THIS RESELLER AND DISTRIBUTION AGREEMENT (“Agreement”) is a legal agreement by and between PowerX, Inc. (“PowerX”) and the party agreeing to this Agreement (“Company”) by selecting the agree box and signing the Agreement on the PowerX website. PowerX and Company may be referenced herein as “party” or collectively the “parties”.

The parties agree as follows:

1. Scope and Definitions.

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

“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).

“Effective Date” shall mean the date on which Company accepts the terms and conditions of this Agreement.

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

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

“Site” means the Sense Fleet Portal made available by PowerX to Company in order to access certain data concerning the Product.

2. Sale of Products.

Subject to the terms and conditions of this Agreement, Company is authorized to procure Products in volume from PowerX or its authorized distributors under this Agreement according to the discount schedule in Exhibit A, and to permit Company to provide Products to consumers within the Territory. PowerX has not authorized Company to, and Company agrees not to, advertise or provide Products to consumers outside of the Territory. Company is hereby authorized to use the Site in accordance with Exhibit E.

3. Term of Agreement.

This Agreement shall be effective on its Effective Date and shall remain in effect through the Termination Date, which will initially be December 31 of the year of 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 December 31 of its intention not to renew for the succeeding year. This Agreement may be terminated at any time: (a) by PowerX immediately upon written notice to Company in the event of a breach by Company of Sections 2, 4, 5, 6, 7, 8, 9 or 12 of this Agreement; or (b) by PowerX 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, 12 through 16 and 21 shall survive any expiration or termination of this Agreement.

4. Terms of Purchase.

Company shall comply with PowerX’ current Program and Purchase Terms as provided in Exhibit B of this Agreement.

5. Company Obligations.

Company shall: (a) display, promote, demonstrate and sell the Products, (b) maintain and stock an adequate supply of Products to satisfy the demand of its customers, (c) check compatibility of the home electrical system before installation, (d) maintain qualified personnel with training and knowledge of the Products, (e) provide quality post-sale support for End Users during installation and activation of the Products, (f) preserve and enhance the reputation and goodwill of PowerX and the Products and avoid any illegal or unethical actions, and (g) conduct and maintain at all times its operation in accordance with all applicable laws of the jurisdiction(s) in which it operates.

Furthermore, if Company is activating the Product(s) in an End User’s home, Company will ensure that End User has reviewed and accepted the Sense Terms of Service that must be accepted during the activation process.

6. Company Records.

Company shall maintain complete records of sales made by it, including the dates of the transaction, the name and address of the customer, and the unique serial numbers of Products installed. Monthly or as reasonably requested by PowerX, Company will provide a report of inventory and sell-through of Products to End Users. Monthly or as reasonably requested by PowerX, Company will provide PowerX data sufficient to permit tracking by serial numbers.

7. Product Resale.

Company shall not resell or advertise for resale the Products, on the Internet or otherwise, except as authorized under this Agreement. Company shall not sell or transfer the Products to a third party for resale. Company will not offer a product with a PowerX trademark that Company obtained from a source other than PowerX.

8. Company’s Use of PowerX’ Goodwill and Intellectual Property.

(a)      Company recognizes the right, title and interest of PowerX in all trademarks, tradenames, service marks, logos, trade dress, copyrights, and other intellectual property used on or in connection with the Products, the Site, and associated software and services (collectively “PowerX Intellectual Property”). PowerX grants Company a limited non-exclusive, non-sub licensable license to use the PowerX Intellectual Property in marketing and service literature, only in a lawful manner, and only to the extent required by Company to advertise, display, promote, and provide the sale in a quality manner and in accordance with the terms of this Agreement. PowerX further grants Company a limited non-exclusive, non-sub licensable license under the PowerX Intellectual Property to distribute (without modification) PowerX’ software as a component of the Products, only in a lawful manner. The licenses granted in this Section shall automatically terminate upon termination or expiration of this Agreement. Company shall comply at all times with all the obligations of Exhibit C (“Using PowerX Intellectual Property”). Except for the licenses expressly granted elsewhere in this Agreement, no licenses or other rights in or to PowerX’ patents, copyrights, trademarks, trade secrets, designs, software or services, or any related PowerX Intellectual Property, are granted.

