Terms and Conditions

END USER LICENSE
TERMS AND CONDITIONS

UPDATED JULY 2026

These End User License Terms and Conditions (“Terms”) govern Customer’s access and use of Energy Exemplar (“EE”) Software, Dataset Services, Support, and Professional Services (collectively, the “Products”) as further described in the applicable Order Form and Supplement.

These Terms, together with any applicable order form (“Order Form”) and any product-specific supplement (“Supplement”), form a single, integrated agreement (the “Agreement”) between EE and the customer identified in the Order Form (“Customer”), effective as of the effective date set forth in the applicable Order Form (the “Effective Date”).

Each Order Form identifies the specific Products purchased and applicable commercial terms. Supplements set forth additional terms applicable to Products and will apply only to the extent those Products are included in an Order Form.

In the event of any conflict:

the Order Form controls,
then the applicable Supplement,
then these Terms.

Capitalized terms have the meanings set forth in Section 14 or as otherwise defined in this Agreement.

1. Access to and Use of Products

1.1 Permitted Use. Subject to this Agreement and during the applicable Term, EE grants Customer a non-exclusive, worldwide right to use the Products for its and its Affiliates’ internal business purposes, in accordance with the Documentation and subject to the parameters as specified in the applicable Order Form(s) and Supplement(s).

1.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) EE has and will retain sole control over the operation, provision, maintenance, and management of the Products; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, Customer Systems, and sole responsibility for all access to and use of the Products by or through Customer Systems or any other means controlled by Customer or any Named User, including any: (i) information, instructions, or materials provided by any of them to the Products or EE; (ii) results obtained from any use of or access to the Products; and (iii) conclusions, decisions, or actions based on such use. Customer is solely responsible for its regulatory filings, market submissions, compliance obligations, and all decisions made based on its use of the Products. The Products are analytical tools and do not constitute professional, financial, regulatory, or legal advice.

1.3 Suspension of Access. EE retains the right to suspend access to or use of all or any part of the Products by providing written notice to Customer (in advance, where reasonably practicable), without incurring any resulting obligation or liability, if: (a) EE receives a judicial or other governmental demand, order, subpoena, or request that expressly or by reasonable implication requires EE to do so; (b) there is a security threat or risk of unauthorized access to the Products or Customer Data; (c) Customer fails to pay any undisputed amount when due and such failure continues for 10 days after written notice; or (d) Customer materially breaches this Agreement (other than a payment obligation) and fails to cure such breach within 30 days of written notice. This Section 1.3 does not limit any of EE’s other rights or remedies, whether at law, in equity, or under this Agreement.

2. Customer Responsibilities and Use Restrictions

2.1 Use Restrictions. Customer will not (a) permit any other person to access or use Products, or use any Products for the benefit of anyone other than Customer, except as expressly permitted by this Agreement or any Order Form; (b) copy, modify, translate, or create derivative works or improvements of Products; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Products to any person, including any time-sharing, service bureau, subscriptions, software as a service, outsourcing, or other technology or service; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of Products, in whole or in part; (e) access or use Products other than by a Named User through the use of his or her own then valid access credentials or use any Products to access or use any of EE’s intellectual property except as permitted under this Agreement; (f) input, upload, or transmit through Products, any information or materials that (1) are unlawful, immoral, pornographic, offensive, injurious, or otherwise inappropriate; or (2) contain, transmit, or activate any Harmful Code; (g) remove, delete, alter, or obscure any EE branding, disclaimers, copyrights, trademarks, patents, or other intellectual property or proprietary rights notices from any Products; (h) permit direct or indirect access to or use of any Products in a way that circumvents a contractual usage limit or violates the Acceptable Use Policy; (i) access or use Products in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (j) access or use Products for purposes of competitive analysis of Products, the development, provision, or use of a competing software service or product or any other purpose that is to EE’s detriment or commercial disadvantage; or (k) otherwise access or use Products beyond the scope of the authorization granted under this Agreement.

