Terms & Conditions

Updated: 13.12.22

These Utiliti Service Terms and Conditions located at https://www.utiliti.ai/terms (these “Terms”), together with any applicable Order Document(s) (collectively, the “Agreement”), constitute a binding agreement between Utiliti and Customer (each, a “Party”) under which Utiliti provides Customer access to Utiliti's Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Document or by using Utiliti's Services.

1. Definitions

Capitalized terms, unless otherwise defined in this Agreement, have the meanings set forth below.

“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Utiliti Services.

“Applicable Laws” means all applicable local, state, provincial, federal, and international laws and regulations.

“Authorized User” means any individual who is an employee of Customer, or other such other person or entity as may be authorized by a Sales Order, authorized, by virtue of such individual's relationship to, or permissions from, Customer, to access the Utiliti Service pursuant to Customer's rights under this Agreement.

“Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.

“Customer Content” means all data and materials provided by Customer to Utiliti for use in connection with the Utiliti Services, including, without limitation, customer applications, data files, and graphics, and includes all End User information.

“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Utiliti to Customer regarding the use or operation of the Utiliti Services.

“End User” means a unique developer, installer, servicer, or person processed in the Utiliti Service over a 12-month period.

“Sales Order” means a document signed by both Parties identifying a given type of Utiliti Service to be made available by Utiliti pursuant to this Agreement. Each Sales Order shall be agreed upon by the Parties as set forth in Section 2.1.

“Professional Services” means all technical and non-technical services performed or delivered by Utiliti under this Agreement, including, without limitation, implementation services and other professional services, training and education services, but excluding the Utiliti Services. Professional Services will be provided on a time and material bases at such times or during such periods, as may be specified in a schedule and mutually agreed to by the parties. Professional Services and schedule to be specified in addendum herein.

“Term” means the period of this Agreement, commencing upon the Effective date and ending in accordance with the dates found on the related Sales Order unless earlier terminated in accordance with Section 9 of this Agreement

“Utiliti Applications” means the software applications managed and maintained by Utiliti. “Utiliti Laws” means laws applicable to Utiliti and its business, laws applicable to the performance and delivery of the Utiliti Services, including without limitation laws related to data privacy, international communications, and the transmission of technical or personal data.

“Utiliti Laws” means laws applicable to Utiliti and its business, laws applicable to the performance and delivery of the Utiliti Services, including without limitation laws related to data privacy, international communications, and the transmission of technical or personal data.

“Utiliti Services” means the services ordered by Customer through a Sales Order and provided by Utiliti by means of access to certain content and use of the features and functionality of software applications available and accessible within the Utiliti Applications, solely to the extent set forth and further described in, and as limited by, the Sales Orders executed by the Parties and as described in the documentation provided with the Utiliti Services.

“Utiliti Technology” means the technology and Intellectual Property used in providing the products and services offered by Utiliti, including computer software programs, websites, networks, and equipment.

2. Orders, Access And Use

2.1 Orders.

The Utiliti Services and Professional Services to be provided by Utiliti under this Agreement will be set forth in one or more Sales Orders executed by the Parties from time to time during the Term. The Parties shall negotiate and sign each Sales Order separately. Each Sales Order shall set out a description of the applicable Utiliti Services and Professional Services to be provided by Utiliti and the costs associated with such Utiliti Services and Professional Services. Each Sales Order shall be attached to this Agreement and incorporated in this Agreement by reference. In the event of a conflict between any Sales Order and this Agreement, the terms and conditions set forth in the Agreement shall govern unless the Parties specifically and expressly state otherwise in such Sales Order.

2.2 Use of the Services

Subject to the terms and conditions contained in this Agreement, Utiliti hereby grants to Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable right to access the applicable Utiliti Service(s) ordered pursuant to a Sales Order during the Term set forth on that Sales Order for use by the number of Authorized Users enabled, and solely for Customer's internal business purposes to process the number of Users, Items, Transactions, Wallets, and Chain Queries paid for by Customer in accordance with the applicable Sales Order.

2.3 Customer's Account

Utiliti shall enable an account for Customer to access the Utiliti Service(s) (“Account”). Customer shall designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users shall maintain the confidentiality of all usernames, passwords, access, and Account information under their control. Except to the extent caused by Utiliti's breach of the Agreement, Utiliti is not responsible for unauthorized access to the Account. Customer shall contact Utiliti promptly if (i) Customer reasonably believes that the Account has been compromised, including any loss, theft, or unauthorized access, use, or disclosure of Account information or (ii) Customer becomes aware of any other breach of security in relation to Customer's Account information or the Utiliti Services that may have occurred or is reasonably likely to occur. Customer and Authorized Users may only use the Utiliti Services in accordance with the Access Protocols.

