AMENDED AND RESTATED SERVICES AND MATERIALS AGREEMENT Between Commonwealth Edison Company and Silver Spring Networks, Inc. Dated as of January 25, 2012

Exhibit 10.6

***Confidential Treatment Requested

 

EXECUTION VERSION

AMENDED AND RESTATED SERVICES AND

MATERIALS AGREEMENT

Between

Commonwealth Edison Company

and

Silver Spring Networks, Inc.

Dated as of January 25, 2012

 

 

***Certain omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 24b-2 promulgated under the Securities Exchange Act of 1934.

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EXECUTION VERSION

TABLE OF CONTENTS

 

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AMENDED AND RESTATED SERVICES AND MATERIALS AGREEMENT

This Amended and Restated Services and Materials Agreement (this “Agreement”) is effective as of the date provided on the cover and is made between Commonwealth Edison Company (“ComEd”), and the contractor entity (“Contractor” or “SSN”) as defined below and identified on the signature page hereof.

This Agreement establishes the terms and conditions on which ComEd may, from time to time, purchase Material and Services (as defined below) from Contractor, which purchases shall be evidenced by the delivery by ComEd to Contractor from time to time of Purchase Orders or similar writings, or by electronic data interchange. The purchase of the Material and Services by ComEd from Contractor is expressly governed by the terms and conditions contained or referred to herein. This Agreement amends, restates and replaces in its entirety (but does not constitute a novation of) the existing Services and Materials Agreement between Exelon Business Services Company, LLC and Contractor dated as of August 13, 2009, as amended prior to the Effective Date (the “EBC Agreement”).

ARTICLE 1

DEFINITIONS

As used in this Agreement, the following terms shall have the following meanings:

“Affiliate” means, with respect to ComEd, those entities identified in Exhibit A as amended from time to time by ComEd, and also includes those entities that now or hereafter own, are owned by or under common control with ComEd.

“Agreement” means this Services and Materials Agreement between Contractor and ComEd together with all appendices, exhibits, schedules, and attachments hereto, and all Purchase Orders and Change Orders, all as such may be amended, restated, or supplemented from time to time as stated herein.

“Business Day(s)” means any calendar day which is not a Saturday, Sunday or legal holiday in the state where the Specific Project is located.

“Certification of Final Completion” has the meaning set forth in Section 3.3.

“Change” means an addition to, deletion from, or adjustment or revision to a Purchase Order, Scope of Work or Specifications.

“Change Order” means a written order issued by a Party that permits and directs an addition to, deletion from, or adjustment or revision to a Purchase Order or Scope of Work or Specifications.

“ComEd Data” means any information provided by ComEd as so designated, including without limitation, any data regarding ComEd’s customers that is either: (i) furnished, disclosed or otherwise made available to Contractor, directly or indirectly, by or on behalf of ComEd pursuant to the Agreement or otherwise; or (ii) collected, modified or created by Contractor in the course of performing the Services, including without limitation all data received, processed or generated by the Materials or Services or other interfaced software (including without limitation meter readings, billing information and all other customer data and statistical analysis).

“ComEd’s Designated Representative” means ComEd’s duly authorized representative who will provide the general administration of this Agreement for Specific Projects on behalf of ComEd and shall be ComEd’s field representative in all matters related to this Agreement. ComEd may, in its sole discretion, change its representative at any time or from time to time, and shall promptly notify Contractor, in writing, of any such change.

“ComEd Entities” has the meaning set forth in Section 20.3.3.

“ComEd Intellectual Property” has the meaning set forth in Section 24.1.

“ComEd Parties” has the meaning set forth in Section 16.1.

“ComEd Responsibilities” means the responsibilities of ComEd, ComEd’s third party subcontractors and consultants retained by ComEd, expressly designated as ComEd Responsibilities in Section 29.l(a) through (h) of this Agreement or expressly designated as ComEd Responsibilities in a Statement of Work or Project Plan.

“ComEd-Specific Works” has the meaning set forth in Section 24.3.1.

 

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“Common Control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Commercially Reasonable Terms” means both financial and commercial terms that are consistent with concepts of good faith and fair dealing and are no less favorable to ComEd than those contained in this Agreement, if any, or to the extent no such terms exist under this Agreement, reasonably consistent with the principles contained within this Agreement.

“Compensable Delay” has the meaning set forth in Section 13.3.

“Confidential Information” has the meaning set forth in Section 25.1.

“Contract Documents” means documents for a Specific Project, mutually agreed to by the Parties and signed by their authorized representatives.

“Contractor” means the party identified in the Agreement which is to deliver the Material and perform the Services pursuant to Purchase Orders for Specific Projects and includes (unless the context of this Agreement clearly requires otherwise) Subcontractors and their respective employees and agents.

“Contractor Affiliate” means any entity that now or hereafter owned by or under Common Control with Contractor.

“Contractor’s Designated Representative” means Contractor’s representative, or his duly authorized representative, who will provide the general administration of this Agreement for Specific Projects on behalf of Contractor and shall be Contractor’s field representative in all matters relating to this Agreement. Contractor’s Designated Representative shall be in attendance at the Site during the performance of the Work.

“Contractor’s Representative” has the meaning set forth in Section 25.7(b).

“Contractor Entities” has the meaning set forth in Section 20.5.

“Contractor Personnel” means any and all individuals, including partners, employees, officers, agents and other persons assigned by, through or on behalf of Contractor or its Subcontractors to perform the Work. Also referred to in ComEd’s Use of Contractor Policy as a “Third Party Contractor.”

“Contractor’s Safety Program” has the meaning set forth in Section 22.1.1.

“DOE” has the meaning set forth in Section 3.6.3.

“Delivery Date” means (i) for Equipment, the date on which such Equipment is ***; (ii) for Software operated on servers at ComEd’s facility, the date on which *** (which will be no later than *** calendar days *** and (iii) for Software that Contractor operates on servers at Contractor’s facilities, the date on which ***.

“Derivative Work” means a work based on a Contractor Product, or Service or Contractor Intellectual Property Rights (collectively, “Prior Work”), including: (1) for material subject to copyright protection, any work which is based upon one or more Prior Works, such as a revision, modification, translation, abridgment, condensation, expansion, collection, compilation or any other form in which such pre-existing works may be recast, transformed or adapted; (2) for patentable or patented inventions, any adaptation, subset, addition, improvement or combination of any Contractor Prior Work; and (3) for material subject to trade secret protection, any new material, information or data relating to and derived from the pre-existing Contractor Confidential Information.

“Disclosing Party” has the meaning set forth in Section 25.1.

“Disputed Charge” has the meaning set forth in Section 5.7.

“Disputes” has the meaning set forth in Section 26.1.

“Dollars” and “$” mean United States Dollars.

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“Documentation” means an electronic version of the then-current installation instructions and user manuals customarily provided by Contractor to Contractors products to the extent that the content thereof does not conflict with the terms of this Agreement or any Statement of Work.

“Drawings” means the final drawings for the Specific Project to be provided by Contractor, all in accordance with the mutually agreed upon and signed Scope of Work referenced in the Purchase Order for a Specific Project.

“Effective Date” means, notwithstanding anything herein to the contrary, the date set forth on the cover page hereto.

“Emergency Work” has the meaning set forth in Section 2.6.

“Environmental Laws” means any federal, state, or local law, regulation, ordinance, standard, guidance, or order pertaining to the protection of the environment, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq. (“CERCLA”); the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. 2601, et seq. (“TSCA”); the Clean Air Act, 42 U.S.C. 7401, et seq. (“CAA”); the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. (“FWPCA”); and the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (“OSHA”) and any other law that governs: (a) the existence, removal, or remediation of Hazardous Substances on real property; (b) the emission, discharge, release, or control of Hazardous Substances into or in the environment; or (c) the use, generation, handling, transport, treatment, storage, disposal, or recovery of Hazardous Substances.

“Equipment” means all Contractor hardware and related accessories provided by Contractor to ComEd under this Agreement pursuant to Purchase Orders. Equipment is described in Exhibit B.

“Error” means a material failure of the Software to perform in accordance with the user Documentation for the Software. Errors do not include, and Contractor will have no responsibility for, any failure of the Software to the extent caused by any of the following: (a) modifications not made or approved by Contractor or by third parties authorized by Contractor; (b) the Software has not been operated in accordance with Contractor’s installation and operating instructions, including without limitation on computing devices or with computer operating systems and/or third party software other than those recommended by Contractor or reasonably intended for use with the Software; (c) the Software has been damaged in any manner due to the fault or negligence of any person or entity other than Contractor or its subcontractors; (d) any material failure of the computer operating systems, hardware environment, and/or third party software utilized by ComEd in connection with the Software other than to the extent caused by Contractor or the Software.

“Escrow Agent” has the meaning set forth in Section 28.1.

“Excusable Delay” means any period of delay or nonperformance by Contractor caused by (a) a cause beyond the reasonable control of a Party defined as Force Majeure in Section 17.3 below where such Party has otherwise complied with its obligations pursuant to Section 17.3; or (b) ComEd’s failure to perform a ComEd Responsibility, subject to and where Contractor has otherwise complied with its obligations pursuant to Section 29.2.

“Final Acceptance” has the meaning set forth in Section 10.4.

“Final Completion” means the date for completion of the Specific Project listed in the Work Documents or Project Schedule for such Specific Project. In the event of a conflict between the date of Final Completion listed in the Purchase Order and the Project Schedule for a Specific Project, the date listed in the Project Schedule shall govern.

“Final Payment” has the meaning set forth in Section 5.8.

“Firmware” means the object code version of Contractor proprietary software that is embedded in the Equipment.

“Force Majeure” has the meaning set forth in Section 17.3.

“Governmental Authorities” means any and all federal, state, county, municipal, local, foreign or other government, or any agency or subdivision of any or all of the foregoing, or any quasi-governmental agency, self-regulating organization, board, bureau, commission, department, instrumentality, or public body, or any court, administrative agency, arbitrator, mediator, regulator, or other tribunal or adjudicative authority.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

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“Hazardous Substances” means and includes flammable substances, explosives, radioactive materials, asbestos, hazardous wastes or substances, crude oil or any fraction thereof, refined or partially refined petroleum products or any other wastes, materials, or pollutants included in the definition of “hazardous substance,” “toxic substance,” “hazardous material,” “hazardous waste,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “special waste,” or words of similar import under any Environmental Law.

“Health and Safety Laws” means any federal, state, or local law, regulation, ordinance, standard, guidance, or order pertaining to safety and health in the workplace, including the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (“OSHA”), and the Toxic Substances Control Act, 15 U.S.C. 2601, et seq. (“TSCA”).

“Hosted Personnel” has the meaning set forth in Section 20.5.

“Indemnitee” has the meaning set forth in Section 16.6.1.

“Indemnitor” has the meaning set forth in Section 16.6.1.

“Initial Term” has the meaning set forth in Section 6.1.

“Inspection Period” has the meaning set forth in Section 10.1.

“Intellectual Property Rights” means all common law or statutory (a) United States patents, patent applications, and patent rights; (b) any worldwide rights associated with original works, authorship, moral rights, copyrights and all its exclusive rights; (c) worldwide rights relating to the protection of trade secrets and confidential information, (d) rights associated with algorithms, designs, industrial designs, and semiconductor design in the United States; (e) worldwide rights related to the possession, use or exploitation of signs, trademarks, service marks, trade names, trade dress and related goodwill; (e) rights analogous to those set forth above and any and all other industrial or intellectual property rights; and (f) registrations, divisionals, continuations, continuations-in-part, renewals, reissues, reexaminations, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired.

“Illinois Public Utilities Act” means 220 Illinois Compiled Statues 5, as amended.

“IP Claims” has the meaning set forth in Section 16.1.

“Job Commitment” has the meaning set forth in Section 20.6.1.

“Key Personnel” has the meaning set forth in Section 20.3.1.

“Launch” means with respect to each Optimization Area the date such Optimization Area has achieved Final Acceptance.

“Law” or “Laws” means all laws, statutes, codes, ordinances, rules, regulations, lawful orders, applicable guidance documents from regulatory agencies, judicial decrees and interpretations, standards, permits and licenses, including Environmental Laws, health, safety, building, and employment laws, as amended from time to time, of all Governmental Authorities that are applicable to the Work and any of Contractor’s obligations under the Contract Documents.

“Licensed Devices” means the aggregate number of end-point utility metering devices and information and control network devices that may be managed by the Software as specified in Purchase Orders.

“Major Release” means a Software release that changes the digit number of the release (e.g., 1.5 to 2.0) then being supported by Contractor.

“Material” means all Product to be furnished by Contractor and necessary to complete the Work.

“Milestone Dates” means the date of Substantial Completion, the date of Final Completion, and any other dates stated in the Purchase Order or Project Schedule for a Specific Project for Contractor’s completion of specific components of the Work.

“Minor Release” means a Software release that changes the tenths decimal number of the release (e.g., 1.5 to 1.6) then being supported by Contractor.

“NIC” has the meaning set forth in Section 4.16.

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“NIST” has the meaning set forth in Section 4.6.

“Notices of Election” has the meaning set forth in Section 16.6.2.

“Notices of Former Employees/Retirees” has the meaning set forth in Section 20.3.6.

“Patch” or “Patch Release” means a Software release that provides fixes to Errors, indicated by a change to the hundredths decimal number of the release (e.g., 1.5.2 to 1.5.3).

“Party” means ComEd or Contractor, as the case may be, and “Parties” means ComEd and Contractor collectively.

“Person” means any natural person, partnership (limited, general, or other), joint venture (limited or otherwise), company (limited liability or otherwise), corporation, association, Governmental Authority, or any other legal entity of whatever kind or nature, together with any combination of one or more of the foregoing.

“Policies and Procedures” has the meaning set forth in Section 3.6.1.

“Pre-existing ComEd Intellectual Property Rights” has the meaning set forth in Section 24.1.

“Prior Work” has the meaning set forth in the definition for Derivative Work.

“Products” means Equipment and Software.

“Project Schedule” means the Parties’ mutually agreed upon schedule describing their responsibilities, milestones, tasks, deliverables and testing for the performance of the Work identified in the Purchase Order for each Specific Project. The Project Schedule for each Specific Project shall be one of the Contract Documents and shall be attached as an Exhibit to the Purchase Order for the Specific Project.

“Purchase Order” means a document issued by ComEd to Contractor incorporating by reference the Agreement, and which defines, among other things, the scope, price, and duration of the Work and references the Contract Documents for the Specific Project. As used herein, Purchase Order includes documents that may be variously referred to as “contracts,” “Statements of Work”, “releases” or “purchase order releases” by Affiliates in their Contract Documents.

“Receiving Party” has the meaning set forth in Section 25.1.

“Release” means any version of Software, including Patches, Major Releases and Minor Releases.

“Reliability Standards” has the meaning set forth in Section 4.6.

“Renewal Term” has the meaning set forth in Section 6.1.

“Requesting Party” has the meaning set forth in Section 12.1.

“Responding Party” has the meaning set forth in Section 12.1.

“Retiree” means a former ComEd or Affiliate employee whose employment was not governed by a collective bargaining agreement with IBEW Union Local 15 at the time of such person’s termination of employment and who previously received, is eligible to receive or is currently receiving benefit payments under a ComEd tax-qualified retirement plan, including the ComEd Corporation Retirement Program (Service Annuity Plan of ComEd Energy Company or Commonwealth Edison Company Service Annuity System), the ComEd Cash Balance Pension Plan and/or the AmerGen Employee Pension Plan.

“RMA” has the meaning set forth in Section 4.1.1.

“SaaS Services” means the Services where Contractor operates Software on ComEd’s behalf at Contractor’s data center.

“Scope of Work” or “Statement of Work” or “SOW” means the written description of Work mutually agreed upon and signed by authorized representatives of the Parties for the Specific Project. Current Scope of Works are attached hereto as Exhibit N.

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“Services” means all of the labor, supervision, administration and other services identified in the Scope of Work or required to complete the Work set forth in the Contract Documents, including engineering, design, project management, implementation, integration, training, hosting or maintenance and support services, testing, and technical assistance that Contractor will provide.

“Site” means ComEd’s site or such other premises (including premises owned or controlled by a third-party) for which the Work is intended or where the Services will be performed.

“Software” means all Contractor utility network management software and software tools licensed as a stand-alone product (e.g., UtilityIQ® AMM and NEM) provided by Contractor to ComEd (or managed for ComEd) under this Agreement. Software is described in Exhibit B.

“Software Support Services” means the Software maintenance and support services described in this Agreement and the applicable Statement of Work.

“Source Code” has the meaning set forth in Section 28.1.

“Special Terms and Conditions” means terms and conditions not contained in any general terms and conditions, but which is made part of this Agreement or the Purchase Order by reference and which is signed by authorized representatives of the Parties.

“Specifications” means the final specifications for the Specific Project, including specifications for the Equipment, Software and System, as developed and approved all in accordance with the mutually agreed upon Scope of Work set forth in the Purchase Order for a Specific Project and which are signed by authorized representatives of the Parties. The term “Specifications” includes the System Specifications.

“Specific Project” means the Work defined in the Purchase Order to be performed by Contractor at the Site.

“Staff Augmentation” means any and all Work provided hereunder that are either: (1) designated by ComEd as “Staff Augmentation”, (2) not designated by ComEd as “Project”, “Outsourced” or “Outage” work, or (3) are supervised or managed in the day-to-day performance by ComEd.

“Subcontract” has the meaning set forth in Section 21.2.

“Subcontractor” means any Person contracting directly with Contractor to furnish any part of the Work, or a Person contracting with a Subcontractor of Contractor (regardless of tier) to furnish any part of the Work. The term “Subcontractors” shall not include Contractor’s manufacturing subcontractors.

“Submittals” means all drawings, sketches, shop drawings, diagrams, illustrations, schedules, Contractor drawings, and other data or information, which are prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.

“Substantial Completion” means the point in time at which the entire or designated portion of the Specific Project is sufficiently complete such that ComEd can utilize the Specific Project for commissioning, start-up, and completion of performance, and reliability testing as required under the Project Schedule, as reasonably determined by Contractor and reasonably approved by ComEd.

“System” means a system of which Contractor provides all components and that provides the smart grid functionality set forth in the Statement of Work, consisting of a head-end application and related hardware and software infrastructure; a backhaul communication network (referred as the Head-end or UIQ System); a wireless mesh network (referred to as a NAN) employing wireless Access Points and Relays; Integrated Meters (if purchased from Contractor); and other hardware and firmware included within such meters and modules purchased from Contractor that enable, among other things, a home area network; and other hardware, software or miscellaneous items that comprise, add to, enhance or enable any of the foregoing system elements.

“System Specifications” means the functionality of the System described in Exhibit B hereto, together with those set forth in the Statement of Work and in any subsequent specification document(s) created and to which the Parties have agreed in writing pursuant to this Agreement or any Statement of Work.

“Technically Feasible” means capable of accomplishment using commercially reasonable efforts within the two way metering, software, smart grid or energy, systems development, migration or integration industries.

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“Termination for Convenience” has the meaning set forth in Section 17.2.

“Third Party Personnel Acknowledgement” or “TPPA” has the meaning set forth in Section 20.3.5.

“UCITA” has the meaning set forth in Section 27.10.

“UIQ System” means Contractor’s back office system, including without limitation, servers housing the Software, Software and the following network and application components: (routers terminating IPSEC/RFC2893 tunnels; (b) VPN tunnel (or other circuit) connecting ComEd to a UIQ environment; and (c) a data center infrastructure (including network, power and facilities).

“Upgrades” mean Major Releases, Minor Releases and Patches. Upgrades do not include newly-released stand-alone, plug-in or add-on software products or modules sold or licensed separately that contain new features and functionality and for which Contractor charges a separate license and maintenance services fee.

“Work” means all Material and Services required to be provided by Contractor under the Contract Documents for the Specific Project. All obligations of Contractor shall be performed as specified in the applicable Contract Documents for the Specific Project, including engineering, design, fabrication, construction, installation, demolition, testing, technical assistance, delivery of material and documentation.

All other capitalized terms used herein as defined terms shall have the meanings ascribed to them in this Agreement.

ARTICLE 2

SCOPE OF AGREEMENT AND ORDERS

2.1 Work.

This Agreement is not a requirements contract. ComEd reserves the right to use its own resources and to employ other contractors to perform the same or similar Work at any or all of its facilities, or at facilities of third-parties. During the term of this Agreement, following the issuance of an appropriate Purchase Order, Contractor will furnish the Work identified in the Scope of Work attached to the Purchase Order and substantially in the form of Exhibit N attached hereto. ComEd may, from time to time, delegate the exercise of its rights (including the issuance of Purchase Orders) and the receipt of benefits under this Agreement to its Affiliates, provided that, subject to the provisions of Section 27.9, all ComEd duties and obligations under this Agreement shall remain the obligation of ComEd, not its Affiliates. Contractor agrees that Exelon Business Services Company, LLC may act as ComEd’s agent with regard to this Agreement. The issuance of a Purchase Order referencing this Agreement to Contractor by an Affiliate means that the Affiliate has agreed that all of the terms and conditions set forth in this Agreement apply to the Purchase Order, unless specifically modified in writing by authorized representatives of the Parties. Subject to the provisions of Section 27.9, no Affiliate will have any right, interest, obligation, or liability under Purchase Orders issued by any other Affiliate and may not transfer any Work to another Affiliate without Contractor’s prior written consent. ComEd may send a Purchase Order by means of a variety of electronic commerce and electronic business process alternatives as mutually agreed by the Parties.

2.2 Applicability of this Agreement to Purchase Orders.

Unless specifically modified, the terms and conditions set forth in this Agreement apply to each Purchase Order, unless the Parties otherwise agree in writing. Subject to Section 2.6, Contractor shall not commence Work without receipt of a Purchase Order from ComEd. The Purchase Order shall specify, at a minimum, the time for performance, Scope of Work, the Contract Documents, and Contractor’s price for the Work. ComEd shall submit Purchase Orders at least*** weeks prior to the scheduled shipment date of Equipment ordered therein or as the Parties otherwise agree in writing. During the term of this Agreement, ComEd may request Contractor to perform Work by issuing a Purchase Order, signed by ComEd’s Designated Representative or other authorized representative of ComEd, to Contractor. Contractor shall accept or reject each Purchase Order in writing within *** Business Days after receipt by Contractor; provided, however, that (subject to Section 2.6), Contractor’s commencement of performance of the Work shall be deemed an effective mode of acceptance of ComEd’s offer or counteroffer, as the case may be, and the terms and conditions contained in this Agreement. Contractor shall not reject any Purchase Order unless such Purchase Order attempts to vary any terms of this Agreement or specifies a quantity of Equipment in excess of *** of the quantity of Equipment specified in the most recent forecast delivered to Contractor. Upon the request of ComEd, Contractor shall sign and return the Purchase Order to ComEd’s Designated Representative.

2.3 Statements of Work.

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(a) As directed by ComEd, ComEd or Contractor will prepare an initial draft of any new Statement of Work. As soon as reasonably practicable from receipt of a request for a Statement Work or a draft Statement of Work in the event that ComEd prepares the initial draft, Contractor shall respond to ComEd either with a draft Statement of Work, or in the event that ComEd has provided an initial draft, with a responsive draft accepting or modifying the Statement of Work by ComEd. In each case, Contractor’s response shall be reasonably detailed, shall include all material terms that would reasonably be required to provide the requested Services and may include any alternative solutions which Contractor reasonably believes would reduce costs, accelerate the schedule or otherwise be favorable to fit ComEd’s intended purpose for the proposed Contractor Service. In the event that Contractor modifies any Statement of Work, it shall provide a detailed explanation for such modification together with proposed changes that would make the modified Statement of Work acceptable to Contractor. In the event that the modified Statement of Work as revised by Contractor is not acceptable to ComEd, then as soon as reasonably practicable following a written request by ComEd, the Parties shall meet to negotiate in good faith, using all Commercially Reasonable efforts, with respect to the modified elements of the draft Statement of Work.

(b) All negotiations shall take place telephonically or, in the event that either Party determines that in-person negotiations are necessary, at ComEd’s facilities. The Parties shall use commercially reasonable efforts to come to agreement on each Statement of Work. All Statements of Work created under this Section will be on terms and conditions mutually agreed upon; provided, however, that Contractor shall not withhold its approval for a Statement of Work if: (i) it contains Commercially Reasonable Terms; (ii) it is Technically Feasible; (iii) it involves the development of additional features, functionality or Products that are direct derivations or extensions of Products existing as of the effective date of the Statement of Work; and (iv) ComEd agrees to allow Contractor to make such additional features, functionality or Products requested under such Statement of Work generally available to Contractor’s other customers, at Contractor’s sole cost and expense.

2.4 Terms and Conditions of this Agreement and of Purchase Orders.

The terms and conditions of this Agreement supersede any preprinted terms or conditions on any preprinted purchase order or any printed or typed conditions forming a part of Contractor’s proposal. Any non-preprinted terms and conditions contained within a Purchase Order issued by ComEd that incorporates by reference this Agreement shall supersede the affected terms and conditions of this Agreement, provided that Contractor has approved such differing terms as documented in a written modification of the Agreement or Contract Documents signed by an authorized representative of Contractor. Neither Contractor’s commencement of performance of Services or delivery of any Materials will be construed as acceptance of ComEd’s other or additional terms and conditions. ComEd may cancel or modify any Purchase Order within *** calendar days after Contractor’s written acknowledgement of the Purchase Order. Any additional or different terms and conditions set forth in Contractor’s proposal or preprinted purchase orders, Contractor’s Purchase Order acknowledgments, or similar writings, or in Contractor’s invoices or electronic data interchange acknowledgments, are objected to by ComEd and will not be binding upon ComEd unless specifically assented to in writing by an authorized representative of ComEd.