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

9. 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 PowerX. 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 PowerX’ control software or services for the Products, the Site, or any other software, network, service, or system of PowerX; (b) attempt to take or gain control over, or attempt to take or gain access to, the Product, the Site, or any PowerX service or software; or (c) use, control, or attempt to use or control (other than as may be approved in writing and permitted by PowerX), the Products with a control service or system other than that managed by or for PowerX through an interface authorized or provided by PowerX.

10. Product Returns.

Company shall comply with then current PowerX Product Return Policy, which is attached in Exhibit D.

11. Product Changes by PowerX.

PowerX reserves the right at any time to discontinue the production, sale, allocation or distribution of any of its Products or the Site, to change the design of its Products, the Site, or any parts thereof, and to change its service, warranty, price or other policies, without advance notice or obligation to Company of any kind whatsoever. Company agrees that it shall have no claim against PowerX or any of its agents or affiliates for failure to furnish such Products, whether or not such Products are of a model, design, or type previously sold.

12. Confidentiality.

This Agreement (including its terms), as well as any other confidential information disclosed by PowerX relating to its products, pricing, supply logistics, intellectual property and business (collectively “Sense Confidential Information”), are confidential. 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.

13. Indemnification.

Company shall indemnify, defend and hold harmless PowerX, 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 (i) and occurring as the direct result of Company’s misuse of or modification to the Products or site, (ii) and occurring as the direct result of Company’s advertising and marketing activities, (iii) the acts or omissions of Company and its employees, representatives, directors, officers, and independent contractors with respect to the Products or site, and (iv) any breach under this Agreement.

Notwithstanding the foregoing, Company shall not be required to indemnify PowerX for any losses, damages, costs, penalties, fines or claims related to PowerX’ design or manufacture of the Products or the Site, including but not limited to any alleged infringement by PowerX of the patent, copyright, trademark or trade secret rights of any third party. Each party will promptly notify the other party upon learning of any claim, action or proceeding arising out of or relating to a breach subject to this indemnity, provided that PowerX delay or failure to do so will not relieve Company of any of its obligations under this paragraph. For any claim defended by Company, PowerX may choose to be separately represented at its own expense. No settlement may admit liability or bind any Indemnified Party without the Indemnified Party’s written consent.

14. Limitation on Liability.

COMPANY ACKNOWLEDGES AND AGREES THAT PowerX SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT COMPANY MAY INCUR FROM DELAYED SHIPMENT, PRODUCT FAILURE, PRODUCT DESIGN, PRODUCT SELECTION, THE SITE, 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 PowerX 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, PowerX 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. PowerX’ 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 THE FEES PAID OR PAYABLE BY COMPANY TO PowerX IN THE TWELVE MONTH PERIOD PRIOR TO ANY CLAIM.

15. Injunctive Relief and Other Remedies.

Company acknowledges that its breach or threatened breach of Sections 2, 7, 8 or 12 would result in irreparable injury to PowerX. In addition to its other remedies at equity and law, PowerX 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 the restrictions set forth in these Sections, PowerX may (in addition to seeking injunctive relief) (i) preclude the further sale or provision of Products to Company; (ii) terminate use of the Site, (iii) terminate the rights granted to Company in this Agreement; (iv) require the return of any Products provided to Company (subject to refund or partial refund); and/or (v) suspend or terminate cooperation and support to Company.

16. Liquidated Damages.

For each occasion that Company breaches Section 2 or 7 of this Agreement by engaging in the unauthorized provision of Products, Company agrees to pay PowerX, as liquidated damages, an amount equal to the greater of (x) the costs and fees associated with PowerX investigation regarding Company’s unauthorized sales; or (y) five times (5x) the MSRP of the Product per unit of Product. The parties agree that these damages are not punitive and are intended to be a reasonable estimate of the damages suffered by PowerX in the event of non-compliance. The foregoing damages shall be in addition to any other remedies PowerX may have in law or in equity.