2.4 Application and Content Hosting

Utiliti shall, at its own expense, provide for the hosting of the Utiliti Services which are accessible as part of the Utiliti Services. Nothing herein shall be construed to require Utiliti to provide for or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Utiliti Services.

2.5 Privacy and Security

(a) Use of Customer Data. Utiliti may retain, use, and disclose Customer Data solely (i) to fulfill its obligations to Customer under the Agreement; (ii) to provide customer support; (iii) for internal business purposes to maintain, evaluate, develop, and improve Utiliti's services; or (iv) to comply with Applicable Laws. Customer Data and Customer's Confidential Information do not include Personal Information relating to an employee or other authorized Representative of Customer that is collected or received by Utiliti in connection with the procurement or use of, or payment for, the Services.

(b) Aggregate Data. Utiliti may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple Utiliti customers (including Customer Data) for the purpose of expressing that information in summary form (for example, price index numbers are aggregated, in contrast to the price of a single commodity). Aggregate Data does not include any Personal Information relating to Customer, Authorized Users, Customer's clients or customers, or other information that could reasonably identify a natural person or Customer.

(c) Protection of Customer Data, Personal Information, and Confidential Information.Each Party is responsible for complying with Applicable Laws, including applicable data protection legal requirements, for the purposes of the Agreement. Utiliti shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access, destruction, modification, or disclosure of Customer Data, Confidential Information, or Personal Information. Utiliti shall use commercially reasonable measures to ensure that any Utiliti subcontractors implement and comply with reasonable security measures in handling any Customer Data, Personal Information, or Customer's Confidential Information.

(d) Notices. Utiliti shall notify Customer without undue delay in accordance with Applicable Laws of unauthorized access, use, or disclosure of any Customer Data or Customer's Confidential Information under Utiliti's control. Utiliti shall provide Customer with information regarding such incident as required by Applicable Laws or as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws. Utiliti shall use commercially reasonable efforts to: (i) identify the cause of the incident and (ii) remediate the cause of the incident within Utiliti's systems, to the extent such remediation is within Utiliti's reasonable control.

2.6 Restrictions

Customer shall use the Services only as set forth in the Agreement and the Documentation, and not for the benefit of any third party. Without limiting the generality of the foregoing, Customer shall not (a) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Utiliti Services, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (b) provide access to, distribute, or display any of the Utiliti Services or Documentation other than to Authorized Users; (c) distribute or market the Service and/or Documentation without prior written authorization of Utiliti; (c) reproduce, modify, create, or prepare derivative works of any of the Utiliti Services (or any components thereof), except with the prior written consent of Utiliti; or (d) combine or integrate the Utiliti Services with hardware, software or other technology not provided to Customer by Utiliti hereunder (other than by means of interfaces provided or enabled by Utiliti during the Term). Customer shall notify Utiliti promptly of any unauthorized access or use of the Utiliti Services known to Customer. Customer will ensure that its use of the Utiliti Service complies with all applicable laws, statutes, regulations, or rules.

2.7 Retained Rights; Ownership

(a) Ownership and use of Customer Content.Customer retains all right, title and interest in and to the Customer Content, and Utiliti acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Utiliti further acknowledges that Customer retains the right to use the Customer Content for any purpose in Customer's sole discretion. Subject to the foregoing, Customer hereby grants to Utiliti a non-exclusive, non-transferable right and license to use the Customer Content during the Term for the limited purposes of performing Utiliti's obligations under this Agreement.

(b) Utiliti's Intellectual Property.Utiliti retains and owns all right, title, and interest in Utiliti's services, the Utiliti Technology, the Documentation, Utiliti's Confidential Information, and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Customer any ownership interest in Utiliti's Intellectual Property.

(c) Suggestions. If Customer provides Utiliti with any suggested improvements to the Utiliti Services, that suggestion is provided “as-is,” and Customer grants Utiliti a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements.

3. Customer Responsibilities

3.1 Authorized Users Access to Services.

Customer may permit any Authorized Users to access and use the features and functions of the Utiliti Service as contemplated by this Agreement. Customer will ensure that any such Authorized Users will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Utiliti's Confidential Information and the Utiliti Service as are provided by the terms hereof; and provided that Customer shall remain primarily liable to Utiliti for any violations of such terms by its Authorized Users or for any loss of data or functionality caused directly or indirectly by the Authorized Users. User IDs cannot be shared or used by more than one Authorized User at a time. If Customer wishes to add additional User IDs, Customer may order such additional User IDs at any time by executing a new Sales Order detailing the number of additional User IDs. Upon written acceptance by Utiliti of the Sales Order, Utiliti shall make the Utiliti Service available to the additional Authorized Users.