2.5 Primacy of Documents.

In the event of any conflict or inconsistency between the documents comprising the Contract Documents for a Specific Project, the authority of the individual documents for each respective Specific Project, relative to the other document, is, in descending order of authority: this Agreement, the Statement of Work, the Purchase Order for a Specific Project (provided such Purchase Order references a written agreement for the Specific Project signed by authorized representatives of the Parties); Special Terms and Conditions; Drawings; Specifications; and any other documents identified in the Purchase Order for a Specific Project as comprising the Contract Documents for a Specific Project. Notwithstanding the foregoing, (a) the several documents forming the Contract Documents for a Specific Project shall be taken as mutually explanatory of one another; however, in case of ambiguities, discrepancies, or inconsistencies, the primacy of documents shall govern and (b) to the extent a Statement of Work expressly provides that one or more terms or conditions therein shall control over one or more terms or conditions of the Agreement expressly referenced in such Statement of Work, then such terms or conditions in the Statement of Work shall control.

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2.6 Emergency Work.

2.7 Schedules and Coordination. Contractor shall coordinate its activities and deliverables under this Agreement (including, but not limited to, all Work) with all services and all items provided by ComEd and each of ComEd’s third party providers of services. Contractor shall cooperate with each of ComEd’s other third party providers of services and shall make commercially reasonable efforts to assure that none of the Contractor Services or other items provided to ComEd by Contractor shall adversely affect ComEd’s operations or the services or other items provided by any other of ComEd’s third party providers, whether as to functionality, security, speed, service levels, interconnectivity and interoperability, reliability, availability, performance, response times, or otherwise.

ARTICLE 3

STANDARDS FOR PERFORMANCE

3.1 Standards.

Contractor shall comply with all standards for the Work that are set forth in the Contract Documents.

3.2 Schedule of Performance.

Contractor shall complete all Work on or prior to the Milestone Dates for such completion set forth in the Contract Documents or the Project Schedule for a Specific Project. *** Delays or possible delays in performance of the Work or in the completion of Milestone Dates shall be reported within five (5) calendar days after Contractor’s discovery thereof to ComEd. Contractor shall take all necessary steps, at no additional cost to ComEd, to recover delays in the Project Schedule, unless such delays are caused by Excusable Delays.

3.3 Final Completion.

Subject to the terms of Section 10 (Inspection and Testing) and if required by the Contract Documents, no Specific Project shall be deemed complete until after *** has executed a certificate of Final Completion or Acceptance (“Certificate of Final Completion”) substantially in the form of Exhibit C. *** may not unreasonably withhold, delay or condition its execution of a Certificate of Final Completion. Without limitation of Contractor’s rights under Sections 13.2 and 13.3, if *** withholds its execution of a Certificate of Final Completion due to incomplete Work, *** shall, ***, complete such incomplete Work (including all corrections or replacements) and test, inspect, re-test, or re­inspect, as appropriate, any portions of the Work so completed or corrected. Such tests, inspections, re-tests, and re-inspections shall be subject to verification by ***.

3.4 Site Investigations.

If applicable to the Work, Contractor will inspect the Site where the Work is to be performed. If it performs such inspection, it will (a) not rely on any investigations performed by or information provided by ComEd relating to the conditions at the Site without ComEd’s prior written agreement, (b) use its own judgment to assess the conditions to be found at the Site, including all physical characteristics that could in any way affect the Work or Contractor’s price, and (c) satisfy itself as to the conditions under which it will be obligated to operate.

3.5 Permits, Fees and Notices.

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3.6 Compliance with Laws and ComEd Policies and Procedures.

3.7 Compliance with Code of Business Conduct.

In the performance of any activities related to the Work, Contractor, Subcontractors, and their respective agents and employees involved in the Work, shall adhere at all times to the applicable provisions contained in ComEd’s Code of Business Conduct approved by ComEd board of Directors 06-27-06, which is attached hereto as Exhibit K. In conjunction therewith, Contractor, Subcontractors and their respective agents and employees, upon request by ComEd, shall complete a Certification of Compliance in a form provided by ComEd.

3.8 Disaster Recovery and Business Continuity.

Contractor shall provide back-up, disaster recovery and storage capabilities as set forth in the applicable Scopes of Work.

3.9 Subcontractor Compliance.

Contractor shall require that all its Subcontractors comply with all requirements of this Article 3.

3.10 Software Support Services for Software Licensed for a Perpetual Term. Upon payment of applicable fees, ComEd shall be entitled to receive Software Support Services as described in the applicable Statement of Work or Software Support Services terms (“Support Agreement”), which will include at a minimum, the following terms.

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In the event of a conflict between this Section 3.10 and the Statements of Work effective as of the Effective Date and attached to this Agreement as Exhibits N, the provisions of Exhibit N shall govern.

ARTICLE 4

WARRANTIES

4.1 Equipment Purchased from Contractor.

4.2 Project Services.

Contractor warrants that Services for a Specific Project will be provided in accordance with the requirements set forth in the applicable Statement of Work and the Project Schedule. Contractor also warrants that the Services for a Specific Project will be performed in a *** in accordance with *** or *** selected by *** having the *** and ***. This warranty will be in effect for a period beginning on *** and continuing until *** following completion of the applicable Services. ComEd’s *** remedy for breach of the warranty in this Section 4.2, and Contractor’s *** for breach of the foregoing warranty will be for Contractor to correct or re-perform any nonconforming Services, *** provided, however, that the foregoing shall not limit *** if Contractor’s failure to meet its warranty obligations hereunder constitutes a *** including ***.

4.3 Software.

Contractor warrants that the Software licensed by Contractor will perform in conformance with the Specifications for a period of *** from the ***. This warranty *** during this warranty period and during *** calendar days following expiration of the warranty period. In the event of a breach of the foregoing warranty, ComEd’s *** is that Contractor will, *** repair or replace the Software to make the Software conform to the foregoing warranty, as repair or replacements is elected by Contractor; provided, however, that the foregoing shall not limit *** if Contractor’s failure to meet its warranty obligations constitutes a ***, including ***. Following the warranty period, Errors in the Software will be addressed under the applicable Statement of Work, as applicable.

4.4 Harmful Code.

Contractor will use *** and *** to scan the Software for and to remove any *** and agrees to *** ComEd of any *** subsequently discovered in the Software. The Software will not contain any *** or *** i.e., *** that would give Contractor the ability intentionally to *** the Software.

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4.5 Compliance.

Contractor has conducted and continues to conduct its business in accordance with all Laws and Governmental Orders applicable to Contractor or any of its properties or assets, and Contractor is not in violation of any such Law or Governmental Order, except for such failure to comply or violations that would not reasonably be expected to have an adverse effect on the System or Contractor’s ability to provide the Services pursuant to the terms hereof.

4.6 NIST Standards.

Contractor will comply with and perform its responsibilities under this Agreement pertaining to the reliability standards and sub-requirements and related rules of procedures, orders, or directives published by the National Institute of Standards and Technology (“NIST”) and the other standards specified in Exhibit M hereto (“Reliability Standards”). Contractor will use reasonable efforts to comply with any similar standards, sub-requirements and related rules of procedures, orders or directives which are in the future promulgated, revised, or interpreted by NIST or similar regulatory bodies in a time period mutually acceptable to the Parties and upon such agreement, the Parties will update Exhibit M through the agreed-upon change process], provided that if Contractor makes the Products conform to any such future standards, sub-requirements and related rules of procedures, orders or directives for any other ***, Contractor shall ***. Contractor will not be obligated to comply with such future standards *** (i.e., Contractor will not be obligated to ***, except through *** or through *** governing the terms and any additional pricing. Contractor may *** with such *** if it reasonably determines that complying would be impracticable). ***, Contractor will *** with the Reliability Standards in a format and manner *** to respond to a request by NERC or FERC to certify, demonstrate or otherwise provide evidence of compliance with the Reliability Standards.

4.7 System Warranty.

In addition to any other warranty contained in this Agreement, for as long as ComEd is under Software Support Services ***, Contractor warrants that the System will continue to operate in accordance with the System Specifications for the period beginning on the *** and ending on the *** anniversary of the ***; provided that Contractor shall not be responsible for any *** resulting from *** that does not comply with the Documentation, and prior to the *** of the first *** any failure to operate in accordance with the Specifications or deviation therefrom resulting from the ***, where but for such incomplete installation, the System failure or deviation would not have occurred. If (a) Contractor *** during a period of *** during any *** period *** in a *** period and for which in each of such *** Contractor is obligated to pay the *** for such service level pursuant to a Statement of Work, or (b) a *** (as defined in the applicable Statement of Work) continues for *** calendar days, such failure or incident will constitute a *** under this Section 4.7 and for which in addition to any other remedies available at law or in equity, ComEd may ***, pursuant to Section 18.1 of this Agreement. No information, while transferred through or stored on the System, will *** or *** greater than the deviation published in the System Specification, or if none is published, such deviation shall be ***. All calculations performed by the System components will be ***. Contractor will *** to verify compliance with this warranty and will *** after becoming aware of any errors or omissions concerning the System, and correct any errors or omissions ***. The above warranty does not cover Equipment in poor operating condition due to one or more of the following causes: (a) an *** not made or approved by ***; (b) ***; (c) any use, handling or installation by *** not in accordance with this Agreement; (d) ***; (e) any failure of the *** or *** (e.g., ***) utilized by *** in connection with the System other than as expressly authorized or reasonably intended for use with the System ***; or (f) *** provided *** or *** within the term of ***. To the extent the System is damaged by any of causes set forth in clauses (a) through (e) of the foregoing sentence, it will be repaired or replaced only upon *** of ***.

4.8 *** with Third Party Meters. Contractor represents, warrants and covenants that the Materials are, and shall ***.

4.9 Future *** For as long as ComEd is under Software Support Services (and subject to ComEd’s rights and obligations to install Upgrades), Contractor warrants that the Products, *** that are intended or required to interact with or otherwise work together as part of the System will be *** with the components of the System. This warranty does not apply to any incompatibility caused by: (i) any modifications made by *** without ***; (ii) the *** or the *** not operating in accordance with their respective Specifications (provided, however, that this exclusion shall not apply to the extent of incompatibility between the *** and such ** at ***); or (iii) *** to use *** provided by *** within the timeframe specified in the applicable Statement of Work.

4.10 Open Source. Contractor will identify ***, if any *** incorporated into the Work, and will *** into the System *** with *** that would *** from using the System, if used in accordance with its intended purpose as set forth in this Agreement. *** performed under this Agreement will result in *** that could be *** under any ***, or in *** or *** under this Agreement, or *** on *** with regard to other ***. *** shall cause *** to be *** in the *** or otherwise not subject to ***.

4.11 Financial Status. Contractor represents and warrants to ComEd that it is able to *** as they become due and has the *** to perform its obligations under this Agreement. Except for periods during which *** is *** in accordance with securities laws, ***, Contractor will provide ComEd with ***, ***, any filings made with any *** or *** over ComEd and any other *** requested by ***

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in its *** to assess *** and its ability to *** its *** to under this Agreement. Except for periods during which *** is *** in accordance with securities laws, Contractor will *** provide to ComEd, ***, information regarding any *** in ***.

4.12 Equipment Sufficiency. Contractor represents and warrants to ComEd that the amount of Relays required by the Final Field Network Design for the *** will not *** stated in the applicable Statements of Work. *** Access Points and Relays required by such Final Field Network Designs *** will be provided by Contractor to ComEd ***, including *** in accordance with the applicable Statement of Work.

4.13 Litigation and Infringement. Contractor represents and warrants to ComEd that, except as set forth on ***, there are no ***, ***, ***, ***, ***, or to the best of its knowledge, ***, against Contractor, any Contractor Affiliate or any customer of Contractor, that the Materials and Services, including the use thereof and whether alone or in combination with any third party materials, *** of any ***, or which could be reasonably expected to have a *** on the System, ComEd’s ability to deploy or use the System or any Software or Equipment, or Contractor’s ability to provide the Services pursuant to the terms hereof. Contractor does not know of any basis for any such *** described in this Section.

4.14 Disclaimer of Implied Warranties.

EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE OR IN A STATEMENT OF WORK, CONTRACTOR MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE PRODUCTS OR SERVICES. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, CONTRACTOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, CONTRACTOR AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCTS. EXCEPT FOR THE WARRANTY OF NON-INFRINGEMENT CONTAINED IN SECTION 4.5, THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

4.15 Third Party Materials.

Any third-party products sold or licensed to ComEd by Contractor under this Agreement will be sold pursuant to the terms and conditions contained in any separate end-user license agreements or purchase agreements provided by such third parties. Contractor shall have *** ComEd shall be *** Contractor acknowledges and agrees that ComEd may ***.

4.16 Integrated Meters. If ComEd purchases AMI-enabled meters from Contractor, then the meter, including the integrated Contractor Network Interface Card (“NIC”), will constitute Equipment under this Agreement, except where expressly noted otherwise. If ComEd purchases AMI-enabled meters from one or more meter manufacturers (which must be reasonably approved by Contractor), Contractor will sell its NICs to those third parties, for integration into their meters. In that event, the meter manufacturer(s), and not Contractor, will provide all warranties, liabilities and other terms of sale for the integrated meters, including the NIC; provided, however, Contractor will *** to such *** that are *** to allow such manufacturers to *** in all respects to its Documentation and freedom from *** for the period set forth in ***. If ComEd purchases *** from Contractor for integration into meters that ComEd purchases separately from one or more meter manufacturers, then the *** will constitute Equipment under this Agreement, but ComEd will *** with regard to the meters.

4.17 Inspection.

ComEd’s inspection, testing, acceptance, payment, or use of any Material or Services shall not affect the warranties and obligations of Contractor under this Agreement or the Contract Documents, and such warranties and obligations shall survive any such inspection, testing, acceptance, payment, or use.

4.18 Assignment of Warranties.

Contractor agrees that it will obtain and shall assign to ComEd the benefits of any warranties provided by Subcontractors of the Services, and material or equipment incorporated into the Material, and will *** Such assignment shall not ***.

ARTICLE 5

PAYMENT

5.1 Pricing for Material and Services.

In consideration for the delivery of acceptable Material and the performance of acceptable Services, unless otherwise stated in the Purchase Order, ComEd will pay to Contractor the prices provided in the applicable Statement of Work, which prices shall remain

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fixed for the term of the Specific Project described therein. Pricing for other Specific Projects shall be specified in relevant Contract Documents.

5.2 Taxes.

Except for applicable state and local sales or use taxes, Contractor’s *** taxes, fees, excises, and charges which are now or hereafter imposed by Governmental Authority with respect to the prices set forth in the Pricing Schedule and/or any Purchase Order, and *** for any taxes or similar expenses which may arise or be incurred in connection with delivery of the Material or performance of the Services. The invoice shall separately list taxable and nontaxable charges where applicable. Unless ComEd provides Contractor an exemption certificate or notifies Contractor that ComEd is registered to pay such taxes directly to the applicable Department of Revenue, then (i) state and local sales and use tax, where applicable, shall be *** or (ii) if subsection (i) is not applicable, *** prior to Final Completion and shall ***. To the extent Contractor fails to *** pursuant to this Section 5.2, then Contractor shall be *** for the period in which *** and that are associated with *** and the payment of such tax if Section 5.2 is applicable. Contractor shall ***. ComEd shall ***. ComEd shall *** for any interest, penalties, or expenses *** as a result of any contest initiated or any direction given *** with respect to the payment of such taxes. Contractor will ***. At the request of ComEd, Contractor shall prepare, execute, and deliver to ComEd a Federal Form W-9 or the equivalent thereof. Contractor shall comply with the reporting requirements of state and federal taxing authorities, as applicable, and, upon the request of ComEd, will provide proof that Contractor has complied with such reporting requirements.

5.3 Submission of Invoices.

Contractor shall submit invoices to ComEd, at the location designated by ComEd on the Purchase Order, as follows: for Equipment and for Software, upon the Delivery Date; for Maintenance and Support Services, annually in advance; for implementation Services, monthly as rendered (except for network design and system implementation, which shall be invoiced in accordance with the applicable Statement of Work). Unless otherwise specified in the Purchase Order, the invoice shall be submitted via Email to “AP‑▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇”. Subject to Section 5.7, ComEd shall pay all undisputed invoices within *** calendar days after ***, provided that ComEd shall pay all undisputed invoices for customized or specially designed Materials (which Materials will be designated as customized in the Scope of Work) within *** calendar days of ***. If ComEd does not pay an invoice when due, Contractor may charge a late payment fee on the unpaid amounts equal to the lesser of: ***, ***.

5.4 Invoice Format and Copies.

Contractor shall submit one original invoice to ComEd’s Accounts Payable and, upon the request of ComEd’s Designated Representative, one duplicate of each invoice shall be sent to ComEd’s Designated Representative. Each invoice shall include Contractor’s name, address, Purchase Order number, release number (if applicable), Contractor catalogue identification number and corresponding unit price, date, and total amount due for the time period covered by the invoice. Contractor invoices will reflect any item reference number used in the Purchase Order. If the *** is being *** pursuant to a ***, each invoice shall also include a *** of the costs of Work covered by the invoice identifying the *** of each class of ***, number of ***, number of ***, ***, a copy of all ***, separately itemized charges for ***, ***, and for all *** and ***, ***, with all applicable *** and ***. No overtime hours shall be ***. Overtime hours shall be billed as ***. Each invoice shall also identify all *** during the time period, and shall be accompanied by ***. Invoices that ComEd deems ***, ***, may *** returned to Contractor for correction and re-submittal.

5.5 Reports.

5.6 Change Orders ***.

*** Change Order that has the effect of *** shall be binding upon *** unless ***.

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5.7 Grounds for Not Paying Invoices.

ComEd may decline to pay an invoice, in whole or in part, if it disputes, in good faith, the amount set forth in the invoice provided that ComEd shall notify Contractor within *** Business Days of receipt of an invoice if it disputes such invoice. If ComEd disputes, ***, any fees or charges claimed by Contractor (the “Disputed Charge”), ComEd may withhold payment for the Disputed Charge, upon written notice to Contractor describing in reasonable detail the basis for such Disputed Charge provided that such notice is given on or before the date on which the invoice is otherwise payable. The Parties shall work together *** to resolve any such Disputed Charge. If the Parties mutually determine ComEd owes any Disputed Charge, ComEd shall pay such amount to Contractor within *** (***) Business Days of such determination. If the Parties are unable to resolve the Disputed Charge within *** (***) Business Days of ComEd’s notice of the same, the Parties shall be entitled to pursue remedies available hereunder. Contractor may not delay delivery of Software or withhold provision of any Services pending resolution of such dispute.

5.8 Final Payment.

Subject to the fulfillment of Contractor’s obligations under the Contract Documents, final payment of all moneys due but not previously paid to Contractor hereunder shall be made within thirty (30) calendar days after receipt by ComEd of Contractor’s final invoice (“Final Payment”), subject, however, to the condition precedent that Final Payment shall not be due until ComEd accepts the Work, or, if required by the Contract Documents, ComEd and Contractor execute a Certificate of Final Completion.

5.9 Payment Not Waiver of Contractor’s Breach.

No partial payment or Final Payment made by ComEd or the execution of a Certificate of Final Completion shall be construed as a waiver of any breach hereof by Contractor or as an acceptance of defective portions of the Work or of any of the Work which does not materially comply with all requirements of the Contract Documents.

5.10 ***.

ComEd may *** under this Agreement or a Purchase Order any and all present and future indebtedness of Contractor to ComEd arising from this Agreement or a Purchase Order, upon ***, which shall ***.

ARTICLE 6

TERM

6.1 Initial Term; Renewal.

The initial term of this Agreement shall be ten (10) years from the Effective Date (the “Initial Term”), unless otherwise terminated in accordance with this Agreement. Upon expiration of the Initial Term, ComEd shall have the option to renew this Agreement for successive periods of twelve (12) months each (each, a “Renewal Term”), up to a maximum of five (5) Renewal Terms, upon written notice to Contractor at least one hundred eighty (180) calendar days’ prior to the expiration of the Initial Term or any Renewal Term, as applicable. Contractor shall give ComEd written notice at least sixty (60) calendar days prior to the expiration of the Initial Term or any Renewal Term, as applicable, of any increases in fees payable hereunder, provided that any increase in fees for any Material or Services shall not exceed, on an annual basis, the lesser of (i) three percent (3%) or (ii) the percentage rate of increase in the Consumers Price Index (all items) for Urban Wage Earners and Clerical Workers from the preceding calendar year for each twelve (12) month period.

6.2 Non-Renewable Items.

Notwithstanding any renewal of this Agreement pursuant to Section 6.1, Contractor’s following obligations shall cease upon expiration of the Initial Term: (a) *** under Section ***; (b) providing the *** and *** under *** Statement of Work attached hereto as ***; and (c) providing *** under the AMI Full Deployment Statement of Work attached hereto as ***.

6.3 Effect of Expiration or Termination

The terms of this Agreement will survive expiration or termination of this Agreement until a Certificate of Final Completion or Final Payment is issued for all Purchase Orders issued pursuant to this Agreement. Even following issuance of a Certificate of Final Completion or Final Payment, certain terms of this Agreement shall survive in accordance with Section 27.6 Notwithstanding anything herein to the contrary, the expiration or termination of this Agreement shall not affect or excuse the performance of either Party pursuant to any then effective Purchase Order(s), except as otherwise provided in ARTICLE 17.

6.4 Transition Services

Upon receipt of notice of termination or expiration without renewal of this Agreement or a Purchase Order, and upon request by ComEd, Contractor shall provide services to transition the operation and maintenance of the System performed by Contractor to

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ComEd or a third party and the services reasonably requested by ComEd to orderly transition ComEd off of the System (the “Transition Services”), including the services described in Exhibit H. ComEd will pay Contractor the then-applicable rates for such Transition Services; provided, however, that if ComEd terminates this Agreement or such Purchase Order for cause, Contractor will provide such Transition Services at no cost to ComEd for no more than *** (***) calendar days.

ARTICLE 7

CONTRACTOR’S DRAWINGS; SAMPLES

7.1 Drawings.

Any drawings or Submittals required by this Agreement to be submitted to ComEd for review shall be submitted by Contractor without unreasonable delay, and any Work affected thereby started prior to written acceptance by ComEd shall be at Contractor’s risk. All drawings or Submittals provided by Contractor may be used by ComEd in connection with the installation, startup, maintenance, operation, and repair of the Work and may be transferred to any transferee of the Work. Review by ComEd shall not relieve Contractor from fulfilling all of Contractor’s obligations under this Agreement or the Contract Documents, including obligations relating to design and detailing. If applicable and as far as practicable, each drawing or Submittal shall bear a cross-reference note referring to the sheet number or numbers of ComEd’s drawings showing the same Work.

7.2 Samples.

If ComEd has requested a sample or mock up of all or any portion of the Work, Contractor shall not commence the associated Work until ComEd has received such samples, or reviewed such mock up, and acknowledged in writing its acceptance of such samples or mock up. All Work is required to conform to such samples or mock up, and no change in the Work or its method of production shall be made without the written consent of ComEd.

ARTICLE 8

COMED’S PROPERTY AND INFORMATION

ComEd shall provide Contractor with all available ComEd information, as required, for the completion of the Project, which Contractor may rely upon in designing the ComEd’s network. ComEd will use reasonable efforts to minimize errors in information provided to Contractor. All tools, tooling, designs, patterns, dies, molds, drawings, and other materials supplied by ComEd or paid for by ComEd and identified in a Contract Document remain ComEd’s property, and Contractor agrees to maintain a log upon receipt of such ComEd­furnished property which will be used for final disposal or return of such property based on instructions furnished by ComEd. Contractor shall at its expense maintain all such property in its possession in good condition and repair and indemnify ComEd for all damage or loss to such property (other than ordinary wear and tear). Contractor agrees that use of any such ComEd property will not affect the warranties set forth in the Agreement or the Contract Documents. If the Services will be performed at a Site, ComEd shall allow Contractor and its Subcontractors to make reasonable use of ComEd’s facilities, at no cost to Contractor, including use of ComEd’s work space, telephone equipment, office services, computer equipment and the like if necessary for Contractor personnel to perform the Services.

ARTICLE 9

MATERIAL PROVISIONS

9.1 Advance Manufacture or Procurement.

In the event of termination of this Agreement or change in the Work, no claim will be allowed for manufacture or procurement in advance of the Project Schedule, except as was reasonably necessary to meet deliveries required by the Project Schedule.

9.2 Spare Parts.

Contractor shall furnish to ComEd *** (***) calendar days prior to the delivery of the first Material supplied under the Agreement or a Purchase Order a recommended list of spare parts for the Material and, upon the request of ComEd, shall update such list during the term of this Agreement. The list shall contain a detailed identification of each part by part number and the manufacturer or supplier of the part if not manufactured by Contractor. The list shall also contain an identification of alternative spare parts, which may be used for the Material in lieu of those manufactured or provided by Contractor. The use by ComEd of spare parts identified in Contractor’s list shall not void any warranties or guarantees provided that such use is in accordance with Contractor’s written specifications therefor.

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9.3 Cessation of Production.

If production, manufacturing or availability of Material is to be permanently discontinued at any time within (one) 1 year after final delivery of the Material, Contractor shall give ComEd *** calendar days prior written notice of such discontinuance.

9.4 Notifications of Defects ***.

Contractor shall *** about any material Product defects *** (including Software Errors or security defects) or recalls of Products *** if such defects would reasonably be expected to adversely affect ComEd’s business.

ARTICLE 10

INSPECTION AND TESTING

10.1 Equipment.  

ComEd shall inspect the Equipment *** Business Days following receipt (“Inspection Period”) to ascertain correct quantities and identify visible damage or deviation from the Purchase Order or the Documentation or Specifications for such Equipment. Upon notice to Contractor within the Inspection Period, Contractor will replace all damaged or incorrect Equipment and deliver, at Contractor’s expense, replacement Equipment in order to meet the correct quantities. Such replacement deliveries will be completed within a reasonable time from the receipt by Contractor of ComEd’s notice. Failure by ComEd to provide such notice to Contractor within the Inspection Period shall constitute acceptance of the Equipment in the applicable shipment; provided that such acceptance shall not prejudice ComEd’s warranty rights under this Agreement.