2.2 Use of Artificial Intelligence. Customer shall not use the Products or output generated by the Products to train machine learning or artificial intelligence models without EE’s prior written consent. The Customer understands and agrees that (a) Products may include AI Technology, (b) that the AI Technology may be improved and/or trained using inputs provided by Customer and outputs generated by Customer using the AI Technology (in aggregated/de-identified format only) and therefore if Customer provides its Confidential Information to the AI Technology, Customer does so at its own risk, and (c) if the Customer does not wish to use the AI Technology, the Customer shall ensure that its Named Users have opted out of using the AI Technology.

2.3 Customer Obligations and Cooperation. Customer shall at all times during the Term: (a) be responsible for each Named User’s compliance with this Agreement; (b) only access the Products via equipment specified by EE as meeting the relevant operational requirements and maintain adequate internet connection bandwidth to be able to access the Products; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Products; and (d) use Products only in accordance with this Agreement, the Documentation, and applicable laws and regulations.

2.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Section 2, Customer shall, and shall cause its Named Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to Products and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify EE in writing of any such actual or threatened activity.

3. Security and Data Protection

3.1 Security. EE will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, alteration, and disclosure. A general description of EE’s security program consistent with industry standard safeguard is available at https://portal.energyexemplar.com/security/.

3.2 Customer Responsibilities. Customer is responsible for (a) the legality, accuracy, and integrity of Customer Data; (b) obtaining all necessary rights and consents required for EE to process Customer Data under this Agreement; and (c) maintaining the confidentiality of account credentials. Customer is responsible for all activity occurring under its accounts, except to the extent caused by EE’s breach of this Agreement.

3.3 Data Protection. To the extent EE processes personal data on behalf of Customer, the parties will comply with applicable data protection laws. If required, the parties will enter into a separate Data Processing Agreement (“DPA”), which is incorporated by reference. In the event of a conflict regarding personal data processing, the DPA will control. To the extent EE processes personal data as a controller (such as account or support contact information), such processing will be governed by EE’s privacy notice as updated from time to time.

4. Third-Party Materials

The Products may include or incorporate Third-Party Materials. Customer agrees that EE may allow Third Party Materials to have access to Customer Data as required to provide the Products. Third Party Materials integrated into the Products by EE are provided under the same terms and conditions as the Products. In respect of any third-party products or services that Customer installs or enables for use with the Products: (a) EE may allow the applicable vendors access to Customer Data as required for interoperation and support; (b) Customer warrants that it has the necessary rights and permissions to integrate such products or services with the Products; and (c) EE does not warrant or support such products or services, and their use is on an AS-IS, WHERE-IS basis.

5. Fees and Payment

5.1 Fees. Customer must pay all fees specified in the applicable Order Form. Except as otherwise specified in this Agreement or in an Order Form, (a) payment obligations are non-cancelable and fees paid are non-refundable, and (b) quantities purchased cannot be decreased during the relevant subscription term.

5.2 Payment. EE shall invoice Customer in advance (unless otherwise specified in an Order Form) and Customer shall pay all fees within 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to EE and notifying EE of any changes to such information. Customer shall make all payments in the currency specified in the Order Form (or if no currency is specified, in U.S. dollars) by way of electronic transfer to EE’s bank account specified in the Order Form (or such other account specified in writing by EE to Customer).

5.3 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, (a) EE may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law, (b) Customer shall reimburse EE for all reasonable costs incurred by EE in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees, and (c) if any payment owing by Customer under this or any other agreement is 30 days or more overdue, EE may, upon written notice, suspend performance of and access to the Products until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension.

5.4 Holdover Use.  If Customer continues to access or use the Products, or any portion thereof following the expiration or termination of the applicable Order Form or Term, such access or use shall constitute holdover use.  EE may invoice Customer for estimated holdover use based on EE's reasonable determination of Customer's usage, subject to reconciliation if applicable. Customer shall pay all invoiced amounts in accordance with the payment terms of this Agreement.  Fees for holdover use shall be calculated at Energy Exemplar's then-current list prices applicable to the Products utilized by Customer, increased by twenty-five percent (25%) and prorated for the period of holdover use.

