City of Moreno Valley
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (“Agreement”) is made and entered into this _________ day of October, 2025 (“Effective Date”), by and between the City of Moreno Valley, a municipal corporation, with its principal place of business at 14177 Frederick Street, Moreno Valley, CA 92552, hereinafter referred to as the “City” or “Buyer”), and ELM Fieldsight LLC, a Texas limited liability company, (“Seller”), with Buyer and Seller together sometimes hereinafter referred to as the “Parties.”
RECITALS:
WHEREAS, Seller owns Energy Storage Equipment (“Goods”), as described in Exhibit “B,” attached hereto and incorporated herein by this reference; and
WHEREAS, Buyer is in need of the Goods for use within the City of Moreno Valley, California; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Goods, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and promises contained herein and for such other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:
Section 1. Recitals
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth in full herein.
Section 2. Purchase, Sale, Delivery of Goods
Seller shall sell and deliver to Buyer at the address mutually agreed in each Purchase Order (“PO”) and Buyer shall purchase from Seller, the Goods, which may vary in selection and quantity of the items listed in Exhibit “B”, for the unit prices listed in Exhibit “B” (“Purchase Price”), throughout the life of the Agreement, and across multiple purchase orders. Pricing in Exhibit B does not include any federal, state or local taxes. All federal, state or local taxes are to be paid by Buyer to Seller and will be included in each PO. This Agreement does not obligate Buyer to purchase any minimum quantity of Goods, and all new purchases shall be subject to annual budget appropriation by the City Council, however, changes to annual budget appropriation will not affect PO’s that have been placed prior to the annual budget appropriation.
At the conclusion of the first contract month, and upon each future contract month, the unit price of each line item listed in Exhibit “B” may be adjusted in accordance with the following formula. Supplier agrees to only apply price increase adjustments if the applicable Adjustment Index Ratio has risen by more than 5% since the last adjustment. Additionally, if the price index falls after an adjustment has been made supplier will reduce prices down accordingly with a floor of the original Bid Price.
𝐏𝐮𝐫𝐜𝐡𝐚𝐬𝐞 𝐏𝐫𝐢𝐜𝐞 𝐀𝐝𝐣𝐮𝐬𝐭𝐦𝐞𝐧𝐭 = 𝐁𝐢𝐝 𝐏𝐫𝐢𝐜𝐞 x 𝐀𝐝𝐣𝐮𝐬𝐭𝐦𝐞𝐧𝐭 𝐈𝐧𝐝𝐞𝐱 𝐑𝐚𝐭𝐢𝐨
Where,
1) Purchase Price Adjustment is the adjustment to the unit price for the line item throughout the duration of the contract.
2) Bid Price is the original unit price for the line item from the contractor’s bid, to which the Purchase Price Adjustment will be added.
3) Adjustment Index Ratio is determined as follows:
a. For battery-related components, the Producer Price Index (PPI) Segment code PCU335911335911 (Battery Manufacturing), published by the U.S. Bureau of the Labor Statistics, shall apply to the battery module components of the systems b. For non-battery materials, including steel, copper, and other raw materials, the Consumer Price Index (CPI), published by the U.S. Bureau of Labor Statistics, shall apply.
Each index shall be compared to its respective value as of October 2025, as follows:
Adjustment Index Ratio = (Applicable Index (Current)/Applicable Index (October 2025)).
The City shall not accept unit price increases that exceed the formula above. For each line item listed in Exhibit “B”, where two Codes are listed for and, notwithstanding the formula, Seller shall not be required to reduce unit prices below the original Bid Price. PPI and CPI index apply to separate components of the systems being purchased the Code with a lower increase since October of 2025
As necessary, Buyer and Seller shall work together in good faith to adjust the Goods available in Exhibit B to address any new product releases, different configurations of equipment, or updates from Seller or the retirement of a product line. Any such adjustments shall be documented in a written amendment to Exhibit B, signed by both Parties. Seller shall provide at least ninety (90) days' advance written notice to Buyer before discontinuing any product line listed in Exhibit B and shall propose comparable replacement products at equivalent or better pricing and specifications.
