THIS MASTER SERVICE AGREEMENT ("AGREEMENT") GOVERNS ACCESS TO AND USE OF THE SERVICES OF INTEGRATED ENERGY SERVICES, LLC INCLUDING ITS WHOLLY OWNED SUBSIDIARIES (iES), BY DIRECT CUSTOMERS OR POTENTIAL DIRECT CUSTOMERS OF iES, iES'S INDEPENDENT RESELLERS ("RESELLER(S)"), CUSTOMERS OF SUCH RESELLERS ("RESELLER CUSTOMER(S)"), KNOWN COLLECTIVELY HEREIN AS "CUSTOMER(S)". iES AND CUSTOMER(S) ARE COLLECTIVELY REFERRED TO HEREIN AS "THE PARTIES."

EACH DIRECT CUSTOMER OF iES AND EACH RESELLER PLACING AN ORDER FOR SERVICES VIA ONE OR MORE SERVICES AGREEMENT, SERVICE ORDER, SERVICE EXHIBIT, SERVICE ADDENDUEM, OR PURCHASE ORDER ("SERVICES AGREEMENT") THAT REFERENCES THIS AGREEMENT AS WELL AS EACH RESELLER CUSTOMER WITH ACCESS TO iES'S SERVICES THROUGH A SERVICES AGREEMENT PLACED BY A RESELLER AND EACH POTENTIAL DIRECT CUSTOMER OF iES SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT. ANY CUSTOMER THAT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS MAY NOT ACCESS OR USE THESE SERVICES AND MUST EXIT THIS SITE IMMEDIATELY. IF YOU ARE AN AUTHORIZED EMPLOYEE OR AN AUTHORIZED DESIGNEE OF A CUSTOMER, YOU AGREE TO BE BOUND BY THE TERMS OF THIS MASTER SERVICES AGREEMENT AND THE TERMS AND CONDITIONS OF AUTHORIZED USE ALSO POSTED ON THIS SITE AT https://app.iesmach.com/mam/app/terms. IF YOU ARE ACTING AS AN EMPLOYEE OF OR INDEPENDENT CONTRACTOR TO AN AUTHORIZED DESIGNEE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PERSONALLY BOUND BY THE TERMS OF THIS MASTER SERVICES AGREEMENT AND THE TERMS AND CONDITIONS OF AUTHORIZED USE.  YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO LEGALLY BIND THE AUTHORIZED DESIGNEE FOR WHOM YOU WORK. IF YOU DO NOT AGREE TO THE FOREGOING, YOU MAY NOT ACCESS THESE SERVICES AND MUST EXIT THIS SITE IMMEDIATELY.

IF iES PROVIDES LOGIN CREDENTIALS FOR A FREE TRIAL, THIS AGREEMENT ALSO GOVERNS THAT FREE TRIAL. THE FREE TRIAL PERIOD EXTENDS FOR A MAXIMUM PERIOD OF ONE MONTH FROM THE DATE OF A POTENTIAL CUSTOMER’S FIRST ACCESS TO THIS SITE. THEREAFTER, UNTIL SUCH TIME AS SUCH TIME AS IT PLACES A SERVICES AGREEMENT WITH iES, A POTENTIAL CUSTOMER MAY NOT ACCESS THIS SITE OR USE THESE SERVICES AND MUST EXIT THIS SITE IMMEDIATELY.

This Agreement was last updated on May 6th, 2021. Use of these Services by a Customer following the posting of notice of any change in these terms of service via a popup message on this site or via email shall constitute agreement of that Customer with those changes.

1. Services: Subject to the terms and conditions set forth herein and in an applicable Services Agreement, iES shall provide Customer access to its proprietary web-based and mobile software platforms to monitor, report and manage monitored data use at Locations identified in that Services Agreement. iES may add, modify or remove features from time to time to improve the Services and reserves the right to change the fees it charges for the Services annually. Customer agrees that payment obligations it incurs under a Services Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by iES regarding future functionality or features.