10.2 System Deliverables.

Upon Contractor’s notification to ComEd that Contractor has completed delivery of deliverables identified in a Statement of Work, ComEd shall review or test such deliverables to determine whether such component or deliverable performs in accordance with the Specifications and to ComEd’s satisfaction, and meets the acceptance criteria set forth in the applicable Statement of Work, if any. ComEd will use commercially reasonable efforts to complete such review or testing within a reasonable period after delivery of deliverables from Contractor. Deliverables will be deemed accepted upon ComEd’s written acceptance thereof.

10.3 Cure. If either Party discovers that a component or deliverable does not perform according to the Specifications and this Agreement, it shall notify the other Party and provide a report describing the reasons such component or deliverable has been deemed unacceptable. Within *** calendar days of receipt of notice of non-acceptance from ComEd, Contractor shall ***, ***, ***, or shall *** such errors or defects *** amount of time that is consistent with the then applicable project timeline. Upon Contractor’s *** that Contractor has ***, ComEd shall re-test the System and Equipment for an additional test period of up to *** (***) days, at the end of which the process described in subsection above shall be repeated. In the event that the System or Equipment *** within *** days from the initiation of testing per the applicable Statement of Work, it shall be deemed a ***.

10.4 Final Acceptance.  If the components and deliverables perform in accordance with the Specifications and are free of failures and material security weaknesses discovered through penetration testing, ComEd shall *** of its *** of all components and deliverables provided to ComEd pursuant to such Statement of Work. Neither acceptance or any testing of a component or deliverable by ComEd shall constitute a waiver by ComEd of any right to assert claims based upon defects subsequently discovered in such component or deliverable.

10.5 No Waiver of Warranty. Acceptance by ComEd of any Work shall be without prejudice to ComEd’s warranty rights under this Agreement.

ARTICLE 11

PROJECT MANAGEMENT

11.1 Designated Representatives.

Each Party shall appoint a Designated Representative, who will represent it in the administration of this Agreement and any Scope of Work. ComEd shall have the right to change its Designated Representative in its sole discretion. If either Party needs to change its Designated Representative, that Party must notify the other, and give the name of the replacement. Each Party’s Designated Representative will have the power to bind the Party to written change requests.

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11.2 Meetings.

Contractor shall schedule and conduct meetings with ComEd at a mutually agreed location and/or via conference calls, for the purpose of reviewing the progress of the Work and adherence to the Project Schedule. The frequency of such meetings will be established by mutual agreement of ComEd and Contractor; provided, however, if ComEd reasonably believes that the Project Schedule is in jeopardy, then ComEd shall be entitled to require that meetings occur as frequently as weekly.

11.3 Project Issues and Disputes.

Any issues or disputes that arise during the course of the Project will be resolved following the process established in Article 26.

ARTICLE 12

CHANGES IN THE WORK AND MATERIALS

12.1 Changes.

Either Party (the “Requesting Party”) may propose a Change by submitting to the other Party (the “Responding Party”) a written request describing the proposed change to the Project, including changes in the Specifications, drawings, designs, and time and place of delivery. The change request will describe the proposed change and the reasons for the change in reasonable detail. The Responding Party will reasonably and in good faith consider and discuss the proposed change, and will reply within twenty (20) Business Days. The Requesting Party will respond *** by accepting or rejecting the Responding Party’s response or proposal; provided, however, Contractor shall accept Changes proposed by ComEd in accordance with Section 2.3.2. If these changes affect Contractor’s costs, performance schedules, warranties, and other provisions of this Agreement and/or the Purchase Order, the prices and other affected provisions shall be equitably adjusted by written agreement between Contractor and ComEd. Any adjustments shall be preceded by Contractor’s detailed proposal therefor.  ***. If the Parties are unable to agree to the proposed changes, then the Parties will continue to perform their obligations under the existing Project documents. To be effective a change to the Project must be documented in a Change Order form executed by Contractor’s Designated Representative and ComEd’s Designated Representative.

12.2 Claims.

If Contractor has any claim against ComEd, such as for extra work, changes, or delays, notice of each such claim shall be submitted in writing to ComEd. Any claim by Contractor shall be deemed waived unless made in writing *** after the occurrence of the event which precipitated the claim. Notwithstanding anything to the contrary, no claim shall be allowed if asserted *** after Final Payment pursuant to the Purchase Order.

12.3 Payment for Changes.

All requests for payments made pursuant to a Change Order shall be shown separately on Contractor’s invoices, and shall not be included with amounts applicable to the prices as originally specified in the Agreement or a Purchase Order. All invoices covering additions to or credits due under this Agreement or a Purchase Order shall refer to the specific Change Order issued by ComEd with respect to the addition or credit, and will not be honored unless this reference is included.

12.4 Equipment Changes.

Contractor may at any time add, replace, or change Equipment in its product line and may at any time change its specifications for any Equipment upon *** written notice to ComEd. Without limiting the foregoing, Contractor may implement engineering changes required to satisfy governmental standards, protect Equipment or system integrity, or for environmental, health or safety reasons.

12.5 Software and Documentation Changes.

Contractor may from time to time develop changes to the Software and/or the Documentation in the form of Releases. If Contractor is providing SaaS Services to ComEd, then such Releases will be installed in ComEd’s environment at no additional charge to ComEd. If Contractor is not providing SaaS Services to ComEd, then such Releases will be provided to ComEd in accordance with the then-current terms of Software Support Services purchased by ComEd.

12.6 ***.

ComEd shall be obligated to accept such changed versions of the Equipment and Software only if (i) they continue to meet the applicable Specifications and are *** with *** Equipment and Software, (ii) operate with such *** Equipment or Software as components of the System, without any *** in the *** of the Equipment or Software or the System, and (iii) pass *** in accordance with ***.

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12.7 User Group.

Contractor will include ComEd in ***. On a quarterly basis, ComEd may meet with Contractor to discuss proposed plans for Product development and replacement. Contractor shall consider ComEd’s comments, but such discussions are for informational purposes only, may not be incorporated into any contract, and do not constitute a commitment, promise, or legal obligation to deliver any future functionality. The development, release, and timing of any features, functionality, enhancements, or other technology discussed remains at the sole discretion of Contractor.

ARTICLE 13

PROJECT MANAGEMENT, DELAY AND ACCELERATION

13.1 No Extension of Final Completion Date.

If Contractor is delayed *** during the execution and completion of any portion of the Work, then Contractor shall *** as are necessary to *** of the *** to meet the *** identified in the Purchase Order or Project Schedule. Subject to the provisions of ***, ComEd will *** and Contractor shall *** related to Contractor’s ***. Subject to the terms of the Contract Documents, Contractor acknowledges and agrees that no extension to the date of Final Completion identified in the Purchase Order or Project Schedule shall be granted unless agreed to in writing by ComEd and Contractor.

13.2 Compensable Delay Claim.

Except as otherwise provided in this Agreement, if Contractor’s need to accelerate its Work is caused by a Compensable Delay (as defined in Section 13.3), then Contractor shall *** resulting from the Compensable Delay as Contractor’s sole remedy for such a Compensable Delay. Contractor shall be entitled ***, and shall use reasonable efforts to mitigate the cost to ComEd of any such Compensable Delay.

13.3 Compensable Delay.

For purposes of this Agreement, and unless the Parties otherwise agree in writing, compensable delays (“Compensable Delay”) shall include only the following events to the extent that they impact the critical path of the Specific Project: (a) failure of ComEd or ComEd’s employees, consultants or others contracting with ComEd (other than Contractor’s subcontractors or suppliers) to perform a ComEd Responsibility, solely to the extent such failure represents an Excusable Delay; (b) ComEd’s suspension without cause; or (c) a material delay caused by the removal of Contractor personal or subcontractors at the direction of ComEd, other than for good cause; provided however, that in the event of (b) or (c) Contractors shall deliver any claims required pursuant to 13.2 together with an estimate of the costs to ComEd resulting therefrom, prior to the event giving rise to the Compensable Delay, and in no event later than *** Business Days following the beginning of the Compensable Delay.

13.4 ***.

If Contractor does not perform the Work in accordance with the Project Schedule for reasons or causes attributable to *** and not otherwise excused under this Agreement, then *** may, in its ***, direct *** to *** the Work by *** or providing *** to *** as is necessary to complete the Work by the Milestone Dates. The costs associated with the *** shall be at *** to the extent they are attributable to ***, except to the extent *** for a modification to *** pursuant to ***.

ARTICLE 14

LOSS OR DAMAGE; TITLE

14.1 Delivery Terms.

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14.2 Risk of Loss.

Risk of loss or damage to Software shall remain with Contractor until delivered to ComEd. Risk of loss or damage to Equipment will remain with Contractor until delivered to ComEd. Risk of loss or damage to any property of ComEd in the custody of Contractor shall remain with Contractor until ComEd accepts the Work, or, if required by the Contract Documents, Contractor and ComEd execute a Certificate of Final Completion. If any loss of or damage to the Work occurs prior to the date of acceptance or, where required, the date Contractor and ComEd execute a Certificate of Final Completion, Contractor shall at its sole expense promptly repair or replace the portion of the Work affected. Contractor shall be entitled to receive from ComEd the compensation received by ComEd or the proceeds of any applicable insurance policy covering the loss or damage. Subject to this provision and unless otherwise provided in this Agreement, ComEd’s insurance policies will not ***.

14.3 Routing of Shipments; Shipping.

14.4 Warranty of Title.

Title to any Equipment furnished by Contractor under this Agreement shall pass to ComEd upon delivery to ComEd. When title to the Equipment passes to ComEd in accordance with the Agreement or the Contract Documents, Contractor warrants that the Material will be free and clear of all security interests, liens and encumbrances, or claims of any person.

ARTICLE 15

INSURANCE

15.1 Required Coverages.

Contractor shall provide and maintain, and use reasonable efforts to require each Subcontractor (regardless of tier) to provide and maintain, in effect during the performance of any Work under the Agreement minimum insurance coverage with carriers satisfactory to ComEd including:

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15.2 Additional Coverages.

ComEd reserves the right to require Contractor (at ComEd’s expense) to provide and maintain additional coverage in the event that the particular Work involves unusual risks.

15.3 Additional Insured Endorsement.

All liability insurance policies shall name ComEd, its officers, directors, employees, agents, representatives, Affiliates, subsidiaries, successors, and assigns, as additional insureds, shall be primary to any other insurance carried by ComEd, and shall provide coverage consistent with ***, and shall maintain the required coverages ***, naming ComEd as an additional insured, for a period of not less than *** from the date ComEd and Contractor execute a Certificate of Final Completion, if applicable, or the date ComEd accepts the Work, whichever occurs first.

15.4 Evidence of Insurance.

Contractor shall provide evidence of the required insurance coverage and file with ComEd a Certificate of Insurance acceptable to ComEd prior to commencement of the Work. The Insurance and the insurance policies required by this Article 15 shall contain a provision that coverages afforded under the policies will not be canceled or be allowed to expire or the limits in any manner reduced without *** the case of nonpayment of premium) to ComEd. ComEd may inspect any or all policies of insurance at any time.

15.5 Waiver of Subrogation.

Contractor shall waive all rights of subrogation against ComEd under those policies procured in accordance with this Agreement (except with respect to policies for professional liability).

15.6 Ratings.

All insurance coverage shall be provided by insurance companies *** and having ratings of A-/VII or better in the Best’s Key Rating Insurance Guide (latest edition in effect at the latest date stated in the Certificate of Insurance referred to in Section 15.4).

15.7 Breach of Agreement.

Failure to obtain and maintain the required insurance shall constitute a breach of this Agreement and Contractor will be liable for any and all costs, liabilities, damages, and penalties (including attorneys’ fees, court, and settlement expenses) resulting to ComEd from such breach, unless a written waiver of the specific insurance requirement is provided to Contractor by ComEd.

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15.8 Non-Waiver.

Failure of Contractor to provide insurance as herein required or failure of ComEd to require evidence of insurance or to notify Contractor of any breach by Contractor of the requirements of this Article 15 shall not be deemed to be a waiver by ComEd of any of the terms and conditions of this Agreement, nor shall they be deemed to be a waiver of the obligation of Contractor to defend, indemnify, and hold harmless ComEd Parties as required herein. The obligation to procure and maintain any insurance required is a separate responsibility of Contractor and independent of the duty to furnish a copy or certificate of such insurance policies.

15.9 ComEd’s Right to Purchase.

In the event of any failure by Contractor to comply with the insurance requirements of this Agreement, ComEd may, without in any way compromising or waiving any right or remedy at law or in equity, upon five (5) Business Days written notice to Contractor, purchase such insurance, at Contractor’s expense, provided that ComEd shall have no obligation to do so and if ComEd shall do so, Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. ***.

15.10 Contractor’s Commencement of Work Without Insurance.

Commencement of Work without the required Certificates of Insurance, or without compliance with any other provision of this Agreement, shall not constitute a waiver by ComEd of any rights under this Agreement.

15.11 Contractor Obligations Not Limited.

None of the requirements contained herein as to types, limits, or ComEd’s approval of insurance coverage to be maintained by Contractor are intended to and shall not in any manner limit, qualify, or quantify the liabilities and obligations assumed by Contractor under this Agreement, any other agreement with ComEd, or otherwise provided by law.

ARTICLE 16

INDEMNIFICATION AND LIMITATION OF LIABILITY

16.1 Infringement Indemnification.

Contractor shall, at its own expense, indemnify, defend and hold harmless ComEd, its Affiliates, and each of their respective agents, employees, officers, directors, subcontractors, and their successors and assigns (“ComEd Parties”) against all claims, demands, suits, actions, proceedings, investigations, damages, settlements, costs and expenses (including all reasonable costs or expenses of all proceedings, and including attorneys’, experts’ and witness fees), as they are incurred, arising from or relating to the actual or alleged infringement, misappropriation, claim of unfair competition or violation of any third party right, including without limitation Intellectual Property Rights (an “IP Claim”) asserted against the ComEd Parties related to the System, Software, Equipment or Material, their delivery to or use by ComEd, or any of the Services hereunder, whether such infringement is based upon the Services, System, Software, Equipment or Material alone, or incorporated as a component of a third party product, including meters. This indemnification covers without limitation any claims arising or relating to the matters listed on Exhibit F or any matters that should have been listed but for Contractor’s breach of Section 4.13. The indemnification obligations contained in this Article shall survive the expiration or termination of this Agreement.

16.2 Remedies.

If Contractor receives notice of an alleged infringement by the Materials or Services, or if Contractor reasonably believes that such a claim is likely, Contractor shall promptly notify ComEd in writing and may stop delivery of all such Materials or Services without liability for failure to deliver under this Agreement for up to *** calendar days, while the Parties analyze the potential infringement and discuss whether delivery should resume. In such case or if any part of the *** to constitute *** and its use is enjoined, Contractor shall, ***, Contractor shall ***, *** either (1) secure for ComEd the right *** to continue the use of such part of the *** or such other permission as will enable Contractor to ***, or (2) replace at Contractor’s *** such part of the *** with an adequate *** or *** it so that it becomes ***, but only if the *** does not adversely affect the *** of the ***. If neither of the foregoing options is available to Contractor on ***, then Contractor may *** use of the affected ***, in which case Contractor will *** for the *** so affected; provided, however that *** use of the System, in whole or in part, without the affected *** is materially impaired or limited, ComEd shall have the right to *** this Agreement and receive an *** of the *** for such whole or partially impaired or limited *** and those other *** that are dependent on such ***. Contractor shall have *** to ComEd pursuant to this Article 16 for *** to the extent that such ***, ***, except as set forth in Section 16.1, (b) modifications to the Material or Services *** in connection with the use of the Material or Services in accordance with the terms hereof ***.

16.3 Exclusive Remedy.

THE RIGHTS AND REMEDIES SET FORTH IN SECTIONS 16.1 AND 16.2 CONSTITUTE THE PARTIES’ ENTIRE OBLIGATIONS TO ONE ANOTHER FOR IP CLAIMS AND THEIR EXCLUSIVE REMEDIES FOR THIRD PARTY CLAIMS

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THAT THE MATERIALS AND SERVICES, AS APPLICABLE, INFRINGE OR MISAPPROPRIATE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

16.4 Personal Injury and Property Damage.

Each Party shall indemnify, defend, and hold harmless the other Party from and against any claim, demand, suit, action or proceeding that is asserted against the other Party by a third party as a result of ***, to the extent that such *** is caused by the *** of the indemnifying Party.

16.5 Indemnification against Breach, Negligence or Misconduct; Claims by Subcontractors.

Contractor shall indemnify, defend and hold harmless ComEd from and against any claim, demand, suit, action or proceeding that is asserted against ComEd by a third party as a result of (i) ***. ComEd shall indemnify, defend and hold harmless Contractor from and against any claim, demand, suit, action or proceeding that is asserted against Contractor by a third party as a result of ComEd’s ***.

16.6 Procedures for Indemnification under this Agreement.

16.7 Disclaimer of Certain Damages.

Except for a Party’s ***, a Party’s breach of *** (***), and *** obligations, neither Party will be *** for any ***, ***, ***, *** arising out of this Agreement, whether *** (including, but not limited to, *** data, goodwill, profits, investments, use of money or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets) even if such Party has been advised of the possibility of such ***.

16.8 Dollar Limit on Most Liabilities.

Except for a Party’s ***, ***, a Party’s breaches of ***, a Party’s obligations of *** and *** or *** applicable thereto, under no circumstances shall either Party’s liability to the other Party or to any third party arising out of or related to this Agreement, the products or services, exceed the greater of *** under this Agreement, regardless of whether any *** is based on such contract, warranty, negligence, strict liability or other tort or otherwise.

16.9 Contractor Liability.

Should Contractor Personnel ▇▇▇ ComEd for any injury allegedly received while performing Work under this Agreement and/or any Purchase Order, Contractor agrees to *** filed by *** any limitation or cap imposed by ***, *** on the *** that ComEd can *** against *** in a *** by ComEd against ***.

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16.10 ***. ***.

ARTICLE 17

TERMINATION AND SUSPENSION

17.1 Termination With Cause.

If either Party breaches any material provision of this Agreement or a Purchase Order (including the failure by Contractor to adhere to the performance standards set forth in this Agreement or the Purchase Order), the other Party may give notice of such breach to the defaulting Party in writing. If the breach is not cured within *** of receipt of such notice by the defaulting Party, the defaulting Party shall be in default hereunder and the non-defaulting Party may elect to terminate the Agreement or the Purchase Order by written notice to the defaulting Party, or to continue the Agreement or the Purchase Order subject to receiving adequate assurances of performance from the defaulting Party; provided that in the event of a default for failure to pay monies due such termination right shall expire *** after payment of the amounts giving rise to the default. In the event that ComEd terminates the Agreement, all outstanding Purchase Orders shall also terminate unless expressly excepted from termination in the notice of termination. In the event either Party terminates this Agreement or a Purchase Order pursuant to this Section 17.1, ComEd shall not be required to make any payments to Contractor with respect to Material that has not been delivered or Services that have not been performed as of the date of termination.

17.2 Termination Without Cause.

ComEd may at any time on *** calendar days’ notice to Contractor terminate this Agreement or may terminate a Purchase Order within *** calendar days after Contractor’s written Purchase Order Acknowledgement for ComEd’s convenience (“Termination for Convenience”).

17.3 Suspension for Force Majeure.

Neither Party will be considered in default in the performance of its obligations under this Agreement if prevented or delayed from such performance by any cause which is beyond the reasonable control and without the fault or negligence of that Party, including, but not limited to, insurrections, riots, wars and warlike operations, explosions, governmental or military acts, epidemics, strikes, fires, floods, earthquakes, severe weather, import quotas, accidents, tampering, act of any public enemy, embargoes, blockades, or inability to obtain required materials, qualified labor, or transportation (“Force Majeure”). Any Party temporarily excused from its performance under this Agreement by any such circumstances shall resume performance when such event of Force Majeure is avoided, removed, or cured. Any Party claiming an event of Force Majeure as an excuse for delay in performance shall give prompt notice in writing thereof to the other Party and shall make commercially reasonable efforts to overcome the effect of the circumstance as quickly as possible.

17.4 Termination for Failure to ***.

ComEd has the right to terminate this Agreement upon written notice to Contractor if it fails to *** by required units of ***, including approval of the *** of a *** that expressly incorporates use of Silver Spring products and services on the terms stated in this Agreement.

17.5 Termination Charges.

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17.6 Disputed Termination.

If ComEd terminates this Agreement or a Purchase Order pursuant to this Article 17, and Contractor disputes ComEd’s right or grounds for such termination, the issue shall be resolved in accordance with the Dispute Resolution Procedure in Article 26. If it is ultimately found, or agreed to by the Parties, that ComEd had no right or grounds for such termination, then the termination by ComEd shall be conclusively presumed in law to have been a Termination for Convenience, and the damages for which ComEd may be liable shall be no more than those specified in Section 17.4.2.

17.7 Contractor’s Duties Upon Termination.

If ComEd terminates this Agreement or a Purchase Order, as provided in this Article 17, Contractor shall immediately discontinue the Work, and ComEd shall be entitled to take possession of all or any part of the Material not owned by Contractor or delivered to ComEd; provided, that ComEd shall only be entitled to take possession of the Material then owned by Contractor upon full payment therefor and any other amounts owed under Section 17.4.2 if ComEd terminated for convenience. If requested by ComEd, Contractor shall make every reasonable effort to cancel any existing orders, Subcontracts and contracts specified by ComEd upon commercially reasonable terms satisfactory to ComEd. Contractor, upon request, shall also deliver and assign to ComEd where reasonably possible, and ComEd may at its discretion assume, any and all contracts, Subcontracts, purchase orders, and options made by Contractor in performance of the Work. Contractor shall deliver to ComEd true and correct originals thereof and all copies of the Contract Documents in Contractor’s possession except that Contractor may retain copies of all relevant documents for its own files, and all other materials relating to governmental permits, orders placed, bills, invoices, lien waivers, and financial management under this Agreement. Notwithstanding any termination, Contractor shall take such steps as are reasonably necessary to preserve and protect Work completed and in progress and to protect Material wherever it may be. No action taken by ComEd after termination shall prejudice any other rights or remedies of the Parties provided by law, by the Contract Documents, or otherwise upon such termination. Should ComEd’s termination of Contractor be partial, Contractor shall proceed to complete the portions of the Work, including Work pursuant to other Purchase Orders not terminated.

17.8 Completion of Fabrication.

If ComEd delays or suspends Contractor’s performance under Sections 17.3 or 17.10 and Contractor determines that any of the Work is in such state of manufacture or fabrication that interruption of that Work would result in substantially increased manufacturing costs, Contractor may, at ComEd’s cost, complete, ship and submit invoices to ComEd for that portion of the Work after notice to ComEd, unless ComEd directs Contractor to interrupt its Work.

17.9 Resumption of Work.

If ComEd extends, delays, or suspends Contractor’s performance under Sections 17.3 or 17.10, Contractor shall thereafter resume any Work extended, suspended, or delayed as soon as is practicable when directed to do so by ComEd. Any dates for performance by Contractor which are affected by an extension, delay, or suspension of ComEd shall be extended for a period not to exceed the time lost by reason of the extension, suspension, or delay, and any additional period of time necessary to reengage such suspended, extended or delayed Work. The payment schedules contained in this Agreement or Purchase Order shall be adjusted to reflect the effect of the extension, suspension, or delay on Contractor’s rate of expenditures for performance hereunder, and performance schedules for ComEd’s other obligations under this Agreement which are affected shall be extended for a period not to exceed the time lost by reason of the extension, suspension, or delay. Contractor shall also be entitled to an increase in the price for the Work affected by an extension, delay, or suspension directed by ComEd to cover Contractor’s incremental direct costs by reason of the extension, suspension, or delay and for which Contractor is not compensated by any price adjustment provisions under this Agreement. Contractor shall take all reasonable steps to minimize these costs.

17.10 Temporary Deferment of Services.

Contractor shall (at a cost, if any, to be mutually agreed upon by the Parties in writing), temporarily defer the execution of any portion of the Work when such action may be necessary in the opinion of ComEd for the proper advancement of the work of other contractors or for the installation of machinery, equipment, or other work by ComEd, when the deferment may be accomplished

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without unreasonable interference with Contractor’s schedule or arrangements, or when the Work interferes or threatens to interfere with the operation of ComEd’s facilities.

17.11 Subcontractors.

Contractor agrees to bind every Subcontractor to whom it subcontracts any of the Work by the provisions of this Article 17 as far as applicable to the Work of the Subcontractor.

ARTICLE 18

WAIVER OF LIEN

In all jurisdictions, Contractor agrees to keep ComEd’s property free and clear of, and shall promptly release or cause the release of, all liens, lien claims, recorded notices, claims for nonpayment, or lis pendens filed of record by any Subcontractor. Contractor agrees to indemnify and hold ComEd Parties harmless from all liens and lien claims made, recorded, asserted, or filed on the Work or on any property on which it is being performed, on account of any labor performed or Material furnished by Contractor, Subcontractors (regardless of tier) and other person s in connection with the Work. Contractor’s obligation hereunder includes paying for any attorneys’ fees, court, and other costs incurred by ComEd in connection with any such lien claims and liens.

ARTICLE 19

LABOR RELATIONS

19.1 Notice of Potential Labor Disruption.

Contractor shall immediately notify ComEd, in wntmg, of any labor dispute or anticipated labor dispute involving Contractor’s employees or subcontractors that may reasonably be expected to affect or delay the performance of the Work. Written notice shall include, at a minimum, identification of the organizations involved in the dispute together with any relevant information regarding the dispute and its background.

19.2 Jurisdictional Disputes.

If any union jurisdictional disputes arise involving Work performed by Contractor’s employees or subcontractors, Contractor shall be held solely responsible for pursuing all available remedies under applicable state and federal law, or under any existing labor agreements, to remedy the dispute and to ensure limited disruption in the performance of the Work or the work being performed by other ComEd contractors.

19.3 Indemnification.

Contractor shall indemnify, hold harmless and, at the ComEd Parties’ request, defend ComEd Parties from all claims, liability, damages, and expenses (including reasonable attorneys’ fees) arising out of (a) a labor dispute, or (b) claims under a collective bargaining agreement or project labor agreement for Work performed by Contractor’s employees or subcontractors.