Tariff Pricing - The prices shown in Exhibit “B”, as adjusted by the formula above in Section 2 where necessary, are reflective of the base Tariff rates in effect as of the Effective Date of this Agreement and based on the Tariff rate table in Exhibit B. Tariff charges will be passed through as actual on effective portion of the equipment provided by Seller at time of import into the US. Seller will work in good faith to provide estimate of anticipated Tariff rates based on expected shipment dates based on project schedule at time of PO execution. The base tariff rate(s) for unit prices listed in Exhibit “B.” “Tariff” means any lawfully imposed U.S. import duty or surcharge applicable to the Goods (excluding penalties, demurrage, carrier surcharges, brokerage, insurance, and costs caused by Seller). Any Tariff- related changes that affect an active Purchase Order shall not be invoiced, unless the City gives prior written approval via Change Order, which shall not be unreasonably withheld.
For future Purchase Orders issued after a change in the applicable Tariff rate, unit pricing as listed in Exhibit “B” may increase or decrease at a rate equal to the change in Tariff rate applied to the customs
value of the affected Goods. Any request for an increase in pricing related to Tariff rates must include reasonable proof of applicability and calculation (including HTS code(s), legal citation and effective date of the Tariff change, and a calculation showing the incremental increase or decrease). No overhead, profit, or markup may be added to Tariff pass-throughs. The City has a right to credit tariff reductions against accounts payable or future invoices, in an amount equal to the tariff percentage decrease below the base tariff rate upon agreement by Seller, which approval shall not be unreasonably withheld.
Section 3. Invoice, Inspection, Acceptance, Payment
a. Seller shall invoice the Buyer based on the invoice schedule outlined in the corresponding Purchase Order.
b. After delivery, Buyer shall inspect the Goods within a reasonable time not to exceed twenty-one (21) days and provide written notice to the Seller specifying any defects or other objection, unless Buyer intends to accept the Goods in whole, in which case no notice will be necessary. Acceptance of the Goods, whether in whole or in part, shall not be deemed a waiver of any defects identified by the Buyer during such inspection period, nor any defects later discovered by the Buyer, and specified to the Seller in writing. Any defects identified after the twenty-one (21)) day inspection period are subject to Seller’s standard warranty in effect on the product at the time of discovery and notification to Seller.
c. After Buyer has inspected the Goods, Buyer shall pay Seller the Purchase Price, in whole or in part as appropriate, for those Goods accepted under this Agreement as set forth in the Payment Terms in Exhibit A attached hereto and incorporated herein by reference.
d. Title to Goods or any portion thereof and risk of loss or damage during shipment pass from Seller to Buyer upon delivery to Buyer’s address listed in Section 11 of this Agreement and acceptance thereof by Buyer.
Section 4. IP Rights/Software License/Confidentiality
a. The parties acknowledge and agree to each of the terms set forth in Exhibit C hereto (and incorporated herein by reference) which includes the Software License, Cloud Services, Confidentiality and Non-Disclosure terms for this Agreement.
Section 5. Remedy for Defective Goods
a. Remedy for Defective Goods is subject to Seller’s Standard Warranty (Exhibit D). Seller agrees that if there is any defect in the Goods and upon written notice thereof given to Seller, Seller shall take action to replace the defective Goods per the Standard Warranty within ten (10) calendar days.
Replacement components will be subject to standard industry lead times, however Seller shall prioritize utilization of available inventory from its factory to expedite warranty component replacement.
b. This section does not in any way limit Buyer’s remedies pursuant to Code of Civil Procedure Section 337, or the guarantee on any items for which a longer warranty is specified or on any items for which a manufacturer or supplier gives a longer warranty period. No manufacturer's warranty period shall in any way limit the liability of Seller under the indemnity provisions of this Agreement.
