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HomeMy WebLinkAbout23-22Resolution No. 23-22 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH 120 WATER AUDIT, INC. D/B/A 120WATER FOR SERVICES IN CONNECTION WITH LEAD MITIGATION MEASURES, INCLUDING WATER PITCHER FILTER DISTRIBUTION AND WATER SAMPLING BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with 120 Water Audit, Inc., d/b/a 120Water, for services in connection with lead mitigation measures, including water pitcher filter distribution and water sampling, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: February 22, 2023 Adopted: February 22, 2023 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is hereby made and entered into this 22nd day of February_ 2023, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and 120 Water Audit, Inc. d/b/a 120Water, a Delaware corporation authorized to do business in the State of Illinois, (hereinafter referred to as "120Water"). WHEREAS, the City desires to engage 120Water to furnish certain services in connection with lead mitigation measures, including water pitcher filter distribution and water sampling (the "Subject Services"); and WHEREAS, 120Water represents that it is in compliance with any applicable Illinois Statutes relating to professional registration of individuals and has the necessary expertise and experience to furnish such Subject Services upon the terms and conditions set forth herein below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. PURCHASE. City shall purchase, and 120Watcr shall sell the goods and/or Subject Services described by Attachments A and B, attached hereto and made a part hereof. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachments A and B. 3. TERM. This Agreement shall commence as of the date first set forth above (the "Effective Date") and, unless terminated sooner as provided herein, shall terminate one year from the Effective Date (the "Termination Date"). 4. PAYMENT. The City shall pay 120Water the total amount of $308,818 for the Subject Services, as set forth on Attachment B (the "Total Minimum Committed Value"). An initial payment in the amount of $142,680.20 shall be due thirty (30) days from the Effective Date. Subsequent payments shall be billed in arrears on a monthly basis over the term of this Agreement based upon the actual Subject Services provided. In the event that the Total Minimum Committed Value has not been incurred based upon the Subject Services provided as of the Termination Date, the balance of such Total Minimum Committed Value outstanding as of the Termination Date shall be billed to the City and shall be due thirty (30) days from the Termination Date. Additional purchases of the Subject Services shall be authorized in accordance with the terms of this paragraph and Attachment B; provided, however, that the total amount of all payments to 120Water under this Agreement shall in no event exceed the total amount of $500,000. 5. LAWNENUE. This Agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be the Circuit Court of Kane County, Illinois. 120Water hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, 1 Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this Agreement or the subject matter hereof. 120Water agrees that service by first-class U.S. mail to 120 Water Audit, Inc., P.O. Box 604, Zionsville, IN 46077, shall constitute effective service. Both parties hereto waive any rights to a jury. 6. NO MODIFICATION. There shall be no modification of this Agreement, except in writing and executed with the same formalities as the original. 7. MERGER. This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 8. INTEREST. 120Water hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, etseq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 9. SEVERABILITY. The terms of this Agreement shall be severable. In the event any of the terms or the provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 10. COMPLIANCE WITH LAW. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, 120Water shall comply with all applicable federal, state, city, and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, 120Water hereby certifies, represents, and warrants to the City that all of 120Water's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. 120Water shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of 120Water to determine 120Water's compliance with the provisions of this paragraph. In the event the City proceeds with such an audit, 120Water shall make available to the City 120Water's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 11. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A and Attachment B hereto, the terms and provisions of this purchase agreement shall supersede and control to the extent of such conflict. 12. LIMITATION OF DAMAGES. In no event shall the City be liable for any monetary damages in excess of the purchase price contemplated by this Agreement. In no event 2 shall City be liable for any consequential, special, or punitive damages, or any damages resulting from loss of profit. 13. INDEMNIFICATION. To the fullest extent permitted by law, 120Water agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions from and against any and all third -party claims, suits, judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of 120Water or 120Water's officers, employees, agents or subcontractors in the performance of this Agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards, or commissions covered by the foregoing duty to indemnify, defend, and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration and/or termination of this Agreement. 14. WORK PRODUCTS. Unless set forth otherwise in Attachment B, all work products prepared by 120Water pursuant hereto including, but not limited to, reports, designs, calculations, work drawings, studies, photographs, models, and recommendations shall be the property of the City and shall be delivered to the City as contemplated and provided for herein. 15. TERMINATION OF AGREEMENT. Notwithstanding any other provision hereof, the City may terminate this Agreement at any time for convenience upon thirty (30) days prior written notice to 120Water without penalty. In the event this Agreement is terminated by the City for convenience or by 120Water for cause, the City shall within thirty (30) days of such termination pay 120Water the remainder of the Total Minimum Committed Value set forth in paragraph 4 of this Agreement. Either party may terminate this Agreement for cause upon written notice of a material breach to the other party unless such breach remains uncured (if curable using commercially reasonable efforts) for thirty (30) days from such notice. 16. NOTICES. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: A. As to City: Water Director City of Elgin 150 Dexter Court Elgin, IL 60120-5555 B. As to 120Water 120 Water Audit, Inc. Attn: President P.O. Box 604 Zionsville, IN 46077 17. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 18. WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive, or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 19. LIMITATION OF ACTIONS. 120Water shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum unless filed within one year of the date the alleged cause of action or claim for damages arose or the same will be time -barred. 