This Agreement governs your access and use of the Sense Fleet Portal. This Agreement gives you specific legal rights, and you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this Agreement may not apply to you.

THIS IS A LEGAL AGREEMENT. BY USING THE SITE, YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOU SHOULD STOP USING THE SITE AND CONTACT US WITH ANY QUESTIONS.

We reserve the right to change this Agreement at any time, so please review the Agreement each time prior to visiting the Site. Every time you visit the Site, the Agreement in force at that time will apply between you and Sense Labs, Inc. (“Sense Labs”). If you have any questions regarding the Agreement, you can contact Sense Labs as provided herein.

1. Definitions

“Authorized Distributor(s)” shall mean a company that has entered into an agreement with Sense Labs to distribute and resell Products.

“Company” or “you” means a purchaser of Products from Sense Labs which is authorized by End Users to view such Sense Exported Data as reported through the Site.

“Effective Date” means the date you first accept this Agreement.

“End Users” shall mean the resident(s) of the home in which Product(s) are installed.

“In-App Data Authorization” shall mean an authorization for sharing of data by an End User using a feature or capability enabled by Sense Labs within the Product.

“Product(s)” shall mean the product(s) set forth in Exhibit A.

“Sense Exported Data” means data of End Users which is exported by Sense Labs via reports or via an application programming interface.

“Site” means the Sense Fleet Portal made available by Sense Labs to Company in order to access certain data concerning use of the Product by End Users who have agreed to share their Sense Exported Data with you.

“Termination Date” shall mean the date at which the Agreement terminates.

“Territory” shall mean the United States, consisting of the fifty states together with the District of Columbia and Puerto Rico (but excluding any of its other territories).

2. Term of Agreement

This Agreement shall be effective on the date you first access the Site and shall remain in effect through the Termination Date, which will be one year following the Effective Date.

The Agreement shall automatically renew for successive one-year periods unless either party provides written notice at least sixty (60) days before the Termination Date of its intention not to renew for the succeeding year. This Agreement may be terminated at any time: (a) by Sense Labs immediately upon written notice to Company in the event of a breach by Company of Sections 4, 5, 6, 8 or 9 of this Agreement; or (b) by Sense Labs or Company, without cause, upon sixty (60) days’ prior written notice to the other party. Any obligation previously incurred shall survive termination or expiration of this Agreement. The provisions of Sections 9 through 12 and 17 shall survive any expiration or termination of this Agreement.

3. Eligible Products

This Agreement will apply to any Products Company has purchased from Sense Labs or through third-party retailers, such as Amazon.

4. Data Access

Company will have access to Sense Exported Data via methods described in Exhibit B. Company will be able to access data for monitors which (a) Company has purchased and installed, (b) for which Company has paid the additional Data Access Fees, if applicable, as described in Exhibit A, and (c) for which Sense Labs has obtained In-App Data Authorization, or which Company or Sense Labs has obtained authorization using the form attached hereto as Exhibit C.

5. Company Obligations

Company shall use all reasonable means to protect Sense Exported Data and to use such data for purposes expressly granted by the End User either via Exhibit C or In-App Data Authorization. Furthermore, Company shall conduct and maintain its operation in accordance with all applicable laws of the jurisdiction(s) in which it operates.

6. No Reverse Engineering or Product Modification

Company shall not modify, make derivatives of, or reverse engineer the Product, the Site or any software or services provided by Sense Labs. Company further agrees that it (and its affiliates and subcontractors) shall not, unless elsewhere authorized under this Agreement: (a) gain entry or attempt to gain entry into Sense Labs’ control software or services for the Products, the Site or any other software, network, service, or system of Sense Labs; (b) attempt to take or gain control over, or attempt to take or gain access to, the Product, the Site or any Sense Labs service or software; or (c) use, control, or attempt to use or control (other than as may be approved in writing and permitted by Sense Labs), the Products or the Site with a control service or system other than that managed by or for Sense Labs through an interface authorized or provided by Sense Labs.

7. Changes by Sense Labs

Sense Labs reserves the right at any time to change the design of its Products, the Site or any parts thereof, and to change the format or content of Sense Exported Data, to limit the volume of data that can be accessed, or to discontinue the availability of data with commercially reasonable advance notice. Company agrees that it shall have no claim against Sense Labs or any of its agents or affiliates for failure to furnish such Products, the Site and associated Sense Exported Data, whether or not such Products are of a model, design, or type previously sold.

8. Access to the Site

(a) Account. To use the Site, you must register for an account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Site does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account.

(b) Access and Use of the Site. Subject to this Agreement, Sense Labs grants you a non-exclusive, right (without the right to sublicense) to access and use the Site by using the applications available on https://partners.sense.com/ in connection with controlling and monitoring the Sense Exported Data.

(c) Ownership and Intellectual Property

(i) Sense Labs Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Site and Product are owned by Sense Labs or our licensors. Your possession, access, and use of the Product and Site do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Sense Labs and its licensors reserve all rights not granted in this Agreement.