Section 6. Term and Termination
a. This Agreement shall remain in effect for three (3) years from the Effective Date, herein referred to as the "Initial Term."
b. Upon the expiration of the Initial Term, both parties may mutually agree, in writing, to extend this Agreement for two (2) subsequent periods of two (2) years each, herein referred to as "Extension Periods." Such extension shall be exercised by the Buyer expressing their intention to extend the term, and the Seller agreeing to the extension, in accordance with the terms and conditions set forth in this Agreement. In the absence of mutual agreement on extension terms, this Agreement shall terminate at the end of the Initial Term.
c. Either Party may terminate this Agreement for convenience upon at least 15 days’ prior written notice. Any Purchase Orders (“PO”) that are active shall survive termination of this Agreement. If Buyer desires to cancel an active PO before delivery of the Goods; Buyer must pay Seller the following termination charges: (A) amounts due for work performed to date; (B) costs of materials and components procured or irrevocably committed (including supplier cancellation charges); (C) reasonable allocable overhead; (D) a 20% restocking/handling fee for standard (non-custom) Goods; and (E) any storage, handling, and freight actually incurred. Custom, made-to-order, or specially configured Goods are non- cancellable and non-returnable. If Buyer desires to cancel an active PO after payment of the Purchase Price, the Purchase Price and the purchase of the Goods is subject to Seller’s standard return and exchange policy, and any return requires Seller’s prior written authorization (RMA). Either party may terminate for cause upon written notice describing the breach, subject to a thirty (30) day cure period; (ten (10) day cure period for payment defaults).
Section 7. Seller’s Representations and Warranties
Seller hereby makes the following representations, warranties, and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
a. Seller, and the person executing this Agreement on behalf of Seller, has the full right, power and authority to enter into this Agreement and to take all actions required of Seller by the terms of this Agreement.
b. The Goods are subject to the Seller’s Standard Warranty attached as Exhibit D to this Agreement and incorporated herein by reference.
c. All documents executed by Seller pursuant to this Agreement will be duly authorized, executed and promptly delivered to Buyer, and will be legal, valid and binding obligations enforceable against Seller and will not violate any provisions of any agreement to which Seller is a party or to which it is subject.
Section 8. Buyer’s Representations and Warranties
Buyer hereby makes the following representations, warranties, and acknowledgments, and agrees that such representations, warranties and acknowledgments shall be true as of the Effective Date:
a. Buyer, and the person executing this Agreement on behalf of Buyer, has the full right, power and authority to enter into this Agreement and to take all actions required of Buyer by the terms of this Agreement.
b. All the documents executed by Buyer pursuant to this Agreement will be duly authorized, executed and promptly delivered by Buyer, and will be legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with their respective terms, and will not violate any provisions of any agreement to which Buyer is a party or to which it is subject.
Section 9. Indemnification Obligations of Seller
a. Seller will indemnify, hold harmless and defend Buyer, its officers, employees, agents, and officials from and against all losses, claims and defense costs for injury, death, damage to property or other damages arising out of or resulting from a defect in the manufacturer or design of the Equipment supplied hereunder during the standard warranty period or Seller’s gross negligent acts, omissions or willful misconduct.
b. Buyer shall defend, indemnify and hold harmless Seller from and against any and all Losses incurred by or asserted against Seller arising out of, relating to, or resulting from: (a) any Claims for bodily injury or death or damage to property of any person, including employees of Buyer or any person employed by any of them for whose acts any of them may be liable, to the extent caused by the sole negligence, gross negligence, or willful misconduct of the Buyer or any person for whose acts Buyer is responsible; (b) any loss of or damage to property, but only to the extent caused by Buyer’s or Buyer’s Contractor’s sole negligence, gross negligence, or willful misconduct; or (c) any Claims for Losses incurred or Claims associated with fines, penalties, related costs and expenses attributable to any failure of Buyer or Buyer’s Contractor to comply with all Applicable Laws and Permits, but only to the extent such failure is caused by Buyer's or Buyer's Contractor's acts or omissions.