20. NO WAIVER OF IMMUNITIES OR RIGHTS. This Agreement is not intended and shall not be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and/or 120Water and/or their officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101, et seq., as amended, the Emergency Telephone System Act at 50 ILCS 750/0.01 et seq., as amended, and/or as otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/or 120Water and/or their respective officials, officers, employees and/or agents as a result of this Agreement or any actions of the Parties pursuant to this Agreement. 21. NO SPECIAL OR OTHER DUTY. No special duties or obligations are intended and shall not be deemed or construed to be created by this Agreement. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this Agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or 120Water and/or their respective officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this Agreement. The provisions of this paragraph shall survive any expiration and/or termination of this Agreement. SIGNATURE PAGE FOLLOWS 4 The person signing this Agreement certifies that s/he has been authorized by the 120Water to commit 120Water contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. 120 WATER AUDIT, INC. Matthew Boes Print Name CITY OF ELGIN Richard G. Kozal, rity Manage rs= Attest: Signature Vice President of Sales Title City Clerk Attachment A Scope of Services - Overview 120Water will provide services to assist with lead mitigation measures for the city, including water pitcher filter distribution and water sampling. 120Water will source, distribute, track, and order pitchers/filters as well as 3 bottle lead sample analysis kits when the end customer has opted into the testing program. The timeline will be both an agreed -upon schedule and an ad hoc basis. Pitcher/Filter Kits 120Water has direct partnerships with Brita and secures sufficient inventory to ensure our clients and respective consumers have access to Pitcher Filters and replacement cartridges. 120Water will procure Brita Long Last Pitcher Filters that are certified to remove lead for both ANSI/NSF 53 and 42 for lead particulate from drinking water and will provide at least 120 gallons / 6 months of filtrations, for distribution to Elgin Water customers who have opted into the program. We will use the 120Water platform to: 1. Communicate to the resident to expect delivery of the Pitcher/Filter kit; 2. Source and track delivery of Pitcher/Filter kits so they arrive ahead of scheduled replacement; 3. Include how -to -use communication with the Pitcher/Filter kit; 4. Follow-up in the case of incomplete deliveries; 5. Offer Inbound and outbound customer support and issue resolution; 6. Reporting metrics Tracking Post Lead Service Line Replacement Sampling. Sample Analysis Kits 120Water will distribute a 1L 3-bottle Sample Kit, Chain of Custody, and Instructions to the resident. 120Water has a partner network of Illinois State Certified Laboratories and will coordinate the sample analysis and reporting to both the Consumer notifying them of their results as well as generating necessary reports for regulatory reporting. Elgin Water staff will have full visibility of the lifecycle stages of every sample kit within the field. With automation comes scalability. Program Consultants will be able to monitor all sample kits, offer support to residents who have questions, follow up with residents to ensure proper and sufficient sample collection is taking place, and ensure proper load balancing of the laboratory. Once Sample Kits have been analyzed, all sample results are tracked within the Platform and trigger Result Letter communication to the Resident. 120Water will use the 120Water Platform to: 1. Communicate to the resident to expect delivery of the Sample Kits; 2. Source and track delivery of Sample kits so they arrive and are collected within the timeframe; 3. Include how -to -use documentation with the Sample kit; 4. Offer Inbound and outbound customer support and issue resolution; 5. Reporting metrics. Attachment B Order Form 4 120Water 2brnsvdl ,IN 4,:171 Customer Name: Elgin, IL Billing Contact: Eric Weiss Contract Term: 12 Months Street Address: Contract Start Date: Date of Signature City: State: Zip Code: Qtrote 113JI2023 Order Form Valid Until: 2118123 Email: weiss_e@cityofelgin.org K-PFK-BRITA-PF01 Brita Long Last Pitcher 1,300 K-PFK-BRITA-F01 Brita Long Last Pitcher Fitter Cartridge 1,300 SVC-RS-AST-20 Professional Services (Assist) 7 S-PWS-1301 Pro - Public Water System •1 SVC-OS-IMP Implementation 1 K-WTK-COMK-03 3 Bottle 500mL Kit 1,300 LSC-WST-L-01 1 Bottle Lead Test 3,900 Total Minimum Committed Value $308,8'18 Bitting and Ravnlent Tertn6. 120Waterwill bill S142,682.20 on the start date for SVC-OS-IMP, S-PWS-P01, 2 blocks of SVC-RS-AST-20, 1000 K-WTK-COh1K-03, 3000 LSC-WST-L-01 and 130 of K-PFK-BRITA-PF01 and K-PFK-BRITA-F01. Payment is due net 30 days from the Invoice date. If IEPA determines that Elgin, IL must use 3 Bottle 1 L Kits In place of the 3 Bottle 500mL kits the initial bill mll be S143,682.20 and all billing for K-YJTK-COMK-03 will increase from $53.11 per until to 554.11 per unit moving forward. 12DWater will bill In arrears based on kit activity for K-WTK-00MK-D3, LSC-WST-L-01, K-PFK-BRITA-PF01 and K-PFK-BRITA-F01 on a monthly basis due net 30 days from the invoice day not to exceed $500,000 in the 12 month 120Water Contract 4 12DWatet" period after the contract start date. 120Water will bill for the remaining unused minimum commitment value, if any balance remains, on the last day of the contract period due net 30 days from the invoice date. 120Water will commence implementation on or before 5 days from signature. K-PFK-BRITA-PF01 and K-PFK-BRITA-F01 are sold as a bundle and available for purchase for S103.71 per location. K-WTK-COI%4K-03 and LSC-WST L-01 are sold as a bundle and available for purchase for $'108-65 COMNAIS-LTR-LOB-FC are available for purchase for 52.12 per letter One 'block' of SVC-RS-AST-20 will be added (S2500) for every 500 K-PFK-BRITA-PF0'I and K-PFK-BRITA-F01 or K-WTK-COh4K-03 and LSC-WST-L-01 bundles sold_ K-PFK-BRITA-PF01 is Brita's Pacifica pitcher (Model OB41) and K-PFK-BRITA-F01 is Brita Elite Water Filter Replacement cartridges (Model OB06). These systems have been tested according to NSF/ANS1401 (for applicable systems), 42 and 53 for reduction of the substances listed. The concentration of each of the indicated substances in wader entering the systems was reduced to a concentration less than or equal to the permissible limit for water leaving the systems, as specified in NSFPANSI 401, 42 and 53. This Order Form, together with the Master Services Agreement which attached to and made part of the Agreement between parties (the "MSA"), shall become a legally binding contract upon the earlier of (a) the date both parties execute the Order Form or (b) the date Customer initially began using the Services. Any capitalized word not otherwise defined in this Order Form shall have the same meaning as set forth in the NASA. 120Water may reject this Order Fonn if: (1) the signatory below does not have the authority to bind Customer to this Order Form, (2) changes have been made to this Order Form (other than completion of the purchase order information and signature block), or (3) the requested purchase order information or signature is incomplete or does not match our records or the rest of this Order Form. Subscriptions are non -cancelable before their end of the Term. IN WITNESS WHEREOF, the parties have caused this Order Form to be executed by their duly authorized representatives. Customer_ 120VVater 120Water Audit, Inc. Signature Signature Name, Name: Matthew Boes Title: Title. Vice President of Sales Date: Date. 02/02/2023 0435 174,71295. 