(ii) Feedback. You may choose to, or Sense Labs may invite you to submit comments, suggestions, or ideas about the Product or Site, including how to improve the Product (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Sense Labs under any fiduciary or other obligation. Sense Labs may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Sense Labs does not waive any rights to use similar or related ideas previously known to Sense Labs, developed by its employees, or obtained from other sources. You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to access, display, or otherwise use your Feedback (including all related intellectual property rights) solely in connection the Product and Site.

(iii) Privacy Policy. You agree to comply with the Sense Privacy Policy (https://sense.com/privacy) in connection with all Sense Exported Data which you have access to. You agree that you (and not Sense Labs) are responsible for ensuring that you comply with any applicable laws when you use the Product and Site.

(d) Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, distribute, host, or otherwise commercially exploit the Site; (ii) you agree not to access the Site in order to build a similar or competitive site; (iii) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (iv) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Site; (v) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to the Site or violate the regulations, policies, or procedures of such networks; (vi) you agree not to access (or attempt to access) any of the Site by means other than through the interface that is provided by Sense Labs; and (vii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Site. Any future release, update, or other addition to functionality of the Site shall be subject to this Agreement.

(e) Security. Sense Labs uses industry best practices to ensure the integrity and security of your personal information. However, Sense Labs cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use information for improper purposes. You acknowledge that you provide your personal information at your own risk.

(f) Agreed Usage and Limitations Of Site

(i) Intended Use of Site. The Site is intended to be accessed and used for non-time-critical information relating to Sense Exported Data. While we aim for the Site to be highly reliable and available, it is not intended to be reliable or available 100% of the time. The Site is subject to sporadic interruptions and failures for a variety of reasons beyond Sense Labs’ control, including Internet connectivity, Wi-Fi intermittency and availability, Site provider uptime, mobile notifications and carriers, among others.

(ii) Temporary Suspension. The Site may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Sense Labs does not offer any specific uptime guarantee for the Site.

(iii) System Requirements. The Site will not be accessible without: (a) Wi-Fi or Internet connection; (b) an Account; (c) mobile clients, such as a supported phone, tablet or computer; and (d) other system elements that may be specified by Sense Labs. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Site may not work as described when the requirements and compatibility have not been met.

(h) Limitations of the Site Due to Third Parties.

(i) General. The Site relies on or interoperates with third party products. These third party products and Sites are beyond Sense Labs’ control, but their operation may impact or be impacted by the use and reliability of the Site.

(ii) Third Party Site Providers Used By Sense Labs. You acknowledge that Sense Labs uses third party Site providers to enable some aspects of the Site – such as, for example, data storage, synchronization, and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers.

(iii) Equipment, ISP, and Carrier. You acknowledge that the availability of the Site is dependent on (a) your computer, mobile device, Wi-Fi network, Bluetooth connection, and other related equipment (“Equipment”), (b) your Internet service provider (“ISP”), and (c) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for all fees charged by your ISP and Carrier in connection with your use of the Site. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/site, and other policies of your ISP and Carrier.

9. Confidentiality

This Agreement (including its terms) and any other confidential information disclosed by Sense Labs relating to the Product and Sense Exported Data are confidential information of Sense Labs (collectively “Sense Confidential Information”). Company agrees to keep such Sense Confidential Information confidential within its organization and permit its use only on a need to know basis. This obligation of confidentiality shall be in effect from the Effective Date of this Agreement and shall survive the expiration or termination of this Agreement. This confidentiality obligation shall not apply to information that is publicly available through no fault of Company or that must be disclosed under operation of law.

10. Indemnification.

Company shall indemnify, defend and hold harmless Sense Labs, its affiliates, officers, directors, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all third party claims, damages, penalties, fines and claims (including attorney’s fees and costs of settlement), related to or arising out of any breach of this Agreement.

11. Limitation on Liability.

COMPANY ACKNOWLEDGES AND AGREES THAT SENSE LABS SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT COMPANY MAY INCUR FROM USE OF THE SITE OR ACCESS TO THE SENSE EXPORTED DATA, OR FROM ANY OTHER CAUSE WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), WARRANTY, OR OTHERWISE. IN NO EVENT SHALL SENSE LABS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT IT WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. EXCEPT AS MAY BE SPECIFICALLY STATED HEREIN, SENSE LABS DISCLAIMS ANY AND ALL OTHER WARRANTIES TO COMPANY, ITS CUSTOMERS, END-USERS, AND OTHERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. SENSE LABS’ TOTAL LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED $25.00.

12. Injunctive Relief and Other Remedies

Company acknowledges that its breach or threatened breach of Sections 6, 8, or 9 would result in irreparable injury to Sense Labs. In addition to its other remedies at equity and law, Sense Labs will be entitled to injunctive relief to restrain any such threatened or continuing breach, without being required to post bond or other security. Company specifically understands and agrees that upon any breach by Company of this Agreement, Sense Labs may (in addition to seeking injunctive relief) terminate the rights granted to Company in this Agreement.