Section 10. Limitation on Liability.
a. Notwithstanding anything to the contrary contained in this Agreement, SELLER SHALL
HAVE NO LIABILITY TO BUYER IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, SPECIAL,
CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, BUSINESS INTERRUPTION, OR LOSS OF USE, EXCEPT WHERE SUCH DAMAGES ARISE FROM SELLER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR BREACH OF WARRANTY. SELLER’S AGGREGATE
LIABILITY TO BUYER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID UNDER THE PARTICULAR PURCHASE ORDER AT ISSUE. DURING THE TERM OF THIS AGREEMENT, EXCEPT THAT THIS LIMITATION SHALL NOT APPLY TO: (1) SELLER'S INDEMNIFICATION OBLIGATIONS; (2) DAMAGES ARISING FROM SELLER'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; (3) BREACH OF WARRANTY CLAIMS; OR (5) DATA LOSS OR SECURITY BREACHES INVOLVING BUYER'S CONFIDENTIAL INFORMATION.
Section 11. General Provisions
a. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter contained herein, and supersedes any prior agreement and understanding, either written or oral, about the subject matter hereof. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. This Agreement may only be modified or amended by a written instrument executed by the Parties. b. Time is of the Essence. Time is of the essence of this Agreement.
c. Headings. The subject headings of the sections and paragraphs of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
d. Modifications and Amendments. This Agreement may be modified or amended only by a written document executed by both Buyer and Seller and approved as to form by Buyer’s City Attorney.
e. Notices.
1. Any notice required to be given under this Agreement shall be in writing and either served personally, sent prepaid, first class mail or sent by email with confirmation of receipt. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
Seller:
ELM Fieldsight LLC
4300 Live Oak Drive
The Colony, TX 75056
Attn: President
Email: [email protected]
City:
City of Moreno Valley
14177 Frederick Street
P.O. Box 88005
Moreno Valley, CA 92552
Attn: Electric Utility Division Manager – Public Works
Email:
2. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail or upon confirmation of receipt if sent by email.
f. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Electronic signatures shall be deemed to constitute evidence of the Agreement having been executed. g. Successors and Assigns. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the parties to this Agreement and their respective heirs, executors, administrators, personal representatives, successors and assigns. This Agreement shall be non- assignable without the express written consent of Buyer or Seller.
h. Further Assurances. The Parties agree to cooperate with each other and to execute, deliver and record such other agreements and documents and to take such other actions as are reasonably necessary or helpful to more effectively consummate the transaction(s) contemplated under this Agreement and to carry out its purpose and intent. Upon reasonable notice, Seller shall provide Buyer with copies of all non-privileged and non-confidential books and records concerning the Goods as are in Seller’s possession or control.
i. Default. Failure by a party to perform any term, condition or covenant required of the party under this Agreement, shall constitute a “default” of the offending party under this Agreement. In the event that a default remains unaddressed for more than thirty (30) days following receipt of written notice of default from the other party, a "breach" shall be deemed to have occurred. Either Party’s breach of any of its warranties, or the discovery that any representations are not true in every respect, shall also be deemed a breach of this Agreement. Any failure or delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
j. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
k. NonLiability- of Officials and Employees. No member, official or employee of either Party shall be personally liable to the other Party, either individually or jointly, or any of either Party’s successors-in-interest, in the event of any default or breach by either Party for any amount which may become due to the other Party or any of either Party’s successors, or on any obligations under the terms of this Agreement.
l. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation,” where it is contextually appropriate. This Agreement shall be interpreted as though prepared jointly by the Parties.
m. Legal Advice. The Parties represent and warrant to the other party the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel, as to the matters set forth in this Agreement, or acknowledge they have had the opportunity to consult legal counsel; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective
agents, employees or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
n. Venue. All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in California.
o. Force Majeure. Neither Buyer nor Seller will be held liable for failure to fulfill its - obligations hereunder if such failure is due to a Force Majeure Event. A “Force Majeure Event” means, but is not limited to, an act of war; domestic and/or international terrorism; civil riots or rebellions; quarantines, pandemics or epidemics; embargoes, state or national states of emergencies, and other similar unusual governmental actions; or extraordinary elements of nature or acts of God; provided that such Force Majeure Event is beyond the excused Party’s reasonable control, occurs without the excused Party’s fault or negligence, is not caused directly or indirectly by the excused Party and could not have been prevented or avoided by the excused Party’s reasonable diligence.
p. Survival. Sections which by their nature should survive (including payment obligations, license and use restrictions, confidentiality/IP, warranties/exclusions, limits of liability, and notices) survive termination or expiration. Without limitation, the following Sections survive termination of this agreement: Sections 3c, 4, 5, 6c, 9, 10, 11, Exhibit A and Exhibit C (sections 1-2 and 4-6).