3.2 Customer Responsibility for Data and Security.

Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Utiliti Services. Customer shall: (a) notify Utiliti immediately of any unauthorized use of any password or User ID or any other known or suspected breach of security, (b) report to Utiliti immediately and use reasonable efforts to stop any unauthorized use of the Utiliti Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the Utiliti Services.

3.3 Service Rules and Guidelines.

Customer and all Authorized Users shall use the Utiliti Services solely for its internal purposes as contemplated by this Agreement and shall not use the Service to: (a) send any form of duplicative and unsolicited messages; (b) harvest, collect, gather or assemble information or data regarding other users without their consent; (c) transmit through or post on the Utiliti Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (d) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) interfere with or disrupt the integrity or performance of the Utiliti Service or the data contained therein; (f) attempt to gain unauthorized access to the Utiliti Service, computer systems or networks related to the Utiliti Service; (g) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party; or (g) interfere with another user's use and enjoyment of the Utiliti Service.

4. Fees And Expenses; Payments

4.1 Fees.

In consideration for the access rights granted to Customer and the services performed by Utiliti under this Agreement, Customer will pay to Utiliti, without offset or deduction, all fees required by a particular Sales Order. All fees will be billed and paid in accordance with the timing and currency set forth in the Sales Order or, if not expressly set forth therein, within thirty (30) days following receipt of the applicable invoice. All late payments of undisputed fees will accrue interest at the rate of 2% per month. Notwithstanding anything to the contrary in this Agreement, all fees paid by Customer to Utiliti pursuant to this Agreement and any Sales Order are non-refundable.

4.2 Disputed Fees.

If Customer disputes any fees, taxes, or other charges billed by Utiliti, Customer shall notify Utiliti within 30 days, in writing, of the disputed amount and any relevant information regarding the circumstances of the dispute and shall pay the undisputed amounts. Utiliti shall acknowledge receipt of the dispute information in writing to Customer. All parties agree to work cooperatively to resolve any such disputed amounts.

4.3 Expenses.

Unless otherwise specified in the Sales Order, Customer will reimburse Utiliti for its reasonable, out-of-pocket travel and related expenses incurred in performing the Professional Services. Utiliti shall notify Customer prior to incurring any such expense. Utiliti shall comply with Customer's travel and expense policy if made available to Utiliti prior to the required travel.

4.4 Taxes.

Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Utiliti's income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services, if any. If Customer is tax exempt, it shall furnish Utiliti with evidence of its tax-exempt status prior to placing an order for the Utiliti Services. Customer will make all required payments to Utiliti free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Utiliti will be Customer's sole responsibility, and Customer will, upon Utiliti's request, provide Utiliti with official receipts issued by appropriate taxing authorities, or such other evidence as Utiliti may reasonably request, to establish that such taxes have been paid.

5. Treatment Of Confidential Information

5.1 Ownership of Confidential Information.

The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

5.2 Mutual Confidentiality Obligations.

Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Utiliti may collect aggregated statistical data regarding Customer's use of the Service and provide such aggregated statistical data to third parties. In no event shall Utiliti provide to third parties personally identifiable data regarding Customer or Customer's Authorized Users.

5.3 Confidentiality Exceptions.

Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do. Each party may disclose the existence of this Agreement and the relationship of the parties but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

5.4 Limitation Period.

The obligations set forth in this Section 5 shall survive the termination or expiration of this Agreement for a period of three (3) years.

6. Representations And Warranties

Each Party hereby represents and warrants (a) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. Utiliti represents and warrants that it will provide the Utiliti Service and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Utiliti represents and warrants that the Utiliti software used to provide the Utiliti Service will function in accordance with the applicable specifications described in the Utiliti Documentation. Utiliti represents and warrants to Customer that its system does not infringe on the intellectual property rights of any third party.

UTILITI REPRESENTS AND WARRANTS THAT THE UTILITI SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. UTILITI DOES NOT GUARANTEE THAT THE UTILITI SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT UTILITI WILL CORRECT ALL UTILITI SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT UTILITI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE UTILITI SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY UTILITI (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER UTILITI NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL UTILITI OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF ANY CUSTOMER'S OR ANY USER'S DATA, FILES, OR PROGRAMS.