5.5 Payment Disputes. With respect to payment amounts that are in dispute, EE will not exercise its rights under Section 5.3 to the extent Customer is disputing the applicable payments reasonably and in good faith and is working diligently to resolve the dispute.

5.6 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments of any nature, including value-added, sales, excise, use or withholding taxes. Customer is responsible for paying all taxes associated with its purchases hereunder. If EE has the legal obligation to pay or collect taxes for which Customer is responsible under this Section 5.6, EE will invoice Customer and Customer will pay that amount unless Customer provides EE with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, EE is solely responsible for taxes assessable against it based on its income, property and employees.

6. Professional Services

6.1 Scope and Documentation. Professional Services shall be subject to a separate Statement of Work (“SOW”) or Order Form specifying the scope of services, deliverables (if any), timeline, and applicable fees that EE shall have the obligation to perform. For the avoidance of doubt, EE shall not be obligated to perform any Professional Services not set out in an Order Form or SOW.

6.2 Complimentary Training. EE may, at its sole discretion, provide complimentary training or implementation assistance ("Complimentary Training") to Customer's Named Users as part of a new or renewal Order Form. All Complimentary Training is subject to EE's resource availability and shall be scheduled in advance by mutual written agreement between the parties. Complimentary Training is intended only to support exceptional circumstances, such as a reasonable handover where a previously trained Named User has left Customer's organization.

6.3 Customer Responsibility. Customer is solely responsible for ensuring adequate internal knowledge retention, documentation of workflows, and user continuity. EE shall have no obligation to re-deliver Professional Services or training previously provided to Customer.

6.4 No Conditions on Renewal. The provision, timing, or completion of any Complimentary Training shall not be a condition precedent to the renewal or continuation of this Agreement or any Order Form. Unless otherwise specified in the applicable Order Form, any Complimentary Training not utilized within 12 months of the date it was first made available shall be deemed waived without refund, credit, or service extension.

7. Confidentiality

7.1 Confidential Information. In connection with this Agreement a party (the “Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”). Except as otherwise set forth in this Section 7, “Confidential Information” means information in any form or medium disclosed by the Disclosing Party to the Receiving Party, including all information concerning the business, products, services, systems, procedures and records of the Disclosing Party, in each case whether or not marked or identified as “confidential.” Confidential information of EE includes Products (including all intellectual property rights existing in the same), any internal or third-party audit reports (including any security or ISO audits) disclosed by or on behalf of EE, and the terms and conditions of this Agreement.

7.2 Exclusions. Confidential Information does not include information that: (a) was known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party must (a) only use Confidential Information for the purposes contemplated by this Agreement, (b) not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7, and (c) safeguard the Confidential Information from unauthorized use or disclosure using at least the degree of care it uses to protect its own information and in no event less than a reasonable degree of care. The Receiving Party shall ensure its representatives' compliance with, and be responsible and liable for, any of its representatives’ non-compliance with, the terms of this Section 7.

7.4 Trade Secrets. Unless otherwise mutually agreed in writing, neither party shall disclose a party’s trade secrets (as defined under applicable law) to the other party.

7.5 Compelled Disclosures. If the Receiving Party is compelled by law to disclose any Confidential Information, then, to the extent permitted by law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party of such compelled disclosure, and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, if the Disclosing Party decides to contest such compelled disclosure.