17. Assignment.

This Agreement, and its rights and obligations, shall not be assigned or transferred by either party without prior written authorization of the other party; provided that PowerX may assign this Agreement without consent in the event of a merger, a change of control, or a sale of all or substantially all of its assets or business.

18. Amendments and Waivers.

Except as otherwise set forth herein, this Agreement may be amended, waived, or modified only by a written instrument signed by an authorized officer of both parties stating specifically that it is an amendment, waiver, or modification. 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. PowerX may amend any Exhibit in this Agreement or the price list by providing such amended material in writing (including by email) to Company, and any such amendment shall become effective immediately upon delivery of such notice.

19. 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.

20. Independent Contractors.

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

21. Governing Law and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard for the conflicts of laws rules thereof. Company agrees that all controversies, disputes and claims arising out of this Agreement shall be adjudicated exclusively by a state or federal court of competent jurisdiction within Middlesex County, Commonwealth of Massachusetts, except that a judgment may be enforced in any jurisdiction. The parties irrevocably submit to the jurisdiction and venue of any state or federal court located within the Kings County of New York State, upon service of process made in accordance with the statutes of the New York State. 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, other than for payment of the purchase price of the Products, shall be commenced, if at all, within one (1) year of the date that it occurs.

22. 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 extend consistent with the intent of the parties.

23. 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 address provided by Company when the Company agreed to this Agreement, unless a subsequent address is designated in writing by Company. All notices to PowerX shall be sent to the attention of its Legal Department at 77 Sands Street, Brooklyn, NY 11201

24. Electronic Execution.

The parties hereby agree that they may execute this Agreement using electronic means including the use of electronic signatures by the parties, which the parties agree shall have the full force and legal effect as if the electronic signatures were traditional hand-written signatures. Company acknowledges that it has the ability to retain this Agreement either by printing or saving it. Each signatory agrees that he or she has been authorized and has the authority to enter into the Agreement with an electronic signature on behalf of the applicable party and intends to sign this Agreement by applying his or her electronic signature as indicated.

EXHIBIT A

Products and Pricing Schedule

The following Products are authorized for resale or distribution under this Agreement:

• PowerX Electricity
• PowerX Water
• PowerX Water Heater (all types and variations)
• PowerX Hub
• All PowerX accessories 

Company may purchase list price published on the PowerX Pro website.

EXHIBIT B

Program and Purchase Terms

Effective July 1, 2022

The pricing and delivery terms set forth herein shall apply only to purchases of Product directly from PowerX (and not from a distributor or any other source of Product). PowerX retains the right to change its pricing and delivery terms upon notice to Company.

1. Pricing. The price for each Product sold by PowerX to Company pursuant to this Agreement shall be in accordance with PowerX’ then-current Product Price List, with discounts applied per the discounting schedule in Exhibit A.
2. Taxes. Prior to purchasing any Products, Company, if located in the U.S., shall furnish to PowerX a resale certificate and identification sufficient to show Company’s exemption from associated sales tax for Product purchases.
3. Shipping Terms. All shipments shall be made EX-Works PowerX’ designated warehouse (or that of an authorized distributor of PowerX), freight prepaid. The cost of shipping will be added to orders.
4. Orders. The terms and conditions of this Agreement shall apply to all orders submitted to PowerX by Company. Company shall initiate purchases either through a PowerX online ordering process, or by submitting Purchase Orders (each, a “PO”) to PowerX. If a Purchase Order is used, the minimum quantity for each shipment shall be four (4) units of Product, and orders shall be in multiples of four (4) units. Each PO shall be rejected or accepted by PowerX in writing within five (5) business days of receipt by PowerX. Upon acceptance of such PO in writing, PowerX will agree to fulfill that order placed by Company within thirty (30) days, or consistent with the delivery date requested in the PO if such date is more than thirty (30) days after acceptance of the PO. Should Product be backordered, discontinued or otherwise unavailable to ship to meet a requested PO, PowerX will advise Company and work with Company to modify the PO, which may (if necessary) include canceling the PO or any portion thereof, adjusting item quantities, or changing the requested ship and/or delivery dates. Any term, provision or condition of any PO inconsistent herewith or in addition hereto shall be of no force or effect.
5. Payment Terms. Payment will be due on order, via wire transfer or credit card, or other payment methods accepted by PowerX at its sole discretion.