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
City of Moreno Valley ELM Fieldsight LLC
BY: BY:
City Manager
TITLE: _____________
__________________________________
Date
INTERNAL USE ONLY
APPROVED AS TO LEGAL FORM:
City Attorney
Date
RECOMMENDED FOR APPROVAL:
Department Head
Date
EXHIBIT A
TERMS OF PAYMENT
1. The Seller's compensation shall be determined for each order using the Purchase Price formula listed in Section 2 and Exhibit “B”.
2. The Seller will obtain, and keep current during the term of this Agreement, the required City of Moreno Valley business license. Proof of a current City of Moreno Valley business license will be required prior to any payments by the City. Any invoice not paid because the proof of a current City of Moreno Valley business license has not been provided will not incur any fees, late charges, or other penalties. Complete instructions for obtaining a City of Moreno Valley business license are located at: https://moval.org/departments/financial-mgmt-svcs/svc-biz-license.html
3. The Seller will electronically submit all quotes to the City along with support documentation to Electric Utility staff at [email protected]
a. Accounts Payable questions can be directed to (951) 413-3073. b. Copies of quotes may be submitted to the Electric Utility Department at [email protected] or calls directed to (951) 413-3500.
4. The Seller agrees that City payments will be received via Automated Clearing House (ACH) Direct Deposit and that the required ACH Authorization form will be completed prior to any payments by the City. Any invoice not paid because the completed ACH Authorization Form has not been provided will not incur any fees, late charges, or other penalties. The ACH Authorization Form is located at:
https://moval.gov/city_hall/forms.html
5. The minimum information required on all invoices is:
a. Seller Name, Mailing Address, and Phone Number
b. Invoice Date
c. Seller Quote Number
d. City-provided Reference Number, if applicable (e.g. Project, Activity) e. Detailed billing information that is sufficient to justify the quote amount; single, lump amounts without detail are not acceptable.
6. The City shall pay the Seller for all invoiced, authorized professional services within thirty (30) days of receipt of the invoice for same. Payment shall not be unreasonably withheld or delayed, and any disputes regarding invoiced amounts shall be limited to the disputed portion; undisputed amounts shall be paid when due.
7. Reimbursement for Expenses. Seller shall not be reimbursed for any expenses unless authorized in writing by City.
Exhibit B
Equipment Pricing List
ELM Microgrid MG2 MVU Pricing List (314Ah Battery)
ESS
Containers
Max
Power
(kW)
Total
Energy
(kWh)
MVU Cost**
Without Tariff
Additional
Cost for 41%
Tariff
5 year parts(10
years total )
warranty
extension**
10 year parts(15
years total )
warranty
extension**
15 year parts(20
years total )
warranty
extension**
1 415 836 $330,526.00 $15,385.00 $16,526.30 $33,052.60 $49,578.90 2 825 1672 $500,420.00 $30,770.00 $25,021.00 $50,042.00 $75,063.00 3 1250 2508 $670,314.00 $46,155.00 $33,515.70 $67,031.40 $100,547.10 4 1500 3344 $840,207.00 $61,540.00 $42,010.35 $84,020.70 $126,031.05 5 1500 4180 $1,010,102.00 $76,925.00 $50,505.10 $101,010.20 $151,515.30 6 1500 5016 $1,179,995.00 $92,310.00 $58,999.75 $117,999.50 $176,999.25 7 1500 5852 $1,401,813.00 $107,695.00 $70,090.65 $140,181.30 $210,271.95 8 1500 6688 $1,571,707.00 $123,080.00 $78,585.35 $157,170.70 $235,756.05 9 1500 7524 $1,741,601.00 $138,465.00 $87,080.05 $174,160.10 $261,240.15 10 1500 8360 $1,911,494.00 $153,850.00 $95,574.70 $191,149.40 $286,724.10 *MVU Cost Includes
-Standard Warranty: 2 year Workmanship/Material and Five Years Parts Only
-5 Year ELM Silver Monitoring
plan
-Integrated FieldSight Microgrid Site
Controller
-CAB 1000 Storage Inverter
-Main Interface Control Box
(MICB)
-Main Interface Box (MIB) for Systems with 6-12 ESS
Enclosures
-1000 Hour Salt Spray
-Corrosion Resistant Aluminum Outer Structure
-Integrated Fire Safety Design
-UL 9540, UL 1973, UL 9540A, and UL 1741 SB
Certified
**The Warranty Extension is the MVU Cost and is Made in Equal Annual Payments for the Length of the Warranty ***Add-
Ons
CAB1000 C5 Coastal Option -
$17,000
MIB for Systems with 2-5 ESS Enclosures- $52,500
Base Tariff Rates Applicable to BESS Units (Battery Modules with China Origin) as currently expected for 2026
Tariff / Duty
Type
Description / Applicability Rate (%) Notes / Effective Details Most-Favored-
Nation (MFN)
Rate
Standard U.S. import duty applied
under WTO terms
3.4 % Applies to all BESS modules
imported from China.