3 2 6 Attachment B 120Water Master Services Agreement This Master Services Agreement (together with all Order Forms, the "MSA") is made by and between 120 Water Audit, Inc. d/b/a 120Water ("120Water"), and the customer identified on the Order Form ("Customer" or "City"), and is binding and effective as of the Effective Date stated in the Agreement ("Effective Date"). 120Water and Customer are each also referred to hereunder as a "party" and together as the "parties". This MSA is incorporated in and forms part of that Agreement between the parties. To the extent of any conflict between the Agreement and this MSA, the Agreement shall control. In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS 1.1. "Authorized Users" means personnel authorized by Customer to use the Service solely for the internal use of Customer, subject to the terms and conditions of this MSA. 1.2. "Customer Data" means all electronic data or information uploaded by Customer to the 120Water Platform. 1.3. "Deliverables" means the deliverables (e.g., any custom reports) specified in an applicable Order Form that are expressly created for Customer. 1.4. "Derivative Data" means collectively, (i) information derived or generated from or based on Customer Data, but not containing Customer Data, (ii) Customer Data which has been de - identified or anonymized so that it no longer identifies a specific individual or Customer; and, (iii) Customer Data which has been aggregated with other data but which no longer identifies a specific individual or Customer. 1.5. "Documentation" means the user guides and specifications for the SaaS Services that are made available from time to time by 120Water in electronic or tangible form, but excluding any sales or marketing materials. 1.6. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs. 1.7. "120Water Platform" means 120Water's proprietary online hosted software, website, operating systems, hardware and other technical resources used by 120Water to provide the SaaS Services. 1.8. "Order Form" means 120Water's quote accepted by Customer via an ordering document submitted to 120Water. 1.9. "Personal Data" means Customer Data which identifies a specific identifiable individual. 10 1.10. "Professional Services" means any implementation, integration, consulting and other related services specifically described in an Order Form, other than the SaaS Services. 1.11. "Project Start Date" means a date mutually agreed upon by the parties following execution of an Order Form, upon which date 120Water shall commence provision of implementation or other Professional Services. 1.12. "SaaS Services" means the water test administration and reporting services made available to web -based and mobile users via the 120Water Platform hosted by 120Water, which may be further described in a written Scope of Work document provided upon request to Customer (and if so provided, is automatically incorporated by reference herein). 1.13. "Services" means, together, the SaaS Services and Professional Services. 1.15. "Subscription Start Date" means the date on which 120Water shall make the SaaS Services available to Customer as set forth in an applicable Order Form. 1.16. "Subscription Term" means the period of time during which Customer is subscribed to the SaaS Services, as specified in an Order Form. 1.17. "Usage Data" means statistical data related to Customer's access to and use of the SaaS Services and data derived from it, that is used by 120Water, including to compile statistical and performance information related to the provision and operation of the SaaS Services. 2. SERVICES AND RESPONSIBILITIES OF THE PARTIES 2.1. 120Water Responsibilities. A. During the Subscription Term, 120Water shall make the SaaS Services available to Customer and shall provide maintenance and support to Customer in accordance with its standard support policies and procedures. The SaaS Services further include developing, training, testing, correcting, and improving the 120Water Platform, such activities for which may include the use of Customer Data. 120Water will use commercially reasonable efforts to maintain the SaaS Services' availability, except for planned downtime for maintenance or upgrades, or any unavailability caused by circumstances beyond 120Water's reasonable control. 120Water reserves the right to modify the SaaS Services at any time. The parties may, from time to time, execute an Order Form describing Professional Services that 120Water shall provide to Customer, the duration of such Professional Services if applicable, the compensation to be paid for the Professional Services, and any other terms applicable to the project. A list of specific deliverables, a timetable, and/or a detailed specification may be attached as Exhibits to any Order Form. B. Subcontractors. 120Water may engage subcontractors to perform or to support 120Water's performance of portions of the Services provided or made available to substantially all of 120Water's customers (e.g., data hosting service providers), provided that 120Water may not subcontract any custom Services or Deliverable specifically purchased only by Customer (and set forth in a separate statement of work) without Customer's prior written consent, such consent not being unreasonably withheld, delayed, or conditioned. 11 2.2. Customer Responsibilities. Customer is responsible for all activities that occur in Customer's account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the SaaS Services, and notify 120Water in writing immediately upon becoming aware of any such unauthorized access or use; (c) comply with all applicable laws and regulations in using the SaaS Services; and (d) procure for 120Water, at Customer's sole expense, all rights and consents necessary for 120Water and its contractors to access, use, disclose, store, and retain all Customer Data pursuant to this MSA. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Services, and (ii) confidentiality and proper usage of passwords and access procedures with respect to logging into the SaaS Services. Customer is solely responsible for all acts and omissions of the Authorized Users, and for ensuring that the Authorized Users comply with this MSA. 2.3. Use Restrictions. Customer shall use the SaaS Services solely for its internal business purposes as contemplated by this MSA and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the SaaS Services available to any third party except as contemplated by this MSA; (b) send via, or store within, the SaaS Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the SaaS Services any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the SaaS Services any Malicious Code; or (e) attempt to gain unauthorized access to the SaaS Services or its related systems or networks. In addition, Customer shall not directly or indirectly: (i) remove any notice of proprietary rights from the SaaS Services or 120Water Platform; (ii) decompile, reverse engineer, or attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Services or 120Water Platform (except to the limited extent applicable laws specifically prohibit such restriction); (iii) copy, modify, translate or otherwise create derivative works of any part of the SaaS Services or 120Water Platform; (iv) upload to the 120Water Platform or otherwise provide to 120Water any personal health, credit card, or financial data or other such sensitive data (collectively, "Inadvertent Data"); (v) use any of 120Water's Confidential Information (defined below) to create any service, software, documentation or data that is similar or competitive to any aspect of the SaaS Services, (vi) interfere or attempt to interfere with the proper working of the SaaS Services or any activities conducted on the SaaS Services or 120Water Platform, or modify another website so as to falsely imply that it is associated with the SaaS Services; or (vii) permit any third party to engage in any of the foregoing proscribed acts set forth in this Section 2.3 (with the restrictions set forth in this Section 2.3, collectively, referred to as the "Use Restrictions"). In the event Customer provides to 120Water any Inadvertent Data, Customer shall immediately notify 120Water in writing of such disclosure. 120Water shall treat Inadvertent Data as Customer's Confidential Information, but not as Personal Data, and will not be liable for any such unauthorized disclosure, access, loss, or use of Inadvertent Data. 120Water shall promptly delete all Inadvertent Personal Data it receives and becomes aware of. 2.4. Acceptance Procedure for Custom Deliverables. Unless expressly stated otherwise in a statement of work all custom -developed Deliverables shall be subject to the following acceptance procedure. Customer has 30 days (the "Testing Period") from receipt of a Deliverable to test the Deliverable. The "Acceptance Criteria" is whether the Deliverable materially conforms with the applicable Specifications. During the Testing Period, Customer will notify 120Water of any 12 material noncompliance of the Deliverable with the Specifications ("Material Error") that Customer discovers. When it receives this notice, 120Water will promptly correct the Material Error and redeliver the Deliverable within 30 days unless otherwise agreed to in writing by the Parties. The Testing Period will be extended for the period of time used by 120Water to correct a Material Error. If 120Water is unable to correct a Material Error within the 30 day period (or other time period agreed to in writing by the Parties), Customer may terminate this MSA, and 120Water will promptly return to Customer all monies paid by Customer under the applicable Statement of Work. 2.5. SaaS Services Platform. 120Water and its third party service providers will use commercially reasonable efforts to maintain the availability of the SaaS Services. 120Water will comply with the Service Level MSA set forth in Exhibit A attached hereto and incorporated herein. 2.6. Purchase of Goods. Purchases of goods, including without limitation, water testing kits and water pitcher filters, from 120Water are governed by the Terms of Sale available at https:H120water.com/terms-of-sale/, and which may be amended from time to time by 120Water and effective when posted, and which is incorporated herein by reference. 3. FEES; PAYMENT; TAXES 3.1. Service Fees. 120Water will invoice Customer for the Services as set forth in the applicable Order Form or as otherwise agreed by the parties in writing in a statement of work. Except as otherwise specified in an Order Form, fees are based on the Services purchased and not actual usage; payment obligations are non -cancellable; fees paid are non-refundable; and the Services purchased cannot be decreased during the relevant Subscription Term. 120Water may adjust its fees applicable to the Services upon renewal of a Subscription Term. Customer may add subscriptions for SaaS Services during a Subscription Term at the same pricing as the underlying subscription pricing set forth in the most recent Order Form, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and any added subscriptions will terminate on the same date as the underlying subscriptions. For all other additional goods or services purchased by Customer during the Subscription term, such purchases will be made at the then -current prices of such goods or services. 3.2. Overdue Payments. Customer's failure to pay fees as set forth herein shall constitute a material breach of this MSA. Any fees hereunder not paid when due will be subject to a late charge of one and one-half percent (1 %2%) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. If Customer's account is fifteen (15) days or more overdue, 120Water may, in addition to any of its other rights or remedies, suspend Customer's access to the SaaS Services and/or suspend provision of Professional Services until such amounts are paid in full. If such failure to pay has not been cured within thirty (30) days of the due date, then upon written notice 120Water may terminate this MSA and any or all outstanding Order Forms. 3.3. Taxes. Unless Customer is tax exempt and provides written certification of such status to 120Water, Customer shall be responsible for payment of all taxes due in connection with the Services provided hereunder (other than taxes owed by 120Water based on its income), whether or not collected by 120Water. 120Water may collect such taxes from Customer, and Customer shall remit to 120Water all applicable taxes required to be collected by 120Water, or if such taxes 13 have previously been paid by Customer, provide 120Water with the appropriate documentation of such payments. 3.4. Future Functionality. The Parties agree and acknowledge that Customer's purchases hereunder are not contingent on the delivery of any future Service functionality or features, or dependent on any oral or written public comments made by 120Water regarding future functionality or features of any Service. 4. PROPRIETARY RIGHTS 4.1. Reservation of Rim. Subject to the limited rights expressly granted hereunder, 120Water reserves all rights, title and interest in and to the SaaS Services and 120Water Platform, including all software, technology and other materials associated therewith, all Documentation and content (excluding Customer Data), and all copies, modifications and derivative works thereof, and all 120Water trademarks, names, logos, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein. As between 120Water and Customer, Customer owns all Customer Data. Customer shall procure all rights and consents necessary to enable 120Water and its third party service providers to access and use Customer Data pursuant to this MSA. Customer hereby grants 120Water a worldwide, non-exclusive, royalty -free, fully paid -up license to use, reproduce, perform, display, modify, and distribute the Customer Data in connection with providing the Services to Customer hereunder. 