7. Disclaimers, Exclusions And Limitations Of Liability

7.1 Internet Delays.

UTILITI'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. UTILITI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

7.2 Disclaimer.

EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6 OR A PARTICULAR SALES ORDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE UTILITI SERVICE, AND ALL SERVICES PERFORMED BY UTILITI ARE PROVIDED “AS IS,” AND UTILITI DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. UTILITI DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY UTILITI WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

7.3 Exclusions of Remedies; Limitation of Liability.

EXCEPT IN CONNECTION WITH CUSTOMER'S VIOLATION OF ANY OF THE LICENSE TERMS SET FORTH IN THIS AGREEMENT (E.G., SECTIONS 2 AND 3), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF UTILITI TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR INDEMNIFICATION OR ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR TO BE PAID TO UTILITI BY CUSTOMER UNDER SECTION 4.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.4 Essential Basis of the Agreement.

Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. Indemnification

8.1 Indemnification of Customer.

Utiliti agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from any claim by any third party (each a “Claim”) to the extent arising from: (a) the Utiliti Service infringes such third party's valid U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party's copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; (b) Utiliti's or Utiliti Service's violation of any laws or applicable regulations, or other Utiliti Law; or (c) Utiliti's gross negligence or willful misconduct, provided that Customer promptly notifies Utiliti in writing of the Claim, cooperates with Utiliti, and allows Utiliti sole authority to control the defense and settlement of such Claim; provided that Utiliti will not settle any Claim unless such settlement completely and forever releases Customer from all liability with respect to such Claim or unless Customer consents to such settlement, and further provided that Customer will have the right, at its option, and at its sole expense, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice. If such a Claim is made or appears possible, Customer agrees to permit Utiliti, at Utiliti's sole discretion, to enable it to continue to use the Utiliti Service or to modify or replace any such infringing material to make it non-infringing. If Utiliti determines that none of these alternatives is reasonably available, Customer shall, upon written request from Utiliti, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim and Utiliti will refund to Customer any amounts paid in advance by Customer for the use of such materials. This Section 8.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Utiliti Service by Customer, or (ii) combination, operation or use of the Utiliti Service with other software, hardware or technology not provided by Utiliti, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”).

8.2 Customer's Indemnity Obligations.

Customer agrees to hold, harmless, indemnify, and, at Utiliti's option, defend Utiliti and its corporate affiliates, and each of its and their respective directors, officers, shareholders, employees, successors, assigns and agents (for this Section 8.2, collectively, “Utiliti”) from and against any Claim to the extent arising from (a) Customer's gross negligence or willful misconduct; (b) a breach or alleged breach of this Agreement by Customer including without limitation, any of its representations, warranties or obligations contained herein; or (c) a Customer Indemnity Responsibility, provided that Utiliti promptly notifies Customer in writing of the Claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such Claim; provided that Customer will not settle any Claim against Utiliti unless such settlement completely and forever releases Utiliti from all liability with respect to such Claim or unless Utiliti consents to such settlement, and further provided that Utiliti will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.

8.3 Conditions for Indemnification.

A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party's expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

9. Terms And Termination

9.1 Term.

The term of this Agreement shall commence upon the Effective Date and unless earlier terminated in accordance with this Section 9, shall continue in full force and effect until expiration of the latest period set forth on a Sales Order (the “Term”).

9.2 Termination for Breach.

Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be affected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.

9.3 Termination Upon Bankruptcy or Insolvency.

Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (a) that the other Party becomes insolvent or unable to pay its debts when due; (b) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) the other Party discontinues it business; or (d) a receiver is appointed or there is an assignment for the benefit of such other Party's creditors.

9.4 Effect of Termination.

Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the Utiliti Service and any Utiliti Confidential Information; and (b) promptly pay to Utiliti all amounts due and payable under this Agreement. Within 72 hours after the effective date of any termination of this Agreement, Utiliti shall make available to Customer all Customer Content. After a thirty (30) day period, however, Utiliti shall have no obligation to maintain or provide any Customer Content to Customer. Data will be made available via file transfer and data extraction from existing data views of the Utiliti Services.

9.5 Survival.

The provisions of Sections 2.6, 2.7, 3, 5, 7, 8, 9.4, 9.5, 9.6 and 11 will survive the expiration or termination of this Agreement.

9.6 Suspension of Service.

If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof and the applicable Sales Order, Utiliti shall have the right, in addition to any of its other rights or remedies, to suspend the Service to Subscriber. Suspension of the Utiliti Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Utiliti shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Utiliti Services resulting from Customer's nonpayment.

