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EPC Terms of Use

(Last updated July 26, 2022)

PLEASE READ THESE TERMS OF USE CAREFULLY. BY CLICKING ACCEPT OR ACCESSING, USING OR PARTICIPATING IN THE LUMEN PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL THESE TERMS OF USE, THEN DO NOT CLICK ACCEPT AND YOU MAY NOT ACCESS, USE OR PARTICIPATE IN THE LUMEN PLATFORM.

Acceptance

These Terms of Use (“Terms”) govern your access to, use of and participation in the Lumen Platform, made available by Lumen Energy, Inc. (“Lumen Energy,” “we,” “our” or “us”) to you. All references to “EPC,” “you” or “your” mean the person who accesses, uses or otherwise participates in the Lumen Platform as a provider of Services (defined below). You represent you are at least eighteen years of age. If you use the Lumen Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed acceptance by that entity and “you” and “your” as used herein refers to such entity.

Lumen Energy may, in its sole discretion, modify these Terms at any time in its sole discretion effective upon posting the modified Terms on the Lumen Platform, with or without additional notice to you. You are responsible for regularly reviewing any information posted on the Lumen Platform, including updated Terms, if any. If you do not agree to the amended Terms, you agree to immediately stop using the Lumen Platform and to provide us with notice to remove you from any distribution or communication lists available through your use of the Lumen Platform. YOUR CONTINUED USE OF THE LUMEN PLATFORM AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS.

Definitions

“Bid Package” means the information provided by Lumen Energy to you through the Lumen Platform regarding a Property, including its location, size, aspect, obstructions, restrictions, third-party requirements and any other relevant or pertinent information to the provision of Services for that Property.

“Bid Response” means your response to a Bid Package provided through the Lumen Platform, including without limitation fees, costs, schedule, timeline, EPC requirements and any other relevant or pertinent information related to your offer to provide the Services at that Property.

“EPC” means you, the engineering, procurement and construction contractor, a provider of Services.

“Lumen Platform” means the complete software platform provided by Lumen Energy consisting of the SELECT, ACT and SHINE products and services. Lumen Energy’s online ACT product and services enables Property Owners and their Properties to secure bids from qualified EPCs willing to perform Services for those Properties.

“Property(ies)” means each unique property(ies) owned, managed or operated by a Property Owner.

“Property Owner” means the third-party who seeks Services via the Lumen Platform.

“Service(s)” means the design, installation and/or servicing of solar panel arrays for the creation of energy including any onsite Property inspections or other work performed prior to the submission of a Bid Response.

Lumen Platform

Lumen Energy provides the Lumen Platform to enable you to receive Bid Packages and provide corresponding Bid Responses for the provision of Services to Property Owners. In the event your Bid Response is accepted by a Property Owner, any resulting agreement is solely between you and that Property Owner, and that Lumen Energy was merely a conduit for you and a third party (i.e., Property Owners) to connect and separately transact for the Services. No agency, partnership, joint venture or employment relationship is created between us and you or any third-party (including without limitation the Property Owners) as a result of the Lumen Platform or these Terms, and we do not direct, control or otherwise get involved in your business. You agree and acknowledge that you: decide whether to submit a Bid Response; set your own fees and costs; set your own schedule and timeline; and provide your own workers, equipment and other materials to perform the Services. Lumen Energy is not liable or responsible for any costs or expenses related to your use of the Lumen Platform. Neither Lumen Energy nor you may create any obligation on behalf of the other except as expressly set forth in these Terms. Lumen Energy does not endorse any EPC or any Bid Response. Lumen Energy does not vet or otherwise confirm the content of any Bid Packages: LUMEN ENERGY DOES NOT MAKE ANY REPRESENTATIONS, GUARANTEES OR ENDORSEMENTS OF ANY KIND RELATED TO YOU OR YOUR USE OF THE LUMEN PLATFORM, WHETHER OR NOT YOU WILL RECEIVE ANY BID PACKAGES, THE CONTENT THEREIN, OR THE LIKELIHOOD OF THE PROVISION OF SERVICES THERETHROUGH.

Subject to your compliance with these Terms, Lumen Energy hereby grants to you a nonexclusive, nonassignable, nontransferable, nonsublicenseable, revocable right and license to access, use and participate in the Lumen Platform. You must register on the Lumen Platform to engage with our products and services. No licenses or rights are granted by implication or otherwise, except as expressly stated in these Terms. Lumen Energy (and its licensors) own and retain all right, title and interest in and to the Lumen Platform and all intellectual property rights therein. All trademarks, service marks, logos and tradenames are trademarks or registered trademarks of Lumen Energy and the goodwill from your use, if any, shall inure to the sole benefit of Lumen Energy.

