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HomeMy WebLinkAboutC5 Technology Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Heather Higinbotham, Energy Conservation Technician Natalie Meyer, Sustainability Program Manager SUBJECT: Enterprise Services Agreement with WattzOn for Technology Platform, Website and Technical Assistance for the Bozeman Energy Smackdown. MEETING DATE: February 23, 2015 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign the Enterprise Services Agreement for technology platform and website for the Bozeman Energy Smackdown. BACKGROUND: In April 2013, the City of Bozeman launched the Bozeman Energy Smackdown, a residential energy conservation program designed to encourage energy savings through competition, prizes, and public recognition. The City entered into a Professional Services Agreement with the Northern Rocky Mountain Resource Conservation and Development (RC&D) to develop the custom Energy Smackdown website and manage the first year of the program. The City partnered with the Montana Weatherization Center to host weekly consumer workshops focused on energy conservation, efficiency, and renewable energy for homeowners. The Smackdown competition concluded in April 2014 (see summary report, Attachment 2). The City will be re-launching the Bozeman Energy Smackdown in the spring of 2015, utilizing a new technology platform to improve the user experience. The former Smackdown platform proved to be inadequate to meet the needs of the competition: the technology didn’t function as expected and the fact that the participants had to manually enter their utility data was a deterrent to participation. The WattzOn platform already serves a variety of municipalities throughout the country and their tested service will provide a more streamlined and user-friendly experience, most notably with features such as web-based and mobile app platforms, monthly communication emails to participants with recommendations for energy saving strategies and interactive activities and tracking, monthly reporting to City and automated utility data uploads, thereby removing the burden of inputting utility data from the participants. The City of Bozeman intends to maintain its partnership with the Montana Weatherization Center, MSU Extension and NorthWestern Energy, and formulate new partnerships with the Southwest Montana Building Industry Association, area builders and home improvement retailers. The City will promote the Smackdown at the February 26th Sustainability Series event, as the host of the March 18th Green Drinks event, and at other public events and outlets such as 61 the SWMBIA Home Expo, Farmer’s Markets, Bozeman Climate Partners communication outlets, educational sessions in partnership with the Bozeman Energy Project, Inter- Neighborhood Council meetings, City of Bozeman utility bill inserts, and the Bozeman Clean-up Day, among others. UNRESOLVED ISSUES: There are no known unresolved issues to be addressed by the Commission. ALTERNATIVES: As suggested by the Commission. FISCAL EFFECTS: Per the attached agreement, the City would pay the Consultant $11,000 for the technology platform, website and platform technical support related to the Bozeman Energy Smackdown. This amount was authorized by the City Commission in the FY15 budget. Attachments: 1) Professional Services Agreement; 2) Bozeman Energy Smackdown 2014 Program Summary Report Report compiled on: February 12, 2015 62 ENTERPRISE SERVICES AGREEMENT This Enterprise Services Agreement (the “Agreement”) is entered into as of __________, 2015 (the “Effective Date”) by and between Ennovationz, Inc. d/b/a WattzOn, a Delaware corporation, with an address at 480 San Antonio Road - Suite 202, Mountain View, CA 94040 (“WattzOn”), and the City of Bozeman, a municipal corporation, with an address at 121 North Rouse Ave, Bozeman, Montana, 59715, Attn: Heather Higinbotham (“City”). R E C I T A L S A. WHEREAS, WattzOn has developed a consumer energy engagement software platform that provides tools and expert advice to help people understand their energy use and how they can make decisions about saving energy; B. WHEREAS, City wishes to offer and promote a white-labeled version of the WattzOn Service (defined below) to City’s residents (each a “resident”) in Bozeman, Montana, on the terms and conditions set forth herein. AGREEMENT NOW THEREFORE, in consideration of the foregoing and the mutual promises herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. DEFINITIONS 1.1 “City Content” means all HTML templates, data received from City’s energy providers with respect to the text, data images, design structure, graphic images, any audio, video and audiovisual material, trademarks, and other materials provided by City to WattzOn for inclusion on the White Label Service Pages. Content also includes written materials in printed or digital form for use by residents, community staff or others in support of energy saving goals. 1.2 “Delivery Date” means the first date on which the White Label Service is operating and accessible by City residents. 