account of any other user of the CPower Service and Secondary Users shall not attempt to exceed the authority delegated by Customer to such Secondary User.

3.3. Transactions. Customer is solely responsible for verifying the accuracy of any CPower Service transactions conducted by Customer or others having access to Customer’s user IDs and passwords (including Secondary Users) and acknowledges that CPower does not attempt to validate the correctness of any transaction prior to processing. While Customer may be permitted to make changes to pending transactions up to any deadlines for such transactions designated by the CPower Service, Customer acknowledges and agrees that CPower makes no guarantees regarding the availability of the CPower Service. Accordingly, it is Customer’s responsibility to complete any changes to or cancellations of pending transactions NUMBER (00) days in advance of any such deadlines. If this notice is not provided, CPower may be unable to process and submit any such changes or cancellations.

3.4. User IDs and Passwords. If an individual assigned a CPower Service user ID or password is no longer employed by Customer or no longer requires access to the CPower Service as part of his/her employment duties, Customer shall immediately notify CPower in writing of such fact and request the deactivation of such individual’s user ID and password. Customer is solely responsible for the use of such user ID and password until CPower receives the required notice of cancellation and has had at least three (3) business days to cancel the affected user ID and password.

3.5. Electronic Communications. CPower may attempt to send written notices to Customer the e-mail address and/or phone number listed in CPower's records, if receiving such notice via text message (“Electronic Messages”). Customer must keep its notice e-mail address and designated phone number current. Customer agrees to hold CPower harmless for any delay or failure to deliver or receive an Electronic Message. The ability to receive Electronic Messages via e- mail notice requires an active e-mail address, Internet connection, and compatible computing systems, and the ability to receive Electronic Messages via SMS text message requires an active cellular phone number, as well as an SMS capable device. CPower will not be responsible for any additional charges you may incur from your internet service provider, cellular phone provider or otherwise as a result of receiving any Electronic Messages. Please note that some service providers block e-mail from senders who are not listed in contacts or on safe lists, so you may not receive Electronic Messages unless you specifically add CPower to your contacts or safe list.

4. TERM

4.1. Term. Subject to earlier termination as set forth herein, the term (“Term”) of Customer’s right to access the CPower Service shall commence on the later of (i) the effective date of the applicable Energy Agreement or Energy Manager Agreement, as applicable, or (ii) upon the issuance of Customer’s user ID and password. Customer’s right to access the CPower Service shall expire on the earlier to occur of the termination or expiration of the Energy Agreement or Energy Manager Agreement, as applicable.

4.2. Termination. CPower, in its sole discretion, may suspend or terminate Customer’s right to access the CPower Service with or without written notice if Customer breaches or otherwise fails to comply with these terms and conditions, or those of the applicable Energy Manager Agreement or Energy Agreement, or if CPower believes in its sole discretion that such suspension or termination is necessary to protect the interests of CPower or any Indemnified Party (hereinafter defined). Any unauthorized access to or use of the CPower Service will be deemed a material breach by Customer of these terms and conditions. In addition, CPower may terminate Customer’s right to access the CPower Service for any reason or no reason upon sixty (60) days’ advance written notice to Customer.

5. OWNERSHIP

5.1. CPower Service. CPower, its business partners, licensors, subsidiaries or affiliates (collectively “Property Owner”) own all right, title and interest in and to the CPower Service, the CPower software, any platform or technology through which the CPower Service is accessed, any data provided to Customer as a part of the CPower Service (including any pricing data), and any modifications, enhancements or derivative works thereof to any of the foregoing. All rights not expressly granted to Customer are reserved by the applicable Property Owner. Customer shall not interfere with or otherwise challenge CPower’s rights in the CPower Service or data. Customer hereby assigns to CPower all rights Customer may have in any and all suggestions, concepts, improvements or other enhancements communicated by Customer to CPower with respect to the CPower Service.

5.2. Copyright. All content provided through the CPower Service, such as text, graphics, logos, data, and software, is the property of the applicable Property Owner and protected by United States and international copyright laws.