EXHIBIT C

Using PowerX Intellectual Property

Effective July 1, 2022

As an authorized licensee of certain PowerX Intellectual Property, you will benefit from the goodwill and inherent value signified by the PowerX brand name and our various product trademarks. In addition to being under agreement to use PowerX trademarks properly, it is in your best interest to assist in protecting the PowerX marks by using them properly in all advertising and promotional materials.

The following guidelines must be followed when using all trademarks owned by PowerX. These guidelines are in addition to those provided for print advertising of a particular Product:

• Company shall not use in a manner that purports ownership or register any Internet domain name containing any PowerX Intellectual Property, and shall submit to PowerX for approval in advance true and complete copies of all World Wide Web pages which might violate the provisions of this Exhibit.
• Company shall not use PowerX Intellectual Property or post negative comments on social media venues (such as Facebook, LinkedIn, etc.).
• Company shall not, without express written permission from PowerX purchase PowerX Intellectual Property through Google’s or Yahoo’s Adwords programs and/or other web service providers’ similar programs.
• The PowerX trademarks must be reproduced exactly from artwork provided by PowerX.
• There must be no confusion with which entity the customer is dealing. Your company’s name must be the most prominent name on the page. The PowerX trademarks may not be the only source identifier on the page. The PowerX trademarks may not appear at the top of the page.
• The PowerX trademarks must not be used in combination with another
• company mark in such a manner that the marks appear to be joined or associated in any way. Ample space must appear between the two marks to distinguish them as separate entities.
• The PowerX trademarks may not be used in a way that will dilute or diminish its value to PowerX, such as on others’ goods or in any non-approved form.
• Any use of any PowerX trademarks on a web page must adhere to these guidelines.
• A superscript indicating a registered trademark (®) or trademark (™) or service mark (SM) symbol must appear next to all marks in all printed literature. It is critical to adhere to these regulations, as this helps ensure proper legal protection. Please check with your PowerX representative for proper trademark superscript designation.
• Any use of a PowerX trademark which is not addressed in the guidelines set forth herein, must be approved by PowerX prior to its use.

 

EXHIBIT D

Warranty and Defective Product Returns Policy

Effective July 1, 2022

PowerX, Inc. provides a one-year warranty and will accept return of a PowerX’ product that fails to conform to the warranty from resellers, wholesalers and installers (each a “Returning Party”) that have been sold to end customers (i.e., not unsold product in inventory) for credit under the terms and conditions below. This Defective Product Returns Policy is subject to modification or termination by PowerX in its sole and absolute discretion at any time.

The warranty policy can be found at the PowerX website here.

 

Return Process

1. Return Deadline. PowerX will only accept product returns from Returning Party within one-year from the date of delivery from PowerX to Company or to End User.
2. RMA. PowerX’ products can only be returned with a Return Merchandise Authorization (RMA) number obtained from PowerX in advance of returning the product. A RMA number will only cover specified items and quantities authorized for return by PowerX. A RMA number will expire 30 days after issuance. Any returns that vary from the authorized items or quantity or are delivered after expiration date of a RMA number may not be eligible for credit, as determined by PowerX in its sole discretion.
3. Return Contents. PowerX’ products must be returned to the address provided by PowerX and must be accompanied by a RMA number and a description of the specific defect (i.e., reason for return) for the PowerX product being returned.