1.3 “Intellectual Property Rights” means any intellectual property or proprietary rights, including, but not limited to: copyright rights (including rights in audiovisual works); trademarks (including logos, slogans, trade names, service marks) (“Marks”); patent rights (including patent applications and disclosures); know-how; inventions; rights of priority; and trade secret rights, recognized in any country or jurisdiction in the world. 1.4 “WattzOn Service” means the WattzOn-hosted services that provide analysis and recommendations by use of the WattzOn Technology, including any updates thereto generally made available to users of the WattzOn Service, and any supporting software, reports, or content created by WattzOn to support energy saving goals. 63 1.5 “WattzOn Technology” means WattzOn’s proprietary computer programs and software, including all services, processes created by WattzOn, and all improvements, updates, fixes, releases and updates related thereto. 1.6 “White Label Service” means an instance of the WattzOn Service, the front end user interface of which has been modified with branding and other custom elements for City, but, for clarity, excluding any custom elements developed for other users of the WattzOn Service. 1.7 “White Label Service Pages” means all web pages hosted by WattzOn hereunder on which the White Label Service is displayed or made available for use by residents and users. 2. WATTZON SERVICE 2.1 Service Offering. WattzOn and City agree to cooperate during the Term to offer the White Label Service to City residents and staff as detailed in Exhibit A. City understands and agrees that, except as expressly provided herein, the content, maintenance and operation of the White Label Service and the WattzOn Technology will be exclusively controlled and owned by WattzOn, and that the White Label Service, the WattzOn Technology and the White Label Service Pages will be hosted on WattzOn’s hardware and equipment. City acknowledges and agrees that, during the Term of this Agreement and subject to the other terms hereof, WattzOn may, but has no obligation to, make updates, upgrades, enhancements, new versions, new features, modifications, corrections, and other developments and changes to the WattzOn Service and White Label Service (“Updates”). If City no longer wants to offer the White Label Service to its residents following such Updates, City’s sole remedy shall be non- renewal of this Agreement, or termination for convenience, as set forth in Sections 12.1 and 12.3, respectively. As between WattzOn and the residents, access to the White Label Service by City residents will be governed by and subject to WattzOn’s Terms of Service and Privacy Policy, which shall be made available on the White Label Service Pages, to the extent accepted by the residents. 2.2 License Grants. City hereby grants to WattzOn a nonexclusive, worldwide and royalty-free right and license to store, reproduce, display, perform, transmit and use the City Content on the White Label Service Pages solely for the purposes of this Agreement. 2.3 Restrictions. City shall not (a) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the WattzOn Technology, (b) make the WattzOn Technology available to any third parties other than as expressly permitted in this Agreement, (c) modify, adapt, translate or create derivative works based on the WattzOn Technology, (d) reproduce any portion of the WattzOn Technology except as expressly permitted herein, or (e) permit or authorize any party to do any of the foregoing. 2.4 No Other Licenses. Except as specifically provided herein, City does not grant to WattzOn any right or license, express or implied, in the City Content or any City Intellectual Property Rights. Except as specifically provided herein, WattzOn does not grant to 64 City any right or license, express or implied, in the WattzOn Technology or any other WattzOn software or WattzOn Intellectual Property Rights. Without limiting the generality of the foregoing, all products, services, technology, software or other works developed by a party in connection with this Agreement, including any and all Intellectual Property Rights therein, shall remain the sole and exclusive property of such party. 3. BRANDING AND LIMITED EXCLUSIVITY 3.1 Branding. The White Label Service Pages and the White Label Service as offered on the White Label Service Pages will be co-branded with City branding, as approved by City and “Powered by WattzOn,” in a location (or locations) and form consistent with WattzOn’s standard template. 3.2 Competitive Products. During the Term, City shall not offer in any manner any product or service which is competitive with the WattzOn Service. 4. NEW USERS 4.1 Orders and Acceptance. City shall have sole responsibility for soliciting its residents to register for the White Label Service. Notwithstanding the foregoing, all registrations for the White Label Service will be processed by WattzOn, and WattzOn will perform the registration, and send WattzOn’s acknowledgements and other materials to the resident, consistent with the acknowledgements and materials typically sent in connection with the WattzOn Service. City will have no authority to make any acceptance or commitments to users on behalf of WattzOn. City will not make any representations or warranties about WattzOn or the White Label Service that WattzOn has not first approved in writing. WattzOn specifically reserves the right to reject any registration or any part thereof based upon reasonable grounds. 5. RESIDENT DATA AND COMMUNICATIONS 5.1 Ownership and Use. City is the owner of all records and information created, produced, or generated as part of the services performed under this Agreement. WattzOn shall have full access and rights to all registration information (e.g., name, location, home attributes), account information (e.g., home energy data and categories selected by each user, updates on activities and preferences made by user), and user account access information (e.g., login names, passwords) (collectively, “resident Data”) gathered by WattzOn or provided by City of Bozeman for use in white-label services. Notwithstanding the foregoing, WattzOn shall use resident Data only (a) as permitted by WattzOn’s privacy policy available at http://www.wattzon.com/privacy in effect on the date hereof as the same may be reasonably modified and, as between City and WattzOn, exclusive of the “Terms of Service” (“Privacy Policy”) and (b) for the purposes of this Agreement. 5.2 Communications with City residents. With the exception of promotions and advertising that are included within the White Label Service, user email statements, tips, alerts or other standard user communications sent by WattzOn in connection with the White Label Service, neither party will deliver or release any promotions or advertising or communications to City residents or any other person in or using the name or Marks of the other, 65 whether mentioned alone or with such party’s name or Marks, without obtaining the other’s prior written permission in each instance. 6. COMPENSATION 6.1 Fees. City shall pay to WattzOn monthly fees described on Exhibit B pursuant to the payment schedule set forth therein (“Fees”). 6.2 Late Payment Charges. City shall pay a late fee on all amounts not paid within thirty (30) days of the date due set forth on Exhibit B equal to one percent (1%) per month of such outstanding amounts or the highest rate allowed by law, whichever is less. All payments made hereunder shall be in U.S. Dollars and may be made by wire transfer to the financial institution designated by WattzOn or by check. 6.3 Taxes. Amounts payable to WattzOn under this Agreement are payable in full without off-set or deduction for taxes (including any withholding tax) or customs duties. Notwithstanding anything herein to the contrary, neither party will be responsible for paying any United States federal, state or local taxes based on the other party’s net income. 7. MAINTENANCE AND SUPPORT. 7.1 For Residents and Staff. WattzOn shall provide support for the White Label Service as defined in Exhibit A. City will refer all resident support requests relating to the White Label Service to WattzOn via electronic mail to an address specified by WattzOn. If City receives any such request via electronic mail from the user, City will promptly forward such request to WattzOn. If City receives any such request via any other means (e.g., telephone), City will within a commercially reasonable amount of time deliver to WattzOn an electronic mail message containing the resident’s email address, a date and time stamp indicating when City received the request, and a brief description of the problem. WattzOn will provide end-user support for the White Label Service consistent with standard support offered to users of the WattzOn Service. All support shall be provided in English, and is currently offered via electronic mail. WattzOn shall make a commercially reasonable effort to respond to all requests for support within two (2) business days. WattzOn will have no obligation to furnish any support, assistance, information or documentation to any user that is not registered for the White Label Service. City shall remain responsible for providing its residents with all technical support not directly related to the White Label Service, including technical support for City-supported systems used by the residents to access the WattzOn Service, to the extent that City previously assumed responsibility for the same. WattzOn will promptly direct support issues not related to the WattzOn Service to the email address, phone number or physical mailing address provided by City. 8. PROPRIETARY RIGHTS 8.1 Ownership by WattzOn. City understands and agrees that WattzOn is the exclusive owner of and holds and shall retain, all right, title and interest in and to the WattzOn Technology, WattzOn Service and the White Label Service, including without limitation all Intellectual Property Rights therein. 66 8.2 Ownership by City. WattzOn understands and agrees that City is the exclusive owner of and holds and shall retain, all right, title and interest in and to the City Content, including without limitation all Intellectual Property Rights therein. 8.3 Trademarks. Each party (the “Using Party”) agrees that, with respect to its use of the other party’s (the “Owning Party”) Marks: (a) as between the parties, all rights in and to such Marks are owned by the Owning Party, (b) the Using Party will do nothing inconsistent with such ownership, (c) all uses of such Marks shall inure to the sole benefit of and be on behalf of the Owning Party, (d) it will use the Owning Party’s Marks in strict accordance with any guidelines for the use of such Marks as provided by the Owning Party, (e) it will not alter any such Marks and shall use only exact reproductions thereof as supplied by the Owning Party, (f) it will not challenge or assist others in challenging the validity of such Marks or attempt to register in any jurisdiction any confusingly similar marks, and (g) at the Owning Party’s reasonable request, all depictions of such Marks which the Using Party intends to use will be submitted to the Owning Party for approval of design, color, or other details. 9. CONFIDENTIALITY 9.1 Confidential Information. Each party (the “Receiving Party”) acknowledges that by reason of its relationship to the other party (the “Disclosing Party”) hereunder, the Receiving Party will have access to certain information and materials, including the terms of this Agreement, concerning the Disclosing Party’s business, plans, technology, products and services that are confidential and of substantial value to the Disclosing Party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). The Receiving Party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by the Disclosing Party. The Receiving Party shall take every reasonable precaution to protect the confidentiality of Confidential Information. Upon request by the Receiving Party, the Disclosing Party shall advise whether or not it considers any particular information to be Confidential Information. The Receiving Party shall not publish any technical description of the Disclosing Party’s Confidential Information beyond any descriptions published by the Disclosing Party. In the event of expiration or termination of this Agreement, for a period of one (1) year thereafter, there shall be no use or disclosure by the Receiving Party of any Confidential Information of the Disclosing Party, and the Receiving Party shall not develop any software, devices, components or assemblies utilizing the Disclosing Party’s Intellectual Property Rights. 9.2 Exclusions. Confidential Information does not include any information that the Receiving Party can demonstrate by written records: (a) was known to the Receiving Party prior to its disclosure hereunder by the Disclosing Party; (b) is independently developed by the Receiving Party; (c) is or becomes publicly known through no wrongful act of the Receiving Party; or (d) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction. The Receiving Party may disclose any Confidential Information which must be produced or disclosed pursuant to applicable law, regulation or court order, provided that the Receiving Party provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise limit such disclosure, and only discloses such Confidential 67 Information as is required by the order. In addition, City may disclose the existence and terms of this Agreement if required by Montana’s public records laws, and WattzOn may disclose the existence and terms of this Agreement in connection with a potential acquisition of substantially the entire business of such party or a private or public offering of such party’s securities. 10. WARRANTIES AND DISCLAIMER 10.1 WattzOn Representations and Warranties. WattzOn represents and warrants to City that (a) it has the full power and authority to enter into and fulfill the terms of this Agreement and to grant the rights granted by WattzOn herein; (b) it has not entered and will not enter into any agreements or activities that will or might interfere or conflict with the terms hereof; and (c) the White Label Service and WattzOn Technology will perform substantially in accordance with specifications in this Agreement and in any documentation describing the services in Exhibit A. 10.2 City Representations and Warranties. City represents and warrants to WattzOn that (a) it has the full power and authority to enter into and fulfill the terms of this Agreement and to grant the rights granted by City herein; and (b) it has not entered and will not enter into any agreements or activities that will or might interfere or conflict with the terms hereof. 10.