5.3. Trademarks. CPower Service, the CPower Service logo and other marks indicated are trademarks or trade dress of CPower or its parent company or their subsidiaries or affiliates, in the United States and other countries. Such trademarks and trade dress may not be used in connection with any product or service other than the CPower Service, or in any manner that disparages or discredits CPower or its parent company or their subsidiaries and affiliates. All other trademarks and/or trade dress not owned by CPower or its parent company or their subsidiaries or affiliates are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by CPower or its parent company or their subsidiaries or affiliates.

5.4. Data Input into the CPower Service. The Parties acknowledge that various types of data may be transmitted by Customer to CPower through the CPower Service. To the extent that any of such data is owned by Customer and not CPower, Customer hereby grants to CPower a perpetual, worldwide, fully-paid, irrevocable, royalty-free, sub- licensable right and license to modify, copy, distribute, aggregate and otherwise use any such data for any business purpose of CPower and will make such data available to CPower upon request. Customer hereby represents and warrants that Customer has and will obtain all necessary rights and permissions to effect such license grant.

6. INDEMNIFICATION

Customer shall indemnify and hold CPower, its business partners and licensors, and their respective subsidiaries and affiliates and each of their respective officers, directors, and employees (collectively, the “Indemnified Parties”) harmless from and against any liability and costs (including reasonable attorneys’ fees) arising from third-party claims, liability, damages and/or costs that arise out of use of the CPower Service by Customer or anyone else having access to Customer’s user IDs and passwords and any business decisions made by Customer based on the data outputs available through the CPower Service (each, a “Claim”). CPower shall retain control over the selection of counsel and the defense, compromise, settlement or other disposal of such Claims. Customer will cooperate in such action by making available to CPower, at Customer’s expense, records and other assistance reasonably necessary for the defense of the Claim.

7. WARRANTIES; DISCLAIMERS

7.1. Warranties by Customer. Customer represents and warrants that it is an authorized representative of the entity that is party to the Energy Agreement(s) and Energy Manager Agreement, as applicable, and that it has the right and authority to enter into and perform these terms and conditions and conduct transactions using the CPower Service on behalf of such entity. Customer further represents and warrants that it shall comply with all applicable laws, rules and regulations in making use of the CPower Service.

7.2. Disclaimer of Warranties. CPOWER MAKES NO WARRANTIES IN CONNECTION WITH THESE TERMS AND CONDITIONS OR USE OF THE CPOWER SERVICE AND ANY ACTIVITIES OR MATERIALS ARE PERFORMED OR PROVIDED BY CPOWER ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND. CPOWER EXPRESSLY DISCLAIMS, AND CUSTOMER EXPRESSLY WAIVES, ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FOR PERILOUS ACTIVITIES, ACCURACY, COMPLETENESS, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CPOWER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CPOWER SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE CPOWER SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE CPOWER SERVICE WILL BE CORRECTED. FURTHERMORE, CPOWER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE CPOWER SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED BY CPOWER AND WAIVED BY CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING ACCESS TO THE CPOWER SERVICE FROM ITS OWN INTERNET WIRELESS OR OTHER PROVIDER SYSTEMS AND CPOWER IS NOT RESPONSIBLE FOR ANY INABILITY TO ACCESS THE CPOWER SERVICE DUE TO TELECOMMUNICATION FAILURES OF INTERNET OR OTHER TELECOMMUNICATIONS OR WIRELESS SERVICE PROVIDERS. CUSTOMER ACKNOWLEDGES THAT CPOWER PROVIDES NO GUIDANCE WHATSOEVER REGARDING THE MERITS OF OR OTHER BUSINESS DECISIONS RELATING TO TRANSACTIONS CONDUCTED THROUGH THE CPOWER SERVICE AND CUSTOMER SHALL NOT CONTACT ANY CPOWER TECHNICAL SUPPORT (IF ANY IS SO PROVIDED FOR THE CPOWER SERVICE) WITH QUESTIONS RELATED TO THE SAME.