8. Proprietary Rights

8.1 Reservation of Rights. The Products and Updates are proprietary to EE, its Affiliates, licensors, or suppliers. Except as expressly granted in this Agreement, (a) EE and its Affiliates reserve all their right, title, and interest (including all intellectual property rights and other rights) in and to Products and Updates, and (b) the applicable third-party providers reserve all their right, title, and interest (including all intellectual property rights and other rights) in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any Products or Updates except as expressly set forth in Section 8 or the applicable third-party license, in each case subject to Section 8. All other rights in and to Products and Updates are expressly reserved by EE, its Affiliates, licensors, and suppliers. In furtherance of the foregoing, EE shall own all platform-level improvements and Usage Data.

8.2 Customer Data. As between Customer and EE, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data. Customer grants EE a royalty-free, non-exclusive, revocable license to host, copy, transmit, display and otherwise use Customer Data for the sole purpose of providing the Products, Professional Services and Support (including troubleshooting) and performing EE’s other obligations under this Agreement. EE is not responsible for: (a) checking or validating Customer Data or any simulations or calculations initiated by Customer; (b) ensuring that Customer Data is free from any errors; or (c) exercising any control over the content of any Customer Data. Customer warrants that it has all necessary rights and titles to Customer Data.

8.3 Feedback and Modifications. Customer is not required to provide EE any feedback, comments, or suggestions about Products (“Feedback”). However, if Customer provides Feedback, EE is free to use and disclose Feedback without any obligations or restrictions of any kind, including intellectual property rights. Any intellectual property rights created with respect to any changes or extensions in functionality of the Products, including as a result of any Feedback or EE having been engaged to perform Professional Services for Customer are owned by and assigned to EE.

8.4 Aggregated and De-Identified Data. Customer acknowledges that EE may collect and use data derived from Customer's use of the Products, provided that such data is aggregated and/or de-identified so that Customer, its Affiliates, and any individual cannot reasonably be identified. Energy Exemplar may use such aggregated and de-identified data for its legitimate business purposes, including operating, maintaining, improving, supporting, and developing its products and services, creating benchmarks and industry analyses, and generating statistical insights.

For clarity, Energy Exemplar will not disclose Customer Confidential Information to any third party, will not identify Customer in any aggregated or de-identified data, and will not disclose Customer-specific usage, modeling results, forecasts, business information, or other Customer data except as expressly permitted under this Agreement. Customer retains all rights in and to its Confidential Information and Customer Data. Energy Exemplar's rights under this Section apply solely to aggregated and de-identified information that does not constitute Customer Confidential Information.

9. Representations and Warranties

9.1 Mutual Representations. Each party represents that (a) it has the legal authority to, and that it has, validly entered into this Agreement; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate any applicable laws or other agreement to which such party is bound.

9.2 EE Warranties. EE warrants that: (a) the Products (excluding Support and Professional Services) will perform materially in accordance with the applicable Documentation, and (b) that EE will perform the Support and Professional Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner.

9.3 Customer Warranties. Customer warrants that: (a) Customer owns or otherwise has the necessary licenses, rights, and consents to Customer Data to allow EE the right to use such Customer Data in accordance with this Agreement; and (b) the use of Customer Data by EE in connection with this Agreement, will not breach any applicable law.

9.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND EE, ITS LICENSORS AND ITS SUPPLIERS SPECIFICALLY EXCLUDE ALL IMPLIED REPRESENTATIONS AND WARRANTIES WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AS WELL AS THE APPLICATION OR AVAILABILITY OF ANY STATUTORY RIGHTS. CUSTOMER BEARS ALL RISK RELATING TO THE ACCURACY AND USE OF THE INFORMATION AND REPORTS RESULTING FROM THE USE OF PRODUCTS. WITHOUT LIMITING THE FOREGOING, NEITHER EE NOR ITS LICENSORS OR SUPPLIERS WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OR USE OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR OR BUG-FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PRODUCTS PROVIDED FREE OF CHARGE, AS PART OF A TRIAL, OR AS BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER.