When you provide Bid Responses through the Lumen Platform, you hereby grant to Lumen Energy a royalty-free, fully paid-up, perpetual, irrevocable, assignable, transferable, sublicenseable right and license to copy, modify, distribute and publicly display and perform the content within the Bid Responses in order to operate, market, improve and support the Lumen Platform and otherwise run the current or future business of Lumen Energy, provided Lumen Energy does not use such content to directly compete against you nor provide or disclose such content to other EPCs.

By sending us any feedback, comments, questions or suggestions concerning Lumen Energy or the Lumen Platform (“Feedback”), you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you grant us a royalty-free, fully paid-up, perpetual, irrevocable, assignable, transferable, sublicenseable right and license to copy, modify, distribute and publicly display and perform the Feedback in our sole discretion and without any obligation to you.

Lumen Platform Restructions

In using the Lumen Platform, you shall not, directly or indirectly:

  • Misrepresent your qualifications, experience or any other information provided on or through the Lumen Platform, including without limitation in the Bid Response;
  • Take any action that that (i) may unreasonably encumber the Lumen Platform's infrastructure; (ii) interferes or attempts to interfere with the proper working of the Lumen Platform or any third-party participation; (iii) bypasses measures that are used to prevent or restrict access to the Lumen Platform; (iv) circumvents, disables or otherwise interferes with security features of the Lumen Platform; (v) distributes viruses or any other technologies that may harm Lumen Energy, its Lumen Platform or any third party; or (vi) uses the Lumen Platform in a way that violates any copyrights, trade secrets or other rights of any third party;
  • Use, copy, modify, create derivative works, distribute, display, perform, sell, license, transfer or otherwise exploit the Lumen Platform except as expressly permitted by these Terms;
  • Recruit or solicit any employee or contractor of Lumen Energy for employment with you or any third party; or
  • Advertise or solicit any services that are unrelated to the Lumen Platform or the Services, including without limitation competing products or services.
Your Representations and Warranties

You acknowledge, agree, represent and warrant that:

  • each Bid Response you submit is accurate, complete and current;
  • you are, and will continue to, receiving Bid Packages and submitting Bid Responses in good faith and otherwise accessing, using and participating in the Lumen Platform for your own benefit and not as a means to thwart Lumen Energy’s business prospects with it;
  • your and your Affiliates’ (defined below) access, use and participation in the Lumen Platform does not circumvent, directly or indirectly, any party’s (including without limitation a Property Owner’s) obligation to pay Lumen Energy for the services and products we provide through the Lumen Platform;
  • your access, use and participation in the Lumen Platform does not guarantee any results, including without limitation that any of your Bid Responses will be accepted by a Property Owner. In addition, you acknowledge, agree, represent and warrant that you and your employees, agents and contractors, who may perform all or part of the Services on your behalf;
  • fully qualified and experienced to perform the Services;
  • licensed, bonded and/or insured as required by applicable law and/or regulation; and will comply with all laws, regulations and procedures applicable to the provision of Services in whichever location(s) they are performed; and
  • have all rights, licenses and permissions to submit Bid Responses through the Lumen Platform.
Confidentiality

The Lumen Platform, Bid Packages and any and all confidential-marked or identified information provided by us to you are the confidential and proprietary information of Lumen Energy (“Information”). You shall not use the Information except to provide Bid Responses. You shall not disclose or provide the Information to any third-party and shall not use it for your benefit outside the scope of the Lumen Platform.

In the event you use the Information outside the scope hereof or otherwise in breach of these Terms to transact with a Property Owner for Services at a Property first identified through the Lumen Platform, you agree to pay to Lumen Energy, as liquidated damages, the sum equal to fifteen percent (15%) of the gross fees charged by you for such Services. You agree and acknowledge that this liquidated damage is compensation and not a penalty. You agree and acknowledge that the harm caused to Lumen Energy are impossible to estimate at the time you accept these Terms, and that these liquidated damages are a reasonable estimate of the anticipated damages resulting from such breach. This is Lumen Energy’s sole remedy with respect to such breach.

