Master Services Agreement

These Master Services Terms (this “Agreement”) govern the provision of compliance management software and services by Warm Commerce, Incorporated, a Delaware corporation doing business as Empact Technologies, with its principal place of business at 1000 Main Street, Suite 2300–1087, Houston, TX 77002 (“Empact”), to each client entity that executes an Order Form referencing or incorporating this Agreement (“Client”). Empact and Client may be referred to individually as a “Party” and collectively as the “Parties.”

Background. Empact and Client desire to establish the general terms and conditions under which Empact will provide compliance management software and services to Client. The specific services, service levels, deliverables, and commercial terms applicable to any engagement are set forth in one or more Order Forms that incorporate this Agreement by reference.

Acceptance and Incorporation by Reference. This Agreement is published at https://www.empacttechnologies.com/legal/msa/ and is incorporated by reference into each Order Form. By executing an Order Form that references or incorporates this Agreement, Client acknowledges that it has had the opportunity to review this Agreement and agrees to be bound by it as of the Effective Date set forth in that Order Form, in each case without the need for a separate signature to this Agreement. Empact will provide a copy of this Agreement, or of any prior version, upon written request.

1. Structure of the Agreement; Order of Precedence

This Agreement sets forth the general legal terms and conditions governing the relationship between the Parties. It does not itself commit Client to purchase, or Empact to provide, any specific services. Services are ordered by execution of an order form referencing this Agreement (each, an “Order Form”), and the scope, functionality, service phases, and deliverables applicable to such services are set forth in Empact’s compliance management solution descriptions attached to each Order Form. The pricing, quantities, and subscription term of each order are set forth in the applicable Order Form. This Agreement, together with the Order Form executed by the Parties, constitutes a single integrated agreement between the Parties. Where the Parties execute a negotiated master services agreement that is attached to, or expressly identified by title, version, and date on, an Order Form, that negotiated agreement is the effective Agreement for purposes of that Order Form.

Empact’s Trust and Security Agreement (the “TSA”) — comprising Empact’s Information Security Program and Data Processing Addendum (United States) is incorporated into this Agreement by reference, and forms a part of this Agreement. Empact may update the TSA from time to time, provided that no update materially reduces the protections afforded to Client.

In the event of any conflict, ambiguity, or inconsistency among these documents, the following order of precedence shall govern, in each case solely with respect to the services, projects, and fees described therein: (a) the applicable Order Form; (b) this Agreement; and (c) the TSA. Notwithstanding the foregoing, no Order Form shall be deemed to modify the provisions of this Agreement unless such Order Form expressly references the specific provision of this Agreement being modified and is signed by an authorized representative of each Party.

2. Definitions

Capitalized terms used in this Agreement have the meanings set forth below or, if not defined herein, the meanings given to them in the applicable Order Form.

“Services” means the compliance management outcomes, advisory, and related services described in an Order Form, in each case made available through or in connection with the Software on a subscription basis for the subscription term stated in that Order Form.

“Software” means Empact’s proprietary software-as-a-service platform (including NexusIQ) through which the Services are primarily delivered, together with all related documentation, updates, and enhancements.

“Client Data” means all information and data provided to Empact by Client, Client’s affiliates, agents, representatives or advisors, or by project contractors, suppliers and other vendors.

3. Confidentiality

Both Parties acknowledge the confidential nature of the information shared in connection with this Agreement and agree not to disclose or use (other than in performing its obligations hereunder) the other Party’s Confidential Information without its prior written consent. “Confidential Information” means all non-public information provided by one Party to the other, including: (a) all intellectual property; (b) financial information (including pricing) and business information; (c) product roadmaps; (d) Client Data and information contained in project materials; and (e) the terms of this Agreement and each Order Form. Confidential Information does not include information that has become publicly known through no breach by Client or Empact of these confidentiality obligations, or information that is independently and lawfully developed or obtained without access or reference to, or use of, Confidential Information, as evidenced in writing.