19.4 Contractor’s Rights.

Subject to ComEd’s right to approve Subcontractors, nothing in this Agreement shall limit Contractor’s right to negotiate or execute labor agreements on terms and conditions within Contractor’s sole discretion consistent with Contractor’s responsibilities and obligations under this Agreement or any Purchase Orders.

ARTICLE 20

CONTRACTOR’S PERSONNEL

20.1 Competent Workers.

Contractor shall employ and cause each Subcontractor to employ competent, appropriately trained, and experienced employees for the Services to be performed. Contractor shall have full responsibility for the conduct of all employees employed on or in connection with the Services (including employees of any Subcontractor) and will ensure that there is adequate, daily supervision of all Services. Contractor shall be familiar with and observe established and accepted labor practices, procedures, and project agreements.

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20.2 Qualification.

Contractor Personnel shall maintain all professional qualifications, licenses, permits, certifications and skills and appropriately complete all training required by applicable Laws or advisable to petforrn the Services.

20.3 Use of Contractor Personnel.

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20.4 Background Examinations.

20.5 Hosted Personnel.

During the course of this Agreement, Contractor may allow employees or contractors of ComEd to participate in activities at Contractor’s facilities (“Hosted Personnel”). All Hosted Personnel will retain their status as an employee or contractor of ComEd while assigned to work at such premises. Hosted Personnel will observe the working hours, rules and regulations of the hosting Party. ComEd will be solely responsible for payment of compensation to such persons as well as all applicable federal, state and local income and employment tax withholding and reporting for all such Contractor Personnel. Neither Contractor, nor Contractor Affiliates and successors (the “Contractor Entities”) are, or shall be construed to be, an employer (common law or otherwise), co-employer or joint employer of any Hosted Personnel. Neither ComEd nor any Hosted Personnel is an agent of the Contractor, and no such party or person has any authority to represent the Contractor Entities as to any matters, except as expressly authorized in this Agreement. ComEd will assume full responsibility for payment of all federal, state, provincial and local taxes, withholding or contributions imposed or required under unemployment insurance, social security and income tax laws with respect to all Hosted Personnel. Should any of the Contractor Entities be required to pay any amount to a governmental agency for failure by ComEd to withhold any amount as may be required by Law, ComEd shall indemnify each of the ComEd Entities for any amount so paid, including interest, penalties and fines. ComEd shall run background checks on all Hosted Personnel at least as thorough as the background checks it requires of Contractor for Contractor Personnel.

20.6 *** Commitment, Reporting and Penalties.

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ARTICLE 21

SUBCONTRACTUAL RELATIONS

21.1 Subcontractual Relations.

Subject to the terms of this Agreement, Contractor may utilize Subcontractors to perform portions of the Work.

21.2 Subcontracts.

Any portion of the Work to be performed for Contractor by a Subcontractor shall be performed pursuant to an appropriate written subcontract between Contractor and the Subcontractor (“Subcontract”). Contractor may employ Subcontractors in connection with Services performed at a ComEd Site only upon prior written approval by ComEd, which shall not be unreasonably withheld, conditioned or delayed. Such Subcontractors shall be bound by obligations of confidentiality at least as restrictive as those set forth herein and Contractor shall be solely responsible for the conduct or misconduct of such Subcontractors as if they were employees of Contractor. No Subcontract shall relieve Contractor of its obligations under the Contract Documents.

21.3 Contractor’s Payments to Subcontractors.

Contractor shall pay each Subcontractor promptly upon receipt of payment from ComEd or as provided in the Subcontract. ComEd has no obligation to pay Subcontractors or to ensure Contractor pays Subcontractors.

21.4 Disputes with Subcontractors.

Contractor shall inform ComEd of any material dispute arising between Contractor and any of its Subcontractors or between any Subcontractor and another Subcontractor that may cause a delay in the performance of Services. Contractor shall use its best efforts to avoid disputes regarding the Work and shall resolve such disputes as they arise. Contractor shall comply with Article 19 regarding any Subcontractor labor disputes.

21.5 Compliance with Laws.

Contractor shall cause any and all of its Subcontractors to comply with all applicable Laws in the performance of the Work hereunder.

ARTICLE 22

SAFETY, SECURITY AND ENVIRONMENTAL REQUIREMENTS;

COMPLIANCE WITH LAWS

22.1 Safety.

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22.2 Security and Environmental Compliance.

22.3 Reports of Accidents.

Contractor shall report promptly to ComEd any accident or unusual occurrence during performance of the Work, including personal injury or death to any employee or ***. Reports of personal injury or death to any person shall be made *** to ComEd’s Designated Representative. Contractor shall *** to ComEd’s Designated Representative within *** after an accident. Upon discovery of the occurrence of any event that may constitute an emergency situation or an immediate endangerment to public health, welfare, or the environment, Contractor shall immediately verbally notify all parties required by Health and Safety Laws and Environmental Laws, including the National Response Center, and shall also immediately notify (but in any event no later than *** after discovery of the event) ComEd’s Designated Representative. In the event ComEd’s Designated Representative is unavailable, ***, Contractor shall provide *** to ComEd to be received no later than *** after the occurrence or discovery of the event. ***.

ARTICLE 23

WASTE MATERIALS ASSOCIATED WITH WORK

23.1 Disposal.

Contractor shall handle any waste materials generated in the performance of the Work in full compliance with all applicable Health and Safety Laws and Environmental Laws and all ComEd policies and procedures about which ComEd informs Contractor. Contractor will immediately discontinue use of any facility for the disposal of such waste if Contractor learns that such facility has lost its permitted status during the term of this Agreement. ComEd has the right to reject, for any reason, Contractor’s use of any particular disposal facility.

23.2 Recycling Material.

Upon ComEd’s request, Contractor shall inform ComEd’s Designated Representative of programs that Contractor provides for reusing and/or recycling Material, including waste from packaging and containers, used chemicals and equipment. ComEd, at its sole discretion, may direct Contractor to take back used material, packaging, and/or containers for reuse or recycling, in accordance with such Contractor’s program. Any cost adjustments associated with the reuse or recycling of Material shall be identified in the Purchase Order.

ARTICLE 24

DOCUMENTATION, PROPRIETARY INFORMATION AND WORK PRODUCT

24.1 ComEd Intellectual Property Rights.

As between ComEd and Contractor, all Intellectual Property Rights owned or controlled by ComEd prior to the Effective Date (“Pre-existing ComEd Intellectual Property Rights”) shall ***, including but not limited to those relating to any *** developed by *** or a *** or *** or *** from a *** outside the scope of this Agreement and provided ***. In addition, ComEd shall ***, ***, whether created alone by *** or jointly with others, including *** and the***. To the maximum extent permitted by law, the works of ComEd Intellectual Property created by *** as defined in the Copyright Act of 1976, 17 U.S.C. §§ 101, 201(b), and the copyrights therefore are owned ***. If at any time in the future any such works are deemed not to constitute “works made for hire,” Contractor hereby ***,

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and shall cause its *** or its *** to ***, ***, ***, ***, and ***, all of their ***, *** in and to the *** in such***, and in all *** and *** that may be secured under the laws now or hereafter in force and effect in the United States of America and in any other country or countries. ***, Contractor shall, and shall cause its agents or its subcontractors to, *** or take any actions *** to complete or evidence this *** and to enable the *** to otherwise protect, register, patent and record the ***. Contractor will *** all such *** or its *** or its ***. ***, ComEd shall be entitled to use the *** for the ***, *** and *** of services and products outside the scope of this Agreement. Contractor shall take no action knowing that it is likely to result in any lien or encumbrance on the ComEd Intellectual Property.

24.2 Ownership.

As between ComEd and Contractor, all Intellectual Property Rights owned or controlled by ComEd prior to the Effective Date (“Pre-existing ComEd Intellectual Property Rights”) shall ***, including but not limited to those relating to any technology developed by ComEd or a third party or acquired or licensed from a third party by ComEd outside the scope of this Agreement and provided to Contractor hereunder. In addition, ComEd shall own any changes, improvements or modifications to Pre-Existing ComEd Intellectual Property Rights, whether created alone by ComEd or jointly with others, including Contractor (together with the Pre-existing ComEd Intellectual Property Rights and the ComEd-Specific Work, the “ComEd Intellectual Property”). To the maximum extent permitted by law, the works of ComEd Intellectual Property created by Contractor, its agents or its subcontractors are “works made for hire” as defined in the Copyright Act of 1976, 17 U.S.C. §§ 101, 201(b), and the copyrights therefore are owned exclusively by ComEd or its nominee. If at any time in the future any such works are deemed not to constitute “works made for hire,” Contractor hereby assigns, and shall cause its agents or its subcontractors to assign, to ComEd, its successors, assigns, and nominees, all of their right, title and interest in and to the copyrights in such works, and in all renewals and extensions of copyright that may be secured under the laws now or hereafter in force and effect in the United States of America and in any other country or countries. At ComEd’s expense, Contractor shall, and shall cause its agents or its subcontractors to, execute all documents or take any actions reasonably necessary to complete or evidence this assignment and to enable the ComEd or its nominee to otherwise protect, register, patent and record the ComEd Intellectual Property created by Contractor or its agents or Subcontractors. Contractor will promptly and fully disclose to ComEd all such ComEd Intellectual Property created by Contractor or its agents or its subcontractors. Without limitation, ComEd shall be entitled to use the ComEd Intellectual Property for the development, manufacture and sale of services and products outside the scope of this Agreement. Contractor shall take no action knowing that it is likely to result in any lien or encumbrance on the ComEd Intellectual Property.

24.3 Derivative Works.

Ownership of the Intellectual Property Rights in any work product and any Derivative Works created by Contractor in performance of this Agreement will be allocated as follows:

24.4 Proprietary Markings.

ComEd agrees not to remove or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within any Products or Documentation.

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24.5 ComEd’s Use of Contractor Information.

ComEd shall obtain Contractor’s prior written consent (not to be unreasonably withheld, delayed or conditioned) to disclose or use Contractor proprietary or confidential information or documents relating to the Work, or maintenance and service work related to the Work, which are required by ComEd in order to permit ComEd to secure or maintain in effect any license or permit for a ComEd Site or facility for which the Work is intended from any Governmental Authority, or to use or obtain the full benefits of the Work. Contractor shall use reasonable efforts to cooperate with ComEd regarding such disclosure when required to secure licenses and permits.

24.6 Contractor Use of ComEd Information.

Except as may be required by Contractor for the performance of its obligations under this Agreement, ComEd is not obligated under the terms of this Agreement to provide Contractor with any information that ComEd considers proprietary. If ComEd transmits any information to Contractor that ComEd considers proprietary, such information is deemed Confidential Information in accordance with Article 25. Contractor shall use that proprietary information, and any other information that Contractor knows or has reason to know is proprietary or confidential to ComEd, exclusively in connection with the Work and shall not use, publish or otherwise disclose it to any third-party except in accordance with Article 25 (“Confidential Information”). Contractor shall not use, publish or otherwise reproduce any logo or brand of ComEd or use or represent any endorsement by ComEd without the prior written consent of ComEd.

24.7 Software License.

ARTICLE 25

CONFIDENTIAL INFORMATION

25.1 Definition.

The term “Confidential Infonnation” shall mean any confidential, trade secret or other proprietary information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this Agreement. Confidential Information may include information belonging to the Disclosing Party or information entrusted to the Disclosing Party by a third party under obligations of confidentiality. Neither Party shall disclose such third party information to the other Party hereunder unless it is lawfully entitled to do so. To be subject to this Article 25, such information must be (a) designated with the legend “Confidential” or a comparable legend in case of disclosure in written, graphic, machine readable or other tangible form, (b) designated orally as “Confidential” at the time of disclosure in case of disclosure in oral, demonstrative or other non-tangible form, (c) ComEd Data, (d) this Agreement (and all amendments thereto) and all of its terms and conditions, including pricing, or (e) understood by a reasonable person to be confidential at the time of disclosure. Confidential Information shall include information or enhancements that relate to past, present, and future research, development, and business activities of a Party, including inventions, discoveries, formulas, processes, devices, methods, compositions, compilations, system plans, flow charts, source codes, algorithms, procedures, data, employee and customer information, and other proprietary information of a Party.

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25.2 Exclusions.

Confidential Information shall not include:

25.3 Receiving Party’s Obligations.

During the term of this Agreement and thereafter, except as a Disclosing Party may otherwise authorize in writing in advance, each Receiving Party shall use the other Party’s Confidential Information only to fulfill its commitments and exercise its rights under this Agreement. Each Receiving Party agrees not to disclose any Confidential Information of the other Party to anyone other than those employees, agents, contractors or Subcontractors of the Receiving Party who need to know such Confidential Information for the purposes of this Agreement and who have entered into binding written obligations of confidentiality substantially similar to the obligations set forth herein. Upon reasonable request by the Disclosing Party, the receiving Party will provide copies of the confidentiality agreements entered into with its employees, agents or contractors. Each Receiving Party shall treat all Confidential Information of the Disclosing Party with the degree of care it accords to its own Confidential Information, but not less than reasonable care. Neither Receiving Party shall reverse engineer, disassemble or decompile any prototypes, firmware, software or other tangible objects which embody the other Party’s Confidential Information. Each Receiving Party will notify and cooperate with the other Party in enforcing the Disclosing Party’s rights if such Receiving Party becomes aware of a threatened or actual violation of the confidentiality requirements of this Section. Upon completion of Work pursuant to this Agreement, except as otherwise provided in this Agreement, a Receiving Party shall return any and all tangible embodiments of Confidential Information to the Disclosing Party promptly following the request of the Disclosing Party.

25.4 Disclosure Pursuant to Court Order.

Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to the extent that disclosure is required by a Governmental Authority of competent jurisdiction, or by any entity that regulates ComEd (whether or not a Governmental Authority) provided that Receiving Party shall provide notice to Disclosing Party of the request for such disclosure promptly upon receiving it and that Receiving Party shall fully cooperate with Disclosing Party in any effort by Disclosing Party to secure a protective order against such disclosure.

25.5 Irreparable Harm.

Receiving Party acknowledges that the breach of any of the covenants contained in this Article 25 will result in irreparable harm and continuing damages to Disclosing Party and Disclosing Party’s business, and that Disclosing Party’s remedy at law for any such breach or threatened breach would be inadequate. Accordingly, in addition to such remedies as may be available to Disclosing Party at law or in equity in the event of any such breach, Disclosing Party may seek, subject to the venue requirements of Section 27.10, the issuance of an injunction (both preliminary and permanent), without bond or necessity of proving monetary or quantifiable damages, enJommg and restricting the breach or threatened breach of any such covenant, including an injunction restraining the Receiving Party from disclosing, in whole or in part, any Confidential Information. Receiving Party shall pay all of Disclosing Party’s costs and expenses, including reasonable attorneys’ fees and accountants’ fees, incurred in enforcing such covenants.

25.6 Data Privacy.

In carrying out its activities under the Agreement, each Party will observe and comply with all applicable data privacy and data protection laws and regulations, including consumer privacy laws. In addition, when accessing or handling any ComEd Data that contains Personal Identifying Information, Contractor will comply with all reasonable policies of ComEd that have been disclosed to Contractor in writing relating to the use and disclosure of such information. Contractor will immediately notify ComEd if Contractor becomes aware of any use or disclosure of ComEd Data that is not permitted by the Agreement. Contractor may not use or disclose ComEd Data for any purpose other than to provide the Products or render the Services, without the written consent of ComEd. Contractor shall not collect or maintain such ComEd Data except to the extent necessary to perform its obligations under this Agreement. To the extent that Contractor utilizes aggregated data from the end users, it shall not be presented in any way that could reasonably be used to determine specific information about end users or their use of any ComEd services.

25.7 Safeguarding Personal Identifying Information.

As used herein, the term “Personal Identifying Information” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any: (1) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number,

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employer or taxpayer identification number; (2) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (3) unique electronic identification number, address, or routing code; or (4) telecommunication identifying information or access device. Contractor will utilize security mechanisms reasonably calculated to protect the confidentiality and integrity of Personal Identifying Information including, without limitation, the use of passwords, encryption technology, access control mechanisms and firewalls. In addition, Contractor shall:

(a) hold any and all Personal Identifying Information it obtains in connection with this Agreement in strictest confidence and use and permit use of this Personal Identifying Information solely for the purposes of this Agreement;

(b) disclose or provide access to Personal Identifying Information only to employees, subcontractors, vendors, service providers, employees, agents and any other third parties (“Contractor’s Representatives”) who have a need to have access to such information in order to provide Services hereunder and only to the extent reasonably necessary to carry out Contractor’s obligations hereunder;

(c) have, and in the future maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Personal Identifying Information other than in accordance with this Agreement, including without limitation agreements with Contractor’s Representatives to whom Personal Identifying Information is disclosed to ensure that Contractor’s Representatives protect the confidentiality of Personal Identifying Information;

(d) have, and in the future maintain in effect and enforce, commercially reasonable and appropriate physical, procedural, administrative and electronic security measures to protect Personal Identifying Information, including encryption, which comply with all applicable legal requirements and are consistent with industry practice and standards; and

(e) remain responsible for any breach of the obligations set forth in this Section 25.7 and any violation of any applicable privacy laws by Contractor’s Representatives to the same extent as if Contractor caused such breach or violation.

25.8 Security of Data.

All Personal Identifying Information and ComEd Data that is collected, stored or otherwise maintained by Contractor pursuant to this Agreement shall be maintained in a secure environment that is consistent with the practices then standard in the industry. Contractor shall, if requested by ComEd, permit ComEd or a mutually agreed upon third party to perform, at ComEd’s expense and only after signing a confidentiality agreement with Contractor, data security audits prior to Launch of the first Optimization Area and once each year (more often if issues or problems are uncovered during any security audit) during the term, upon thirty (30) calendar days advance written notice by ComEd. Contractor shall provide assistance reasonably requested by ComEd or such third party in the performance of such audit. Any Personal Identifying Information or ComEd Data that is collected or obtained by Contractor must be stored and transmitted in encrypted or otherwise secure form, to be described in greater detail in the Specifications. In the event of a breach of security of any system, website, database, equipment or storage medium or facility that results in unauthorized access to Personal Identifying Information or ComEd Data by any third party (including any employee or subcontractor of Contractor that is not authorized to access such information), Contractor shall notify ComEd immediately and make best efforts to re-secure its systems immediately. If directed to do so by ComEd, Contractor shall assist ComEd in whatever way ComEd may request in notifying any consumers whose Personal Identifying Information may have been breached or otherwise put at risk. In no event shall any message or communication, whether by mail, email or ComEd support scripts, regarding data security, go to consumers without the review and approval of ComEd; provided that Contractor shall issue such communications as ComEd may direct, provided such communications are reasonably acceptable to Contractor. In the event that Contractor becomes aware of a reasonable likelihood of a breach of, or imminent threat to the security measures of the System or Software, Contractor shall provide immediate written notice to ComEd detailing the threat or breach and efforts to remediate such threat or breach. Contractor shall keep ComEd apprised of all efforts to eliminate or mitigate all such security risks.

25.9 Remote Access.

To the extent that Contractor is authorized to gain remote access to ComEd’s networks or equipment for purposes of performing its obligations hereunder, Contractor shall ensure that (a) such access is restricted to authorized employees or other authorized Contractor personnel; (b) upon request, it provides ComEd with a list of all such authorized employees; (c) such remote access is used solely for purposes of fulfilling Contractor’s obligations under this Agreement; (d) such remote access is obtained through a secure connection; and (e) Contractor uses such remote access capability only to access equipment or software that is directly involved in Contractor’s performance of its obligations hereunder and does not access any other ComEd or third party systems, databases, equipment or software. Upon ComEd’s request and upon reasonable prior notice to Contractor, Contractor will provide or permit periodic security audits, at ComEd’s expense, of its access system and methods and will change authentication elements periodically to maintain the integrity and security of Contractor’s access. Contractor shall provide assistance reasonably requested by ComEd in the performance of such audit.

25.10 No Commingled Data.

ComEd acknowledges that ComEd’s Data may reside on shared Servers, provided, however, that ComEd’s Data and other information stored on the Servers shall not be commingled with the data of any other customer of Contractor. Contractor shall ensure

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that ComEd’s Data and systems are not accessible to unauthorized third parties and shall immediately report any breaches of security regarding ComEd’s Data to ComEd

ARTICLE 26

DISPUTE RESOLUTION

26.1 Step Negotiations.

The Parties shall attempt in good faith to resolve all disputes under the Contract Documents (“Disputes”) promptly by negotiation as follows. Any Party may give the other Party written notice of any Dispute not resolved in the normal course of business. The project team member(s) will first strive to work out the problem internally. If the project team cannot resolve the dispute within *** Business Days, Contractor’s Designated Representative and ComEd’s Designated Representative will meet to resolve the problem. If Contractor’s Designated Representative and ComEd’s Designated Representative cannot resolve the dispute *** Business Days after being escalated the managers, executives of both Parties shall meet at a mutually acceptable time and place within *** calendar days after delivery of such notice, and thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the Dispute. If the matter has not been resolved within *** calendar days from the refenal of the Dispute to senior executives or if no meeting of senior executives has taken place within fifteen (15) calendar days after such referral, either Party may initiate such legal action as it deems appropriate. If a negotiator intends to be accompanied at a meeting by an attorney, the other negotiator shall be given at least *** Business Days’ notice of such intention and may also be accompanied by an attorney. All negotiations pursuant to this Section 26.1 ate confidential and protected from subsequent testimonial disclosures, and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state rules of evidence.

26.2 Work to Continue.

In the case of any Dispute, Contractor shall continue to perform the Work unrelated to the dispute pending final determination of the Dispute, and ComEd shall continue to make payments to Contractor in accordance with the Agreement for those portions of the Work completed that are not the subject of Dispute.

ARTICLE 27

MISCELLANEOUS

27.1 Terms and Conditions.

All Material and Services shall be delivered or performed in accordance with the Contract Documents.

27.2 Complete Agreement.

This Agreement, together with the attached Exhibit(s) and Schedule(s), the Purchase Order(s) or similar writings issued by ComEd to Contractor relating to this Agreement, any other specifications, drawings, or other documents specifically referenced in any of the foregoing sets forth the entire understanding of the Parties, and supersedes any and all prior agreements, anangements, or understandings, relating to the subject matter hereof. This Agreement shall cover all Services and Products provided pursuant to the EBC Agreement and all rights and obligations applicable to Services and Products hereunder shall apply to Services and Products provided thereunder, provided, however, that (i) for the purposes of calculating the warranty period applicable to such EBC Agreement Products and Services Launch shall be deemed to be the ***, except for the warranty applicable to *** under the EBC Agreement, which shall remain in effect for those *** purchased prior to the *** and (ii) the limitation of liability in the EBC Agreement shall apply to Materials and Services provided prior to the *** to the extent the liability arose prior to the *** and relates *** to such Materials and Services. For the avoidance of doubt, pricing under this Agreement shall not apply retroactively to Products and Services purchased prior to the Effective Date.

27.3 Notices.

Any notice pertaining to the Work performed or a Purchase Order shall be in writing (unless in an emergency and then promptly thereafter in writing) and sent via facsimile transmittal, registered or certified mail (postage prepaid), or by commercial overnight courier, to ComEd’s Designated Representative or Contractor’s Designated Representative as appropriate, at their respective addresses appearing in the Purchase Order, or if no Purchase Order has been issued, to the Party designated in this Agreement. Notices shall be effective only when received.

27.4 Captions.

Captions used herein and in the attached Exhibit(s) and Schedule(s) and the other Contract Documents, are for the convenience of the Parties and shall not be used in construing the meaning of this Agreement.

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27.5 Binding Effect; Execution; Counterparts.

The execution, delivery and performance by the Parties of this Agreement and the transactions contemplated hereby have been duly authorized by all necessary corporate actions of the Parties. This Agreement shall not be binding or effective until properly executed by each of the Parties. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same Agreement, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such fully executed counterpart.

27.6 Survivability.

The provisions of the Contract Documents, and rights and obligations therein and in this Agreement, including with respect to indemnification, limits of liability, intellectual property and confidentiality, shall survive expiration (by performance) or termination of this Agreement or a Purchase Order and shall survive indefinitely, except to the extent that such provision by its express terms ends sooner.

27.7 No Third-Party Beneficiaries.

No provision of this Agreement is intended or shall be construed to be for the benefit of any third-party (other than ComEd Parties in connection with Contractor’s indemnification obligations hereunder).

27.8 Publicity.

With the sole exception of publication of such information within Contractor’s corporate entity and subject to the Confidentiality provisions of this Agreement, Contractor shall not refer to ComEd or any company affiliated with ComEd in any advertising or other publication in connection with Work performed by Contractor, without the prior written approval of ComEd; provided, however, that Contractor may use ComEd’s name and logo in its list of customers that is publicly disseminated. Subject to the immediately preceding sentence, Contractor shall not, either directly or indirectly, publish or disclose any photographs, images, logos, copyrighted or trademark protected information of ComEd or its subsidiaries; or use such information for the benefit of itself or any other person without the prior written consent of ComEd.

27.9 Assignment.

Subject to the provisions of this Agreement, neither Party shall assign its interest (including any interest in or claim to monies owed) in this Agreement or a Purchase Order, or delegate any obligation under this Agreement or a Purchase Order, without the prior written consent of the other Party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, either Party may assign this Agreement without such consent in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its relevant assets, provided the assignee agrees to be bound by the terms and conditions of this Agreement. Any attempted assignment or delegation by either Party shall be wholly void and totally ineffective for all purposes. No delegation of obligations of performance made by Contractor with the consent of ComEd shall relieve Contractor of any of its obligations under this Agreement.

