NEO®  Net Energy Optimizer Software as a Service Subscription

1.      Access and Use of NEO® Software as a Service

1.1.                        Authorization. Willdan hereby authorizes Customer and its authorized users a limited, non-exclusive, non-transferable, revocable right to access and use the NEO Software Services for use in connection with building energy benchmarking. Willdan may, from time to time, release new versions, updates, and upgrades for the NEO Software Services. Willdan reserves the right, in its sole discretion and without notice, at any time to remove or disable access to all or any portion of the NEO Software Services and terminate Customer’s access to the NEO Software Services for a violation of these Terms.

1.2.                        Restrictions. Customer shall not allow others to use Customer’s access credentials for the NEO Software Services. Except as otherwise authorized in these Terms, Customer shall not (i) copy, distribute, reproduce, rent, lend, loan, or sublicense any portion of the NEO Software Services or any documentation related thereto; (ii) translate, adapt, modify, alter, or combine the NEO Software Services with other software, or prepare derivative works based in whole or in part on the NEO Software Services; (iii) reverse engineer, decompile, disassemble, or otherwise reduce the NEO Software Services to a human-perceivable form; (iv) use the NEO Software Services in a computer-based services business; or (v) use any data, features, or functionality in NEO Software Services as a basis to develop, copy, or reproduce a building energy analysis program. You further agree you will not alter or modify any part of the NEO Software Services other than as may be reasonably necessary to use the NEO Software Services for their intended purpose, and you will otherwise comply with all the terms and conditions of these Terms. You further agree that you may not assist, enable, or otherwise encourage any third party to take any action which, if taken directly by you, would violate the language or spirit of these Terms. The permission granted to you shall terminate automatically if you breach any of these terms and conditions.

1.3.                        Limitations. You agree that from time to time the NEO Software Services may be inaccessible or inoperable for any reason including, without limitation (i) equipment or telecommunication network issues; (ii) periodic maintenance procedures or repairs that Willdan may undertake from time to time; or (iii) causes beyond the control of Willdan or that are not reasonably foreseeable.

1.4.                        Modifications. Willdan may upgrade, modify, change or enhance the NEO Software Services at any time in Willdan’s sole discretion.

2.      Your Responsibilities.

2.1.                        Equipment. You shall be solely responsible for providing, maintaining, and ensuring compatibility with the Services including all hardware, software, electrical, and other physical requirements for your use of the NEO Software Services including, without limitation, telecommunications, Internet access connections, software, or other equipment, programs, and services required to access and use the NEO Software Services.

2.2.                        Security. You agree not to transfer or share your access privileges, or any login information, to or with any third party. You are solely responsible for keeping all access credentials confidential, and are solely responsible for any authorized or unauthorized use of your username, password, and access to your account by any person. Willdan reserves the right to disable access at any time and for any reason, particularly where account abuse or misuse is suspected.

3.      Subscription; Fees; Payment.

3.1.                        Subscription Fees. You agree to pay all implementation fees, subscription fees, and other fees as set out in your invoice incorporated here by reference. Additional benefits and limitations regarding your subscription are described in further detail in your personalized quote.

3.2.                        Subscription Period. These Terms shall remain in effect for the period of years identified as the Initial Subscription Term in invoice. The Terms, including the subscription, shall automatically renew for successive twelve (12) month period following the end of the initial subscription period or applicable renewal period as the case may be.

3.3.                        Non-Renewal. Either Party may elect not to renew these Terms by providing written notice in accordance with Section 7 to the other party at least sixty (60) calendar days prior to the expiration of the then-current subscription period.

3.4.                        Payment. Customer shall pay all invoices and other fees when due. Unless otherwise agreed-to in writing, payment is due within thirty (30) calendar days of receipt of any invoice, bill, or statement. Subscription fees are fully earned upon the earlier of (a) the invoice date, or (b) the first day of the service period for the subscription period. Subscription fees are non-refundable.