If a receiving Party is required by law or legal process to disclose the disclosing Party’s Confidential Information, the receiving Party will, unless prohibited by law, promptly notify the disclosing Party of such fact and cooperate fully (at the disclosing Party’s expense) with the disclosing Party and its legal counsel in seeking a protective order or otherwise limiting the disclosure, as the disclosing Party reasonably directs. The receiving Party will disclose only that portion of the disclosing Party’s Confidential Information that is legally required to be disclosed.

In the event of a breach or threatened breach of a Party’s confidentiality obligations as set forth in this Section, the disclosing Party will be entitled, in addition to any other legal or equitable remedies, to seek an injunction or similar equitable relief against any such breach or threatened breach.

Upon the disclosing Party’s request, the receiving Party will, at the disclosing Party’s election, promptly return or destroy all Confidential Information, including all copies and any derivatives related thereto; provided, that the receiving Party shall be entitled to retain Confidential Information to the extent (i) necessary to comply with applicable law or bona fide document retention policies or (ii) backed up on relevant servers or electronic devices; provided, further, that any Confidential Information so retained shall remain subject to the confidentiality obligations hereof. Notwithstanding the foregoing, any such requests related to Client Data or project materials will be handled in accordance with Empact’s privacy policy and the Data Processing Addendum in the TSA, including Section 2.13 (Return and Deletion of Personal Data) of the TSA. For the avoidance of doubt, the obligations to maintain the confidentiality and non-use of Confidential Information will survive the termination or expiration of this Agreement.

4. Privacy

Empact’s collection, use, retention, and disclosure of personal information in connection with this Agreement are governed by Empact’s privacy policy, posted at the following location or its successor location on Empact’s website: https://www.empacttechnologies.com/about/privacy-policy/.

5. Data Security

Empact will implement and maintain the administrative, technical, and physical safeguards described in Empact’s TSA posted at the following location or its successor location on Empact’s website: https://www.empacttechnologies.com/legal/tsa/. Empact’s obligations with respect to information security, and its obligation to notify Client of security incidents affecting Client Data, are set forth in the TSA.

6. Technical Support and Service Levels

Support Services. Empact will provide technical support for the Software for the duration of the Term. Technical support includes:

• Software access, authentication, and user provisioning;
• Investigation, diagnosis, and resolution of Software defects and errors; and
• Guidance on standard Software functionality, navigation, and configuration.

Exclusions. Technical support does not include: (a) custom development or feature requests outside the standard product and product roadmap; (b) integrations beyond the scope contracted under this Agreement; (c) issues arising from Client systems, networks, devices, or third-party tools not provided by Empact; or (d) correction of compliance results or outputs arising from inaccurate, incomplete, or untimely Client-provided data. Compliance interpretation, advisory, and managed-service deliverables are governed by the applicable services scope set forth in the applicable Order Form and are not technical support.

Support Channels. Client may request technical support through the following channels:

• Empact support portal and ticketing system. This is the preferred channel and will produce the fastest response. Severity is assigned from the Urgency and Impact values selected at submission, so portal tickets route accurately.
• Email to support@empacttechnologies.com. Intended for cases where the user is unable to access the Software or the portal.

Empact may designate an account or customer-success contact for Client in accordance with Client’s subscription tier.

Hours of Availability. Standard technical support is available Monday through Friday, 8:00 a.m. to 6:00 p.m. Central Time, excluding Empact-observed holidays. References to “business hours” and “business days” in this Section are measured against these hours.

Severity Levels and Response Targets. When submitting a support request, the end user selects an Urgency level (how quickly the issue must be resolved) and an Impact level (how broadly it affects operations). The combination determines the Severity assigned to the ticket.

Empact will use commercially reasonable efforts to meet the response and resolution targets below. These targets are objectives and not guarantees. “Resolution” includes delivery of a reasonable workaround.

Because the Software supports time-sensitive compliance activities, an issue that directly blocks a statutory or regulatory deadline (for example a filing, safe-harbor, or beginning-of-construction window) should be submitted with High Urgency and High Impact. That combination produces a Severity 1 classification and the corresponding one business hour response target.

Table 6-1. Severity classifications and target response times.