120Water may use the trademarks and trade name of Customer in connection with provision of the Services. 4.2. Feedback. If Customer provides or otherwise makes available to 120Water any feedback, suggestions, recommendations, data, or other input regarding the Services or resulting from Customer's use thereof ("Feedback"), Customer hereby grants to 120Water a perpetual, irrevocable, royalty -free right and license to use such Feedback for any purpose, including to improve and enhance the Services or any component thereof, to develop new features or functionality, and to otherwise use and exploit such Feedback for 120Water's business purposes. Customer acknowledges that any 120Water products or materials incorporating any such Feedback shall be the sole and exclusive property of 120Water. Consultant agrees to indemnify, defend and hold harmless Owner for any use by Consultant of any Feedback. 4.3. Improvements; Deliverables. 120Water shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the SaaS Services and 120Water Platform, and, unless expressly stated otherwise in a statement of work, in and to any Deliverables or new programs, upgrades, modifications or enhancements developed by 120Water in connection with rendering the Services to Customer, even when Deliverables, refinements or improvements result from Customer's request. 120Water shall own all right, title, and interest in and to all Usage Data. 5. CONFIDENTIALITY 5.1. Definition of Confidential Information. "Confidential Information" means all confidential, proprietary, or nonpublic information of a party (or its customers) ("Disclosing Party") disclosed to the other party ("Receiving Party") that (a) if disclosed orally is designated as confidential at 14 the time of disclosure, (b) if disclosed in writing is marked as "Confidential" and/or "Proprietary" or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information shall consist of the Customer Data. 120Water's Confidential Information includes any nonpublic information relating to the SaaS Services or the software, Order Forms, pricing, technology or content underlying the SaaS Services, or relating to any other of 120Water's or its business partners' products or services (including any beta version of a service), software, technology, customers, business plans, and other business affairs. Notwithstanding the foregoing, each party may disclose the existence and terms of this MSA, in confidence, to a potential purchaser of or successor to any portion of such party's business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall not include any information that:(i) is or becomes generally known to the public without breach by the Receiving Party of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without use of the Disclosing Parry's Confidential Information; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. 5.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this MSA, except with the Disclosing Party's prior written permission or if required by applicable law or judicial order. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care. 120Water may disclose Customer's Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Services. Notwithstanding the foregoing, and as permitted by applicable law, 120Water shall be permitted to retain Customer Data and use the same for statistical, analytical, and similar purposes internally, through publications, and with 120Water's other customers; provided, that any distribution to third parties of the results of such usage will include Customer Data in aggregate form only and will not identify Customer or its Authorized Users as the source of any such data. Further, 120Water may store, reproduce, distribute, create derivative works (including compilations and statistical summaries and analyses), transmit, display and otherwise make available certain test results (and related data) and location information to third party individuals and organizations as reasonably necessary in order for 120Water to perform Services hereunder. 5.3. Survival. The Confidentiality obligations as are set forth in this Section 5 shall remain in force and effect at all times during this MSA, and (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secret status has not been lost; and (ii) with respect to Confidential Information that does not constitute a trade secret, for five (5) years after termination or expiration of this MSA, and (iii) with respect to Personal Data held by 120Water, forever. 6. DATA SECURITY 6.1. 120Water shall use commercially reasonable efforts to store, maintain, and protect the confidentiality of Customer Data uploaded by Customer and its Authorized Users to the Software or otherwise disclosed or transmitted to, or received or accessed by 120Water. 120Water is not 15 liable for the confidentiality or security of any Personal Data through no fault of 120Water in the event of unauthorized access, theft, use or disclosure of such Personal Data, either by or due to Customer's Authorized Users by users or third parties who have obtained unauthorized access to an Authorized User's Login Credentials. 120Water shall not be responsible for any suspected or actual unauthorized access, theft, use or disclosure, or Security Breach of Customer Data due to Customer's breach of this MSA, Customer's (or its contractors' or providers') failure to use reasonable care in securing Customer Data or due to Customer's Authorized Users acts or omissions that are the proximate cause of any data Security Breach related to the Services or 120Water Platform. "Security Breach" means any accidental, unauthorized, or unlawful access, use, destruction, loss, alteration, lockup (i.e., encryption or rendering unavailable), loss of confidentiality, or disclosure of Personal Data stored or otherwise processed by or in 120Water's (or its service providers' or contractors') possession or control; but, shall not include: (a) "pings" on an information system firewall; (b) port scans; (c) attempts to log on to an information system or enter a database with an invalid password or user name; or, (d) denial -of -service attacks that do not result in a server being taken offline. 6.2. 120Water will be responsible for any Security Breach of Customer Data successfully uploaded to the 120Water Platform where caused by the acts or omissions of 120Water or its agents, hosting services or other contractors, except to the extent due to any acts, omissions, or negligence of Customer, its agents, or contractors ("120Water Security Breach"). 6.3. Customer shall be responsible for any Security Breach of Customer Data due to the acts or omissions of Customer, its contractors (other than 120Water, its agents or contractors), its then - current employees, former employees who were previously Authorized Users, other than to the extent directly due to the negligence of 120Water or its agents, hosting services and other contractors ("Customer Security Breach"). Notwithstanding the previous sentence, former employees or contractors of Customer whose Authorized User credentials have been properly deactivated by Customer, but who subsequently cause a Security Breach through methods that do not include the use of their Authorized User credentials, does not constitute a Customer Security Breach. 