3.5.                        Termination. Either Party may terminate these Terms in the event of a material breach that remains uncured thirty (30) days after the nonbreaching Party provides written notice to the other Party in accordance with Section 7. Termination pursuant to this provision shall be effective at the end of the thirty-day cure period.

3.6.                        Effect of Termination and Non-Renewal. Upon termination, expiration, or non-renewal of these Terms, regardless of the reason for such termination or expiration or non-renewal, Customer shall pay all amounts owed to Willdan as of the effective date of termination or expiration, within fifteen (15) calendar days of the effective date of termination. Upon THE EFFECTIVE DATE OF termination OR EXPIRATION OF THESE TERMS for any reason, the access granted to Customer UNDER THESE TERMS ceases and Customer IS no longer authorized to access the Software FOR ANY PURPOSE. CUSTOMER FURTHER AGREEs that Customer’S access of THE NEO NETWORK SOFTWARE SERVICES, Servers and computer network following the effective date of termination OR EXPIRATION OF THESE TERMS is without authorization. Customer remains liable to Willdan for all amounts incurred up to the effective date of termination, non-renewal, or expiration, regardless of the reason for such termination, non-renewal, or expiration.

3.7.                        Suspension. In addition to Willdan’s right to terminate in accordance with these Terms, Willdan may suspend Customer’s access to the NEO Software Services following thirty (30) days’ written notice to Customer regarding Customer’s failure to pay any fees due under these Terms. This provision does not limit Willdan’s right to exercise any of its other rights under these Terms including, without exclusion, the right to terminate the Terms, including the subscription to the NEO Software Services.

4.      Intellectual Property.

4.1.                        Ownership of NEO Software Services. Customer acknowledges that Willdan shall retain all rights, title, and interest in and to the NEO Software Services including, but not limited to, reports, studies, processes, software code, methods and know-how created in connection with the subscription, and all intellectual property rights related thereto. Customer agrees not to remove from view any copyright, trademark, or other proprietary rights notice, mark or legend appearing as part of the NEO Software Services. Certain content contained or displayed in connection with the NEO Software Services including, but not limited to, software code, written works, graphics, reports, and other works of authorship are protected by copyright law and owned by Willdan. You agree that you will not copy, reproduce, modify, alter, create derivative works from, distribute, or publicly display any content from the NEO Software Services without the prior expressed written consent of Willdan. Willdan shall have an unrestricted right to use any data collected, generated, or retained in connection with Customer’s use of the NEO Software Services for any purpose.

4.2.                        Protection of NEO Software. Customer acknowledges and agrees that the NEO Software Services contain valuable confidential proprietary information including trade secrets, know-how, and other intellectual property rights owned exclusively by Willdan. Customer agrees, at all times during and after termination or expiration of these Terms, regardless of the reason for such expiration or termination, to maintain the confidentiality of the NEO Software Services. Customer agrees not to sell, license, publish, display, distribute, disclose or otherwise make available the NEO Software Services, in whole or in part, or any information contained in the NEO Software Services to any third party. The obligations under this Section shall survive the termination or expiration of these Terms, regardless of the reason for such expiration or termination.

4.3.                        Customer’s Intellectual Property. Willdan acknowledges and agrees that Customer shall retain ownership of all trademarks or copyright-protected works of authorship owned by Customer. To the extent necessary to provide the services requested by Customer in connection with these Terms, Customer grants to Willdan a limited, temporary, non-exclusive, revocable license to use such intellectual property for the sole purpose of providing services requested by Customer in connection with these Terms. The NEO subscriber may use reports derived from the use of the NEO software tool for any purpose as they may deem appropriate without restriction.

5.      Disclaimers; Limitation of Liability.

5.1.                        Third Party Information and Services. In connection with the NEO Software Services, and any related consulting services, communications, or other related services, Willdan may provide links to other websites or other information for goods or services provided by third parties. You acknowledge and agree that such information is provided for your convenience only and do not reflect any endorsement, affiliation, relationship, or sponsorship by Willdan with respect to the quality, reliability, or any other aspect of such third party or their goods or services. WILLDAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY OR THEIR GOODS OR SERVICES.