27.10 Choice of Law; Venue; Interpretation; Severability.

This Agreement shall be construed and interpreted, without giving effect to principles of conflict of law, in accordance with the laws of the State of Illinois. The venue for any claim arising under this Agreement shall be the federal and state courts located in the county of the defendant’s principal place of business. The Parties disclaim the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (“UCITA”). The provisions of this Agreement, as it relates to that Specific Project, shall be interpreted where possible in a manner to sustain their legality and enforceability. The unenforceability of any provision of this Agreement in a specific situation shall not affect the enforceability of that provision in another situation or the remaining provisions of this Agreement. Unless the context of the Contract Documents clearly requires otherwise, (i) “including” and “include” have the inclusive meaning frequently identified with the phrase “but not limited to” and (ii) references to the plural include the singular, the singular the plural, the part, the whole.

27.11 Amendments.

The terms of this Agreement may be modified only by a written amendment. An amendment is a written document signed by an authorized representative of each Party, which authorizes a change in this Agreement. No purported oral modification, waiver, or rescission of this Agreement by an employee or agent of ComEd shall operate as a modification, waiver, or rescission of any of the provisions of this Agreement. No course of prior dealing, usage of trade and course of performance shall be used to modify, supplement, or explain any terms of this Agreement. No waiver of any provision of this Agreement shall be binding on a Party unless set forth in a writing signed by an authorized agent of such Party. No Affiliate shall be bound by an amendment executed by any other Affiliate.

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27.12 Bankruptcy or Insolvency.

Contractor shall promptly notify ComEd in writing of the filing of any voluntary or involuntary petition for bankruptcy and/or of any insolvency of Contractor or any of its Subcontractors. No Purchase Order shall be deemed an asset of Contractor.

27.13 Audit.

27.14 Non-Waiver.

The failure of a Party to insist upon strict performance by the other Party or a Party’s failure or delay in exercising any rights or remedies provided in this Agreement or by law shall not be deemed or construed as a waiver of any claims. No waiver by a Party of a breach of any provision of this Agreement shall constitute or be construed as a waiver of any other breach or of that provision. No payment or certificate, final or otherwise, nor the acceptance of any design, shall be construed as (a) an acceptance of defective Work, (b) relieving Contractor of its obligations to make good any defects or consequences for which Contractor may be responsible, or (c) a waiver of any obligations of Contractor under this Agreement.

27.15 Cumulative Remedies.

Each of a Party’s rights and remedies under this Agreement shall be cumulative and additional to any other or further rights or remedies provided in law or equity or otherwise. Each Party shall specifically retain all rights of legal action in tort under this Agreement on all issues relating to contribution, insurance coverage, and contractual indemnity.

27.16 Nondiscrimination and Affirmative Action.

Contractor shall, unless exempt, comply with the federal regulations pertaining to nondiscrimination and affirmative action (generally part 60-1 of Title 41 of the Code of Federal Regulations), including the following: (a) Affirmative Action Compliance Program (41 CFR 60-1.40); (b) Affirmative Action-Disabled Veterans and Veterans of the Vietnam Era (41 CFR 60-250.4); (c) Affirmative Action - Handicapped Workers (41 CFR 60-741.4); (d) Equal Opportunity (41 CFR 60-1.4); (e) Employer Information Report SF-100, annual filing (41 CFR 60-1.7); (f) Fair Labor Standards Act of 1938, as amended; (g) Prohibition of Segregated Facilities (41 CFR 60-1.8); (h) Small Business Concerns, Small Disadvantaged Business Concerns, and Women Owned Business Concerns (48 CFR Chapter 1, Subpart 19.7); and (i) union-related posting and contract clause requirements under Executive Order

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13201 (29 CPR, part 470). Contractor shall also comply, unless exempt, with any applicable state laws pertaining to nondiscrimination and affirmative action.

27.17 Diversity Supplier Spend.

ComEd is actively committed to supporting Diversity Suppliers as defined in ComEd Procedure No. SM-AC-4001, as amended from time to time. In support of ComEd’s commitment, Contractor will make commercially reasonable efforts to make expenditures with Diversity Suppliers as set forth in a Purchase Order or other writing from ComEd to Contractor. Without limitation of the foregoing, Contractor shall *** percent (***%) of the amounts payable under this Agreement with Diversity Suppliers prior to Launch and shall use commercially reasonable efforts to subcontract *** percent (***%) of the amounts payable under this Agreement with Diversity Suppliers by Final Acceptance of the System. ***. If requested by ComEd in writing, Contractor shall report its expenditures with Diversity Suppliers on a monthly basis unless another period is negotiated by the Parties and set forth in the Purchase Order. Contractor shall provide this reporting information by completing the “2^nd Tier Diversity Reporting Web form” located on ComEd’s Supplier Diversity Website ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇/ eed/tier2_report/tier2_report.shtml. Contractor can obtain a user-id and password for the 2^nd Tier Diversity Reporting Website by contacting the Supplier Diversity Office at ▇▇▇-▇▇▇-▇▇▇▇. All submitted Diversity Suppliers must be supported by evidence of certification and ComEd’s 2^nd Tier Direct/Indirect Profile Form for consideration as 2^nd Tier Diversity participation. ComEd recognizes a number of organizational certifications, including the following: Chicago Minority Business Development Council (MBE); Woman’s Business Development Center (WBE); Illinois Department of Transportation (MBE/WBE); City of Chicago (MBE/WBE); WMBE Clearinghouse (MBE/WBE); Minority Supplier Development Council of PA, NJ and DE; Women’s Business Enterprise Council of PA, NJ and DE; Minority Business Enterprise Council - City of Philadelphia; Bureau of Contract Administration and Business Development - Commonwealth of Pennsylvania.

27.18 Compliance with Law; Contractor Compliance Requirements.

(a) Provisions permitting access of DOE, the Inspector General, the Comptroller General of the United States, or any of their duly authorized representatives, to any books, documents, papers, and records of the Contractor that are directly pertinent to a specific program, for the purpose of making audits, examinations, excerpts, transcriptions, and copies of such documents.

(b) Equal Employment Opportunity: Provision requiring compliance with E.O. 11246 (3 CFR, 1964-1965 Comp., p. 339), “Equal Employment Opportunity,” as amended by E.O. 11375 (3 CFR, 1966-1970 Comp., p. 684), “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR chapter 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”

(c) ▇▇▇▇▇▇▇▇ “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c): Provision for compliance with the ▇▇▇▇▇▇▇▇ “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”).

(d) Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.): Provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (41 U.S.C. 7401 et seq.) and the Federal Water Pollution control act as amended (33 U.S.C. 1251 et seq.).

27.19 Due Authorization.

Each Party hereby represents and warrants to the other Party that the individual executing this Agreement on behalf of such Party is duly authorized to execute this Agreement on behalf of such Party and to bind such Party hereby. Each Party further represents and warrants to the other Party that this Agreement is a valid and binding obligation of such Party and enforceable against such Party in accordance with its terms. ComEd represents and warrants that it has the authority to bind Affiliates to the terms of this Agreement.

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ARTICLE 28

ESCROW

28.1 Escrow Deposit.

Contractor has deposited a copy of the current version of the Software source code (“Source Code”) and relevant documentation for the Software in escrow with NCC Group, Inc. (“Escrow Agent”) in accordance with the Escrow Agreement substantially in the form set forth on Exhibit J. Contractor will update the escrow with the source code and relevant documentation for Major and Minor Releases as soon as reasonably possible, ***.

28.2 Release Conditions.

Provided that ComEd is not in material breach of this Agreement and has paid all applicable license Fees, ComEd shall have the right to obtain from the Escrow Agent one copy of all Source Code and documentation in escrow upon the occurrence of any of the following events:

(a) a receiver, trustee, or similar officer is appointed for the business or property of Contractor;

(b) Contractor files a petition in bankruptcy, files a petition seeking any reorganization ***, makes an arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors;

(c) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against Contractor and not stayed, enjoined, or discharged within sixty (60) calendar days;

(d) Contractor ceases to do business other than pursuant to a merger, consolidation or sale of assets pursuant to which this Agreement is assigned or transferred;

(e) Contractor takes any corporate action authorizing any of the foregoing;

(f) any similar or analogous proceedings or event to those above occurs in respect of Contractor within any jurisdiction outside the USA; or

(g) ComEd *** that Contractor has *** for a period of at *** calendar days, ComEd gives ***, and Contractor ***.

28.3 Treatment of Source Code upon Release from Escrow.

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ARTICLE 29

COMED OPERATIONAL RESPONSIBILITIES

29.1 Operational Responsibilities. Set forth below is a list of the ComEd Responsibilities. These ComEd Responsibilities are in addition to any other ComEd responsibilities or duties that are expressly set forth this Agreement. ComEd shall:

(a) follow the directions set forth in this Agreement or any applicable Statement of Work regarding location, configuration, orientation and power of Equipment.

(b) cause its other contractors to cooperate with Contractor so as not to impede Contractor in the timely performance of its obligations;

(c) make office space, furnishings, telephones, and network connectivity available to such of Contractor’s personnel who are required to perform Services at the ComEd Premises throughout the period required for the performance of the Services and maintain such space at no charge to Contractor. All such resources are to be used exclusively for the performance of Contractor’s duties to ComEd.

(d) provide reasonable access to ComEd’s facilities during working hours to be reasonably requested by Contractor and for which Contractor will provide ComEd with projections for the number of personnel and, upon reasonable advance notice to ComEd, at all other times. Subject to ComEd’s policies, necessary remote access to ComEd facilities shall be permitted on a twenty four hour, seven days a week basis;

(e) participate in the conduct of training sessions;

(f) timely participate in meetings and make its personnel readily available for such meetings;

(g) approve or (where justified hereunder) reject deliverables and reports provided to ComEd by Contractor within a reasonable period of time after receipt no late than the periods set forth in this Agreement or any applicable Statement of Work; and

(h) promptly provide Contractor with information regarding ComEd that is readily available to ComEd and reasonably required for the performance of the Services.

29.2 Effect of Failure to Perform. To the extent that ComEd fails to perform the ComEd Responsibilities as, and when required pursuant to the terms hereof, or any assumptions expressly included therein become untrue, other than as a result of Contractor’s breach or misconduct, ComEd acknowledges that such failure may adversely effect Contractor’s ability to perform the Contractor services in accordance with the terms hereof and may result in an Excusable Delay. In no event shall any failure to perform a ComEd Responsibility be deemed to constitute and Excusable Delay and excuse or serve as a basis for any failure or delay of Contractor’s performance unless and until: (i) ComEd fails to perform such ComEd Responsibility or any material inaccuracy in any assumption expressly stated therein becomes untrue, other than as a result of Contractor’s breach or misconduct, and such failure or material inaccuracy is the direct cause of Contractor’s delay or inability to perform; and (ii) ComEd fails to perform or correct such ComEd Responsibility after Contractor has provided reasonable written notice to ComEd describing such unperformed ComEd Responsibility and the impact of such failure on Contractor’s performance. Contractor acknowledges and agrees that ComEd’s Responsibility are not intended as contractual duties or obligations of ComEd, but rather as conditions precedent to the duties and obligations of Contractor directly affected by such ComEd Responsibilities. No failure by ComEd to perform any ComEd Responsibility shall constitute a breach of this Agreement; provided, however, that the provisions of this Section 29.2 shall not limit Contractor’s remedies in the case of ComEd’s breach of this Agreement.

29.3 Out of Scope Items.

Any special furnishings, other than basic office furnishings designated by ComEd, and supplies for the use of Contractor’s personnel are the exclusive responsibility of Contractor. The Contractor shall be responsible for furnishing its personnel with personal computers. ComEd will be responsible for reasonable telephone usage charges of Contractor personnel from ComEd’s telephones in the performance of Contractor’s duties to ComEd. Contractor will be responsible for all other telephone usage charges of Contractor personnel.

 

 

 

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IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to sign this Agreement effective as of the date on the cover page.

 

 

 

 

 

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EXHIBIT A

COMED AFFILIATES

Exelon Business Services Company, LLC

Exelon Generation Company, LLC

Exelon Enterprises Company, LLC (and its subsidiaries)

PECO Energy Company

Commonwealth Edison Company

Exelon Transmission Company, LLC

Exelon Wind, LLC

 

 

 

A-1

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EXHIBIT B

***

Contractor (referred to in this Exhibit as “Silver Spring”) is delivering a smart grid platform designed to ***. Both applications benefit from the secure, highly available mesh network that reaches Silver Spring-enabled devices within the grid. This Silver Spring Networks *** is a highly scalable and robust RF mesh consisting of Access Points, which provide the take-out points in ***, which act as take-out points for ***; Relays, which are repeater devices that extend the reach of the RF signal; and intelligent endpoints, such as eBridges that link third-party *** and *** that reside within third-party electric meters. ***.

In the ***, the Communications Module integrated into electric meters provides the networking capability for metering endpoints. The system is ***. In addition, Silver Spring’s solution provides the ability to *** the *** in order to ***.

Silver Spring devices run the company’s UtilOS firmware, which allows them to *** and *** and *** with ***. The firmware supports *** such as *** and ***, and ***, including encryption.

For the back-office, UtilityIQ is a purpose-built, enterprise-class suite of applications designed specifically to take advantage of the capabilities of the Silver Spring mesh network and includes ***.

Silver Spring’s DA solution is implemented as part of the Smart Energy Platform and inherits all of its reliability and manageability characteristics. The *** consists of hardware, software, and services. The Silver Spring *** is comprised of the Silver Spring ***, which provides standards-based, industrial RF connections for real-time, two-way communications between *** systems. *** provides *** and *** for *** on ***, and the *** supports multiple *** for *** and *** to an ***. In addition, the *** acts as a *** for the ***. The *** may be chosen to be *** in terms of***.

The Silver Spring *** software provides centralized life-cycle management of a Silver Spring-based ***. *** includes network provisioning as well as event, firmware, and security management, and it supports over the- air device configuration and firmware upgrades. *** to support ***, provides ***, and has an ***, ensuring that it can handle a *** and *** actively manages Silver Spring devices but it also understands the broader context of the RTUs connected to the Silver Spring network, including device relationships, the geographic/physical locations of all assets, their IP and DNP3 addresses, and the communications traffic flowing to and from ***.

EQUIPMENT

Access Point - an open standards-based gateway that provides advanced utility networking services, including addressing, routing/switching, health information, network time, security and encryption. The Access Point comes with an open standards-based, 902-928 MHz transceiver or NAN (Neighborhood Area Network) interface, and can be configured with a variety of backhaul options - 3G modems (with automatic fallback to 2G speed if necessary), satellite transceivers, or Ethernet 10/l00Mbps. Frequency ranges may be modified to comply with the specific country requirements. Power is provided to the unit by a photocell power/power tap adapter plug device, direct connection to 120/240 VAC secondary or transformer or through a standard 120 VAC cable and plug. The Access Point has an optional battery back-up power supply that enables it to support automated power outage reporting and restoration.

Battery Backup - a battery backup option that allows Access Points and Relays to operate during outages.  The ***, which will *** over the ***. *** operates the *** on a *** (i.e., the *** is defined as *** followed by ***.

Communications Module (also known as a “NIC”) - an open standards-based, 902-928 MHz transceiver that provides advanced two-way networking capabilities for a variety of residential, commercial and industrial electricity meters. NIC frequency ranges may be modified to comply with the specific country requirements.

NIC4XX with GPRS option - incorporates a GPRS modern option onto the standard NIC4XX along with the 900 MHz NAN and 2.4 GHz HAN radios, and seamlessly integrates into the UtilityIQ Suite.

Field Service Unit (FSU) - a 900 MHz FHSS radio that works with a laptop or handheld computer to provide field service personnel the ability to wirelessly interrogate Silver Spring’s radio communications devices. It is powered by a USB connection, operates in the Frequency Range of 902-928 MHz, and utilizes 83 hopping channels. Frequency ranges may be modified to comply with the specific country requirements.

eBridge Master - a communication device serving as the take-out point for the RF mesh network to the backhaul network. The eBridge Master is equipped with an Ethernet port and is typically installed at a substation with IP network backhaul. The eBridge Master also has a serial port if a substation RTU needs to be utilized and there is no IP backhaul available.

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eBridge - a communications device to interface to a variety of third-party distribution automation devices. The eBridge uses Silver Spring’s open, IP-based 902-928 MHz mesh transceiver platform. Frequency ranges may be modified to comply with the specific country requirements. The Bridge supports serial and Ethernet inputs, DC power input and can support a variety of third-party antennas using an SMA connector. The eBridge supports IPv4 and IPv6, and comes preconfigured to support the popular DNP3 protocol. eBridges are sold as master or remote devices.

sBridge - a communications device to interface to a variety of third-party distribution automation devices. The sBridge uses Silver Spring’s open, IP-based 902-928 MHz mesh transceiver platform. Frequency ranges may be modified to comply with the specific country requirements. The sBridge supports two serial inputs, DC power input and can support a variety of third-party antennas using an SMA connector. The sBridge supports IPv4 and IPv6, and comes preconfigured to support the popular DNP3 protocol. The sBridge supports the remote function but not the master function.

*** - *** that *** out of *** such as***.

***,

Mounting Equipment - equipment for mounting Access Points and Battery Backups to a range of utility assets. Mounting Kits are offered in several formats, including:

Relay - an open standards-based, 902-928 MHz networking relay that provides advanced forwarding capabilities and boosts the RF signal to extend network coverage. Frequency ranges may be modified to comply with the specific country requirements. The Relay is packaged in a standard form factor that can be installed on a variety of surfaces: pole mounted with streetlight power taps or wall mounted operating from a wide line voltage (120 VAC to 277 VAC), and as a pole-top device with an integrated photovoltaic switch.

SOFTWARE

*** - a web-based interactive application that utilizes meter interval data to provide feedback to utility customers about how much energy they are using, analyzes that usage and presents the analysis through a suite of interactive charts and web pages. *** can be customized with utility-specific rate structures to provide ▇▇▇▇ estimates and cost analysis. *** must be *** with the *** or other *** to *** on a *** and ***.

***.

*** - a central network management system that provides a real-time and historic view into the health and status of the Bridge communication network and its devices. *** provides the following network management capabilities:

*** - an open standards-based network operating system for utility information and control networks. *** provides a suite of utility networking services, including addressing, routing/switching, health, network time, security and encryption.

*** - a suite of applications for advanced metering, outage detection, voltage monitoring, demand response, and HAN communications management. The *** suite of applications includes the following:

UtilityIQ Advanced Metering Manager (AMM) - an advanced metering application that provides meter device lifecycle management, enabling the collection of advanced metering information. UtilityIQ AMM’s web-based interface allows utility operators to configure groups, schedules and exports across a variety of electric and gas devices enabling the collection, management and analysis of consumption, time of use, interval data, power quality measures and status logs.

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*** - *** that manages the delivery, float, and activation of Firmware and provides image management, project management and alerts related to the Firmware update process.

UtilityIQ Network Element Manager (NEM) - a standalone software application that provides a real-time view into the health and status of the network and its devices and the following network management capabilities:

*** - an application for managing HAN devices, creating and managing demand response programs and providing analytics/reports about load shed and customer participation. *** is architected for Silver Spring’s mesh network. *** is also integrated with *** to provide energy usage and demand response program information to utility end customers.

*** - an enterprise software application for managing Home Area Network devices and enabling demand response signaling to end devices. HCM has been designed for efficient signaling over the Silver Spring AMI network.

*** - enables rapid identification of outages and supports restoration activities by correlating outage and restoration to connectivity patterns and providing a visual presentation of outage severity, location and restoration. *** also provides the ability to track and resolve events by time, type, and duration. Meter data logs can be leveraged for accurate outage/restoration accounting and reporting. ODS includes programmable event alerting, tracking, and reporting features.

*** - an add-on application that manages the configuration of register and interval recording on either the NIC or meter.

*** consists of *** and a *** that *** the ***.

***.

TOOLS

Bridge Configurator (formerly ▇▇▇▇▇▇) - configures Bridges and performs basic troubleshooting, primarily in a ***. Several different *** scenarios and network configurations are supported by this tool.

Communications Tester (formerly CATT) - a software tool for testing and analyzing the NAN. Communications Tester typically runs on a laptop PC connected to a Field Service Unit (FSU) over a USB port. The software transmits messages through the FSU to network devices, receives messages from network devices through the FSU, and provides tools for logging and analyzing received messages. Field service personnel can use Communications Tester to perform a range of radio frequency tests and advanced metering or network management tasks, including on-demand electric meter reads, electric meter program detection, firmware updates, protocol analysis, security checks, and syslog analysis. It also provides tools necessary for survey, installation, field testing, and troubleshooting of network equipment.

Meter Communications Module Tester (formerly MANTIS) - a radio frequency software tool for testing electricity meters equipped with a NIC. The software runs on a Windows laptop or desktop computer connected to a FSU over a USB port. The software transmits messages through the FSU to NICs, receives messages from NICs through the FSU, and provides tools for logging and analyzing received messages. The testing software and the FSU can perform a range of radio frequency tests including on-demand meter reads and meter/NIC verification. The Electricity Communications Module Tester software is currently licensed pursuant to a separate license agreement.

***.

*** from *** such as *** and ***with *** as provided by a *** supports the *** of ***, as well as the  *** of the *** is capable of *** to support *** of ***.

 

 

 

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EXHIBIT C

CERTIFICATE OF FINAL COMPLETION OR ACCEPTANCE

Pursuant to the Amended and Restated Services and Materials Agreement between Commonwealth Edison Company (“ComEd”) and Silver Spring Networks, Inc., entered into as of January 2012, ComEd hereby acknowledges that the [Software/Equipment/Services] listed in Attachment A to this Certificate of Final Completion or Acceptance was delivered to ComEd and accepted ComEd as of.

 

 

 

 

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EXHIBIT D

[Reserved]

 

 

 

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EXHIBIT E

THIRD PARTY PERSONNEL ACKNOWLEDGEMENT

I (‘Contractor Personnel”), acknowledge that I am an employee of (“Contractor”). I acknowledge that my relationship with Commonwealth Edison Company, its affiliates, subsidiaries or any of successor (the “ComEd Entities”) is that of an independent contractor, not an employee of any of the ComEd Entities, and that all services performed by me for one or more of the ComEd Entities is pursuant to an Agreement between ComEd and (“Contractor”), as an employee of Contractor or one if its Subcontractors, as applicable. I also acknowledge that during the period I perform services for or on behalf of the ComEd Entities pursuant to an arrangement with Contractor, I am not entitled to compensation of any kind from ComEd or to participate in any employee benefit plan or program of any kind offered to any employee of the ComEd Entities, and I expressly waive any and all such compensation and benefits. I understand that the preceding sentence will not prohibit me from receiving any earned and vested pension or retiree health care benefits from the ComEd Entities to which I may already be entitled as a former employee of one of the ComEd Entities.

In addition, I represent the following:

1. Check one: I am not a former employee of one of the ComEd Entities. OR I am a former employee of one of the ComEd Entities

2. If I am a former employee of one of the ComEd Entities:

A. My ComEd Employee ID number (if available) was:

B. Check one: I am not eligible to receive (and am not currently receiving) a benefit under a ComEd pension plan. OR I am eligible to receive benefits under a ComEd pension plan.

3. I am not currently employed by ComEd and will not accept employment with ComEd that commences during the period I am employed by Contractor.

 

 

 

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4. If (a) I am a ComEd Retiree, I have not and will not provide any services on ComEd matters, or (b) I am not a ComEd Retiree, I have not provided, and will not provide, services designated by ComEd as “Staff Augmentation” services on ComEd matters, regardless of whether such services were provided by me as an employee of Contractor or any other third party employer or regardless of hours worked, for a total period in excess of one year, unless ComEd has granted me a written exception to such one-year period prior to reaching the one year aggregate period.

 

Note: An executed acknowledgement shall be provided to Contractor named above.

 

 

 

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EXHIBIT F

MATERIAL CLAIMS

 

 

 

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EXHIBIT G

[RESERVED]

 

 

 

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EXHIBIT H

TRANSITION SERVICES

1.1 General. Upon expiration or termination of the Agreement and at all times subject to the terms and conditions of the Agreement, Contractor will provide support to ComEd, as outlined in this exhibit, to support the effective transition the operation and maintenance of the System performed by Contractor to ComEd or a third party or to orderly transition ComEd off of the System as directed by ComEd in accordance with the Agreement. For ease of reference, the Transition Assistance Period (as defined below) shall be divided into three phases: Pre­Transition, Transition Execution and Post-Transition.

1.2 Cooperation. During the Pre-Transition period, Contractor shall assist ComEd and/or its designee in developing and implementing a plan (the “Transition Services Plan”) for transition of Services under the Agreement and/or applicable Statement of Work from Contractor, including preparing that part of the plan covering activities for which Contractor is responsible. The Transition Services Plan shall be subject to and incorporated into the Agreement via an applicable Statement of Work or Change Order.

1.3 Transition Services Plan. The Transition Services Plan will provide for each Party to use Commercially Reasonable efforts to assist the other Party in the orderly termination of the affected Contractor Services and the transfer of all work-in-progress, and other items and materials in accordance with the Agreement to facilitate the orderly, non-disrupted business continuation of ComEd. Contractor shall comply with the roles and responsibilities set out and imposed upon it in the Transition Services Plan. The Transition Services Plan shall address without limitation:

(a) an identification of Services and related positions or functions that require transition and a schedule, plan and procedures for ComEd and/or its designee, as applicable, assuming or reassuming responsibility therefore;

(b) documentation of existing and planned projects and support activities; and

(c) a schedule and plan for:

(i) Contractor’s return to ComEd upon the Parties’ mutual agreement and in accordance with the Agreement, of (a) any ComEd facility space then occupied by Contractor, (b) office furniture, equipment and related items previously provided by ComEd to Contractor, and (c) ComEd Confidential Information, ComEd information and data, documents, records, files, and other media in Contractor’s possession.

(ii) the continued provision of the Services during the Transition Assistance Period;

(iii) any due diligence process by ComEd or the new service provider on Contractor;

(iv) negotiation and execution of a license in respect of Contractor’s intellectual property, if any;

(vi) work shadowing and any other reasonable means to effect a prompt knowledge transfer;

(vii) a communications strategy; and

(viii) provision of Post-Transition Services (including the provision of any technical advice to ComEd where appropriate to ensure maintenance of Services by ComEd).