10. Indemnification

10.1 EE Indemnification. EE shall indemnify and defend Customer and its Affiliates (each a “Customer Indemnitee”) against all Losses incurred by such Customer Indemnitee resulting from any Action by a third party alleging Customer's use of the Products in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) any unauthorized combination, operation, or other use of the Products if such infringement would have been avoided but for such combination, operation or use; (b) any additions, modifications or enhancements of the Products requested by Customer, if the alleged infringement would not have occurred but for such additions, modifications or enhancements; (c) use of the Products in breach of this Agreement; (d) Customer’s failure to comply with instructions, documentation or materials provided by EE, if the alleged infringement would not have occurred but for such failure; or (e) any modification of the Products not made by EE, if the alleged infringement would not have occurred absent such modification.

10.2 Customer Indemnification. Customer shall indemnify and defend EE, its Affiliates, and licensors (each an “EE Indemnitee”) against all Losses incurred by such EE Indemnitee resulting from any Action by a third party that are alleged to arise out of or result from: (a) Customer Data, including any use of Customer Data with the Products; and (b) use of the Products outside of the scope allowed under this Agreement.

10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent (unless such settlement unconditionally releases the Indemnitee of all liability). The Indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10.3, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

10.4 Mitigation. If any Products are, or in EE’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, EE may, at its option and sole cost and expense:

procure for Customer the right to continue using the affected Products free from any such claim;
modify or replace such Products to make them (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or
if neither of the above are reasonably practicable, terminate this Agreement with immediate effect by providing notice and refund Customer any prepaid fees covering the remainder of the Term.
all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
EE must immediately cease all use of any Customer Data or Customer's Confidential Information and within 30 days of termination of this Agreement, on written request by Customer, EE will make commercially reasonable efforts to make available to Customer any Customer Data that is being stored at the time of termination of this Agreement in connection with Customer’s use of, and access to, the Products;
Customer must immediately cease all use of any Products and promptly erase all Products and EE's Confidential Information from all Customer systems.

10.5 Sole Remedy. Subject to Section 11.3, this Section 10 sets forth the Indemnitee’s sole remedy and the Indemnitor’s sole liability and obligation to the other party for any third-party claim described in this Section 10.

11. Limitations of Liability

11.1 EXCLUSION OF CONSEQUENTIAL AND INDIRECT DAMAGES. IN NO EVENT WILL EE, ITS LICENSORS, OR THEIR AFFILIATES BE LIABLE FOR ANY LOSS OF OPPORTUNITY, GOODWILL, PROFITS, ANTICIPATED SAVINGS OR BUSINESS, LOSS OR CORRUPTION OF DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR RELIANCE UPON PRODUCTS OR ANY INFORMATION RESULTING THEREFROM, EVEN IF EE OR ITS LICENSORS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. FOR CLARITY, SUCH CONSEQUENTIAL OR INDIRECT DAMAGES MAY INCLUDE LOSSES ARISING FROM MARKET PARTICIPATION, TRADING ACTIVITIES, INVESTMENT DECISIONS, OR REGULATORY, ISO, OR OTHER MARKET-OPERATOR ACTIONS. EXCEPT TO THE EXTENT SECTION 11.3 APPLIES, IN NO EVENT WILL EE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY SERVICES OR ANY INFORMATION RESULTING FROM THE USE OF THE PRODUCTS. CUSTOMER ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCTS.

11.2 LIMITATION ON LIABILITY. IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF WHETHER ANY ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO EE DURING THE 12-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH LIABILITY AROSE. EXCEPT THAT NOTHING IN THIS SECTION 11.2 WILL LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT,

CUSTOMER MAY NOT MAKE ANY CLAIM AGAINST ANY OF EE’S LICENSORS OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT. THIS AGREEMENT IS SOLELY BETWEEN EE AND CUSTOMER, AND NO THIRD PARTY (INCLUDING ANY END CLIENT, REGULATOR, OR MARKET OPERATOR) SHALL HAVE ANY RIGHT TO ASSERT ANY CLAIM OR RECOVER ANY DAMAGES UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

11.3 Exceptions. The exclusions and limitations in Section 10 and Section 11 will not apply to the extent they are not permitted by applicable law, in the case of fraud, non-waivable statutory rights, or wilful misconduct.