Access and Term

Lumen Energy reserves the right in its sole discretion to cease providing the Lumen Platform at any time, with or without notice, in its sole discretion. In addition, Lumen Energy reserves the right in its sole discretion to change, revise or modify, at any time, with or without notice, the contents within a Bid Package. The provision of any Bid Packages shall be at Lumen Energy’s sole discretion. Lumen Energy may immediately suspend or terminate your access, use or participation in the Lumen Platform at any time, with or without cause, in its sole discretion, including without limitation if you breach or threaten to breach any of these Terms, or if your continued access, use or participation is likely to cause irreparable harm to us or any third-party. You may terminate or cease your own access, use and participation in the Lumen Platform at any time for any reason at your sole discretion. In no event does Lumen Energy have an obligation to store any information on the Lumen Platform in the event you terminate or cease your own access. The provisions of these Terms intended to survive, including the sections on Confidentiality, Disclaimers, Limitations of Liability, Indemnification and Dispute Resolution, shall survive the expiration or termination of your agreement with Lumen Energy through these Terms.

Disclaimers

THE ENTIRE RISK OF YOUR USE OF THE LUMEN PLATFORM, AND YOUR PROVISION OF SERVICES (INCLUDING BEFORE AND AFTER ANY ACCEPTANCE OF A BID RESPONSE), LIES WITH YOU. THE LUMEN PLATFORM AND ANY BID PACKAGE IS PROVIDED “AS IS” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. LUMEN ENERGY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE CUSTOM; AND ANY WARRANTIES, GUARANTEES OR CERTIFICATIONS OF ACCURACY, COMPLETENESS OR TIMELINESS OF THE LUMEN PLATFORM OR ITS INFORMATION, INCLUDING WITHOUT LIMITATION A BID PACKAGE. LUMEN ENERGY MAKES NO WARRANTY THAT THE LUMEN PLATFORM OR ANY BID PACKAGE WILL MEET YOUR EXPECTATIONS OR THAT YOU WILL GENERATE OR SECURE ANY BUSINESS THEREFROM. LUMEN ENERGY DOES NOT WARRANT THAT YOUR ACCESS TO THE LUMEN PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE.

YOU AGREE AND ACKNOWLEDGE THAT LUMEN ENERGY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED ON OR THROUGH THE LUMEN PLATFORM, INCLUDING WITHOUT LIMITATION THE CONTENTS OF ANY BID PACKAGE OR THAT THE PROPERTY OWNERS WILL USE THE LUMEN PLATFORM TO SELECT YOU OR ANYONE ELSE. YOU FURTHER AGREE AND ACKNOWLEDGE THAT LUMEN ENERGY SHALL HAVE NO LIABILITY OR RESPONSIBILITY OF ANY KIND RELATED TO THE SERVICES, ANY PERFORMANCE AND/OR PAYMENT RELATED THERETO (INCLUDING PROPERTY OWNERS’ FAILURE TO PAY FOR ANY SERVICES RENDERED BY YOU), ANY LIABILITY ARISING OUT OF THE PROPERTY, OR ANY ACTS OR OMISSIONS BY ANY PROPERTY OWNER. NO ADVICE, GUIDANCE OR OTHER INFORMATION GIVEN BY US, WHETHER ORAL, VISUAL OR WRITTEN, SHALL CREATE ANY WARRANTY UNLESS EXPRESSLY MADE HEREIN.

LUMEN ENERGY HAS NO RESPONSIBILITY FOR ANY DAMAGE OR HARM, INCLUDING INJURY TO PERSON AND/OR PROPERTY WHILE ON SITE AT A PROPERTY, RESULTING FROM YOUR ENGAGEMENT WITH ANY THIRD PARTY, INCLUDING PROPERTY OWNERS CONTACTED OR ENGAGED THROUGH THE LUMEN PLATFORM. By using the Lumen Platform, you agree and acknowledge that any legal remedy that you seek against any such third-party(ies) is strictly limited to a claim against such third-party(ies).

Limitation of Liability

IN NO EVENT SHALL LUMEN ENERGY OR ITS LICENSORS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSS, DAMAGE, COST OR EXPENSE (INCLUDING WITHOUT LIMITATION LOST PROFITS AND LOST OPPORTUNITY COSTS), WHETHER ARISING OUT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. IN NO EVENT SHALL LUMEN ENERGY’S AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT, YOUR USE OF THE LUMEN PLATFORM OR YOUR INTERACTIONS OR AGREEMENT WITH ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION PROPERTY OWNERS, EXCEED ONE HUNDRED DOLLARS ($100). THESE LIMITATIONS SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU.  