(d) criteria for acceptance of all termination activities and Work Product and a template for indicating ComEd’s acceptance of termination activities and Work Product.

(e) once the Transition Services Plan has been agreed upon, both Parties will comply with it during the Transition Assistance Period, as provided below.

2. Fees for Transition Services. To the extent that ComEd is required to pay for such Transition Services pursuant to the terms of the Agreement, Contractor shall be paid for all such Transition Services provided in accordance with the relevant Statement of Work or Change Order for such Transition Services

3. Provision of Transition Services. Contractor shall furnish Transition Services to ComEd as set forth in the Transition Services Plan for the period agreed on by Contractor and ComEd (***) on the terms and conditions and charges as contained in the Agreement or the relevant Statement of Work or Change Order governing such Transition Services (“Transition Assistance Period”). ComEd may reallocate Contractor resources then being used to provide the Services under the Agreement or applicable Statement of Work to the provision of Transition Services under the relevant Statement of Work or work order.

4. Confidentiality and IP Protection. If ComEd requests that the Transition Services be provided in connection with the transition of the Services to an alternative third-party service provider who is a competitor of Contractor, ComEd shall use commercially

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reasonable efforts to cause such service provider to execute such confidentiality, nondisclosure and intellectual property protection agreements and to adhere to such customary requirements as the Parties may reasonably request and agree.

5. Post-Transition Obligations. Promptly after transition of the Services, each Party shall, at its expense, forthwith return to the other, or certify to the other in writing as to the destruction of, if the other Party in writing instructs that such be destroyed), all data, backup disks, materials and other properties of the other Party then its possession or stored in any off-site facility, all in accordance with the requirements of the Agreement.

 

 

 

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EXHIBIT I

CONTRACTOR POLICY ON BACKGROUND CHECKS

Process: Silver Spring Networks, Inc. (SSN) performs background checks to verify the credentials of each of its candidates for employment and each of its current employees. Background checks are performed by SSN with the assistance of an established agency which specializes in these services. SSN does not release the results of background checks, other than the pass/fail results of the checks.

SSN reviews the following background information:

Department of Motor Vehicle Check

SSN reviews Department of Motor Vehicle records to verify date of birth. (Date of birth is required to perform an accurate criminal record check.)

State Court and Federal Court Criminal Record Check

SSN reviews state and federal criminal felony conviction records for the past seven years.

Social Security Number and Address Verification

SSN conducts a Social Security Number/Address verification search, using the Social Security number supplied by the worker. SSN also reviews a list of past addresses associated with the Social Security number. Past addresses are used to establish the jurisdiction(s) in which the individual has lived in the prior seven years. As noted above criminal checks will be conducted in this jurisdiction or these jurisdictions.

Verification of Employment

SSN verifies each worker’s employment history for the past seven years. If the worker had only one employer in the past seven years then SSN also verifies the immediately prior employer, if any.

Verification of Professional References

SSN verifies three to five professional references provided by the worker.

Verification of Education

SSN confirms the highest degree obtained from an educational institute and the year in which the degree was awarded.

 

 

 

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EXHIBIT J

ESCROW AGREEMENT

Copy to be provided and appended hereto.

 

 

 

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Multi Licensee Deposit Account

Software and Manufacturing Know How Escrow

Agreement

(Premium Solution)

 

 

 

Notice: The parties to this Agreement are obliged to inform NCC Group of any changes to the Software or in their circumstances (including change of name, principal office, contact details or change of owner of the intellectual property in the Software).

 

 

 

 

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Ecrow Agreement Dated:

Between:

Background:

Agreement:

In consideration of the mutual undertakings and obligations contained in this Agreement, the parties agree that:

“Agreement” means the terms and conditions of this multi licensee deposit account software escrow agreement set out below, including the Schedules and Appendices hereto.

“Confidential Information” means all technical and/or commercial information not in the public domain and which is designated in writing as confidential by any party.

“Deposit Account” means an account set up on the execution of a Deposit Account Agreement under which specific Escrow Material is deposited by the Licensor with NCC Group.

“Deposit Account Agreement” means an agreement in the form attached as Appendix 1, for the setting up of a Deposit Account.

“Deposit Form” means the form at Schedule 1 which is to be completed by Licensor and delivered to NCC Group with each deposit of the Escrow Material.

“Escrow Material” means the Source Code of the Software and such other material and documentation (including updates and upgrades thereto and new versions thereof) as are necessary to be delivered or deposited to comply with Clause 3 of this Agreement.

“Full Verification” means the tests and processes forming NCC Group’s Full Verification service and/or such other tests and processes as may be agreed between the parties for the verification of the Escrow Material.

‘‘Integrity Testing” means those tests and processes forming NCC Group’s Integrity Testing service, in so for as they can be applied to the Escrow Material.

‘‘Intellectual Property Rights” mean any copyright, patents, design patents, registered designs, design rights, utility models, trademarks, service marks, trade secrets, know how. database rights, moral rights, confidential Information, trade or business names, domain names, and any other rights of a similar nature including industrial and proprietary rights and other similar protected rights in any country or jurisdiction together with all registrations, applications to register and rights to apply for registration of any of the aforementioned rights and any licenses of or in respect of such rights.

“License Agreement” means the agreement under which a Licensee was granted a license to use the Software.

“Licensee” means any person, firm, company or other entity:

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and references in this Agreement to Licensee shall be to the relevant Licensee or Licensees given the context in which such references is made.

“Letter of intent” means the form completed by Licensor or Licensee containing the information to enable NCC Group to set up this Agreement a Deposit Account Agreement or a Registration Agreement.

“Registration Agreement” means an agreement in the form set out in Appendix 2 to be signed by Licensor, NCC Group and any company wishing to be a party to a Deposit Account Agreement or Deposit Account Agreements, as a Licensee and, accordingly, to take the benefit of and be bound by the terms and conditions of the Agreement including payment obligations as may be defined in the Registration Agreement.

“Release Purposes” means the sole and limited purposes of understanding, maintaining, modifying and correcting the Software exclusively for and on behalf of Licensee together with such other purposes (if any) as are explicitly permitted under the License Agreement.

“Software” means the software together with any updates and upgrades thereto and new versions thereof licensed to Licensee under the License Agreement details of which are set out in Schedule 1 of a Deposit Account Agreement. Software may be accompanied by technical specifications relating to hardware and firmware.

“Source Code” means the computer programming code of the Software in human readable form.

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4

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NCC Group will release a copy of the Escrow Material to Licensee for its use for the Release Purposes.

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6

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Licensor agrees to defend and indemnify NCC Group and to hold NCC Group harmless from and against any claims, suits or other proceedings, actions, losses, costs, liabilities or expenses incurred in connection with the defense thereof (including reasonable attomey’s fees), in each case which may be imposed on, or incurred by or asserted against NCC Group in any way arising out of or relating to this Agreement provided, that Licensor shall not be liable for that portion of any such indemnification amount resulting NCC Group’s gross negligence or intentional misconduct or material breach of any contractual duty hereunder

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Signed for and on behalf of Silver Spring Network, Inc.

 

 

Signed for and on behalf of NCC GROUP, INC.

 

 

 

 

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MATERIAL DETAILS

 

The following information MUST be provided for NCC Group to accept the deposit of escrow material:

 

If this is your initial/first deposit, please fill in Section 1.

If this is your second or subsequent deposit (i.e. a replacement/update) please fill in Section 2.

 

 

 

 

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Appendix 1

Template Deposit Account Agreement

Agreement dated:

Between:

Agreement:

In consideration of the mutual obligations and undertakings contained in the multi licensee deposit account software escrow agreement number dated (“Agreement”) between the Licensor and NCC Group, the parties to this agreement agree as follows:

Signed for and on behalf of Sliver Spring Networks, Inc.

 

 

Signed for and on behalf of NCC GROUP, INC.

 

 

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Appendix 2

Registration Agreement

NOTE: A COPY OF THIS REGISTRATION AGREEMENT MUST BE DULY SIGNED BY AN AUTHORIZED SIGNATORY AND RETURNED TO NCC GROUP BEFORE A LICENSEE CAN CLAIM PROTECTION UNDER THE RELEVANT DEPOSIT ACCOUNT.

Agreement between:

 

 

Agreement:

 

 

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Signed for and on behalf of [Licenseename]

 

 

Signed for and on behalf of Silver Spring Networks, Inc.

 

 

Signed for and on behalf of NCC GROUP, INC.

 

 

 

 

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EXHIBIT K

EXELON CORPORATION CODE OF BUSINESS CONDUCT

EXELON CORPORATION

CODE OF BUSINESS CONDUCT

 

 

 

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MESSAGE FROM THE CEO

Our Vision is to become the very best electric and gas company in the United States. To realize our Vision, we must commit ourselves not only to safety, accountability, and continuous improvement, but to the highest ethical standards.

The business prospects of our Company are excellent, and the foundation that we build on is very strong. That foundation comes from the people of ComEd, and from the service that we have provided to our customers, communities and employees. We are regarded as honest and caring, but disciplined, business people who are involved in providing essential services to major urban populations. We can be successful only if we employ an engaged workforce that best serves our diverse communities. And to meet the high standards set by our Company, we must conduct our operations safely and be leaders in developing solutions to our industry’s environmental challenges.

Because our business involves services that are central to citizens in their every day lives and necessary for businesses to operate productively in the nation’s economy, our operations are closely reviewed by governmental officials at the local, county, state and national level. Likewise, individuals and institutions have invested billions of dollars in our business with the expectation that we will honestly and productively use this capital to profitably operate our company and increase shareholder value.

We will be successful if we operate our Company, employ our people and finance our business in accordance with the highest ethical standards and with the law. We will destroy shareholder value if we do not. Our Exelon Code of Conduct provides the outline of what is expected of all of us to meet our important obligations, and gives us resources to understand these requirements and live up to them.

Please read this Code carefully, and ask your supervisor or the Ethics and Compliance Office if you have any questions. Our Company’s success depends on each of us living up to these standards. I commit to you that I will do so. I expect no less from each and every one of you.

 

 

 

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TABLE OF CONTENTS

 

 

 

 

 

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INTRODUCTION

Using This Guide

The success of Exelon Corporation, including its subsidiaries (“ComEd” or the “Company”), is dependent on all of us conducting our activities in accordance with the highest ethical standards and applicable law. This Exelon Code of Business Conduct (“Code”) reflects our core value of integrity and is the statement of our required behavioral standards. The Code may, in some instances, set performance levels or expectations that are more stringent than required by law. They are nonetheless required. ComEd recognizes that such enhanced performance fosters compliance with law and provides a platform for our Company to be successful in the eyes of our customers, employees and investors.

The Code does not cover all situations where questions of ethics may arise. That would be virtually impossible to do. It enables you to identify situations that may raise ethical and legal issues, and is designed to help you learn what to do whenever you have a question or concern about what conduct the Company expects from you. All employees are held accountable for following the Code and it is important that you take the time to read it from cover to cover.

To assist with your understanding, described below is the purpose of each section of the Code.

1. The message from the CEO explains the importance of ComEd’s commitment to the Company’s core value of integrity.

2. The Introduction explains the accountability that all employees have for complying with the Company’s policies and for raising concerns about possible violations of law or policy.

3. The ComEd ethical and legal business standards follow the Introduction. For each standard there is an “Overview,” which generally describes the standard, and the “Main Obligations” which are the core requirements under each standard. In some cases, there are also examples of “Things to Watch Out For,” which are circumstances that should alert you to a potential ethical or legal issue.

4. For each standard, there are ComEd policies that provide additional detail. The complete and latest text of the related ComEd policies are found on the ComEd Intranet Website. You should read the policies and talk to your manager to understand how the ethics standards and supporting Company policies apply to your job.

5. The ComEd Ethics Principles, stated below, are the framework from which the behavioral standards described in the Code are developed. They are your guideposts for understanding what acting with integrity looks like, in other words, how the Company expects that each employee will, at all times, conduct the Company’s business.

ComEd Ethics Principles

Who Must Follow the ComEd Code of Business Conduct

ComEd directors, officers and employees

The ComEd Code applies to all directors, officers, and employees of the Company.

Subsidiaries

An ComEd subsidiary may supplement this Code, as necessary, with its own implementing policies.

 

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Third parties

All ComEd businesses must ensure that, either through contractual provisions or certification, others representing ComEd - such as consultants, agents, sales representatives, distributors, vendors, suppliers and independent contractors (“Suppliers”) - agree to follow applicable ComEd ethical and legal standards.

Supervisors and employees must:

Other Codes of Conduct

Since we operate in a heavily regulated industry, there may be other codes of conduct that apply to specific aspects of our business, for example the Federal Energy Regulatory Commission Standards of Conduct. Please note that all references to the Code in this document, unless otherwise stated, mean this Code of Business Conduct, which applies across ComEd and its subsidiaries.

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CORPORATE CITIZENSHIP AND THE COMED COMMUNITY

Fair Treatment and Diversity

It is ComEd’s policy to provide equal employment opportunity and fair treatment for everyone. Whenever and wherever individuals engage in activities on behalf of the Company, they have a right to be free from prohibited discrimination. We will also actively seek to build an inclusive workforce. Our diverse employees are a competitive advantage, enabling us to make more informed business decisions and to better serve our diverse customer base. We are also committed to diversity in regard to our suppliers. Embracing diversity is not simply the right thing to do; it makes good business sense.

Main Obligations

Things to Watch Out For

Harassment

We all have the right to work in an environment that is free from unlawful harassment or intimidation. Verbal or physical conduct by any employee that relates to characteristics protected by law and disrupts another’s work performance or creates an intimidating, offensive, abusive, or hostile work environment will not be tolerated. The Company will conduct a prompt investigation of any reported harassment. Appropriate corrective action will be taken where prohibited harassment has occurred.

Main Obligations

Things to Watch Out For

Drugs and Alcohol

ComEd is committed to maintaining a work environment that ensures the safety, health and welfare of employees and the public. As explained in detail in our Drug and Alcohol Policy, ComEd requires a drug and alcohol free workplace. Use of controlled dangerous substances and alcohol abuse may adversely impact productivity, workplace and public safety, and may jeopardize the Company’s assets.

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If you have problems related to alcohol or drugs, you are encouraged to seek confidential assistance from the Employee Assistance Program or other qualified professionals. Employees may contact a program representative at ▇-▇▇▇-▇▇▇-▇▇▇▇.

Main Obligations

Things to Watch Out For

Workplace Violence and Weapons

ComEd is committed to a safe working environment, free of threats, intimidation and physical harm.

Main Obligations

Things to Watch Out For

Environment

ComEd will conduct its operations in a way that preserves and protects the environment, and complies with applicable environmental laws and regulations and other relevant standards to which the Company may voluntarily subscribe. We also promote a corporate culture where competitive initiatives are consistent with environmental stewardship, demonstrating environmental leadership though full compliance, pollution prevention and continuous improvement.

Main Obligations

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Safety and Health

ComEd will operate all aspects of its businesses in a manner that protects the safety and health of its employees, contractors, customers and the general public. We will ▇▇▇▇▇▇ a safety culture in which everyone believes that accidents and injuries are preventable and all employees understand their accountability for maintaining a safe and healthful workplace. Our work is never so urgent, nor the schedule so important, that it cannot be performed safely.

Main Obligations

Community Relations, Employee and Corporate Contributions

We are committed to being a good corporate citizen and we support and encourage employee involvement in community activities and professional organizations. We are also proud to provide financial support to thousands of charitable and civic organizations in the communities where our employees live and work. However, we must ensure that all contributions of money, property and services are properly authorized and comply with all Company policies and procedures and legal and regulatory requirements. We may not bring pressure on others to contribute to charitable organizations and may not use Company resources to solicit support for charitable causes without appropriate prior approval.

WORKING WITH CUSTOMERS AND SUPPLIERS

Customers purchase from companies that understand -- and sometimes even anticipate -­ their needs. We must satisfy fundamental customer needs like quality, reliability, and service, and in a way that is ethical and legal.

Main Obligations

Things to Watch Out For

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Third-party perception of ethical conduct is particularly critical in the case of employees involved in procurement activities, as well as other employees who are in a position to influence procurement decisions or relationships. Employees must comply with ComEd procurement policies and practices during any procurement activity including issuing requisitions, identifying potential suppliers, bidding, negotiating and contracting, awarding bids, sole source procurement, managing purchase orders and contracts and processing invoices.

Main Obligations

Things to Watch Out For

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CONFLICTS OF INTEREST

Conflicts of Interest Generally

ComEd is committed to making all business decisions objectively and solely on the basis of the best quality, service and price, or other similar competitive factors. A conflict of interest exists whenever the personal interests, activity, investment or association of a ComEd employee are inconsistent with the responsibilities of his or her employment or position. A loss to the Company need not occur for a conflict to exist.

Main Obligations

Things to Watch Out For

Gifts and Gratuities

To maintain unquestioned integrity in our business relationships, we must avoid being placed in an embarrassing position that might make it difficult to carry out our duties impartially.

Main Obligations

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If you are unsure whether you may give or accept a Gift, call the Ethics and Compliance Office at ▇-▇▇▇-▇▇▇-▇▇▇▇ or the Ethics Help Line at 1-800-23-ETHIC.

Business Entertainment

Business entertainment (e.g., meals and attendance at sporting or theater events) or invitations to business events is a common practice meant to promote good will and establish trust in business relationships. Such exchanges are acceptable if they are infrequent and of modest value.

Main Obligations

Corporate Opportunities

Employees owe a duty of loyalty to the Company and must act in the best interests of the Company’s legitimate interests.

Main Obligations

Outside Activities

ComEd employees actively offer their time and talents to serve in public office and other positions in the community. ComEd supports the involvement of employees in the service to their communities since these activities are consistent with the Company’s strongly held core value of corporate citizenship. Likewise, employees may in some instances take on a second job with another business organization. Employees must ensure, however, that these outside activities do not exploit or conflict with their employment with ComEd or create or result in any conflict or appearance of conflict with the Company’s interests.

Main Obligations

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Things to Watch Out For

If you have any questions about whether a public activity or outside work is appropriate, seek guidance from your human resources representative or contact the Ethics and Compliance Office.

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PROTECTING COMPANY ASSETS

Company Assets Generally

We are entrusted with valuable Company assets. They consist of all property that the Company owns or uses to achieve business objectives (“Company Assets”). They include: physical assets like land, facilities, vehicles, buildings, equipment and inventory; financial assets like cash, receivables, and investments; intellectual property such as confidential information, patents and trademarks; contract rights, licenses; and computers and information resources.

Main Obligations

Things to Watch Out For

Confidential Information

One of ComEd’s most valuable assets is information. Our confidential information assets consist of information or knowledge, regardless of form, that ComEd considers private, that is not common knowledge outside the business or required by law or contract to be maintained as confidential, which might be of use to competitors or harmful to ComEd, if disclosed (“Confidential Information”). It is information or knowledge that a ComEd business develops or pays to have developed and to which ComEd has an exclusive right. Confidential Information that has commercial value to competitors or other entities that want to do business with ComEd is sometimes referred to as “proprietary information” or a “trade secret.” Examples of Confidential Information include information about ComEd facilities; systems; operations; finances; customers; suppliers; employees; business concepts and strategies; investment plans; development or construction plans; and marketing plans.

Main Obligations

Things to Watch Out For

Further information may be found in Corporate Procedures, Protecting ComEd Information and Information Asset Protection.

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Records Management

ComEd’s Records Management Corporate Policy and Procedure (Records Management Policy) provides the guidance required for the identification, management and maintenance of records required to conduct the Company’s business, as well as the guidance required to ensure the consistent and documented destruction of such records. Records for purposes of this provision include any documentary material or information created or received in the ordinary course of business, regardless of the specific nature, medium or form, including paper, photograph, microfilm, electronic, digital, audio or other media.

Main Obligations

Things to Watch Out For

If there is any question as to whether a particular record should be maintained, seek guidance from the Corporate Secretary’s Office or the Legal Department as to its destruction.

Computer and Electronic Information Security

ComEd’s computer, telecommunications and other electronic information resources are Company Assets. They consist of all of the Company’s information technology infrastructure and applications such as computer hardware, software applications, networks, e-mail and voice mail systems. If employees remotely access ComEd systems or access third party systems through ComEd systems, the access also belongs to ComEd (collectively “Computer and Information Resources”).

Main Obligations

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Internal Controls

Management is accountable for establishing and maintaining a system of internal controls within an organization. Internal controls are those structures, activities, processes, and systems that help management effectively mitigate the risks to an organization’s achievement of objectives. Management is also accountable for the effectiveness of the Company’s internal control over financial reporting. Under Section 404 of the Sarbanes Oxley Act, this accountability encompasses ensuring there is clear, complete, fair and accurate reporting of financial and non-financial information pertaining to business transactions. Management is charged with this accountability on behalf of the organization’s stakeholders and is held accountable for this accountability by the ComEd Board of Directors.

Main Obligations

Employees are accountable for:

Employees are prohibited from:

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GOVERNMENT RELATIONS

Government Business

ComEd is committed to conducting its business with governmental agencies and officials consistent with the highest ethical standards and in compliance with applicable laws, regulations and rules. ComEd is also committed to cooperating with governmental enforcement investigators and law enforcement officials. Employees are free to speak to law enforcement officials in any matter, but are urged to contact the Legal Department whenever they are contacted by such officials regarding matters pertaining to ComEd business.

Main Obligations

Things to Watch Out For

Political Contributions and Lobbying

Personal Contributions

Employees have the right to participate in the political process and to engage in political activities of their own choosing. While involved in personal civic and political affairs, employees must make clear that their views and actions are their own, and not those of ComEd. If you have questions regarding personal political contributions or other personal political activity, seek guidance from the Legal Department, Government Affairs, or the Ethics and Compliance Office.

Main Obligations

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Corporate Contributions and Lobbying

Federal law places limits on a corporation’s ability to participate fully in the political process, especially by imposing prohibitions on corporations from making contributions of any kind to a candidate, political party, or political committee in connection with a federal election. Some states impose similar restrictions on making corporate contributions and conducting activities to support state or local candidates. Certain limited activities, including political action committees and lobbying, are allowed and should be coordinated by Governmental Affairs. If you have questions regarding corporate contributions or lobbying, seek guidance from the Legal Department, Government Affairs, or the Ethics and Compliance Office.

Main Obligations

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LEGAL AND REGULATORY COMPLIANCE

Senior Officers

In addition to all other provisions of the Code, ComEd’s Chief Executive Officer, Chief Financial Officer and other senior officers must adhere to and advocate certain principles in connection with discharging their responsibilities:

Main Obligations

In order for these executives to be effective in meeting these principles, all employees must act with the same high regard for fairness, honesty, accuracy and good faith.

▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or Dealing and Stock Tipping

ComEd is committed to fair and open markets for buying and selling its public securities. Federal law prohibits employees from buying or selling any Company equity or debt security based on material information obtained in the course of employment if the information is not available to the general public (“Inside Information”). Material information is information (whether favorable or unfavorable) that a reasonable investor would consider important in deciding whether to buy, sell or hold a security of the Company. ComEd’s policy requires full compliance with applicable laws and avoiding even the appearance of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, insider dealing or tipping.

▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or dealing means buying or selling stock or any securities while in possession of inside information about the Company. Stock tipping means disclosing Inside Information about ComEd or any other company to another person to enable that person to buy or sell stock or other securities on the basis of such information.

Employees with questions should consult with the Corporate Secretary or the Ethics and Compliance Office.

Main Obligations

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Things to watch out for

SEC Code of Professional Conduct

The SEC has established a code of professional conduct applicable to attorneys who advise the Company on matters that may relate to the Company’s SEC filings. The rules require the Company’s attorneys to report up-the-ladder within the Company evidence of wrongdoing by the Company or its Directors, employees or agents. ComEd has adopted a policy to assist its attorneys to understand and comply with the SEC’s rules.

Affiliate Non-discrimination

The Federal Energy Regulatory Commission and the state utility commissions in New Jersey, Pennsylvania and Illinois have adopted regulations governing the business dealings between utility subsidiaries of ComEd Energy Delivery Company (collectively referred to as “EED”) and its affiliates to ensure that resources and assets of the regulated businesses of the Company are not used to subsidize or give an unfair advantage to other lines of the Company’s business. Employees must comply with all of these regulations and similar Tariff provisions applicable to business conducted by the utilities. Some examples of these include: the FERC Standards of Conduct, the Pennsylvania Code of Conduct, the Illinois Affiliate Non­Discrimination Rules and the New Jersey Affiliate Standards Rules.

Main Obligations

If you are uncertain about these regulations or have questions regarding their implementation or interpretation, contact the Legal Department for guidance.

Energy Trading Rules

ComEd is committed to lawful and ethical practices in connection with conducting all of the Company’s businesses. The Company’s electric power and gas supply and trading operations have a special set of rules that must be followed.

Main Obligations

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Things to watch out for

Antitrust and Unfair Competition

Antitrust laws promote, preserve and protect competition and are a critical part of the environment in which ComEd operates. Violations of competition laws may expose ComEd and individual employees to criminal and or civil liability and associated penalties, including monetary damages, fines and even imprisonment.

Antitrust laws are complex. They generally prohibit joint action that restrains competition, as well as improper unilateral action that either propels one competitor into a monopoly position in the market or seriously threatens to do so. Other aspects of the antitrust laws prohibit certain types of discrimination in pricing and unfair trade practices. Employees who interact with customers, competitors or suppliers and anyone who believes that he or she is dealing with a situation that might have antitrust implications, should consult with the Legal Department or the Ethics and Compliance Office.

Foreign Corrupt Practices Act

The Foreign Corrupt Practices Act (“FCPA”) has two main provisions. The anti-bribery provision makes it a crime to promise or give anything of value to foreign governmental or political officials or their agents to obtain or retain business, obtain any improper advantage or otherwise influence their judgment in the performance of official duties.

The FCPA also requires that publicly held companies, like ComEd, maintain accurate books, records and accounts and devise a system of internal accounting controls sufficient to provide reasonable assurance that, among other things, the Company’s books and records fairly and accurately reflect business activities and transactions. It is ComEd policy to present financial statements fairly and accurately and in accordance with generally accepted accounting principles.