12. Term and Termination

12.1 Term. The initial term of this Agreement shall be as specified in the applicable Order Form (the “Initial Term”). Except as otherwise specified in an Order Form, this Agreement will automatically renew for additional one-year terms (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives the other written notice at least 60 days before the end of the then current Term. Except as expressly provided in the applicable Order Form, renewal pricing will be at EE’s applicable list price in effect at the time of the applicable renewal. In addition, if at any renewal, Customer decreases its use of the Products from the prior term, EE may reprice the Products at renewal without regard to the prior term’s per-unit pricing.

12.2 Termination for Cause. A party may terminate this Agreement for cause if (a) the other party materially breaches this Agreement and fails to remedy the breach within 30 days of receipt of written notice of such breach, or (b) the other party becomes, threatens, or resolves to become or is in jeopardy of becoming subject to any form of insolvency.

12.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information, in its then current state and solely to the extent and for so long as required by applicable law; (ii) EE may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 12.3 will remain subject to all confidentiality, security, and other applicable requirements of this Agreement.

12.4 Refund or Payment upon Termination for Cause. If this Agreement is terminated by Customer in accordance with Section 12.2 above, EE will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by EE in accordance with the Agreement, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to EE for the period prior to the effective date of termination.

12.5 Copy of Customer Data. Customer shall, prior to expiration or termination of the Agreement and before access to the Products is removed, download any Customer Data it wishes to retain.

12.6 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties under this Agreement that, by its nature, should survive expiration or termination of this Agreement, will survive any expiration or termination of this Agreement: Section 5 (Fees and Payment), solely with respect to amounts accrued but unpaid prior to expiration or termination; Section 7 (Confidentiality); Section 8 (Proprietary Rights); Section 10 (Indemnification); Section 11 (Limitations of Liability); Section 12.3 (Effect of Termination or Expiration); Section 12.4 (Refund or Payment upon Termination for Cause); Section 12.7 (Compliance with Laws and Regulations); Section 12.8 (Anti-Bribery and Anti-Corruption); Section 12.9 (Trade Laws and Export Compliance); and Section 13 (Miscellaneous), together with any audit, recordkeeping, and compliance rights and obligations. Termination of this Agreement does not affect any rights or obligations of the parties that accrued prior to the effective date of termination, including the right to claim damages arising from a breach of this Agreement.

12.7 Compliance with Laws and Regulations. Each party agrees to comply with all laws and regulations applicable to the subject matter of this Agreement. Certain Products may include information that is subject to either US Federal Energy Regulatory Commission (“FERC”) or Critical Energy Infrastructure Information (“CEII”) regulations or other restricted use provisions of an originating entity (such as load flows contained in certain nodal datasets). This information can only be delivered to entities which have received and can demonstrate approval from FERC or the appropriate originating entity. Customer must provide proof of approval to EE as a condition precedent to the delivery of CEII or other regulated information and Customer shall maintain CEII regulated data in a secure place pursuant to FERC regulations.

12.8 Anti-Bribery and Anti-Corruption. Each party represents, warrants, and undertakes that in connection with this Agreement it will comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010 (collectively, "Anti-Corruption Laws"). Without limiting the foregoing, neither party nor any of its officers, directors, employees, agents, or representatives shall, directly or indirectly: (a) offer, promise, give, or authorize the giving of any financial or other advantage to any person (including any government official) for the purpose of obtaining or retaining business or securing any improper advantage; or (b) request, agree to receive, or accept any such advantage. Each party shall maintain reasonable policies and procedures designed to ensure compliance with Anti-Corruption Laws. A breach of this provision shall constitute a material breach of this Agreement entitling the non-breaching party to terminate as set out in Section 12.2.