Product Condition and Eligibility

1. Packaging, Documentation and Accessories. A PowerX’ product must be returned in its original packaging with all documentation and accessories. If the original packaging or any documentation or accessory is unavailable, Returning Party should include everything in its possession; however, these returns will be subject to additional screening and the failure to submit any item could impact the PowerX’ product’s eligibility for credit or could reduce the credit by the value of the missing items.
2. Condition. Upon receipt, PowerX will assess the condition of a PowerX’ product and determine if: (i) a defect exists in the materials or workmanship of the product, (ii) a defect resulted from the act or omission of Returning Party, or (iii) no trouble found with the product. PowerX is the final arbiter of the condition of the product.
3. No Trouble Found. If PowerX determines that no trouble is found with more than 10% of PowerX’ products returned in a calendar quarter (excluding customer remorse returns), Returning Party may be charged for failure analysis/testing and shipping costs associated with such product, as determined by PowerX in its sole discretion.
4. Product Discontinuation. Notwithstanding anything herein, PowerX must receive a product within 90 days of the official discontinuation date for a product to be eligible for credit. PowerX may discontinue a product in its sole discretion, but will use commercially reasonable efforts to provide notice of discontinuance in advance of the official discontinuation date. The limited warranty provided with a product is not affected by discontinuation.
5. Final Judgment. PowerX will in its sole discretion assess the condition of the product and determine whether the product is eligible for either repair, replacement or credit.

Repair and Replacement

1. Repair or Replacement. Repair or replacement may be made with a new or refurbished product or components, at PowerX’ sole discretion. If the hardware or a component incorporated within it is no longer available, PowerX may, at PowerX’ sole discretion, replace the hardware with a similar product of similar or greater function. This is your sole and exclusive remedy for breach of this Hardware Limited Warranty. Any hardware that has either been repaired or replaced under this Hardware Limited Warranty will be covered by the terms of this Hardware Limited Warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired hardware or replacement hardware, or (b) the remaining Hardware Warranty Period.

Credit

1. Credit Issuance. PowerX will issue a credit for an approved return within 30 days of receipt of the returned product by PowerX. No cash will be refunded.
2. Credit Amount. PowerX will calculate the credit amount for a PowerX’ product based on the lower of the: (i) then-current list price for the product, or (ii) net price actually paid.
3. Products Not Receiving Credit. Returning Party may claim a PowerX’ product not receiving credit at its expense if Returning Party makes a request to PowerX within 10 days of receiving the credit decision.

EXHIBIT E

Terms Applicable to the Site

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

(b) Access and Use of the Site. Subject to this Agreement, PowerX grants Company 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 data of End Users which is exported by PowerX via reports or via an application programming interface (“Sense Exported Data”).

(d) Certain Restrictions. The right to use the Site are subject to the following restrictions: (i) Company agrees not to license, sell, rent, lease, distribute, host, or otherwise commercially exploit the Site; (ii) Company agrees 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) Company agrees not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Site; (v) Company agrees 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) Company agrees not to access (or attempt to access) any of the Site by means other than through the interface that is provided by PowerX; and (vii) Company agrees 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 the Agreement.

(e) Security. PowerX uses industry best practices to ensure the integrity and security of the personal information contained in the Site. However, PowerX cannot guarantee that unauthorized third parties will never be able to defeat the security measures or use information for improper purposes. Company acknowledges that Company provides personal information at its 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 the goal is that the Site be highly reliable and available, no guaranty is made that the Site is reliable or available 100% of the time. The Site is subject to sporadic interruptions and failures for a variety of reasons beyond PowerX’ 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. Company agrees that Company will not be entitled to any refund or rebate for such suspensions. PowerX 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 PowerX. It is Company’s responsibility to ensure that it has all required system elements which are compatible and properly configured. Company acknowledges that the Site may not work as described when the requirements and compatibility have not been met.

(g) 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 PowerX’ control and may impact the use and reliability of the Site.

(ii) Third Party Site Providers Used By PowerX. Company acknowledges that PowerX 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. Company acknowledges that the availability of the Site is dependent on (a) Company computer, mobile device, Wi-Fi network, Bluetooth connection, and other related equipment (“Equipment”), (b) Company Internet service provider (“ISP”), and (c) Company mobile device carrier (“Carrier”). Company acknowledges that Company is responsible for all fees charged by its ISP and Carrier in connection with use of the Site. Company also acknowledges that Company is responsible for compliance with all applicable agreements, terms of use/site, and other policies of its ISP and Carrier.