13. Assignment

This Agreement, and its rights and obligations, shall not be assigned or transferred by Company without prior written authorization of Sense Labs.

14. Waivers

No waiver of any provision at any particular time shall be deemed a permanent waiver of such provision, or a waiver of any other provision of this Agreement.  Failure to enforce a provision shall not be deemed a waiver.

15. Entire Agreement

This Agreement and the attached Exhibits shall constitute the terms and conditions mutually agreed upon in writing by the parties, set forth the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.

16. Independent Contractors

Sense Labs and Company are independent contractors and neither is an agent or principal of the other. Company shall not describe itself as Sense Labs’ agent.

17. Governing Law and Venue

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard for the conflicts of laws rules thereof. The parties irrevocably submit to the jurisdiction and venue of any state or federal court located within the Middlesex County, Commonwealth of Massachusetts, upon service of process made in accordance with the statutes of the Commonwealth of Massachusetts. Each party hereby consents to service being made through the notice procedures set forth in this Agreement and hereby agrees that service of any process, summons, notice or document by registered or certified mail to the respective addresses set forth in this Agreement shall be effective service of process for any suit or proceeding in connection with this Agreement. Any suit between the parties relating to this Agreement shall be commenced, if at all, within one (1) year of the date that it occurs.

18. Contract Interpretation

If any provision (or part thereof) of this Agreement shall be deemed invalid or unenforceable, the remainder of the provisions of this Agreement shall continue in full force and effect to the maximum extent consistent with the intent of the parties.

19. Notices

Notices under this Agreement shall be in writing and shall be deemed given on the day of any confirmed delivery by express courier or telecopy transmission or three (3) business days after mailing. Notices to Company shall be sent to the person registering the Account. All notices to Sense Labs shall be sent to the attention of its Legal Department at 485 Massachusetts Ave, Cambridge, MA 02139.

EXHIBIT A

Products

Authorized Products

• The Sense Home Energy Monitor and associated software and services from Sense Labs
• The Solar Compatible Sense Home Energy Monitor and associated software and services from Sense Labs

Sense Exported Data Access

For installed and activated Product, and for which Company wishes to access Sense Exported Data, additional fees/revenue share will be applied per the following terms and conditions:

For twelve (12) months following the Effective Date of the Agreement (“Initial Term”), data access for eligible monitors will be provided at no charge.

After the Initial Term, if Sense Labs intends to begin charging fees for data access (“Data Access Fees”), it will notify Company with at least sixty (60) days advance notice.

EXHIBIT B

Data Access Mechanisms

Access to Sense Exported Data will be provided by one or more of the following mechanisms on a project by project basis as approved by Sense Labs.

1. Fleet Management: Sense Labs may make available a web-based fleet management tool that will allow Company to extract data for Products by issuing specific queries for data. The shortest supported data interval for Fleet Management is one minute.

Use of these tools may be subject to additional beta agreements.

The Sense Exported Data will provide the following:

• Historical data at a specified interval subject to the data interval limitations described above, and for a specified time range. It is expected that Company will use reasonable efforts to request only data that is needed, and to reasonably limit the quantity of data that is requested.  For example, one week interval data may reasonably be requested for a 12-month timeframe. However, one minute interval data should not be requested for 12 month timeframe.
• Sense Labs may, at its sole discretion, implement data transfer limits for operational purposes to manage performance of the system. Any data transfer limits will be reviewed with Company at least thirty (30) days in advance of production rollout.

EXHIBIT C

USER CONSENT FORM

User Consent for Sense Data Sharing

Sense Partner

We are pleased you have received a Sense home energy monitor (“Monitor”) as part of your __________ (“Sense Partner”) home energy system.

In order to activate your Monitor, you have agreed, or will have agreed, to the Sense Terms and Conditions which grant permission to Sense Labs, Inc. (“SLI”)  to collect energy data from the Monitor installed in your home.

In order to allow the Sense Partner to offer better support of your Monitor installation and analysis of your energy systems, SLI has agreed to share energy data collected from the Monitor with the Sense Partner. The Sense Partner has agreed to use such data solely for purposes of analyzing energy production and usage as it relates to your home and to not share such data with other parties.

In consideration for the monitoring and analysis provided by the Sense Partner, by signing this consent you hereby agree to allow SLI to share the data from your use of the Monitor with the Sense Partner and its affiliates for their use as provided herein.

This consent is an amendment to the Sense Terms and Conditions. Except as set forth herein, the Sense Terms and Conditions are in full force and effect.

If you have any questions with the foregoing, please contact ________________ at [email address].

Consent:
I hereby consent to the sharing of my data as provided above.

Signed                                                      Date

Print Name:
Email address that is or will be used as your Sense login ID: