EMS General Terms & Conditions for Submetering or Utility-Related Services

1. PRECEDENCE OF DOCUMENTS

The General Terms and Conditions are intended by the Customer and by Energy Management Systems, Inc. (“EMS”) to supplement and be a part of the Proposal, Special Terms and Conditions, and lettered Schedules that are attached hereto.       Should any conflict or inconsistency arise between the application and interpretation of these documents, then the Proposal will be primary, followed by the Special Terms and Conditions, followed by any attached lettered Schedules, and then these General Terms and Conditions.

2. CUSTOMER DEFINITION

The term “Customer” shall include the Customer named on Page 1 and/or any other entities, acting as a group, for which the services of this Agreement are provided.  Any reference to the Customer shall refer to all parties included in the group.

3. CUSTOMER OBLIGATIONS

The Customer shall cooperate with EMS in order that EMS may properly perform the Services, including, without limitation, providing ready access to meter installations at the Property and providing up-to-date information regarding all tenants of the Property.

For meter reading and billing services, the Customer acknowledges that commencement of billing services is contingent upon Customer providing certain data to EMS, as EMS requests.   The Customer further acknowledges that EMS bases the calculation of tenant utility charges solely upon information provided by Customer and the information readily apparent on the meter equipment, without investigation by EMS. It is specifically EMS’ intent that where the Customer is uncertain of Meter-Tenant associations, Customer will seek Meter Survey/Audit services from EMS (see Schedule B, if attached hereto). EMS assumes no responsibility for inaccurate charges based upon (i) information provided by Owner or (ii) meter information not readily observable.

4. EMS’ STANDARD OF CARE

For all services, EMS’ sole responsibility is to perform the services in a professional and workmanlike manner, consistent with services performed by other companies performing similar services, subject to Customer budget and other factors which impact upon the services.

For a meter audit or survey, or Expense Management Services, or other Consulting Services, the services performed by EMS will be based upon the application of professional judgments to certain facts with resultant subjective interpretations.  Professional judgments expressed therein will be based upon the facts available within the limits of existing data, scope of work authorized, budget and schedule.  For such services, EMS makes no warranties, express or implied, as to the information provided.   EMS shall have no responsibility for the interpretation by any other party of the information to be provided and no information so supplied shall be construed as legal advice.

If equipment procurement, installation, or warranty services is applicable to the services being proposed, see corresponding attached lettered Schedules for additional Standard of Care qualifications.

5. SUBCONTRACTORS

EMS may utilize appropriately trained and experienced subcontractors without any further specific consent by the Customer, provided that such subcontractors remain under supervision of senior EMS personnel.

6. PAYMENT

See attached schedule(s) for payment terms.

7. CANCELATION RIGHTS AND AUTO RENEWAL

For recurring services, during the initial term, Customer may cancel the Agreement with Sixty days written notice, only in the event of either (a) a material uncured breach of EMS’ obligations herein, or (b) the sale of the property.  After the initial term for a recurring service, the Agreement shall auto-renew annually with a 3% fee escalator on each anniversary date of the Agreement unless either Party notifies the other of its intent to cancel by providing Thirty (30) days written notice prior to the expiration of the initial term.  During any auto-renewal period, either Party may cancel the Agreement for any reason, with Thirty (30) days written notice.

8. INSURANCE COVERAGE AND LIMITATION OF LIABILITY

EMS presently carries general liability for all standard services with limits of $1,000,000 / $2,000,000, and professional errors and omissions insurance at $1,000,000, with a $5,000,000 umbrella policy.  EMS further represents and warrants that all of its employees are covered by worker’s compensation insurance.  Certificates for said policies shall be made available to the Customer upon request in writing.    EMS shall not be liable for any lost profits or for any indirect, incidental, consequential, punitive or other special damages suffered by Customer arising out of or related to this Agreement, even if EMS has been advised of the possibility of such damages.  In no event shall the total cumulative liability of EMS in connection with the Services or this Agreement from all causes of action of any kind or under any indemnity exceed the total amount of EMS’s then current applicable insurance coverage limits.

9. INDEMNIFICATION

EMS agrees to indemnify and hold harmless Customer, and its employees, directors, officers and shareholders, from and against any and all third-party liability, damages, costs and expenses, including reasonable attorneys’ fees, resulting from acts of EMS or EMS’s employees and/or its contractors in the performance of this Agreement found by a court of competent jurisdiction upon entry of final judgment to be the result of negligence, gross negligence, recklessness, fraud or of the commission of a felony by EMS and/or its employees, directors, officers, shareholders, agents, or contractors.

Customer agrees to indemnify and hold harmless EMS and its officers, directors, employees, consultants, shareholders, contractors, successors and assigns, from and against any and all liability, damages, costs and expenses of any kind, including reasonable attorneys’ fees, resulting from acts of Customer and/or Customers employees or agents directly or indirectly arising out of, or in any way connected to, the Services or this Agreement which are alleged or are found to be negligent, grossly negligent, reckless, and/or constitute fraud or the commission of a felony

10. SUCCESSORS AND ASSIGNS

This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

11. MODIFICATION; ENTIRE AGREEMENT

This Agreement may not be modified, varied, supplemented or amended in any respect except in writing executed by all parties hereto.  This Agreement expresses the entire agreement and understanding between the parties with respect to the subject matter hereof.

12. GOVERNING LAW; VENUE; JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to the principles of conflicts of laws.  All claims, disputes or causes of action relating to or arising out of this Agreement shall be brought, heard and resolved solely and exclusively by and in a state court situated in Chester County, Pennsylvania.   Each of the parties hereto agrees to submit to the jurisdiction of such courts shall be proper for all purposes of this Agreement.

Special Notes

1. All installation locations and methods of installation (meter horn etc.) will be at the sole discretion of EMS technicians. If installation is included.

2. For any meter installation found to require a meter horn or shut-off valve, there will be an additional charge. EMS will provide property management with final locations of meter installation and documentation verifying additional material.

3. For AMR installations, a 110V receptacle to be supplied by management at location of the DCAP Data Collection Unit, each MDT Repeater and Cellular Gateway, if supplied.

4. A monthly data plan charge of $25 applies to each Cellular Gateway installed and will be charged as outlined in the separate Reading-Billing-Collection (RBC) contract.

5. If a Cellular Gateway is not supplied, the AMR DCAP requires an ethernet connection with internet access. Property Management must have the network configured to allow 2-way communication between EMS and the AMR system.

6. All site work will be arranged with the primary contact at the property. If the prior arranged work is unable to be completed due to a lack of access or cooperation from those onsite, the visit will be rescheduled and a $500.00 turn-away fee will be applied to the project.

7. Disclaimer: For supply-only projects, EMS meters are shipped to the customer pre-programmed to be installed in specific tenant spaces. When EMS is not engaged to install the meters, EMS will have no liability for any installation mistakes, including those instances where pre-programmed meters are installed in the incorrect tenant spaces. EMS meters are shipped with specific installation instructions.