Availability Commitment. Empact will use commercially reasonable efforts to make the Software available at least 99.5% of the time in each calendar month, measured on a 24x7 basis and excluding: (a) scheduled maintenance; (b) emergency maintenance; (c) outages caused by Client systems, networks, or third-party services; and (d) events outside Empact’s reasonable control. Software availability depends in part on the underlying Salesforce infrastructure; Section 1.2 (Shared Responsibility Model) of the TSA sets out the division of responsibility between Salesforce and Empact.

Scheduled Maintenance. For scheduled maintenance associated with major releases and expected to materially affect Software availability, Empact will provide at least forty-eight (48) hours’ advance notice and will use reasonable efforts to perform such maintenance during off-peak hours.

Updates and Upgrades. Empact regularly updates and enhances the Software. Patches, updates, and new features released as part of the standard subscription are applied automatically and are included at no additional charge. Empact has no obligation to support superseded versions or configurations.

Client Responsibilities. To enable timely support, Client will: (a) provide information reasonably necessary to identify, reproduce, and resolve reported issues; and (b) maintain supported browsers, devices, and operating environments as published by Empact.

7. Access to the Software; Restrictions

Subject to Client’s compliance with this Agreement and payment of the applicable fees, Empact grants Client a non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Software, and to permit its authorized users to do so, solely for Client’s internal business purposes in connection with its projects. Client is responsible for the acts and omissions of its authorized users and for maintaining the confidentiality of account credentials.

Client shall not, and shall not permit any third party to: (a) resell, sublicense, rent, or otherwise make the Software available to any third party except as expressly permitted in this Agreement or the applicable Order Form; (b) reverse engineer, decompile, or disassemble the Software, or attempt to derive its source code, except to the extent such restriction is prohibited by applicable law; (c) copy, modify, or create derivative works of the Software; (d) remove or obscure any proprietary notices; (e) use the Software to build a competing product or service, or for benchmarking or competitive analysis; or (f) use the Software in violation of applicable law or in any manner that interferes with its operation or security.

8. Intellectual Property

All intellectual property rights, including but not limited to patents, copyrights, trademarks, trade secrets, and other proprietary rights related to the Software, shall be owned by Empact. Empact represents and warrants that it owns or has the right to license the Software or the Services to be provided under this Agreement. Notwithstanding the foregoing, all intellectual property rights to all project materials, Client Data, and Client’s name, trademarks, service marks, logos and Confidential Information shall be owned by Client.

9. Mutual Warranties

Each Party represents, warrants, and covenants that it has the right to enter into this Agreement, including any necessary rights and corporate authorizations, and shall comply with all applicable laws and regulations.

Except as expressly set forth in this Agreement or in an applicable Order Form, the Software and Services are provided “as is,” and Empact disclaims all other warranties, whether express, implied, or statutory, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty that the Software will be uninterrupted or error-free. Except as expressly set forth in an applicable Order Form, Empact does not warrant any particular tax, financial, or regulatory outcome, including the availability, amount, or retention of any tax credit or incentive.

10. Insurance

To the extent Empact’s Services include professional services, Empact shall maintain professional liability insurance covering negligent acts, errors and omissions in the performance of professional services, and cyber liability insurance covering data breaches and privacy violations, third-party liability, and incident response costs, with policy limits of not less than $1 million per claim and $1 million in the aggregate for each such policy.

11. Indemnification

Each Party shall indemnify, defend, and hold harmless the other Party and its officers, directors, employees, and agents from and against all third-party claims, liabilities, losses, damages, costs, and expenses arising out of or related to its breach of this Agreement.

Without limiting the foregoing, Empact will defend and indemnify Client, its employees, officers, agents, directors, subsidiaries, successors and assigns against any claim, loss or damage (including reasonable attorneys’ fees) incurred in connection with any third-party claims, suits, or proceedings (“Claims”) arising out of or related to (a) an allegation that a Service or all or any portion of the Software infringes any copyright, patent, trade secret right, trademark, or other intellectual property right of a third party arising under applicable law, or (b) Empact’s failure to comply with all applicable laws and regulations, including privacy regulations. Empact has no obligation under clause (a) to the extent a Claim arises from (i) combination or use of the Software or Services with products, services, data, or materials not supplied by Empact, where the Claim would not have arisen but for the combination; (ii) modification of the Software or Services by anyone other than Empact; (iii) use of the Software or Services other than as permitted by this Agreement or the applicable documentation; (iv) Client Data or materials provided by Client or any project contractor; or (v) Client’s continued use of an allegedly infringing version after Empact has made a non-infringing version available at no additional cost.