Sales and Marketing Competitive Practices

While information about our competitors is a valuable asset, federal law and our Code require that we obtain this information legally.

Main Obligations

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CODE OF CONDUCT PROCESSES AND RESOURCES

Waivers

A waiver of any provision of the Code will be made only in exceptional circumstances for substantial cause. Requests for waivers must be submitted to the Corporate General Counsel, or his or her designee, for review and resolution. Any request for a waiver by any Director or Executive Officer must be submitted to the Board of Directors or a Board Committee. All waivers will be reported to the ComEd Ethics and Compliance Council. In addition, any waiver of a provision in the Code for any Director or Executive Officer will be disclosed to stockholders.

Certification of Compliance

Directors and non-represented employees and, in certain instances, independent contractors must complete each year a certification of compliance questionnaire. A completed certification questionnaire is a condition of employment for all non-represented employees. Directors will certify compliance with the Code in connection with the completion of their annual questionnaire.

Independent contractors required to complete the questionnaire are those who have access to Confidential Information, as defined in the Code, or those engaged in contract administration activities for ComEd such as verification of services and review and approval of invoices. The certification questionnaire is an acknowledgement of understanding and a self­assessment of Code compliance.

The certification questionnaire is administered on a confidential basis by the Ethics and Compliance Office. Exceptions that identify suspected violations of the law or this Code will be managed in accordance with the provisions stated below in “Reporting and Investigating Violations.”

Reporting and Investigating Violations

ComEd’s success in achieving legal and ethical compliance depends on each employee not only conducting his or her responsibilities in accordance with the law and the Code, but also by reporting matters that raise compliance or ethics issues.

Employees must report potential violations of the law or the Code by using one of the resources described in this section. Employees may be disciplined up to and including discharge for the failure to report a Code violation where they have a reasonable basis to know that a violation is occurring or has occurred. Employees who knowingly submit false reports will be subject to disciplinary action. If an employee self-reports wrongdoing, it will be a factor considered by management in connection with any discipline imposed for a violation of the law or the Code.

All reports alleging violations of the law or the Code will be treated confidentially to the extent possible under the circumstances. A prompt, thorough and independent investigation will be conducted of reported concerns. Employees are required to cooperate in any investigation of a compliance or ethics concern. Reported concerns regarding accounting, internal accounting controls or auditing matters will be reported to the Audit Committee of ComEd’s Board of Directors.

If an investigation discloses the need for corrective action, ComEd will implement appropriate corrective action to prevent recurrence.

The Ethics and Compliance Office

Because compliance and high standards of ethical behavior are important to the Company, employees must have access to additional guidance from a knowledgeable person when circumstances require. ComEd is committed to providing employees with the resources necessary to help them understand the Code, resolve compliance and ethics questions and report any compliance or ethics concerns. In this regard, ComEd employees have several options.

Managers and supervisors are an initial source of guidance for employees and an appropriate channel for questions or reporting compliance or ethics concerns. Each employee is encouraged to contact his or her manager or supervisor to discuss issues of interpretation or to report concerns with respect to compliance with the law or the Code.

The Ethics and Compliance Office is another avenue for seeking guidance on Code interpretation or reporting concerns. The office reports to the Corporate Secretary and its staff includes an Associate General Counsel accountable for administering the ethics and compliance program. The Ethics and Compliance staff may be reached by phone, e-mail, regular mail, or in person. Contacts may

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be made anonymously. All contacts will be treated confidentially to the fullest extent possible. Reports to the Ethics and Compliance Office will be handled promptly, thoroughly, fairly, and discreetly.

Other avenues for guidance and reporting concerns in their respective areas are: Human Resources, Legal, Corporate Security, Internal Audit and Environment, Health and Safety.

ComEd employees may also contact the ComEd Help Line at 1-800-23-ETHIC, which is further described below.

Ethics and Compliance Help Line/Compliance Reporting Website

If employees are uncomfortable talking to someone at their location or at the Company regarding Code guidance or a concern, they may call the ComEd Help Line at 1-800-23-ETHIC. The Help Line is dedicated solely to answering questions concerning the Code and for reporting compliance or ethics concerns related to suspected violations of the law or the Code. Caller ID is not used and no attempt is made to identify the caller. Anonymous callers who wish to follow up on their call will be assigned a confidential case number and will be advised if additional information is required before an effective investigation can occur.

All calls to the Help Line are answered by an independent third-party contractor that maintains the service. The service is multilingual and is available 24 hours a day, seven days a week, 365 days a year. Once the call is complete, a report of the call is forwarded to the Ethics and Compliance Office for review and appropriate follow-up action, as described under the heading “Reporting and Investigating Violations.”

The contractor managing the Help Line may monitor calls for quality assurance purposes. Any quality assurance recordings will not be made available to the Company. The Help Line will communicate with employees about their specific issue or concern, but will not provide confidential information about the investigation to any employee. The Help Line will coordinate all communications with and from employees with ComEd’s Ethics and Compliance Office.

Employees may also access the Report an Ethics Concern web link to request a Code interpretation or report a concern. The Report an Ethics Concern link can be accessed through the ComEd intranet website by selecting the link “Report an Ethics Concern” or by entering: ▇▇▇.▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇.

The Help Line and the Report an Ethics Concern web link are valuable resources and are made available to employees to request advice or report compliance or ethics concerns related to the Code. Employees are encouraged to use them.

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RETALIATION

Any individual may in good faith report a concern regarding the conduct of another person or cooperate in any investigation regarding a suspected violation of the law or the Code without fear of reprisal, harassment, discrimination or retaliation of any kind. Any form of reprisal against an individual because the individual raised a matter of conduct or cooperated in an investigation is contrary to our culture and values -- and it will not be tolerated. A person who engages in any act of retaliation will be disciplined, up to and including termination.

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VIOLATIONS AND PENALTIES

ComEd considers this Code of Business Conduct to be of the utmost importance. Accordingly, it will be appropriately enforced at all levels. Violations of this Code will not be tolerated.

Discipline may be taken against any employee who:

Discipline may include, but is not limited to, a reprimand, performance improvement plans, temporary suspension, demotion, financial sanctions, reimbursement for ComEd’s losses or damages, and termination. The Company may as appropriate refer matters involving wrongdoing under the Code to law enforcement for criminal prosecution.

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CONCLUSION

Ethical Decision Making

One of the primary goals of the Code is to enable employees to make ethical business decisions. The Code establishes a set of common expectations for behavior in areas that are vital to the Company’s reputation and that pose ethical or legal concerns.

Employees may find it helpful to ask the following questions before taking action in specific situations:

In judging the appropriateness of any action, employees should be able to answer yes to each of these questions. If you are still unsure or uncomfortable with your course of action, please seek assistance.

The Company relies on the personal judgment and thoughtful behavior of each employee in conducting Company business. Ultimately, employees are personally accountable for their decisions and should discuss ethical questions with a supervisor, manager, or any of the other resources identified in this Code, or call the Ethics and Compliance Office Help Line at 1-800-23-ETHIC. Employees who feel uncomfortable discussing ethical questions with a supervisor or manager are encouraged to contact the Ethics and Compliance Office or call the Help Line at 1-800-23-ETHIC.

Accountability

Each employee is accountable for understanding and complying with the Code and compliance is a condition of employment. Managers have the additional accountability to create an environment that encourages ethical conduct and a commitment to compliance with the law.

Committing an illegal or unethical act as a ComEd employee, agent, or supplier is never justifiable.

Each employee must conduct his or her business for the Company in accordance with this Code of Conduct. All of our stakeholders, including employees, customers, regulators, investors and suppliers, expect it, and our success depends on it.

The Code is not a contract of employment and is not intended to create any contractual obligations on the part of ComEd. It does not alter the existing at-will employment relationship between ComEd and its employees. Labor organizations that represent employees have been placed on notice that the Code is included in the work rules applicable to their members.

 

 

 

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EXHIBIT L

***

Copy to be provided and appended hereto.

 

 

L-1

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USE OF CONTRACTORS

APPLICABILITY

This policy applies to employees of an Exelon subsidiary, affiliate or related Company as set forth below.

This Policy applies to the ***.

When a *** is also a***, the restrictions described in the *** also apply to such ***.

*** of this *** must be *** prior to *** by a ***, provided that a *** may be in compliance within *** days after ***.

*** relating to the ***. Where this Policy *** the terms of a ***, or any *** of such ***, it is the *** of the *** and the *** apply this *** in accordance with ***.

***

*** in this Policy is intended to, and this Policy does not, alter the *** or *** or any ***. *** retains the ***.

***.

 

 

L-1

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L-1

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ATTACHMENT A

***

In addition to the conditions described in the ***, *** shall not:

The following guidelines also apply to the use of contractors:

******;

******;

******;

******.

******;

******;

******, except for *** defined in *** of the ***;

******;

****** (however, an *** may have ***

 

 

 

 

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EXHIBIT M

***

 

 

 

M-1

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EXHIBIT N

SCOPES OF WORK

Copies to be provided and appended hereto.

 

 

 

N-1

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This Amendment Number 1(“Amendment #1”), effective as of January 1, 2014 (“Amendment #1 Effective Date”), between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”) amends the Amended and Restated Services and Material Agreement, dated January 25, 2012, between Silver Spring and ComEd (the “Agreement”). Silver Spring and ComEd are referred to herein as the “Parties” or a “Party,” as applicable. Capitalized terms not defined in this Amendment #1 will have the same meaning as in the Agreement.

The Parties agree to amend the Agreement as follows:

2.5. Network Optimization. In Optimization, the layout of the NAN, Equipment configuration and implementation are validated by performing a variety of tests. As a result of such tests, Silver Spring may adjust its network design to require additional or relocated Equipment.

2.5.2.2. Ensure that the *** have been installed in a *** allowing efficient ***. Only after the *** have been *** may ComEd initiate *** of such ***.

4.1. On-Demand Meter Read Requests. The UIQ System will successfully execute at least *** of all (a) ***, (b) *** and (c) *** made by ComEd for *** which are actively communicating. An *** is a single transaction to a single ***, initiated by a *** of the UIQ system. An *** does not include *** targeted at multiple *** (e.g. ***). For the purposes of calculating this Service Level, multiple attempts to connect with a single device within a *** will count as *** targeted at an *** which was not read in the previous *** will be ***; and *** Initiated by system-level accounts ***.

5.1. Availability. The UIQ application will be available to and accessible by ComEd and *** of the time via (a) a web browser client and (b) web services interface. A determination of availability will be based on ***. This metric will be measured by *** to the *** with valid username/password, looking for a *** on the homepage and validating it against the ***. This measures the availability of the hosted environment by *** of the application ***.

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***: ***.

***: ***.

***.

***.

***.

***.

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***.

***.

***.

***.

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***: ***.

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***: ***.

***

 

***: ***.

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***.

***.

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***.

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***.

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***: ***.

***: ***.

 

 

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***: ***.

***: ***.

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*** : ***:

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IN WITNESS WHEREOF, the Parties have caused this Amendment #1 to be executed by their duty authorized representatives.

 

 

 

 

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This Amendment Number 2 (“Amendment #2”), effective as of November 1, 2014 (“Amendment #2 Effective Date”), between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”) amends the Amended and Restated Services and Material Agreement, dated January 25, 2012, between Silver Spring and ComEd (the “Agreement”). Silver Spring and ComEd are referred to herein as the “Parties” or a “Party,” as applicable. Capitalized terms not defined in this Amendment #2 will have the same meaning as in the Agreement.

The Parties agree to amend the Agreement as follows:

1. Add the following table (including pricing notes) to Section 3 (“Software-as-a-Service”) of Attachment 1 (“Pricing”) to Exhibit N‑2 – Statement of Work (“DA SOW Full Deployment”):

 

 

*** : ***.

*** : ***.

*** : ***.

*** : ***.

*** : ***.

2. Integration; Conflict. The foregoing provisions shall govern notwithstanding any contrary provision in the Agreement or any previously executed agreement between the Parties. Except as otherwise expressly provided or modified herein, the (i) terms and conditions of the Agreement remain in full force and effect, and (ii) this Amendment #2 and the Agreement constitute the entire and exclusive agreement between the Parties regarding the subject matter hereof, and supersede all proposals and prior agreements, oral or written, and all other communications. In the event of a conflict between this Amendment #2 and the Agreement, this Amendment #2 shall govern.

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Approvals

IN WITNESS WHEREOF, the Parties hereto have caused this Amendment #2 to be executed by their duty authorized representatives as of the Amendment #2 Effective Date.

 

 

[End]

 

 

 

 

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This Statement of Work (“SOW”) is entered into as of January [25], 2012 (“SOW Effective Date”) between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”). This SOW is subject to the terms of the Amended and Restated Services and Material Agreement dated as of the date hereof, between Silver Spring and ComEd (the “Master Agreement”). Capitalized terms used but not defined in this SOW have the meaning assigned them in the Master Agreement. In the event that there is a conflict or inconsistency between this SOW and the Master Agreement, the terms of the Master Agreement will prevail unless specifically stated in this SOW to the contrary. Notwithstanding the foregoing, in the event of any conflict or inconsistency between an ComEd Responsibility or a Joint Responsibility designated under this SOW and an ComEd Responsibility designated in the Master Agreement, the terms of this SOW will control with regard to such ComEd Responsibility. To the extent a task is designated as a Joint Responsibility in this SOW, the portion of such task to be performed by ComEd shall be deemed an ComEd Responsibility for which this SOW will control.

Definitions

“Access Points” means Equipment that acts as an interface between *** and the *** that allows the UIQ Software to communicate with the ***.

“AMI” means advanced metering infrastructure, which means hardware and software that, along with communications services, enable automated meter reading and other capabilities defined in the Specifications.

“AMI Project” means the AMI project undertaken by ComEd under this SOW. The AMI Project comprises all responsibilities assigned to the Parties under this SOW. AMI Project does not include materials, equipment, software or services provided by third parties not under Silver Spring’s direction or control.

“AMI System” means the combination of Silver Spring technologies providing the AMI, including without limitation: (a) the***; (b) *** connections to/from Access Points, and (c) the***, exclusive of ***. The AMI System will also include the ***, provided by ***, which consists of ***, ***, *** in which the *** equipment is located..

“***” means (i) communications between and among the UIQ System and ***, *** associated with ***; and (ii) data and communications flowing between the UIQ System and *** through the Silver Spring ***, provided that the same are related to *** and ***.

“***” means the “***” stored once daily in a register in the *** as installed in the *** (usually at ***).

“Back Office” Silver Spring’s UtilityIQ® system, including without limitation, ***, the Software and the following network and application components: *** connecting *** to a ***; and (c) a *** (including ***).

“Communications Module” means Silver Spring’s network interface card (sometimes also referred to as a “NIC”), that is installed in Equipment and meters.

“Disaster Recovery Plan” is defined in Task 3.1.2.3.a.

“eBridge” means Equipment that provides *** used to control components of the ***.

“Endpoints” means and includes Integrated Meters and eBridges.

“Enhanced Field Network Design” has the meaning specified in Task 2.1.1.1.

“Initial Field Network Design” has the meaning specified in Task 2.1.1.1.

“Instance” means a copy of *** installed on either a Silver Spring or ComEd server.

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“Integrated Meter” means an electricity metering endpoint provided by the meter provider into which the NIC has been integrated in accordance with applicable specifications.

“Interval Read” means, for Integrated Meters, the “interval values” stored in the channels in the Communication Module, which are recorded on the Communication Module on a periodic basis (e.g., every 15 or 60 minutes).

“IP” means Internet Protocol.

“NAN” means a Neighborhood Area Network.

“Non-AMI Traffic” means any network communications or information that does not constitute AMI Traffic.

“Optimization” means the procedure by which the *** have been validated (“Optimized”) by performing active and passive tests to confirm that performance and redundancy meets the design specifications upon which the Parties have agreed. Optimization is executed in a given area of the service territory when scheduled by the Parties after initial Equipment installation is complete in such area, and it may include tuning of the network as required for achieving the required performance and redundancy.

“***” means an Endpoint that is located in an area of the *** which has been Optimized and which is in any of the following operational states within the UIQ System: *** and, but which is not: (i) in a *** state; or (ii) considered to be in the process of *** Silver Spring *** that the number of Access Points and Relays required by the *** will not exceed the *** by more than ***. All required Access Points and Relays in excess of this *** (including associated mounting equipment and battery backups) will be provided by Silver Spring ***. For clarity, if *** is determined to be a ***, Silver Spring will remediate the issue and all incremental Relays or Access Points required to remediate will count against the ***; i.e., once the *** is reached, all additional Relays and Access Points (including associated mounting equipment and battery backups) will be provided by Silver Spring ***. The Parties agree that this cap does not apply to any remediation required for *** in *** across ComEd’s service territory and that the Parties will mutually agree to any remediation required in these scenarios. Remediation of these coverage issues may take one of several forms:

*** Deploying an ***

*** Deploying an *** and ***

*** Specifying a new solution, including potential to *** for one with ***

*** the meter in extreme situations ***.

“Relay” means Silver Spring’s wireless receiver that routes and forwards information through the Silver Spring mesh network.

“RF” means radio frequency.

“Statement of Work” or “SOW” means this Statement of Work.

“System Change” means any change or modification to any infrastructure components of the hardware and software used in the Back Office.

“UtilityIQ® Software”, “UIQ Software” or “UIQ” means the object code version of Silver Spring’s UtilityIQ software.

“Urgent System Change” is defined in Task 4.2.1.2.

Equipment

For the AMI Project, ComEd will purchase, at the prices specified in Exhibit D (“Pricing”), at least the following quantities of Equipment, as estimated in the Initial Field Network Design described in Task 2.1.1.1, by issuing a Purchase Order to Silver Spring:

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In addition, Silver Spring recommends that ComEd maintain an inventory of spare Equipment as follows:

When quantities change pursuant to the Enhanced Field Network Design described in Task 2.1.1.4 and the Final Field Network Design described in Task 2.5, ComEd will purchase the additional quantities of Equipment as are identified at each of those steps. ComEd must supply required configuration information so that deliveries may be made within required lead time.

Silver Spring *** that the number of Access Points and Relays required by the *** will not exceed the *** by more than ***. All required Access Points and Relays in excess of this *** will be ***. For clarity, if ***, Silver Spring will ***. The Parties agree that this cap does not *** and that the Parties will mutually agree to ***:

Silver Spring further *** that the number of Access Points and Relays required by the *** will not exceed the *** by more than ***. All required Access Points and Relays in excess of this ***. The Parties agree that these *** will occur *** and consider all ***.

Certain Integrated Meters Excluded from Optimization

Silver Spring will likely identify and track with ComEd a small minority of Integrated Meters that will be excluded from Optimization tests because field conditions, ComEd’s cost considerations, or ComEd’s schedule does not permit remediation before or during the Optimization of an Optimization Area. After Optimization, the Parties will work together to mutually agree to the solution for these edge case Integrated Meters.

Software

Silver Spring hereby licenses the Software listed in Attachment 1 to this SOW under the terms of the Master Agreement.

Tools

For the AMI Project, Silver Spring assumes that ComEd will purchase or license (for Software tools) the following quantities of tools:

Services

Task 1 – Program Management

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Task 2 – Field Network Deployment

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Throughout the deployment period, Silver Spring will conduct in-field troubleshooting of installed Access Points and Relays.

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This SOW assumes that ComEd or its contractor(s) will install Integrated Meters.

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Task 3 - Application Deployment

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Silver Spring will provide a dedicated Solution Architect for *** of the deployment (commencing when the Solution Architect first reports) to accomplish the tasks listed in each of the phases of UIQ Integration and Configuration Assistance. Note that this SOW excludes the following out-of-scope tasks:

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Task 4 – Ongoing Maintenance and Management

Except as noted below, if ComEd has paid the Fee for SaaS for the AMI Project as specified in Exhibit D (“Pricing”L Silver Spring will perform the tasks described in this Task 4 in support of the environments listed in Attachment 1, for the term noted therein.  If after *** from the execution of this SOW ComEd chooses to transition from the *** to *** (where Silver Spring ***) or to a *** (where ComEd ***) and provides Silver Spring at least *** advanced written notice, Silver Spring will negotiate in good faith to detail the services and associated fees required to transition *** to a ComEd facility. Silver Spring’s obligations hereunder, including but not limited to the *** pursuant to Task 4.4.1, are conditioned upon ComEd’s payment of fees.

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Should ComEd wish to generate additional reporting from data stored in the UIQ database, the Parties will work together to determine an appropriate solution satisfying ComEd’s requirements. A separate SOW may or may not be required depending on the mutually agreed data delivery solution.

General Assumptions

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Approvals

IN WITNESS WHEREOF, the parties hereto have caused this SOW to be executed by their duly authorized representatives as of the SOW Effective Date.

 

 

 

[End]

 

 

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Attachment 1 to AMI SOW

Software Licensed by ComEd under the AMI SOW

The following Software Products/modules and operating environments are licensed to ComEd under the terms of the Master Agreement.

 

Environments: For each operating environment, the Parties will check the cell in Table 1 below for a particular Software Product/module if Silver Spring is to install it in the specified environment. Silver Spring will provide SaaS as described in Task 4 of this SOW, for each environment for the term listed in Table 1. The term is further described in the next section of this Attachment.

Table 1: Basic Setup Information for Each UIQ Environment

 

 

Note 1: DR will use same # as many Integ’d Meters as Prod, and FSTE will use the same # of Simulated Meters.

 

 

Term of Solution Services (SaaS)

When ComEd ***, Silver Spring will ***, Silver Spring will ***. Silver Spring will ***.***For each environment, the date listed for availability in Table 1 is a target, and the Parties will work cooperatively to finalize the date with reasonable notice. Upon the expiration of the term, the Parties will renew or terminate the Solution Services supporting that environment pursuant to the terms of the Master Agreement.

 

---

 

If ComEd intends for an environment to be temporary, the termination date in Table 1 is noted as an estimate, and the Parties will work cooperatively to finalize the date reasonably in advance.

After SaaS is terminated or not renewed for any environment(s), Silver Spring reserves the right to reassign relevant Back Office equipment and staffing.

[End]

 

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Attachment 2 to AMI SOW

Acceptance Test Criteria

This Attachment contains the criteria for the Acceptance Testing described in Task 2.6.3 of this SOW. This testing will be completed following the completion of Optimization of the first Optimization Area as described in Task 2.5 of this SOW.

As used in this chart, “meter” means Integrated Meters.

 

 

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[***]

 

 

 

 

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Attachment 3 to AMI SOW

Service Levels and Service Level Credits

 

 

 

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SLA Credits for Failure to Deliver On-Demand Remote Connect and Disconnect Requests. Provided that the minimum number of on-demand remote connect and disconnect requests has been met as shown in Table 4.2 below, if Silver Spring fails to meet the on-demand Service Level, the Service Level credits specified in Table 4.2 will apply.

 

 

 

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[End]

 

 

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***1.***

***.***.***.***.***.*** 

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***.***.***.*** 

 

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***.***.***.***.***.*** 

***.***.***.***.***

***.***.***.***.***

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2.***  

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***.***.***.

3.*** 

***.***:***.***.***.***.***.***.***.***.***.***.***.***.*** 

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***.***:***.***.***.***.***.***.***.***.***.***.***.***.*** 

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***.***.*** 

***.***.***.*** 

 

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***.***.***.***.***.***.*** 

***.***.***.***.***

 

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***.***.***.***

 

***: ***.

***:***,***.

***:***.***,***,***.

***: ***.

***:***:***.

***:***.

 

 

***:***.***,***.

***:***, ***.

***:***:***.

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***:***.***.

***:***.

***:***:***.

 

 

***:***:***.

***:***.***,***,***: ***

***:***,***.

***:***.***,***,***.

***: ***, ***.

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***:***:***.

***:***.

 

 

***:***.***.

***:***,***,***.

***:***,****** - ***.

***:***:***.

 

 

***:***,***

***.

***:***:***.

***

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Attachment 5 to AMI SOW

Software Support Terms for AMI Full Deployment

1. SOFTWARE SUPPORT SERVICES. For the period during which ComEd has paid the Fee(s) specified in Attachment 4 for Application Management and Software Support for the AMI Project, Silver Spring will provide ComEd with the following Software Support Services:

1.1 Access to Customer Support Personnel. Silver Spring customer support personnel will be available for contact, for the purposes described in this Attachment, on Business Days ***.

The contact information for such support is as follows:

 

Table 1-Contact Information**

 

ComEd will centralize its interactions with Silver Spring’s customer support staff by assigning *** persons who are authorized to contact Silver Spring for such support (“Authorized Support Supervisors”); Authorized Support Supervisors will be responsible for relaying information between Silver Spring and other members of ComEd’s support staff.

Silver Spring’s customer support personnel will respond as described in Sections 1.2 and 1.3 below. Unless otherwise mutually agreed on a case by case basis, Silver Spring’s customer support personnel will be ComEd’s main point of contact regarding all problems, including those forwarded by customer support personnel to other groups within Silver Spring.

1.2. Incident Reports, Service Requests, and Support Inquiries. Silver Spring’s customer support personnel will***that***, as well as***, receiving and responding to:***,***,***, including but not limited to***; and ***.***, Silver Spring’s customer support personnel will ***,***,***,***. Silver Spring will***,***. Silver Spring will ***.***ComEd will ***,***.

1.3. Classification of Incidents, Service Requests, and Support Inquiries. When ComEd submits an Incident Report, Service Request or Support Inquiry, ComEd will reasonably assess its urgency according to the appropriate priority levels defined in Table 2. Silver Spring will confirm the priority level and the Parties will resolve any disagreement regarding the priority as soon as is reasonably practical.