2. Service Fees: For each Location in an applicable Services Agreement, Customer shall pay fees in amount and in accordance with the schedule specified in that Services Agreement.
3. Taxes: Except for taxes paid by iES on its net income or as otherwise communicated by iES to a Customer, all amounts due pursuant to iES's invoices are net of, and Customer will be solely responsible for, any use, sales, value-added, import and any other taxes, fees, tariffs or duties associated with this Agreement and a Services Agreement.
4. Payment: The Service Fees shown in a Services Agreement shall be invoiced and paid in accordance with that Services Agreement. iES shall have no obligation to turn on the Services for any Location for which Service Fees have not been paid. Any invoice issued pursuant to a Services Agreement that is not paid within 30 days of its due date shall accrue interest at the rate of one (1) percent per month from its due date. Upon 15 days notice, iES shall have the right to discontinue the Services at any Location at which Customer fails to pay invoices when due.
5. Term and Cancellation: The initial term of this Agreement as well as renewal terms and cancellation rights shall be as specified in an applicable Services Agreement.
6. Customer Data Supply Obligation: To populate iES's database and render the Services fully functional, Customer, at Customer's cost, shall provide iES in consistent electronic form monitored data usage data for at each Location, recorded in 15-minute increments and sent or made available to iES under protocols specified by iES. Customer shall communicate with iES regarding Customer's plan and schedule for fulfilling its Data Supply Obligation and performing other tasks needed to bring the Locations in the applicable Services Agreement into service including those enumerated in Section 5 below. Where appropriate, Customer shall cause iES to be designated as Customer's agent with its electric utility, internet service and any other energy service providers or energy utility for purposes of determining service status, equipment configuration and process requirements, scheduling, batch data access and other matters that need to be addressed for Customer to meet its Data Supply Obligation at the Locations listed in the applicable Services Agreement. Customer shall enter into all purchase and contract commitments directly with its electric utility, internet service and any other monitored data service providers or energy utilities as required to facilitate meeting its Data Supply Obligation at those Locations.
7. Utility Data: Customer from Customer's energy utilities and third-party monitored data providers and/or from its own records, shall obtain and provide to iES in electronic form one or more year's worth of historic 15 or 30 minute energy usage data as well as a copies of at least two utility bills for each Location (and utility account) listed in a Services Agreement. Wherever possible, Customer shall also arrange authorization and login credentials for iES to have electronic access to utility bills and summary usage data as recorded by each of its utilities so that iES can scale and validate the accuracy of the daily monitored usage data feeds Customer supplies for each Location (and account) listed in a Services Agreement on an ongoing basis. For each Location, Customer shall provide iES with contact information for the Location manager and the chief engineer, and other background information such as Location operating hours and occupancy history data.
8. Data Download Delays, Interruption of Software Service, Data Estimation & Storage: Customer acknowledges that the delivery of monitored consumption data by Customer may be delayed from time to time. Customer also acknowledges that the Services may be interrupted occasionally. iES shall provide a business-day-for-business-day extension of the Service Term for each business day that the Services are unavailable, but shall not provide such pro-rata credit when the Services are unavailable due to delivery delays of monitored consumption data by Customer. iES shall have no other liability to Customer for interruptions in the Services, beyond providing the business-day-for-business-day extension of the Service Term for the time that the Services are unavailable. iES reserves the right to utilize data estimation techniques on data delivered by Customer when iES deems the delivered data invalid or when persistent data gaps occur. iES shall provide inline notice when significant amounts of data have been estimated and permit Customer to click through to detailed displays that show real data, estimated data and missing data. iES may modify Customer's interval data to meet iES's data storage format requirements, for example by shifting time stamped periods to the closest :00, :15, :30 and :45 intervals.