7.3. DAMAGES WAIVER. UNDER NO CIRCUMSTANCES SHALL ANY OF THE INDEMNIFIED PARTIES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND RESULTING FROM THE USE OF THE CPOWER SERVICE INCLUDING ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR SIMILAR DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE, SAVINGS OR DATA), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PERFORMANCE OR USE OF THE CPOWER SERVICE.

7.4. CPOWER RESERVES THE RIGHT TO WITHDRAW OR DELETE ANY INFORMATION FROM THE CPOWER SERVICE AT ANY TIME IN ITS SOLE DISCRETION.

8. CONFIDENTIALITY

Customer acknowledges that the CPower Service and the data provided to Customer as part of the CPower Service are considered confidential information of the Indemnified Parties (“Confidential Information”). Customer shall only make use of Confidential Information as permitted under these terms and conditions and shall take all reasonable steps to prevent disclosure of Confidential Information during the Term and after termination or expiration, except and to the extent that disclosure is required by law, regulation or court order. “Confidential Information” means, in addition to the CPower Service and the data provided to Customer, any information or material, regardless of form, that is marked or identified as confidential or proprietary or should reasonably be understood as confidential given its nature or the manner of its disclosure. If Customer is requested in connection with any legal or regulatory proceeding to disclose Confidential Information, it will give CPower prompt notice of such request so that the owner of the Confidential Information may seek an appropriate protective order and Customer will cooperate with CPower in connection with such attempts to obtain such protections.

9. GENERAL

The Parties intend to be, are and shall at all times be, independent contractors with respect to their relationship pursuant to these terms and conditions. These terms and conditions constitute the entire agreement and understanding between the Parties regarding the subject matter hereof and supersede any prior agency, advertisements, statements, proposals, negotiations, discussions, understandings or agreements regarding the same subject matter. The validity, performance and construction of these terms and conditions will be governed and interpreted in accordance with the laws of the State of Maryland, without giving effect to conflict of law principles. Any controversy or claim arising from or relating to these terms and conditions will be settled in accordance with the express terms of these terms and conditions by a court located in the State of Maryland (and each Party hereto waives any right to object to venue in this regard). EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OR TO INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THE LICENSE CONTAINED HEREIN, OR THE TRANSACTIONS CONTEMPLATED BY THESE TERMS AND CONDITIONS. If either Party pursues court action to enforce its rights under these terms and conditions, the non - prevailing Party shall promptly reimburse the prevailing Party for all costs and expenses incurred by the prevailing Party in preparing for and in trying such action, including, but not limited to, investigative costs, court costs and reasonable attorneys’ fees, expenses and costs. Every provision of these terms and conditions shall be construed, to the extent possible, so as to be valid and enforceable. If any provision of these terms and conditions so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from these terms and conditions and all other provisions shall remain in full force and effect. The rights, duties and obligations of the Parties and the provisions of these terms and conditions which by their nature are intended to survive the termination or expiration of these terms and conditions, including without limitation, Sections 1.1 and Sections 5-9, shall survive and continue as valid and enforceable rights, duties and obligations. The failure by either Party at any time to enforce any of the provisions of these terms and conditions or any right or remedy available hereunder or at law or in equity, or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of these terms and conditions. The waiver of any default by either Party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed. Customer may not assign or otherwise transfer these terms and conditions without the prior written consent of CPower. These terms and conditions shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. The provisions of these terms and conditions are for the sole benefit of the Parties hereto. Customer acknowledges that the CPower Service and other technical information delivered by CPower pursuant to these terms and conditions may be subject to export controls under United States laws. Customer agrees to comply strictly with all legal requirements established under any such controls. The CPower Service is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire access to the CPower Service with only those rights set forth herein. Except as expressly provided herein, these terms and conditions confers no rights, benefits or claims upon any person or entity not a party hereto. All notices required hereunder shall be in writing or electronic format and shall be deemed to have been given when mailed by first class mail, by email or facsimile to (a) with respect to Customer, the address(es) of Customer provided in the applicable Energy Agreement or Energy Manager Agreement or provided in the “administration” section of the CPower Service and (b) with respect to CPower, the address provided in the applicable Energy Agreement or Energy Manager Agreement. Communications from CPower may be made directly through the CPower Service delivery mechanism.