12.9 Trade Laws and Export Compliance. Customer acknowledges that the activities governed by this Agreement, including access to and usage of the Products, are subject to the US Export Administration Regulations, the regulations of the US Office of Foreign Assets Control, and may also be subject to similar laws of other jurisdictions (collectively, “Trade Laws”). Customer agrees to fully comply with the Trade Laws that apply to its activities governed by this Agreement, including prohibitions against usage by restricted persons and for certain end-uses. Customer will not permit any User to access or use the Products in a U.S. embargoed country or region (the list of countries or regions subject to a full U.S. embargo changes from time to time but is currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) or in any manner that would cause any party to violate any applicable Trade Laws. Customer and EE each represents that it is not restricted or sanctioned by applicable Trade Laws, nor owned or controlled by or acting on behalf of any persons or entities restricted or sanctioned by applicable Trade Laws.

13. Miscellaneous

13.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. This Agreement does not create any agency, partnership, joint venture, employment, or fiduciary relationship between the parties.

13.2 Public Announcements. Within thirty (30) days of the Effective Date, EE may issue an announcement, statement, press release, or other publicity or marketing materials naming Customer, unless Customer opts out in writing. Thereafter, neither party shall issue any press release or public statement referencing the other party or this Agreement without the other party's prior written consent.

13.3 Notices. Any notice required or permitted under this Agreement must be in writing, in the English language, and addressed to the other party at the address set forth in the Order Form (or to such other address that such party may designate). Except as otherwise specified in this Agreement, all notices will be deemed given upon (a) personal delivery; (b) receipt, if sent by overnight courier, signature required; or (c) if by email, when sent, except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices. Legal Notices shall be deemed received upon actual receipt. Invoice-related notices to Customer will be addressed to the relevant invoice contact designated by Customer.

13.4 Interpretation. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. Unless the context otherwise requires, references in this Agreement: (x) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (y) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting a document. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

13.5 Exclusion of CISG and UCITA. The terms of the United Nations Convention in Contracts for the International Sale of Goods (“CISG”) and the Uniform Computer Information Transactions Act (“UCITA”) do not apply to this Agreement.

13.6 Entire Agreement. This Agreement (including any Order Form, schedules, and Documentation) constitutes the entire agreement of the parties with respect to Customer’s use of Products and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No confirmation, shipment or delivery docket, invoice or other similar document issued by or on behalf of Customer or EE (including the terms on any pre-printed purchase order form) will vary or form part of this Agreement or otherwise affect the rights or obligations of the parties.

13.7 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement (whether voluntarily, involuntarily, by operation of law, or otherwise) without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that either party may assign or otherwise transfer this Agreement in connection with the sale of all, or substantially all, of the business or assets of that party. Any purported assignment, delegation, or transfer in violation of this section is void. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Notwithstanding the foregoing, EE may enter into a sub-contract with a third party for the performance of its obligations under this Agreement without the prior written consent of Customer. Any such sub-contract does not excuse EE from performing its obligations under this Agreement.

13.8 Force Majeure. In no event will either party be liable to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”) including acts of God, government action, war, epidemics/pandemics, embargoes or blockades in effect on or after the date of this Agreement, or natural disaster.

13.9 Amendment and Modification; Waiver. No amendment or modification of this Agreement will be effective unless agreed in writing and signed by authorized representatives of each of the parties. Except as otherwise set forth in this Agreement, no failure to exercise any right under this Agreement will be construed as a waiver thereof.

13.10 Severability. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, the provision will be deemed null and void; provided that such unenforceability shall not affect any other term or provision of this Agreement. Upon such determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.

13.11 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of Delaware without giving effect to any conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Each party submits to the exclusive jurisdiction of the federal or state courts located in Delaware, USA.

13.12 Unfair Contract Terms Act; Independent Counsel. Each party was represented by or had the opportunity to be represented by legal counsel during the negotiation and execution of this Agreement. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party by any court or arbitrator or any governmental authority by reason of such party having drafted or being deemed to have drafted such provision.