7. DATA OWNERSHIP AND USE 7.L Ownership of Customer Data. As between Customer and 120Water, Customer owns all Customer Data. 7.2. Use of Customer Data. Customer hereby grants 120Water and its contractors a limited, nonexclusive right and license to use all Customer Data during this MSA, and, after expiration or termination as permitted herein. 7.3. Use of Customer Data after Expiration or Termination. After any expiration or termination of this MSA 120Water shall handle Customer Data as set forth in Section 11.3.B. 7.4. Derivative Data and Usage Data. "Derivative Data" means collectively, (i) information derived or generated from or based on Customer Data, but not containing Customer Data, (ii) Customer Data which has been de -identified or anonymized so that it no longer identifies an specific individual; and, (iii) Customer Data which has been aggregated with other data but which E no longer identifies a specific individual or Customer. "Usage Data" means statistical data related to Customer's access to and use of the SaaS Services and data derived from it, that is used by 120Water, including to compile statistical and performance information related to the provision and operation of the SaaS Services. 120Water shall irrevocably own all Derivative Data and Usage Data and may use or disclose it in any way it chooses. This Section 7.4 shall survive any expiration or termination of this MSA. 8. WARRANTIES AND DISCLAIMERS 8.1. 120Water Warranties. 120Water warrants that: (a) the functionality of the SaaS Services will not be materially decreased during a Subscription Term; (b) 120Water shall take commercially reasonable measures to protect against the SaaS Services or any deliverables containing or transmitting Malicious Code to Customer; (c) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards (collectively referred to as the "Service Warranty"). Customer must report to 120Water in writing any failure of the Professional Services to materially conform to the Service Warranty within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the Service Warranty, Customer's exclusive remedy, and 120Water's entire liability, shall be the re -performance of the Professional Services, and, if 120Water is unable to re -perform the Professional Services as warranted within thirty (30) days of receipt of notice of breach, Customer shall be entitled to recover the fees paid to 120Water for the deficient Professional Services. 8.2. Warranties for third -party products are governed under the applicable third party warranty terms, and Customer expressly acknowledges that 120Water has no obligations with regard to third -party products. 8.3. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, 120WATER PROVIDES ALL SERVICES AS -IS, AND 120WATER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON - INFRINGEMENT. 8.4. Customer acknowledges and agrees that the SaaS Services, the Services, the 120Water Platform, Deliverables, and any other services or products provided hereunder are intended to provide Customer with a means of sampling, testing, and monitoring water for contaminants. 120Water uses third -party labs and service providers to perform certain components of the Services and, while 120Water endeavors to maintain relationships with dependable, accurate and timely third party service providers, 120Water does not control such service providers, and therefore hereby disclaims all representations, warranties, and liability for any inaccurate, untimely, or otherwise erroneous Deliverables including data, alerts, or information attributable to such service providers. 120Water is not responsible for any contaminants or other harmful conditions present in water or other materials tested hereunder. 9. INDEMNIFICATION 9.1. BY 120Water. 120Water shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, and affiliates from and against any and all third -party claims, actions, 17 or causes of action ("Claims") for any liabilities, damages, penalties, fines, assessments, costs, and expenses, including reasonable attorneys' fees and costs (collectively, "Losses") arising or related to (a) an allegation by a third party alleging that the Services or use of the 120Water Platform infringes any United States patent, and/or any copyright, trade secret or other property right held by such a third party; (b) 120Water's breach of this MSA; (c) any failure by 120Water or its employees, agents, service providers, or subcontractors to comply with applicable law or regulation; (d) 120Water's use of any Feedback provided by Customer; or (e) damage to or loss of real or tangible property, or personal injury, resulting from the gross negligence or willful misconduct of 120Water, its agents, service providers, or subcontractors. The above shall apply provided that 120Water is notified promptly by Customer of any such Claim (including any threatened claim) and 120Water shall have sole control of the defense with respect to same (including without limitation, the negotiations and settlement of such claim). If a Claim pursuant to clause (a) has occurred or, in 120Water's opinion, is likely to occur, 120Water shall, at 120Water's option and expense, (i) procure the right to continue providing the Services or the 120Water Platform, (ii) re -perform or replace the potentially infringing portion of the Services or the 120Water Platform, or (iii) modify the Services or the 120Water Platform so that infringement is avoided. If, after using commercially reasonable efforts, none of the foregoing three alternatives is reasonably available, 120Water may terminate this MSA, and Customer shall be entitled to a pro -rated refund of pre -paid but unearned fees. 120Water shall have no such indemnification obligation to the extent such infringement under clause (a) above: (w) relates to use of the Services or the 120Water Platform or any Deliverable in combination with other software, data products, processes, or materials not provided by 120Water and the infringement would not have occurred but for such combination; (x) arises from or relates to modifications to the SaaS Services, the 120Water Platform, or any Deliverable not made by 120Water; (y) relates to Customer Data or any third -party product or service, or (z) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by 120Water. 9.2. By Customer. Customer shall indemnify, defend, and hold harmless 120Water and its officers, directors, employees, agents, affiliates and service providers from and against any and all Losses based on any Claims relating to (a) the possession or use of the SaaS Services, the Professional Services, the 120Water Platform, Deliverables, or any other materials provided hereunder, or their failure, or (b) for Customer's failure to comply with the terms of this MSA, or (c) from any allegation that Customer Data or 120Water's possession or use thereof violates or infringes the rights of any third party. 