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE WHITE LABEL SERVICE IS PROVIDED FOR CITY’S USE DURING THE TERM OF THIS AGREEMENT “AS IS” AND WATTZON MAKES NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE WHITE LABEL SERVICE OR WATTZON’S SERVICES HEREUNDER, AND WATTZON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WATTZON DOES NOT WARRANT THAT THE OPERATION OF THE WHITE LABEL SERVICE OR HOSTING ENVIRONMENT WILL BE UNINTERRUPTED OR ERROR- FREE. WATTZON DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WHITE LABEL SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. 11. LIMITATION OF LIABILITY EXCEPT AS PROVIDED IN THE NEXT SENTENCE, WATTZON’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNTS PAID BY CITY HEREUNDER. WATTZON’S TOTAL LIABILITY TO CITY WITH RESPECT TO LIABILITIES THAT CITY INCURS TO THIRD PARTIES ARISING OUT OF WATTZON’S BREACH OF ITS OBLIGATIONS IN SECTION 5.1 WITH RESPECT TO RESIDENT DATA SHALL NOT EXCEED THE AMOUNT OF INSURANCE COVERAGE THAT WATTZON IS REQUIRED TO MAINTAIN FOR SUCH BREACHES IN ACCORDANCE WITH SECTION 13.4, WHICH SHALL BE NOT LESS THAN $1,000,000 PER CLAIM AND $2,000,000 ANNUAL AGGREGATE. EXCEPT FOR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER ENTITY FOR ANY 68 SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 12. TERM AND TERMINATION 12.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of twelve (12) months after the Effective Date (the “Initial Term”), and shall thereafter renew for successive one (1) year periods unless either party notifies the other party in writing of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term, or unless earlier terminated as set forth herein (the Initial Term and any renewal terms, collectively, the “Term”). In the event the parties decide to renew this Agreement for successive terms, following the Initial Term all fees payable hereunder shall be subject to a five percent (5%) increase per annum. 12.2 Termination for Breach or Insolvency. A party shall have the right to terminate this Agreement on written notice if (a) the other party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of its creditors, or (b) the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. 12.3 Termination for Convenience. Either party may terminate this Agreement without cause by providing thirty (30) days prior written notice to the other party. 12.4 Effect of Termination. Upon the expiration or termination of this Agreement: (a) City shall pay to WattzOn all amounts then due hereunder in accordance with the terms hereof; (b) Each party shall, within thirty (30) days after such expiration or termination, (i) cease all use of the other’s Marks; (ii) return to other party or destroy all Confidential Information and all other material received from such other party; (iii) remove or terminate all internal links directing residents to the White Label Service Pages; and (iv) provide the other party with a signed written statement certifying that it has complied with the foregoing obligations. (c) Subject to subsection (d) below, all rights granted by each party hereunder to the other shall terminate. (d) Sections 2.3, 2.4, 8, 9, 10.3, 11, 12.4, 13, and 14 shall survive the expiration or termination of this Agreement for any reason. 69 13. INDEMNIFICATION AND INSURANCE 13.1 To the fullest extent permitted by law, WattzOn agrees to indemnify and hold City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, arising out of or resulting from or in any way related to (a) any material breach of WattzOn’s representations and warranties contained in this Agreement, (b) the negligent, reckless, or intentional misconduct of WattzOn or its agents, and (c) infringement by the White Label Service or WattzOn Technology of any third party intellectual property rights, unless the third party claim of infringement arises from City’s use of the White Label Service or WattzOn Technology outside the scope of this Agreement. 13.2 WattzOn’s indemnification obligations under this Section 13 shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. WattzOn’s indemnification obligations shall be without regard to any right to contribution from any insurance maintained by City. 13.3 Should City be required to bring an action against WattzOn to assert its right to defense or indemnification under this Agreement or under WattzOn’s applicable insurance policies required below, City shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines WattzOn was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. 13.4 WattzOn shall at WattzOn’s expense secure insurance coverage through an insurance company or companies authorized to conduct insurance business in Montana to insure the liabilities and obligations assumed by WattzOn in this Section 13, in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per claim; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per claim; $2,000,000 annual aggregate; • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate The City shall be endorsed as an additional or named insured on a primary non- contributory basis on the Commercial General Liability and Professional Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a sixty (60) day notice of cancellation or non-renewal. WattzOn shall notify City within two (2) business days of WattzOn’s receipt of notice that any required insurance coverage will be terminated or WattzOn’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to WattzOn commencing work. 70 14. MISCELLANEOUS 14.1 Injunctive Relief. The parties acknowledge that the breach or threatened breach of Sections 2.3, 2.4 or 9 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, a party may seek immediate injunctive relief in the event of a breach or threatened breach of such sections by the other party. 