9. Estimated Savings and Performance: iES may at any time leading up to, and throughout the duration of this Agreement, provide savings, revenue, and performance-based value estimates to Customer. All such estimates may be subject to changes related to weather, Customer behavior, changes in law, tariffs, and other regulatory rulings, market conditions, and other such factors outside of iES’s control. Customer acknowledges that any and all estimated savings and/or value under this agreement are not guaranteed.
10. Data Restrictions: Except as explicitly permitted herein, iES shall not use, distribute, sell, market or commercialize Customer’s data (whether or not deemed Confidential Information), create derivative products or applications based on such Customer data, or otherwise use Customer data in any manner not expressly related to fulfilling iES’s obligations under this Agreement. Customer data used by iES as and only if permitted herein shall be de-identified and aggregated such that third parties shall not have the ability to identify any data as Customer data, whether through geography, size, or any other means, and at no time will iES disclose aggregated de-identified information in such a way that would permit a third party to identify Customer, its facilities or employees, unless required by law or court order.
11. Confidentiality: Each Party acknowledges that “Customer” shall at all times be and remain the owner of all Confidential Information. iES agrees to safeguard the Customer’s Confidential Information and to use all commercially reasonable means to protect and safeguard such information. iES shall not use said information to the disadvantage of, or in competition against the Customer. Each Party shall only make the Confidential Information of the other Party available to its employees, auditors, attorneys or other professionals or consultants hired by such party in the ordinary course, on a need-to-know basis (that is, their duties, requirements or contract for services require such disclosure), and agree to take appropriate action by instruction or Agreement with such individuals permitted access to the Confidential Information to satisfy the obligations under this provision. For purposes of this Provision, “Confidential Information” shall include, without limitation: (i) any information relating to the Customer’s business operations, employees, services, customers, purchase data, trade secrets, know-how, processes, documentation, volume of business, methods, systems, practices, plans, or other confidential or commercially valuable proprietary information; (ii) any information that is specifically marked as “Confidential”; (iii) information which the Customer has requested in writing to be kept confidential; (iv) information which is disclosed verbally and identified as confidential at the time of disclosure; and (v) information which, by its nature, must be kept confidential in order to prevent adverse consequences to the business of either Party. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto; or (v) independently developed by or for the receiving party without use of any Confidential Information of the disclosing party.
12. Intellectual Property Rights and Infringement: iES retains all right, title and interest in and to the Content of all Software based services, including but not limited to all copyrights, trade secret rights, trademark rights, database rights, patent rights and all other intellectual property rights of any kind under the laws of the United States or other countries or jurisdictions. Except as explicitly provided elsewhere in this Terms of Service, Customer may not modify, copy, distribute, reuse, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Content for any reason without iES’s prior written permission. Notwithstanding any other provision, in the event Customer receives a written claim that any use is alleged to be an infringement of any intellectual property right, Customer may discontinue such use from this Agreement upon written notice to iES and may immediately terminate this Agreement in accordance with the provisions herein without penalty.
13. No Warranty: iES makes no warranties, express or implied, including without limitation, any implied warranty of merchantability or fitness for a particular purpose to Customer in connection with use of the Services. Customer assumes all responsibility for using the Services to monitor, report and save energy at its Locations and iES makes no promises regarding the accuracy of such Customer monitoring or reporting activities or that Customer will achieve energy savings at its Locations.