9.3. Indemnification Procedure. As an express condition to the indemnifying party's obligation under this Section 9, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought (except that any delay on the part of the indemnified party in providing such notice shall not relieve the indemnifying party of its indemnification obligation except to the extent the it is prejudiced thereby); and (b) provide the indemnifying party with all reasonable non -monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. No settlement or compromise that imposes any liability or obligation on the indemnified party will be made without the indemnified parry's prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned. 10. LIMITATION OF LIABILITY 18 10.1. Limitation of Liability. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THE ORDER FORM FOR THE SERVICES FOR WHICH LIABILITY IS CLAIMED IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. 10.2. Exclusion of Consequential Damages. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOOD WILL, SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR COMPUTER FAILURE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11. TERM AND TERMINATION 11.1. Term and Renewal. This MSA commences on the date both parties execute an initial Order Form (the "Effective Date"), and continues through the expiration of all Order Forms in effect between the parties hereunder (including any renewals as set forth below) unless earlier terminated as set forth in this Section 1 I (the "Term"). Subscriptions to the SaaS Services commence on the Subscription Start Date and continue for the Subscription Term specified in the applicable Order Form. 11.2. Termination. Either party may terminate this MSA for cause upon written notice of a material breach to the other party if such breach remains uncured (if curable using commercially reasonable efforts) for thirty (30) days from such notice. 120Water may terminate this MSA or any Order Form for non-payment in accordance with Section 3.2, and no opportunity to cure shall apply. 120Water may immediately terminate this MSA for cause, without the opportunity to cure, if Customer breaches any of the Use Restrictions set forth in Section 2.3. In addition, 120Water may terminate this MSA, in whole or in part, or cease provision of Services if required to comply with applicable law or regulation. Upon termination for cause by 120Water, Customer shall remain obligated to pay all fees owed for the remainder of the then current- subscription Term, all of which fees shall become immediately due and payable in full. 11.3. Effects of Termination. A. Upon expiration or termination of this MSA, all rights granted by 120Water under this MSA shall terminate, and Customer's access to the 120Water Platform shall be terminated. Termination of this MSA shall not affect either Customer's obligation to pay any sums due hereunder, including Service Fees for the remainder of the then -current Subscription Term. In the event Customer prepays any fees and receives a discount and Customer fails to make timely orders as required to receive such discount, Customer agrees to pay Provider within thirty (30) days of such termination the non -discounted fee for such orders. Pre -payments or deposits will not be refunded to Customer. 19 B. Within thirty (30) days after the termination or expiration of this MSA, 120Water will provide Customer with a copy of Customer Data held by 120Water. Upon expiration of such thirty (30) day period, 120Water shall convert Customer's account to an inactive status. 120Water may, but shall not be obligated to, delete all Customer Data after Customer's account converts to inactive status. 12. INSURANCE 12. L Insurance. During the Term, 120Water shall, at its own expense, maintain and carry in full force and effect insurance policies with financially sound and reputable insurers having limits of liability of not less than the following: Type Limits Commercial General (a) $1,000,000 per occurrence for bodily injury and Liability property damage; (b) $1,000,000 per occurrence for personal and advertising injury; (c) $2,000,000 aggregate for products and completed operations; and, (d) $2,000,000 general aggregate applying separately to the work performed under the MSA. Commercial Automobile $1,000,000 per accident for bodily injury and property Liability damage. Workers' Compensation as required by the State of Indiana with statutory Insurance limits Employer's Liability (a) $1,000,000 each accident for bodily injury; (b) $1,000,000 disease each employee; and, (c) $1,000,000 disease policy limit. Technology Professional (a) $1,000,000 per claim/occurrence; and, Liability b $2,000,000 policy aggregate. 12.2. In the event 120Water purchases an umbrella or excess insurance policy to meet the minimum limits of insurance set forth in this Section 12, such insurance policy shall afford no less coverage than the primary insurance policy. Upon Customer's request, 120Water shall provide Customer with a certificate of insurance evidencing the insurance coverage specified in this Section 12. The certificate of insurance shall name Customer as an additional insured and loss payee. 120Water shall provide Customer with thirty (30) days' advance written notice in the event of a cancellation or material change in such insurance policy. 120Water waives and 120Water shall cause its insurers to waive, any right of subrogation or other recovery against Customer. 13. FORCE MAJEURE 13.1. Definition. A "Force Majeure Event" means a cause or event beyond the reasonable control of the party claiming delay of performance, including, but not limited to, (i) labor disputes, strikes, or lockouts (but excluding nonunion labor shortage or disputes), or labor unavailability or workplace closure or restrictions or travel restrictions as required or recommended by government 20 or agency (or implemented as company -wide policy by the party suffering the delay in performance) due to pandemic, epidemic, or other widespread health emergency (e.g., viruses or other diseases, such as, but not limited to, COVID-19, SARS, etc.); (ii) riots, war, acts of terrorism, or other civil disturbance; (iii) fire, flood, earthquake, tornado, hurricane, snow, ice, lightning, or other natural disasters, elements of nature or acts of God, (iv) outages, cable cuts, power crisis shortages, infrastructure outages or failures, internet failures, interruption or failure of telecommunications carriers or digital transmission links, network congestion, computer equipment failures, telecommunication equipment or other equipment failures, electrical power failures, loss of or fluctuations in heat, light, or air conditioning, all of the foregoing in this Subsection (iv) being of or due to third party providers or utility service providers; (v) acts of computer, system, or network sabotage or file lockup (e.g., ransomware attack), DDOS or other network attacks, intrusion, or other failures not arising out of a breach of Provider's data security obligations set forth in this MSA; (vi) any law, order, regulation, direction, action or request of the United States, state or local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of such instrumentality, or of any civil or military authority, or national emergencies, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown; (vii) change in law or regulation making performance impracticable without having material impact on such parry's ability to perform under this MSA without material increase in cost, resources, or time; or, (viii) national or regional shortage of adequate power or telecommunications or transportation, or, (ix) supply chain interruption due to any of the foregoing. 