14. Definitions. The below capitalized terms have the following meanings:

“Acceptable Use Policy” means the policy as set forth at https://portal.energyexemplar.com as updated from time to time.

“Action” means any claim, action, demand, suit, arbitration, investigation, audit, or proceeding of any nature.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means the direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“AI Technology” means any and all machine learning, models (including large language models), deep learning and other artificial intelligence technologies.

“Core” means an independent processing unit in a CPU within Customer's system (whether physical or virtual), and “Cores” means the plural thereof.

“Customer Data” means (a) data and information which Customer uploads or otherwise inputs into the Products (other than Dataset Services) and (b) the output report created by Customer’s use of the Software. For clarity, Customer Data does not include Usage Data.

“Customer Systems” means Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or using third-party services.

“Data Processing Agreement” means the EE Data Processing Agreement available at https://portal.energyexemplar.com.

“Dataset Services” means that portion of a Product which provides or otherwise makes available (in any format) any datasets, other similar content, and any derivatives thereof, including Updates. Customer’s use of Dataset Services is subject to the Dataset Services Supplement and any applicable terms in the Order Form(s).

“Documentation” means the manuals, instructions, and other documents or materials that EE provides or makes available to Customer at https://portal.energyexemplar.com, as updated from time to time.

“EE Personnel” means all individuals involved in the provision of the Software or the performance of Services as employees, agents, or independent contractors of EE or any subcontractor.

“Harmful Code” means code, software, hardware, files, scripts or other technology or programs intended to do harm or intended to prevent or impair the operation of any computer software, hardware or network from working as intended, including viruses, worms, malware, and Trojan horses. Harmful Code does not include any Compliance Verification Process.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Named User” means an employee of Customer who has a specific individual login configured to them that enables such individual to access and use Products and for whom access to Products has been purchased hereunder.

“Premium Onboarding” means the dedicated support services to be provided by EE for up to 120 hours (inclusive of 5 days remote introductory workshop- dates and format to be agreed between EE and the Customer) to be used during the first 100 days following the Effective Date of the Agreement or Order Form (as applicable) and such services are not subject to auto-renewal. Any hours started shall be counted fully. For avoidance of doubt, such Premium Onboarding is limited to providing guidance, support, and assistance to the user during development of workflow to meet specified use cases and generally does not involve customized deliverables.

“Professional Services” means any implementation, training, or other professional services provided by EE as described in the Order Form or Statement of Work (“SOW”).

“Service Level Agreement” means EE’s Service Level Agreement made available to Customer at https://portal.energyexemplar.com/cloud-sla.

“Software” means the (a) software-as-a-service offerings made available under this Agreement, and Agreement supplement, and as specified in an Order Form; and (b) software made available to Customer for download as specified in an Order Schedule, including error corrections, modifications and Updates to both of (a) and (b) and including the Documentation. Software does not include, and EE does not warrant or support, unless otherwise provided in the applicable Supplement, (i) software obtained from any source other than EE; (ii) software provided by EE under an open-source license; or (iii) software provided under a No-Fee License.

“Support” means (a) the technical support services described in the Support Policy as defined below and (b) enterprise, upgraded or premium support if purchased and as described in the Support Policy and/or Order Form.

“Support Policy” means the policy as set forth at https://portal.energyexemplar.com/ as updated from time to time.

“Third-Party Materials” means materials, services, software, solvers, add-ons, plug-ins, information, documents, data, content, specifications, products, or components that are incorporated into the Products, but are not proprietary to EE.

“Updates” means corrections, bug fixes, patches, modifications, changes, updates, or enhancements to Products, including as a result of any suggestions or recommendations of Customer.

“Usage Data” means data, information or other materials regarding how Customer uses Products, including, for example, how many simulations Customer runs per day or how often Customer runs a simulation.

END USER LICENSE TERMS AND CONDITIONS

END USER LICENSE
TERMS AND CONDITIONS