The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim, provided that failure to give prompt notice relieves the indemnifying Party of its obligations only to the extent it is materially prejudiced. The indemnifying Party shall have sole control of the defense and settlement of the Claim, and the indemnified Party shall provide reasonable cooperation at the indemnifying Party’s expense and may participate with counsel of its own choosing at its own expense. The indemnifying Party shall not settle any Claim in a manner that imposes liability or admits fault on the part of the indemnified Party without its prior written consent, not to be unreasonably withheld.

In the event that the Services, the Software or any part thereof is likely to, or does, become the subject of an infringement-related Claim, Empact will have the right to: (a) procure for Client the right to continue using the Services or the Software, as applicable; (b) modify the Services or Software, as applicable, to make it non-infringing; or (c) terminate this Agreement and provide Client with a pro-rata refund of any pre-paid fees.

12. Limitation of Liability

Excluded Damages. Neither Party shall be liable to the other Party for any indirect, special, consequential, exemplary or punitive damages.

Cap on Direct Damages. Empact’s aggregate liability to Client for all claims arising from or relating to this Agreement, any breach of this Agreement, or any breach of warranty in respect of Services provided under this Agreement or any Order Form shall not exceed the fees actually paid by Client to Empact under the applicable Order Form during the twelve (12) months immediately preceding the event giving rise to the claim. If the claim does not arise under a single Order Form, the fees paid under all Order Forms then in effect during that period shall be used. The cap in this Section is a single aggregate ceiling and is not multiplied by the number of claims, claimants, projects, or Order Forms.

Exceptions. Neither the exclusion of damages nor the cap set forth above applies to willful misconduct, fraud, breach of the confidentiality obligations under this Agreement, or indemnification obligations for third-party claims alleging that the Software or Services infringe third-party intellectual property rights.

13. Termination

Either Party may terminate this Agreement upon written notice to the other Party for the other Party’s material breach of its representations, warranties, or obligations under this Agreement, subject to the applicable notice and cure rights of the non-performing Party set forth herein. Any termination notice delivered hereunder shall include specific details of the breach or non-performance and a reasonable period, not less than ten (10) days for any monetary breach and thirty (30) days for any non-monetary breach, for the non-performing Party to rectify the breach or performance failure.

If the non-performing Party fails to cure the breach or failure within the stipulated notice period, the non-breaching Party shall have the right to terminate this Agreement, discontinue performance, and recover from the breaching Party its actual damages on account of such breach, or pursue any other right or remedy available to such non-breaching Party under this Agreement or applicable law or in equity, subject however to the limitations of liability expressly set forth in this Agreement.

This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.

Upon any termination of this Agreement, the Parties shall have no further obligations to each other, except for any rights or remedies that have accrued prior to termination and the obligations of confidentiality, which survive termination. Upon termination, the Parties shall comply with the provisions hereof related to confidentiality and return or destroy Confidential Information. Upon termination of this Agreement for any reason other than Client’s breach, Empact shall promptly, and in no event later than ten (10) days following termination, make available to Client for download all project materials not previously delivered to Client, and shall, for up to sixty (60) days following termination, provide reasonable transition assistance to Client at Empact’s then-current hourly rates, subject to the Parties agreeing on a scope of work.

Termination of this Agreement shall terminate all Order Forms then in effect, and Client’s right to access and use the Software shall cease upon such expiration or termination, subject to Empact’s obligation above to make project materials available for download. Each Order Form expires or terminates in accordance with its own terms, and the expiration or termination of one Order Form does not affect any other Order Form then in effect.