Indemnification

You shall defend, indemnify and hold harmless Lumen Energy and its officers, directors, employees, agents and contractors from and against any claims, losses, suits, demands, liabilities, expenses and other costs, including without limitation reasonable attorneys’ fees and expenses, incurred as a result of or arising from (i) your or your employees, affiliates, officers, directors, agents and contractors (collectively, “Affiliates”) breach of these terms, (ii) your provision of a Bid Response on or through the Lumen Platform, (iii) the Services and your or your Affiliates’ performance (including without limitation your complete or partial failure) thereunder, (iv) any injury or damage to person or property arising out of your or your Affiliates’ provision of the Services while onsite at a Property or otherwise, or (v) violation of any laws or regulations by you or your Affiliates, or any fees, fines or penalties brought by or levied by any governmental body or regulatory agency arising from your provision of Services.

Dispute Resolution

THIS SECTION IMPACTS YOUR RIGHT TO FILE A LAWSUIT IN COURT; READ CAREFULLY BEFORE ACCEPTING THESE TERMS.

In the event of a dispute, claim, or other controversy arising out of these Terms and/or your use of the Lumen Platform (“Dispute”) between you and Lumen Energy, each of us shall first attempt to resolve the Dispute directly with the other party and its decision-makers. In the event the Dispute is not resolved via such discussions within sixty (60) days after the Dispute is first brought to the attention of the other party, the parties agree to submit the dispute to binding arbitration. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures before one arbitrator, to be held in San Francisco, CA. The arbitrator shall have exclusive authority to rule on the Dispute, including the breach, termination, enforcement, interpretation, or validity of these Terms, and to award damages and allocate costs. Lumen Energy and you shall split the costs associated with arbitration. The arbitrator’s ruling shall be final and binding upon the parties, enforceable in any court of competent jurisdiction. YOU AGREE AND ACKNOWLEDGE THAT YOU ARE WAIVING YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. This clause shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding anything to the contrary above, Lumen Energy specifically reserves, and does not waive, its right to seek injunctive relief or otherwise enforce its rights, as applicable, for your material and on-going breach of any of these Terms, including without limitation breach of our intellectual property rights.

In addition, Lumen Energy and you agree that any proceedings to resolve a Dispute will be conducted on an individual basis and not in a class action or other representative action, and that EACH OF LUMEN ENERGY AND YOU EXPRESSLY WAIVES THEIR RIGHT TO FILE A CLASS ACTION OR OTHERWISE SEEK RELIEF ON A CLASS BASIS.

General

Entire Agreement. These Terms, including any additional policies or procedures of Lumen Energy relating to the Lumen Platform and mentioned herein, represent the entire agreement of the parties related to your use of the Lumen Platform, and these Terms supersede and replace any prior or contemporaneous understandings or agreements of the parties related thereto. Lumen Energy may update, revise or modify these Terms in its sole discretion and at any time upon posting updated Terms herein. It is your responsibility to monitor these Terms for any such updates, revisions or modifications. You may not rely upon any statement, whether oral, written or visual, made by or on behalf of us outside these Terms.

Privacy. Except as otherwise stated herein, our use of any information you provide to us on or through the Lumen Platform shall comply with our then-current Privacy Policy.

Law. Subject to the parties’ obligations under Dispute Resolution, these Terms shall be construed in accordance with the laws of the State of California, without giving effect to its conflict of law provisions, and the courts located in San Francisco, CA, shall have exclusive jurisdiction. Each party submits to the exclusive jurisdiction of the courts located in San Francisco, CA.

Assignment. You may not assign or transfer these Terms, or your rights and obligations therein, to any party. Any such purported assignment or transfer is null and void ab initio.

Waiver. Lumen Energy’s failure to assert or enforce a right or provision under these Terms shall not constitute a waiver of such right or provision. Any purported waiver by Lumen Energy shall be in writing and specifically detailing such waiver.

Interpretation. The sections and titles of these Terms are for convenience only. There are no third-party beneficiaries to these Terms.

Severability. In the event any term or provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such term or provision shall be modified to attain its intent, if possible, and shall not operate to invalidate the rest of the Terms.

Marketing. We reserve the right, and you hereby grant permission to Lumen Energy, to identify you as an EPC on our website and, with prior your permission, in marketing materials, provided that the inclusion of your name is done in accordance with your brand guidelines.

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