Reciprocal
IEEPA Tariff
Additional duty imposed under
International Emergency
Economic Powers Act
10 % Effective as of 2025 on covered
Chinese energy storage
products.
“Fentanyl”
Tariff
Supplemental duty targeting
strategic goods
20 % Applies to covered lithium-ion
and related energy products.
Section 301
Tariff
Trade-remedy duty under USTR
Section 301 list
25 % Currently 7.5 %; scheduled to
increase to 25 % effective
January 1, 2026.
Active Anode
Material (AD)
Antidumping duty on AAM portion
of BESS module value
102.72 % Applies only to AAM content
(~15 % of module cost).
Active Anode
Material (CVD)
Countervailing duty on AAM
portion of BESS module value
11.58 % Applies only to AAM content
(~15 % of module cost).
EXHIBIT C
SOFTWARE LICENSE, CLOUD SERVICES, CONFIDENTIALITY & NON-DISCLOSURE
1. Definitions
“Agreement” means the Purchase Agreement to which this Exhibit C is attached. “Confidential Information” has the meaning set forth in Section 7 below. “FieldSight Cloud Services” means Seller’s hosted monitoring and management platform used in connection with the Goods.
“Goods” means the energy storage equipment and related hardware described in Exhibit B. “Software” means Seller’s proprietary software (including embedded firmware), documentation, configurations, scripts, test plans, interface/Points Lists, and any updates, patches, enhancements, and derivatives thereof used with the Goods or Seller’s FieldSight Cloud Services.
2. Intellectual Property Rights / Software License
a. Seller retains all right, title, and interest in and to its intellectual property, including its Software, Confidential Information, Goods, documentation, algorithms, interfaces/Points Lists, test scripts, tooling, updates, patches, enhancements, configurations, and derivatives, whether created before or during the term of this Agreement. The Software is licensed, not sold. b. Subject to timely payment and compliance with the Agreement, Seller grants Buyer a non-exclusive, non-transferable, limited license to install and use the Software supplied with the Goods solely to:
i. operate the purchased Goods at the project site(s) identified in the Purchase Order; and ii. access the FieldSight Cloud Services for the warranty period or subscription term stated in the Purchase Order or until termination of the Agreement, . c. Buyer shall not (and shall not permit any third party to) copy (except for reasonable backup), translate, adapt, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to derive source code or underlying ideas from Seller’s Software or Confidential Information; remove or alter proprietary notices or license keys; provide the Software or access to it to third parties (including service bureaus, hosting, or “as-a-service” offerings); or sublicense, rent, lease, loan, assign, or otherwise transfer the Software except as expressly permitted. d. The license to access FieldSight Cloud Services terminates upon expiration of the warranty or subscription term in the Agreement or upon Buyer’s uncured material breach (including non- payment). The license for all other Software automatically terminates upon termination for any reason and or Buyer’s material breach (including non-payment) that remains uncured per the Agreement. Upon termination or expiry, Buyer must cease all use, remove or disable non-embedded Software, and certify destruction of non-embedded copies. Accrued fees and Seller’s remedies survive.