14. Use of iES Services: Subject to the terms and conditions of this Agreement, iES shall provide access to the Services to Customer and authorized designees of Customer on a unique individual user, confidential, password-restricted basis for the duration of this Agreement. Customer and authorized employees and designees of Customer shall only access the Services using their own unique login credentials provided by iES and shall use the Services solely for the purpose of managing monitored data use in Locations identified in a Services Agreement. Each authorized designee of Customer shall be subject to the Terms and Conditions of Authorized Use substantially in the form attached posted at https://app.iesmach.com/mam/app/terms. Customer shall not allow its employees, contractors, subcontractors or agents to use the Services in violation of this Agreement. Customer may not: 1) access and/or use the Services in any way that provides information to a competitor of iES that could be used by that competitor to understand the functionality, performance, availability, or other competitive features of the Services, even if such competitor also provides its own services in Customer's Locations which use the Services, without the expressed written permission of iES; 2) integrate the Services into or link them with another program or any part thereof for any purpose whatsoever; 3) make any attempt to discover, copy or download for any purpose whatsoever the object or source code of the Services; 4) reverse-engineer or decompile the Services for any purpose whatsoever; 5) translate, copy, modify or create derivative works based on the Services (and any such derivative works that are created in violation of this provision shall be the sole and exclusive Property of iES); 6) remove, obscure, or alter any notice of the patent, copyright, or other proprietary rights related the Services or any component of the Services; or 7) sub-contract, sell, lend, rent, timeshare or otherwise cause or allow access to the Services to be provided or made available to any person other than employees of Customer or designees approved in writing by iES who have a direct role in managing monitored data use for the Locations identified in a Services Agreement. Because a violation of Customer's obligations under this provision could cause injury to iES which could not be remedied adequately by an action at law for damages, in the event of such violation, iES may, seek injunctive and other equitable relief in addition to damages and other available relief. If Customer or Customer's designees use the Services in a manner other than as permitted hereunder, iES may, without prejudice to any other rights it may have, terminate this Agreement and Customer's access to the Services.
15. Limitation of Liability: THE PARTIES EXPRESSLY UNDERSTAND AND AGREE THAT EACH PARTY, ITS SUBSIDIARIES AND AFFILIATES, AGENTS, MEMBERS, PARTNERS, CONTENT PROVIDERS AND LICENSORS SHALL NOT BE LIABLE TO EACH OTHER FOR CONSEQUENTIAL DAMAGES. FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO CUSTOMER.
16. Force Majeure: The obligations of either Party to perform under this Agreement will be excused during each period of delay caused by, and whether foreseen or unforeseen but not limited to acts of God, threats or acts of war or terrorism, or shortage of power or materials or government orders, acts of civil or military authority, embargo, currency restrictions, fire, labor strikes, medical epidemics, quarantine restrictions, riot, or due to causes beyond the reasonable control of the Party obligated to perform and prevents the Party from being able to perform ("Force Majeure Event"). In the event that either Party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, such Party shall: (a) immediately notify the other Party in writing of such Force Majeure event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible. Notwithstanding the foregoing, if a Force Majeure Event delays a party’s performance for more than fifteen (15) business days, the other party shall have the right and option to terminate this Agreement immediately upon written notice to the non-performing party.
17. Assignment: This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assigns, personal representatives, and representatives in bankruptcy of iES and Customer. Either iES or Customer may, upon thirty days written notice to the other party, assign or transfer this Agreement and its obligations hereunder to a third party, provided that such third-party agrees to be bound by the terms hereof. Upon sale(s) of a Location or Locations in a Services Agreement, Customer shall assign this Agreement and the Services Agreement with respect to that Location or Locations to the new owner(s). Customer shall provide iES notice of such sale(s) as far as practical in advance of the closing of such sale(s) and shall include contact information for the new owner(s) in such notice. Customer shall cooperate with iES and with the new owner(s) to facilitate their using the Services without interruption or delay following the sale(s) of a Location or Locations in a Services Agreement.
18. Prevailing Party & Governing Law: This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of New York, without regard to the conflict of laws and provisions thereof. iES hereby irrevocably consents to personal jurisdiction in the Courts of the State of New York including the Courts of the United States located in the State of New York. The Parties expressly waive any objections to the same on any grounds, including venue and forum non conveniens.
19. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Services Agreements, constitutes the entire agreement between the parties pertaining to the Services contemplated herein. Neither iES nor Customer has made to the other any representations, warranties or inducements expressed or implied except as set forth herein.