14. Promotion

Empact may reference and use in Empact’s advertising, publicity, press releases and other marketing materials the name of Client and any trade name, service mark, symbol or logo of Client, provided that such materials (a) are first provided to Client for review and approval (which shall not be unreasonably withheld), (b) do not disclose any confidential information about Client or its business, and (c) do not make any claims regarding the services provided or results achieved without Client’s prior written consent.

15. Assignment

Empact may assign this Agreement to an affiliate or in connection with a change of control, on notice to Client. Client may assign this Agreement to an affiliate or in connection with a change of control of Client or the Client’s project company which is the subject of the Services, in which case Client shall provide Empact with notice of such assignment. No assignment increases Empact’s aggregate liability, which applies collectively to Client and all permitted assigns.

16. Notices

All notices, requests, demands, approvals, waivers and other communications permitted or required under this Agreement must be in writing in English and delivered by letter, courier, or electronic mail. Notice by electronic mail or hand delivery is deemed received on the day it was transmitted or hand delivered, unless such day is not a business day or hand delivery occurred after 5:00 p.m. local time, in which case it shall be deemed received on the next business day. Notice by overnight mail or courier shall be deemed received two (2) business days after it was sent.

Notices to Empact shall be addressed to Empact Technologies, 1000 Main Street, Suite 2300-1087, Houston, TX 77002, Attention: General Counsel, Email: Legal@EmpactTech.com. Notices to Client shall be addressed to the notice address set forth in the applicable Order Form, or to such other address as may be given by written notice in accordance with this Section.

17. Governing Law and Jurisdiction

This Agreement shall be construed, governed by, interpreted and applied in accordance with the laws of the State of Texas without giving effect to the conflicts of law principles thereof. Any legal suit, action or proceeding arising out of or based upon this Agreement may be instituted in the federal courts of the United States or the courts of the State of Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

18. Miscellaneous

Interpretation. “Including” means including without limitation. Section headings are for convenience only and do not affect interpretation. A reference to a statute, regulation, or item of published guidance is a reference to it as amended and to any successor provision or guidance.

No Third Party Beneficiaries; Third-Party Reliance. Nothing in this Agreement shall confer any rights upon any person or entity other than the Parties hereto and their respective successors and permitted assigns. Notwithstanding Section 3 (Confidentiality), Client may disclose reports, certificates, and other deliverables provided under this Agreement to its professional advisors, investors, tax equity investors, transferee credit purchasers, lenders, insurers, and prospective purchasers of a project, in each case on a confidential basis and for the purpose of evaluating or financing the applicable project. No such disclosure creates any duty of care, contractual or extra-contractual obligation, or right of reliance on the part of Empact to any recipient, and no recipient is a third-party beneficiary of this Agreement.

Counterparts. This Agreement may be executed by one or more of the Parties in any number of separate counterparts, and all such counterparts taken together shall constitute one and the same instrument. Electronic signatures shall have the same force and effect as original signatures.

Entire Agreement. This Agreement, together with an Order Form executed hereunder, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written.

Amendments. Except for revisions to the posted form of this Agreement made in accordance with the Structure of the Agreement Section (which apply only prospectively as provided therein), any modification to this Agreement as it applies to an executed Order Form must be in writing and signed by both Parties.

Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall continue in full force and effect.

Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving Party, and no failure or delay in exercising any right shall operate as a waiver thereof.

Waiver of Jury Trial. Each Party irrevocably waives any right to trial by jury in any action or proceeding arising out of or relating to this Agreement.

Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs.

Force Majeure. Neither Party shall be liable for any delay or failure to perform its obligations hereunder (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, epidemic, war, terrorism, civil unrest, labor disputes, governmental action, or failures of the internet or third-party telecommunications providers, provided that the affected Party promptly notifies the other Party and uses commercially reasonable efforts to resume performance. If a force majeure event prevents a Party from performing a material obligation for more than ninety (90) consecutive days, either Party may terminate this Agreement on written notice given while the event continues.

Independent Contractor. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between the Parties, and neither Party has authority to bind the other.

Survival. The provisions of this Agreement relating to confidentiality, intellectual property, indemnification, limitation of liability, governing law, and any accrued payment obligations shall survive the expiration or termination of this Agreement.