14.2 Force Majeure. Except with respect to obligations to make payments hereunder, neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access. 14.3 Assignment. Neither party may assign or delegate this Agreement, nor any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other, and any such purported assignment or delegation shall be void. Notwithstanding the foregoing, each party may assign this Agreement in connection with the sale or other transfer of all or substantially all of such party’s equity or assets to which this Agreement relates. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. 14.4 Choice of Law; Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California in connection with any dispute hereunder or the enforcement of any right or obligation hereunder. 14.5 Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. 14.6 Notices. Any notice required or permitted by this Agreement shall be deemed given if delivered by nationally-recognized overnight carrier or registered mail, postage prepaid, addressed to the other party at the address shown at the beginning of this Agreement or at such other address for which such party gives notice hereunder. Delivery shall be deemed effective one (1) business day after timely deposit with the overnight carrier and three (3) days after deposit with postal authorities. 14.7 Independent Contractors. The parties are independent contractors with respect to each other. Each party is not and shall not be deemed to be a resident, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other. 71 14.8 Attorney’s Fees and Costs. In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney’s fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 14.9 Nondiscrimination. WattzOn will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. WattzOn will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. WattzOn shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. WattzOn shall require these nondiscrimination terms of its sub- contractors providing services under this Agreement. 14.10 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. 14.11 Complete Understanding. This Agreement, including all Exhibits attached hereto and hereby incorporated by reference, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral. This Agreement was the product of extensive drafting, review, and negotiation by and among the Parties. Each of the Parties was represented by counsel or had the opportunity to seek counsel in the course of negotiations. Accordingly, the Parties agree that there shall be no presumption against any Party with regard to any ambiguity or uncertainty in this Agreement, and no Party shall be deemed to be the draftsman of this Agreement. [Signature Page Follows] 72 IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the Effective Date. WATTZON: City of Bozeman: ENNOVATIONZ, INC., A Municipal Corporation a Delaware corporation d/b/a WattzOn By: By: Name: Jon Enberg Name: Title: Director Title: 73 Exhibit A Scope of Work WattzOn will provide the City of Bozeman the following services for use in community energy savings programs: 1. WattzOn EnergyCenter SaaS platform (bozeman.wattzon.com), including a. Welcome email upon resident registration b. Monthly email statements to participants c. Users will have the option to link their NorthWestern Energy utility account to bozeman.wattzon.com for energy use tracking d. City of Bozeman group page e. Energy rebate database 2. Monthly Reporting a. WattzOn will provide City of Bozeman a monthly report using a secure data transfer such as Dropbox or SFTP. At a minimum, the report will include: i. participants' email addresses and zip codes ii. participants’ monthly electricity and natural gas consumption, if resident has connected utility accounts to WattzOn iii. participant activities added to “My Plan” and activities marked as completed iv. most popular activities by group Program Branding 1. City of Bozeman will provide WattzOn with high resolution city logos and images for branding of the WattzOn platform. 2. City of Bozeman will provide WattzOn images and content for welcome email and monthly email statements, or use default WattzOn content. 3. City of Bozeman will have the opportunity to review and approve all content and branding before program launch. Accessibility 1. WattzOn is committed to ensuring the accessibility of its website for people with disabilities. All pages on our website meet W3C WAI's Web Content Accessibility Guidelines 2.0, Level AA conformance. Any issues should be reported to accessibility@wattzon.com. 2. Accessibility policy will be available on Bozeman.wattzon.com Security At WattzOn we take security very seriously and follow very stringent practices to keep information safe and secure. Here are details of our security practices and precautions: 74 • Data is gathered from utilities in an automated, read-only manner with no ability to alter account information or make any financial transactions. • Utility credentials are received from users over a secure encrypted connection supported by SSL security and are then obfuscated and encrypted for storage. • WattzOn user credentials are received from users over a secure connection supported by SSL security. • WattzOn user credentials are salted and encrypted with a one-way algorithm. • Sensitive information is not transferred by any method to persons who do not need to access that information or are not authorized to access that information. • All data is backed up daily and stored on servers in the United States. • Regular vulnerability assessments are performed to ensure that network security components perform as expected. • Unnecessary open ports and services to servers have been shut down. • Network logging is performed and is reviewed regularly. • Server software is kept up-to-date with recent versions and security patches. • Keycard protocols, biometric scanning protocols and round-the-clock interior and exterior surveillance monitor access to our data center. • Only authorized data center personnel are granted access credentials to our data centers. No one else can enter the production area of the datacenter without prior clearance and an appropriate escort. Data center employees undergo multiple and thorough background security checks. Timeline 1. Services provided for 12 months from date of program launch - [launch date]. [end page] 75 Exhibit B Payment Schedule 1. Fees a. Setup Fee = $5,000 b. Software License = $500 per month 2. All payments shall be due and payable within thirty (30) calendar days from receipt of invoice. a. Invoice #1: Upon signing of contract, setup fee + 1st monthly fee b. Invoice #2-12: At end of month, monthly fee [end document] 76 Final Statistics: • 128 households signed up • 87 people initiated the process of entering utility data • 29 people entered 24 months of utility data • The two top winners reduced their energy consumption by 28% and 17%, totaling 688 therms. • A total of 13 households reduced their energy consumption by a total of 1900 therms. • According to the US EPA, this is equivalent to: o 10 metric tons of carbon dioxide equivalents, or o the annual greenhouse gas emissions from 2 passenger vehicles, or 3.6 tons of waste sent to the landfill, or o the carbon dioxide emissions from 10,820 pounds of coal burned, or 1.4 homes' electricity use for a year, o the energy savings of 264 incandescent lamps switched to CFLs, or o the carbon sequestered by 258 tree seedlings grown for 10 years. • The average daily temperature was considerably colder in the second half of the competition, driving up heating demand in November 2013 (6 degrees cooler than Nov 2012) and March 2014 (7 degrees cooler than Mar 2013) • Overall, the average daily temperature during the two summer seasons was similar Partners: • NorthWestern Energy Community Works • Montana State University Extension • Montana Weatherization Training Center • Northern Rocky Mountain RC&D Outreach and Media: • 35 Home Energy Solutions for All Friday consumer workshops at the Montana Weatherization Center • Bozeman Climate Partners website feature and events blog 77 • 1 newsletter to Bozeman Climate Partners subscribers featuring Smackdown • 2 newsletters to Smackdown participants • Presentation to INC • City of Bozeman utility bill insert • First Interstate Bank display • Online ads in the Bozeman Magpie and Bozeman Magpie • Full page printed ad in the Bozeman Magazine • Information Kiosk at the Bozeman Public Library • Door hangers distributed to 200 residents • Tabling events: o Home Expo, March 2013 and 2014 o Bozeman Clean Up Day, April 2013 o Bogert Farmer’s Market, Summer 2013 o Chasing Ice Premiere, March 2013 o DEQ Innovations in Residential Energy Efficiency Seminar, February 2013 • Hosted Green Drinks in August 2013, featured Energy Smackdown • Good Neighbor bag to 500 residents, April 2013 • Earned Media: Bozeman Daily Chronicle Article with Erin Shautter (no longer online) http://bozemanmagazine.com/news/1/posts/2014/03/07/49_n-a-5 http://www.outsidebozeman.com/community/events/2014-04-16-060000/bozeman-energy- smackdown-contest-deadline http://www.abcfoxmontana.com/story/24898809/bozeman-hosting-energy-smackdown http://www.bozemandailychronicle.com/athome/sustainable_living/article_088b75f2-aed9- 11e3-91e9-001a4bcf887a.html http://www.bozeman-magpie.com/thebigmt-full-article.php?article_id=1192 http://www.bozeman-magpie.com/perspective-full-article.php?article_id=1188 Winner Recognition: • City Commission Special Presentation with winners and NorthWestern Energy • Interview with winners and media press release 78