13.2. If a Force Majeure Event occurs, the party who's performance is delayed or prevented (the "Affected Party") shall be entitled to (i) relief from its performance obligations under this MSA to the extent the occurrence of the Force Majeure Event prevents or adversely affects that Affected Parry's performance of such obligations, and (ii) an extension of schedule to perform its obligations under this MSA to the extent the occurrence of the Force Majeure Event prevents or adversely affects that Affected Party's ability to perform such obligations in the time specified in this MSA. The occurrence of a Force Majeure Event shall not, however, excuse or delay the other Parry's obligation to pay monies previously accrued and owing to the Affected Party under this MSA or excuse or delay the Affected Parry's performance of any obligation under this MSA not affected by the occurrence of the Force Majeure Event. Upon the occurrence of a Force Majeure Event, the Affected Party shall notify the other Party promptly after the Affected Party's performance has been delayed or prevented. The Affected Party shall use commercially reasonable efforts to reduce costs resulting from the occurrence of the Force Majeure Event, fulfill its performance obligations under the MSA and otherwise mitigate the adverse effects of the Force Majeure Event. The Affected Party shall also provide prompt written notice to the other Party of the cessation of the Force Majeure Event. If the Force Majeure Event renders the Services completely unavailable for more than thirty (30) consecutive days, Customer may terminate the MSA upon written notice to 120Water, and Customer will receive a refund of prepaid fees starting from the beginning of the period of unavailability due to such conditions. 14. GENERAL PROVISIONS 14.1. Relationship of the Parties. The relationship between the parties created by this MSA is one of independent contractors and neither party shall have the power or authority to bind or obligate 21 the other except as expressly set forth in this MSA. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third -party beneficiaries to this MSA. 14.2. Use of Customer Name and Logo. Customer hereby agrees that: (a) 120Water may use Customer's name and logo in 120Water's published customer list, on 120Water's website, and in 120Water's marketing materials; and, (b) subject to Customer's review and approval, which approval shall not be unreasonably withheld or delayed, allow 120Water to reference Customer in a press release that announces Customer's decision to use 120Water Services. 14.3. Assignment. 120Water may not assign, convey, or transfer (whether by contract, merger or operation of law) (collectively "assign" and its cognates) any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Customer, other than in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of 120Water's assets. Subject to the foregoing, this MSA shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this MSA shall be of no power or effect. 14.4. Governing Law. This MSA shall be governed exclusively by the laws of the State of Customer's primary business office, without regard to its conflicts of laws rules. 14.5. Miscellaneous. This MSA and the Exhibits attached hereto and Order Forms either attached hereto or entered into during this MSA are incorporated herein and collectively set forth the entire understanding and agreement between the parties regarding the subject matter of this MSA and supersede all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of this MSA. The background recitals form a material part of this MSA. If any provision in this MSA is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this MSA shall remain in full force and effect. No waiver of any right under this MSA shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this MSA. IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this MSA effective as of the Effective Date, as evidenced by their signatures on the Agreement. 22 EXHIBIT A SERVICE LEVEL AGREEMENT This Service Level Agreement ("SLA") sets forth 120Water's performance objectives for the availability of its hosted software platform ("120Water Platform"). The remedies set out in this SLA are Customer's sole and exclusive remedy for issues covered by the SLA. While 120Water will not modify this SLA arbitrarily, 120Water may do so from time -to -time. Should 120Water make a change to this SLA, 120Water shall notify Customer. The notification will set out the effective date of any changes. 1. Availability. 120Water will use commercially reasonable efforts to maintain availability of the 120Water Platform for Customer's use 24x7, except in the event of any of the following, during which the 120Water Platform may be partially or totally unavailable: 1. "Scheduled Maintenance": Scheduled maintenance, which includes updates and other routine maintenance, will be conducted between 7 p.m. — 2 a.m. (Eastern US Time) weekdays, weekends and/or holidays. However, maintenance may also occur at any other time as is necessary to provide top tier service to 120Water's customers. 120Water may change planned maintenance windows at its sole discretion and will notify Customer of any such changes that affect previously notified plans, provided such maintenance is done during low -volume times. 120Water will use commercially reasonable efforts to provide Customer with at least 24 hours' prior notice if Scheduled Maintenance downtime will occur at such other time. 2. "Unscheduled Maintenance": Maintenance not previously planned which is needed to resolve issues that are critical for customers and/or performance of the 120Water Platform. 120Water will notify Customers when possible via email prior to the unscheduled maintenance. When and where practicable, 120Water will try to conduct unscheduled maintenance between 9:00 p.m. and 2:00 a.m. (Eastern US Time). 3. Force Majeure Events (as defined in the Agreement). 4. Unauthorized use or misuse of the 120Water Platform by Customer or anyone using any of Customer's authorized user's login credentials. 2. "Availability Goal": 120Water will use commercially reasonable efforts to make the 120Water Platform available 99.5% of the time, measured on an average monthly basis, exclusive of the following: 1. The events set forth in Section LA-I.D. of this SLA; 2. Any outage lasting less than 5 minutes; 3. Any outage 120Water determines to be a result of Customer's breach of the Agreement or other acts or omissions of Customer; 23 4. Force Majeure Events, provided that 120Water timely implements its disaster recovery plan; and, 5. Any outage determined to be a result of a failure of outside services or equipment not within the control of 120Water, including Customer's hardware and software. Technical Support. 120Water provides technical support 24/7 by email to sWggr a 120water.com, and by telephone at 800-674-7961. 4. Response Time. 120Water endeavors to respond to support requests within 2 hours. 24