5.2.                        Disclaimer of Warranty. WILLDAN PROVIDES THE NEO SOFTWARE SERVICES “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WILLDAN MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY ENERGY SAVINGS FROM THE USE OF THE NEO SOFTWARE SERVICES AND DOES NOT WARRANT THAT THE NEO SOFTWARE SERVICES WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR THAT THE NEO SOFTWARE SERVICES WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS.

The disclaimer set out above does not apply in any jurisdiction in which such warranties cannot be disclaimed.

5.3.                        Limitation of Liability. TO THE FULLEST EXTENT PROVIDED BY LAW IN YOUR JURISDICTION, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, EXCEPT AS PROVIDED BELOW, IN NO EVENT SHALL WILLDAN, ITS OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR THIRD-PARTY CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE NEO SOFTWARE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR SOFTWARE AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR NEO SOFTWARE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE NEO SOFTWARE SERVICES BY ANY THIRD PARTY; AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct or death or bodily injury caused by products you purchase from Willdan.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW IN YOUR JURISDICTION.

5.4.                        No Guaranteed Savings or Reductions. Willdan cannot and does not guarantee specific energy savings. Savings are contingent on Customers and/or the building owners’ decisions, weather, utility costs, lifetime building operations, and other third-party actions and decisions which are outside of Willdan’s control.

6.                  Indemnification. You agree to indemnify, hold harmless and defend Willdan, its officers, shareholders, directors, employees, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorneys’ fees, asserted by any person, arising out of or relating to (i) your violation of any provision of these Terms; and (ii) any negligent or intentional actions, statements, or inaction.

7.      Miscellaneous.

7.1.                        Feedback and Comments. If you submit information to Willdan, with or without a request from us, including, without exclusion, comments, creative ideas, suggestions, proposals, plans, or other materials related to the NEO Software Services, whether online, by email, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. We are and shall be under no obligation (1) to maintain any Comments in confidence; or (2) to pay compensation for any Comments.

7.2.                        Surviving Rights. The rights and obligations set forth in Sections 1.2, 2, 3.6, 4, 5, 6, and 7 shall survive expiration or termination of these Terms regardless of the reason for such expiration and termination.

7.3.                        Amendment. Willdan shall have the right, at any time and without notice, to add to or modify these Terms.  Your access to or use of the NEO Software Services after the date such amended terms are delivered to you shall be deemed to constitute acceptance of such amended terms.

7.4.                        Waiver; Severability. No waiver of any term, provision, or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition.  No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of these Terms is determined to be illegal or unenforceable, then such provision shall be construed by modifying it to the minimum extent necessary to make it enforceable, unless such modification is not permitted by law, in which case that provision is to be disregarded and the other provisions will remain fully effective and enforceable.

7.5.                        Law; Forum. These Terms of Service shall be governed and construed by the laws of the State of Minnesota without reference to its conflicts of laws principles. If you access the NEO Software Services from locations outside Minnesota or the United States, you are voluntarily and purposefully availing yourself of the laws of the State of Minnesota and you are solely responsible for compliance with all local laws. All actions, claims or disputes arising under or relating to these Terms or the NEO Software Services shall be brought in the federal or state courts located in Hennepin County, Minnesota. You irrevocably submit and consent to the venue in, and the exercise of subject matter jurisdiction and personal jurisdiction over you by, the federal and/or state courts in Hennepin County, Minnesota.

7.6.                        Export Control.  Both parties agree to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) both parties represent and warrant that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) neither party shall access or use (or permit access and use) of the NEO Software Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) neither party shall not submit to the NEO Software Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

7.7.                        Entire Agreement. Unless expressly incorporated into another proposal as an exhibit, these Terms, constitute the complete and exclusive statement of all mutual understandings with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, discussions, communications and understandings, oral or written.

7.8                        Written Notice. Any written notices required to be provided as between Customer and Willdan shall be sent to the individuals identified in Exhibit A via certified mail with a copy via email.