10. Compliance With Laws

10.1 General.

Utiliti will be responsible for Utiliti Laws. Without limiting the generality of the foregoing and subject to the other provisions of this Section 10, Utiliti Laws include all applicable local, state, national and foreign laws in connection with its delivery of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer will be responsible for Laws applicable to its business, including laws applicable to its use of the Utiliti Services.

10.2 Export Regulations.

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Utiliti Services. Customer agrees that such export control laws govern its use of the Utiliti Services (including technical data) and any services deliverables provided under this Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.

11. Miscellaneous

11.1 Non-Exclusive Service.

Customer acknowledges that Utiliti Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Utiliti's ability to provide the Utiliti Services or other technology, including any features or functionality first developed for Customer, to other parties.

11.2 Publicity.

Utiliti may include Customer's name and logo in its customer lists and on its website. Upon signing, Utiliti may issue a high-level press release announcing the relationship and the manner in which Customer will use the Utiliti solution. Utiliti shall coordinate its efforts with appropriate communications personnel in Customer's organization to secure approval of the press release if necessary.

11.3 Personal Data.

Customer hereby acknowledges and agrees that Utiliti's performance of this Agreement may require Utiliti to copy, record, display, view, print, process, transmit and/or store Customer personal data or the personal data of Customer employees and affiliates. By submitting personal data to Utiliti, Customer grants Utiliti and its affiliates a limited, non-exclusive, non-transferable license to copy, record, display, view, print, process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling Utiliti to perform its obligations under this Agreement. In relation to all Personal Data provided by or through Customer to Utiliti, Customer will be responsible as sole data controller for complying with all applicable data protection or similar laws such as EU Directive 95/46/EC and laws implementing that Directive that regulate the processing of Personal Data and special categories of data as such terms are defined in that Directive. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in Content and using the enabling software and Utiliti Services. Customer confirms that Customer is solely responsible for any Personal Data that may be contained in Content, including any information which any Utiliti Service user shares with third parties on Customer's behalf. Customer is solely responsible for determining the purposes and means of processing Customer Personal Data by Utiliti under this Agreement, including that such processing according to Customer's instructions will not place Utiliti in breach of applicable data protection laws. Prior to processing, Customer will inform Utiliti about any special categories of data contained within Customer Personal Data and any restrictions or special requirements in the processing of such special categories of data, including any cross-border transfer restrictions. Customer is responsible for ensuring that the Utiliti Services meet such restrictions or special requirements. Utiliti to process any Personal Data that meets the requirements set forth in this section according to these Terms of Use.

11.4 Personal Data Obligations.

In performing the services, Utiliti will comply with the Utiliti Privacy Policy, which is available at http://www.utiliti.ai and incorporated herein by reference. The Utiliti Privacy Policy is subject to change at Utiliti's discretion; however, Utiliti policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. Utiliti will only process Customer Personal Data in a manner that is reasonably necessary to provide Utiliti Services and only for that purpose. Customer agrees to provide any notices and obtain any consent related to Utiliti's use of the data for provisioning the Utiliti Services, including those related to the collection, use, processing, transfer and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Customer data.

11.5 Statistical Information.

Utiliti owns the aggregated and statistical data derived from the operation of the Utiliti Service, including, without limitation, the number of records in the Utiliti Service, the number and types of transactions, configurations, and reports processed in the Utiliti Service and the performance results for the Utiliti Service. Nothing in this Agreement shall be construed as prohibiting Utiliti from utilizing the aggregated statistical information for purposes of providing or improving the service, benchmarking the service performance, preparing statistics and system metrics, and marketing; provided however, that Utiliti's use of aggregated statistical information will not reveal your identity or your Personal Data to any third party.

11.6 Entire Agreement.

This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.

11.7 Independent Contractors.

In making and performing this Agreement, Customer and Utiliti act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.

11.8 Notices.

All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight delivery, to the Parties at their respective addresses set forth in the preamble to this Agreement or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.

11.9 Amendments; Modifications.

This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

11.10 Assignment; Delegation.

Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other party; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment or transfer in violation of this Section will be null, void and of no effect.

11.11 No Third-Party Beneficiaries.

The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

11.12 Severability.

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

11.13 Waiver.

No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

11.14 Force Majeure.

Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, acts of God, acts of terrorism or war, riot, fires, floods, epidemics, communication line or power failures, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days' written notice.

11.15 Performance Data.

Utiliti may anonymously compile statistical information related to the performance of the Services for purposes of improving the Utiliti Services, provided that such information does not identify Customer's data or include Customer's name.

11.16 Counterparts.

This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.

11.17 Governing Law.

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law principles.