e. Buyer grants Seller [AB1] a worldwide, royalty-free license to collect, host, process, operational data generated by the Goods and site (e.g., time-series SCADA points, alarms, performance logs) and use such data solely (i) to provide support and services under the Agreement and (ii) in aggregated or
de-identified form that does not identify Buyer, the site, or any information specific to Buyer's operations, to improve Seller’s Software, products, and services. Seller[AB2] retains ownership of all improvements derived from such de-identified use.
f. Any scripts, interface definitions, mappings, configurations, test plans, reports, or other materials created by Seller under a Purchase Order (collectively, “Work Product”) are and remain Seller’s property, even if customized for Buyer. Buyer receives a non-exclusive right to use such Work Product solely with the Goods at the applicable site(s) subject to the terms of this Agreement.
3. Cloud Service Levels and Support (SLA)
Availability: Seller will use commercially reasonable efforts to maintain ≥ 99.5 % annual uptime for FieldSight Cloud Services, excluding scheduled maintenance and excused downtime. Scheduled Maintenance: Seller will give at least 48 hours’ notice for planned maintenance; emergency maintenance may occur on shorter notice.
Support Targets (business hours):
o P1 – critical system down / safety risk – acknowledge 1 hour; action plan 4 hours; continuous effort until mitigated.
o P2 – major impairment – acknowledge 4 hours; action plan same business day; mitigation within 2 business days.
o P3 – minor issue / question – acknowledge 1 business day; resolution path within 5 business days.
Exclusions: SLA targets exclude issues caused by Buyer’s network or third-party carriers/ISPs, Buyer-initiated changes or misuse, force majeure, or non-Seller integrations. Remedies: For repeated, material SLA misses directly caused by Seller, Seller will extend the Cloud term proportionally or provide reasonable support credits; these are Buyer’s sole and exclusive SLA remedies.
4. Confidentiality and Non-Disclosure
a. Purpose. In connection with the performance of the Agreement, each Party may disclose certain non-public or proprietary information relating to its operations and business. b. Definition. “Confidential Information” means all information furnished by or on behalf of a Party, whether oral, written, or electronic, including technical data, business or financial information, product plans, pricing, software, and discussions regarding the Agreement.
c. Exclusions. Confidential Information does not include information that: (i) becomes public without breach; (ii) was lawfully in the Receiving Party’s possession; (iii) is lawfully obtained from a third party without duty of confidentiality; (iv) is independently developed without use of the Confidential Information; (v) is disclosed under written authorization; or (vi) must be disclosed under legal compulsion after giving prompt notice (if lawful) and reasonable cooperation to seek protective relief.
d. Obligations. The Receiving Party shall use at least the same degree of care (not less than reasonable care) as it uses for its own information, limit disclosure to personnel or contractors with a need-to- know under similar obligations, and use Confidential Information only to perform under the Agreement.
e. Retention and Return. Upon request or termination/expiration of the Agreement, the Receiving Party shall return or destroy Confidential Information (archival backups may be retained subject to ongoing confidentiality).
f. Term. Confidentiality obligations survive for five (5) years from termination/expiration of the Agreement; trade-secret information remains protected so long as it qualifies as a trade secret. g. Remedies. Unauthorized use or disclosure may cause irreparable harm; the Disclosing Party is entitled to injunctive relief in addition to other available remedies. h. Ownership. All Confidential Information remains the Disclosing Party’s property; no license or other right is granted except as expressly stated herein.
5. Term and Termination (Exhibit C)
This Exhibit remains in effect for the term of the Agreement and, for confidentiality, for the period specified in Section 4(f) in this Exhibit. Sections concerning confidentiality, data, IP, restrictions, and remedies survive termination or expiration of the Agreement.
6. Order of Precedence
If any inconsistency arises between this Exhibit and another document incorporated into the Agreement, this Exhibit controls for matters concerning Software, Cloud Services, and Confidential Information, followed by the main Agreement, then other Exhibits, then any Purchase Order, unless otherwise expressly agreed in writing.
Execution of the Agreement constitutes the parties’ agreement to be bound by each of the terms contained herein.