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***,***,***

 

***.***,***,***.

***,***,***.

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1.4. Error Management. As noted in Table 2 above, to the extent Silver Spring determines that the root cause (or suspected root cause) of a reported Incident is an Error, Silver Spring will open a report (“Error Report”) and further investigate it for resolution as set forth in Table 3 below, using reasonable efforts consistent with Table 3 to investigate and resolve Errors. Table 3 does not include Response Times, as response requirements are specified in Table 2, whether or not the Incident was known to be caused by an Error at the time of response. Target resolution timeframes in Table 3 do not include the time that elapsed before a problem was identified as an Error.

1.5 Classification of Errors. When Silver Spring identifies an Incident as an Error, Silver Spring will reasonably classify the Error in accordance with the Severity levels defined in Table 3. The Parties will resolve any disagreements about the Severity level as soon as is reasonably practical.

***

 

 

 

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1.6. ComEd’s Responsibilities. Except for Software provided as a Managed Service or on a SaaS basis, ComEd acknowledges that ComEd is responsible for acting on and implementing the support solutions Silver Spring recommends or provides, including workarounds acceptable to ComEd.

1.7. Availability of Upgrades. Silver Spring will provide Upgrades to ComEd electronically for installation and implementation by Silver Spring, as provided in this SOW, if and when released by Silver Spring.

1.8. Limits to Version Support. If ComEd refuses Upgrades to the version of UIQ Software it is using, Silver Spring will provide Software Support Services for that Major Release for a period of the lesser of: (a) the remainder of the Application Management services term as defined in Attachment 2, or (b) *** years (commencing on the date that the Major Release is made available to ComEd). Unless ComEd refuses Upgrades (or there is any gap in Application Management services enrollment), Silver Spring will provide Software Support Services for as long as ComEd enrolls in Solution Services. For clarity, when ComEd signs the Agreement and takes its first delivery of GridScape Software, the then-current Major Release will be supported for *** years from that initial Delivery Date. Subsequently, Major Releases will be supported for *** years from their general availability date. Silver Spring will provide an additional *** years of Major Release version support (“Extended Software Support”) for no additional charge.

2. LIMITATIONS. Software Support Services will not be provided for use of Software in a manner inconsistent with the applicable Documentation or with products or software not intended by the Documentation.

3. USE LIMITATIONS; TITLE; INTELLECTUAL PROPERTY INDEMNITY; LIMITATION OF LIABILITY. ComEd’s use of all UIQ Software and Upgrades provided under this Attachment will be governed by the Master Agreement, including but not limited to the terms relating to license and ownership rights, use limitations, intellectual property indemnity and limitations of liability.

[End]

 

 

 

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Terms and Conditions – Text at End

 

 

Contract Amendments

 

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* * * End of Contract * * *

 

 

 

 

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This Amendment Number 2 (“Amendment No. 2”), effective as April 1, 2015 (“Amendment No. 1 Effective Date”), between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd” or “Company’’). This Amendment No. 2 amends that certain Statement of Work Number 1 dated January 25, 2012 (“SOW N-1”), issued pursuant to the Amended and Restated Services and Materials Agreement between the Parties dated January 25, 2012 (collectively, with SOW N-1, the “Master Agreement’’) Silver Spring and Company are referred to herein as the “Parties” or a “Party,” as applicable. Capitalized terms not defined in this Amendment No. 2 will have the same meaning as in the Master Agreement.

The Parties agree to amend the SOW N-1 as follows:

 

 

***: ***.***,***.

***:***:

***.

***.

***.

***.

***.

***.

***.

***.

***.

***.

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***:***,***

***.

***:***:***.

 

 

***:***.***,***.

***:***:

***.

***.

***.

***.***.

***.

***.

***.

***.

***.

***.

***:***,***.

***:***:***.

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***:***, ***.

***:***:***.

 

 

***:***,***.

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***:***:***.

 

 

***:***,***.

***:***:***.

 

 

***:***.

***:***,***.

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***: ***.

 

 

 

 

IN WITNESS WHEREOF, the Parties have caused this Amendment #2 to be executed by their duly authorized representatives.

 

 

 

 

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This Statement of Work (“SOW”) is entered into as of January [25], 2012 (“SOW Effective Date”) between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”). This SOW is subject to the terms of the Amended and Restated Services and Material Agreement dated as of the date hereof, between Silver Spring and ComEd (the “Master Agreement”). Capitalized terms used but not defined in this SOW have the meaning assigned them in the Master Agreement. In the event that there is a conflict or inconsistency between this SOW and the Master Agreement, the terms of the Master Agreement will prevail unless specifically stated in this SOW to the contrary. Notwithstanding the foregoing, in the event of any conflict or inconsistency between an ComEd Responsibility or a Joint Responsibility designated under this SOW and an ComEd Responsibility designated in the Master Agreement, the terms of this SOW will control with regard to such ComEd Responsibility. To the extent a task is designated as a Joint Responsibility in this SOW, the portion of such task to be performed by ComEd shall be deemed a ComEd Responsibility for which this SOW will control.

Summary

ComEd and Silver Spring wish to work together to deploy ***communications infrastructure to communicate with ***. This ***communication network will be designed without consideration of the AMI network infrastructure, though ComEd may choose to share infrastructure at any time via a configuration change. ComEd intends to deploy ***to communicate with ***.

As described in Task 2 below, Silver Spring will perform ***.

As described in Task 4 of the Services section below, Silver Spring will provide ***services to manage and maintain the ***application which will be installed in ***.

Silver Spring and ComEd will work together to develop a replacement strategy and implementation plan ***.

Silver Spring and ComEd will work together to develop, implement and evaluate a convergence program ***.

Definitions

“Acceptance Testing” means the procedure by which Silver Spring and/or ComEd perform a series of tests (the criteria for which the Parties will agree in writing) to validate, measure and verify Product functionality.

“AMI” or “Advanced Metering Infrastructure” means hardware and software that, along with communications services, enable automated meter reading and other capabilities.

“Application Deployment Services” means the services provided by Silver Spring as described in Task 3.

“Application Management” means the services provided by Silver Spring, as described in Task 4.2, to operate, monitor and maintain the GridScape application, licensed on a term basis, on Silver Spring Servers at a Silver Spring data center as a Solution Service (SaaS).

“Backhaul” means the Wide Area Network (“WAN”) which supports communications between the data center hosting *** and either an Access Point or a Master Bridge. Options may include cellular 3G networks, Wi-Fi, Ethernet, etc..

“Bridge” means an eBridge or sBridge.

“Bridge Configurator” (sometimes referred to as “▇▇▇▇▇▇”) means the Silver Spring software tool that configures Bridges and performs basic troubleshooting, primarily in a DA Communication Network.

“***”means a *** in which the ***. Examples of such ***. Note that *** is a term applied for *** in this ***, and is *** to the *** or any ***.

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“***”means a *** in which the ***. Examples of such *** include ***. Note that *** is a term applied for in this ***, and is *** to the *** or any ***.

“Communication Module” means Silver Spring’s network interface card (sometimes also referred to a “NIC”), that is installed in Equipment and meters.

“Communication Tester” (sometimes referred to as “Communications Access Test Tool” or “CATT”) means a software tool for testing and analyzing the DA Communication Network. Communication Tester typically runs on a laptop PC or handheld device connected to a Field Service Unit (FSU) over a USB port.

“DA” or “Distribution Automation” means the remote and automated control and monitoring of an electricity distribution network.

“***”means Access Points, Relays, DA Endpoints, and the wireless mesh network established as a result of the Equipment running Silver Spring’s UtilOS Software. To the extent that *** belonging to ComEd’s AMI Network are present, such Access Points and Relays are only considered part of the DA Communication Network if they are enabled to transport DA-related communications including DA data traffic as well as ***.

“***” means the services provided by Silver Spring, to maintain communications reliability by managing Access Points, Relays, DA Endpoints, and the wireless mesh network established as a result of the Equipment running Silver Spring’s UtilOS Software.

“DA Deployment Period” means the ***, starting at the SOW Effective Date during which the Bridges specifically included in the ***, as defined in ***, are installed, configured, and validated.

“***” means the combination of (a) distribution equipment that performs either a power control or monitoring purpose (such as a recloser, capacitor bank, line sensor, etc.), and (b) a Remote Terminal Unit that provides electronic controls for such a distribution device (such as a capacitor bank controller).

“DA Endpoint” means any Bridge provided by Silver Spring or a Silver Spring certified third party RTU with an integrated Bridge or Silver Spring Communication Module.

“DA Project” means the DA Communication Network project undertaken by ComEd and Silver Spring under this SOW. The DA Project comprises all responsibilities assigned to the Parties under this, including the provision of all deliverables described under this SOW. “DA Project” does not include materials, equipment, software or services provided by third parties not under Silver Spring’s direction or control.

“DNP” means Distributed Network Protocol; “DNP3” is a version of this protocol.

“eBridge” means a discrete hardware module packaged for interface to a variety of RTUs. The eBridge uses Silver Spring’s open, IP-based 902-928MHz mesh transceiver platform. The eBridge supports serial and Ethernet inputs, DC power input and can support a variety of third party antennae. The eBridge supports 1Pv4 and 1Pv6, and comes preconfigured to support the DNP3 protocol. eBridges are sold as head-end or remote devices.

“Enhanced DA Communication Network Design” has the meaning set forth in Task 2.1.1.5

“Fees” means all amounts payable to Silver Spring by ComEd under this SOW.

“Field Deployment Services” means the services provided by Silver Spring under Task 2.

“GridScape” means the Silver Spring infrastructure management layer that, among other functions, manages a Silver Spring provided DA Communication Network. GridScape is included within the definition of Software.

“Incident” means an event occurring that is not a standard operation and that causes or may cause a disruption to or reduction in the quality of a Service, system or ComEd productivity.

“Information Success Rate” means a metric available on Silver Spring radios (and accessible via Bridge Configurator) that indicates the number of successful transmissions received from a neighboring node.

“IP” means internet protocol.

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“Maintenance Window” is defined in Task 4.2.2.

“Managed Services” means the Solution Service by which Silver Spring’s management and operation of Software licensed on a perpetual basis on ComEd-owned Servers at a ComEd data center.

“Master Bridge” (sometimes referred to as a “head-end eBridge”) means a Bridge serving as a hub device for communicating distribution-grid data (1) through its RS-232 (DB-9) or Ethernet interface to ComEd’s *** that use DNP3 for connectivity and (2) through its RF interface to other Bridges. A Master Bridge is often installed in substations.

“NOC” means Silver Spring’s network operations center.

“Optimization” means the procedure by which the *** of the *** and *** have been *** to confirm that *** meets the *** upon which the ***. *** executed in a *** of the *** when *** by the *** is *** in such ***, and it may include *** of the *** as required for *** the *** and ***.

“Preventive Maintenance” means activities performed by Silver Spring that are necessary or desirable for the continuous provision of Solution Services at their stated Service Levels, including, but not limited to, those activities that require the temporary cessation of one or more Solution Services.

“Project Management Services” means Silver Spring’s project management services for project coordination and deployment of DA.

“Project Manager” means the person each Party appoints to handle the day-to-day management of the Parties’ respective DA Project responsibilities.

“Project Schedule” means the schedule for delivery of Silver Spring products and completion of Services as the Parties mutually agree in writing.

“Relay” means Silver Spring’s wireless receiver that routes and forwards information through the Silver Spring mesh network.

“Remote Bridge” means a Bridge that is installed in a weather-proof RTU enclosure and connected to the RTU data and/or management port through Ethernet or Serial connection. The Remote Bridge is registered to a Master Bridge through the RF mesh. The registered Master Bridge serves as the Remote Bridge’s gateway to ComEd’s network connecting DA Devices (i.e., the SCADA network or other interfaces).

“Remote Terminal Unit” or “RTU” means a device that provides electronic controls for a distribution device, to which the Remote Bridge is connected. The RTU provides a weather-proof enclosure for the Remote Bridge as well as DC or AC power.

“RF” means radio frequency.

“RSSI” means Received Signal Strength Indicator, which is the received power of a wireless signal in decibels referenced to milliwatts (dBm).

“SaaS (Software as a Service)” means the Solution Service where Silver Spring operates Silver Spring software licensed on a term basis on Silver Spring Servers at a Silver Spring data center.

“sBridge” means a discrete hardware module packaged for interface to a variety of DA Devices. The sBridge uses Silver Spring’s open, IP-based 902-928MHz mesh transceiver platform. The sBridge can communicate to an RTU through one of the sBridge’s two serial inputs. It supports DC power input and can support a variety of third party antennae. The sBridge supports 1Pv4 and 1Pv6, and comes preconfigured to support the DNP3 protocol through one of its two serial ports. sBridges are sold as remote devices, not as head-end devices.

“SCADA” means Supervisory Control and Data Acquisition.

“Server(s)” means the physical machine or computer on which GridScape will be installed.

“Service level” means the measurement of the performance of GridScape or Services, as applicable, and is generally expressed as a percentage of a goal (e.g., the percentage of the time a network or system is operative or successful transactions are processed).

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“Services” means Project Management Services, Field Deployment Services, Application Deployment Services, Application Management Services Solution Services and Software Support Services.

“Signature Date” means the date of last signature executing this SOW by either Party.

“Software Support Services” means those services provided by Silver Spring as described in Attachment 5 to this Statement of Work.

“Solution Services” means Silver Spring’s deployment and management services for head-end hardware, software, and software environments.

“Statement of Work” or “SOW” means this Statement of Work.

“System Acceptance Tests” or “System Acceptance Testing” is defined in Task 2.6.2.

“System Change” means any change or modification to any infrastructure components of the hardware and software used in the GridScape backend.

“Urgent System Change” is defined in Task 4.2.1.2.

“VPN” means a Virtual Private Network, which is a secure LAN-to-LAN tunnel based on the IPsec protocol, used to connect ComEd and the NOC providing access to the Smart Grid System from ComEd corporate location(s).

“Wide Area Network” (or “WAN”) is defined as noted in the definition of “Backhaul” above.

Equipment

For the DA Project, ComEd will purchase, at the prices specified in Attachment 1, approximately the following quantities of Equipment by issuing a Purchase Order to Silver Spring:

In addition, Silver Spring recommends that ComEd maintain an inventory of spare Equipment as follows:

If quantities change pursuant to the Enhanced DA Communication Network Design described in Task 2.1.1.5 and the Final DA Communication Network Design described in Task 2.2.2.8, ComEd will purchase the additional quantities of Equipment as are identified at each of those steps, or if the quantities of Equipment required decrease, ComEd will not be obligated to purchase the full allotment of Equipment detailed above. To enable Silver Spring to meet its component order lead times, ComEd must provide Silver Spring with timely information about the configuration of the Equipment so that deliveries may be made within required lead time. Silver Spring guarantees that the number of Relays required by the Final Field Network Design will not exceed ***. *** required Relays in excess of this Relay Cap (including associated mounting equipment and battery backups) will be provided by Silver Spring ***. Silver Spring further guarantees that the number of Relays required by the Final Field Network Design will not exceed ***. All required Relays in excess of this threshold (including associated mounting equipment and battery backups) will be provided by Silver Spring ***. The Parties agree that these comparisons of the Final Field Network Design with the Enhanced DA Communication Network Design will occur annually and consider all Optimization Areas accepted during that year. Note that incremental Relays required to achieve successful failover between Master Bridges are excluded from this Relay Cap.

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In addition to the Equipment, ComEd will purchase from a third party vendor and provide to its installers certain antennae, mounting brackets, and coaxial cable, pursuant to Silver Spring specifications.

Software

Silver Spring hereby licenses to ComEd the Products listed in Attachment 2 to this SOW under the terms of the Agreement.

Tools

For the DA Project, Silver Spring assumes that ComEd will purchase or license (for Software tools) the following tools:

Services

For the DA Project, Silver Spring and/or ComEd will perform the tasks described below.

Task 1 - Program Management

Task 2 - Field Deployment

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Following the DA Deployment Period, Silver Spring will provide in-field support as noted above upon an agreed schedule. Remote support for the Equipment will be provided pursuant to Tasks 4.3.1.3-4.3.1.7.

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Task 3 - Application Deployment

3.1.1.3. Collaboration. The Parties will work together to perform each of the following tasks:

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Task 4 - Ongoing Maintenance and Management

Except as noted below, if ComEd has paid the Fee(s) specified in Attachment 1 for ***services for the DA Project as well as for ***services, Silver Spring will perform the tasks described in this Task 4 in support of the environments listed in Attachment 2, for the term noted therein. If ***, ComEd chooses to transition from the ***to *** or to a ***and provides Silver Spring ***, Silver Spring will negotiate in good faith to detail the services and associated fees required to transition GridScape to a ComEd facility. Silver Spring’s obligations hereunder, including but not limited to ***, are conditioned upon ComEd’s payment of the applicable Fees.

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***.

General Assumptions

 

 

 

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Approvals

IN WITNESS WHEREOF, the parties hereto have caused this SOW to be executed by their duly authorized representatives as of the SOW Effective Date.

 

 

[End]

 

 

 

 

 

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***.

***:***.

***:***,***,***.

***:***,***.

***:***,***.

***:***:***.

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***.

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***.

***:***,***.

***:***,***.

***:***,***

***:***:***.

 

 

***:***,***.

***:***,***

***:***:***.

***:***.

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***:***:

***:***:

***:***,***.

***:***:***.

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***:***

***:***.

***:***,***.***.

***:***,***.

***:***:***.

***:***.

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***:***.

***:***.

***:***:***.

 

 

***:***.***.

***:***,***.***.

***:***,***.

***:***:***.

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***:***.

 

 

***:***,***.***.

***:***.

***:***,***.***.

***:***,***.

***:***:***.

***:***.

 

 

***:***.***.

***:***.

***:***,***.

***:***:***.

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***:***,***.

***:***:***.***

***

 

 

 

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Attachment 2 to DA SOW

Software Licensed by ComEd under the DA SOW

The following Products and operating environments are licensed to ComEd under the terms of the Agreement.

 

Environments: The Parties will check the cell in Table 1 below for a particular Product if Silver Spring is to install that Software module in the specified environment. Silver Spring will provide Application Management services as described in Task 4 of this SOW, for each environment for the term listed in Table 1. The term is further described in the next section of this Attachment.

 

Term of Application Management and DA Communication Network Monitoring services

An environment will be deemed available when ***.***Upon such availability, Silver Spring will ***,***, Silver Spring will ***. The term of Silver Spring’s DA Communication Network Monitoring services will begin, and Silver Spring will ***upon the availability of the***.***.

For each environment, the date listed for availability in Table 1 is a target, and the Parties will work cooperatively to finalize the date with reasonable notice. Upon the expiration of the term, the Parties will renew or terminate the Solution Services supporting that environment.

Silver Spring reserves the right to reassign relevant back office equipment and staffing upon termination or expiration of Application Management services for any environment(s).

[End]

 

 

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Attachment 3 to DA SOW

***

*** of the ***, with *** enable *** for working with *** to (a) complete a *** and (b) implement a *** that is consistent with the ***. At some time after the *** is executed, a *** of this *** will be *** and ***, and will be *** to the *** as the ***.

The following Table 1 defines terms used in this Attachment.

 

 

A. Network Design

The complete Silver Spring *** consists of both a *** and a Logical Network Reference Design. The former covers placement of Relays and Bridges in support of the *** such that *** as well as ensuring that *** have sufficient ***. The Logical Network Reference Design takes into consideration the IP level configuration, *** and any other *** to support the *** of each ***. Both the *** as well as the *** must support the *** for each ***.

B. ***Page 141

***:

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C. ***

***,***.***.***,***.

***.***.***.

***.***.***.

***

 

***:***,***,***.

***.***,***.***,.***.

 

***

 

***:***,***.***.

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D. ***

***.

 

 

[End]

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Attachment 4 to DA SOW

DA System Acceptance Test Process

As described in Tasks 2.6.2 - 2.6.5, System Acceptance Testing will include ***:

Except as deferred to a separate SOW or an update to this Attachment, Tasks 2.6.2 - 2.6.5 define the responsibilities of the Parties for performance and review/approval of the tests, and the acceptance of the logical network reference design and the DA Communication Network.

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***:***.***.***.

 

[End]

 

 

 

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Attachment 5 to DA SOW

Software Support Terms for DA Full Deployment

1. SOFTWARE SUPPORT SERVICES. For the period during which ComEd has paid the Fee(s) specified in Attachment 1for Application Management and Software Support for the DA Project as well as for DA Communication Network Management, Silver Spring will provide ComEd with the following Software Support Services:

1.1 Access to Customer Support Personnel. Silver Spring customer support personnel will be available for contact, for the purposes described in this Attachment, on Business Days between 5^am and 6^pm (Pacific) (“Customer Support Business Hours”) by telephone, email, or via a website interface Silver Spring provides to its customers (however, for Priority 11ncidents, contact must be by telephone); at other hours, contacts by telephone will be supported through on-call services that ▇▇▇▇ ▇▇▇▇ Silver Spring personnel regarding Priority 11ncidents if such personnel are not directly available.

The contact information for such support is as follows:

Table 1-Contact Information**

 

ComEd will centralize its interactions with Silver Spring’s customer support staff by assigning ***persons who are authorized to contact Silver Spring for such support (“Authorized Support Supervisors”); Authorized Support Supervisors will be responsible for relaying information between Silver Spring and other members of ComEd’s support staff.

Silver Spring’s customer support personnel will respond as described in Sections 1.2 and 1.3 below. Unless otherwise mutually agreed on a case by case basis, Silver Spring’s customer support personnel will be ComEd’s main point of contact regarding all problems, including those forwarded by customer support personnel to other groups within Silver Spring.

1.2. Incident Reports, Service Requests, and Support Inquiries. Silver Spring’s customer support personnel will proactively alert ComEd of Priority 1and 2 incidents that Silver Spring discovers in the course of its monitoring and management responsibilities under ***, as well as ***, receiving and responding to: (a) reports of unplanned loss or degradation of service of the ***; (b) requests for minor discretionary changes to ***, including but not limited to access-related requests such as new user setup or password resets); and (c) non-repetitive requests for technical support ***. As vendor support, Silver Spring’s customer support personnel will respond only to *** submitted by ComEd’s Authorized Support Supervisors after such supervisors have attempted to resolve reports, requests, or inquiries from ComEd’s other staff. Silver Spring will provide support and resolution of errors within the timeframes and in the manner specified in ***. Silver Spring will report to and follow-up with ComEd regarding Incidents Silver Spring finds that materially affect ComEd’s implementation within the same timeframes and manner. ComEd will cooperate with *** that Silver Spring makes as part of its efforts to respond to ***.

1.3. Classification of Incidents, Service Requests, and Support Inquiries. When ComEd submits an Incident Report, Service Request or Support Inquiry, ComEd will reasonably assess its urgency according to the appropriate priority levels defined in Table 2. Silver Spring will confirm the priority level and the Parties will resolve any disagreement regarding the priority as soon as is reasonably practical.

 

 

 

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***,***,***

 

 

***.***,***,***.

***,***,***.

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1.4. Error Management. As noted in Table 2 above, to the extent Silver Spring determines that the root cause (or suspected root cause) of a reported Incident is an Error, Silver Spring will open a report (“Error Report”) and further investigate it for resolution as set forth in Table 3 below, using reasonable efforts consistent with Table 3 to investigate and resolve Errors. Table 3 does not include Response Times, as response requirements are specified in Table 2, whether or not the Incident was known to be caused by an Error at the time of response. Target resolution timeframes in Table 3 do not include the time that elapsed before a problem was identified as an Error.

1.5 Classification of Errors. When Silver Spring identifies an Incident as an Error, Silver Spring will reasonably classify the Error in accordance with the Severity levels defined in Table 3. The Parties will resolve any disagreements about the Severity level as soon as is reasonably practical.

***,***

 

1.6. ComEd’s Responsibilities. Except for Software which Silver Spring is providing as a Managed Service or SaaS basis, ComEd acknowledges that ComEd is responsible for acting on and implementing the support solutions Silver Spring recommends or provides, including workarounds approved by ComEd.

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1.7. Availability of Upgrades. Silver Spring will provide Upgrades to ComEd electronically for installation and implementation by Silver Spring, as provided in this SOW, if and when released by Silver Spring.

1.8. Limits to Version Support. If ComEd refuses Upgrades to the version of GridScape Software it is using, Silver Spring will provide Software Support Services for that Major Release for a period of the lesser of: (a) the remainder of the Application Management services term as defined in Attachment 2, or (b) *** years (commencing on the date that the Major Release is made available to ComEd). Unless ComEd refuses Upgrades (or there is any gap in Application Management services enrollment), Silver Spring will provide Software Support Services for as long as ComEd enrolls in Solution Services. For clarity, when ComEd signs the Agreement and takes its first delivery of GridScape Software, the then-current Major Release will be supported for *** years from that initial Delivery Date. Subsequently, Major Releases will be supported for *** years from their general availability date. ComEd may purchase an additional *** years of Major Release version support (“Extended Software Support”) for the fee specified in Attachment 1. Notwithstanding the foregoing, Silver Spring agrees to provide *** of extended Software Support (up to *** years of Software Support) during the *** term of this SOW.

2. LIMITATIONS. Software Support Services will not be provided for use of Software in a manner inconsistent with the applicable Documentation or with products or software not intended by the Documentation.

3. USE LIMITATIONS; TITLE; INTELLECTUAL PROPERTY INDEMNITY; LIMITATION OF LIABILITY. ComEd’s use of all GridScape Software and Upgrades provided under this Attachment will be governed by the Master Agreement, including but not limited to the terms relating to license and ownership rights, use limitations, intellectual property indemnity and limitations of liability.

4. TERM AND TERMINATION. This Attachment will commence on the date Silver Spring makes the GridScape Software available to ComEd and will remain in full force and effect for an initial term of *** years, unless sooner terminated in accordance with this Attachment or the terms set forth in the Master Agreement. This Attachment will automatically terminate if the Master Agreement is terminated in accordance with its terms.

[End]

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Attachment 6 to DA SOW

Service Levels and Service Level Credits

 

 

***

 

 

 

 

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This Statement of Work (“SOW”) is entered into us of October [17], 2012 (“SOW Effective Date”) between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”). This SOW is subject to the terms of the Amended and Restated Services and Material Agreement dated as of the date hereof, between Silver Spring and ComEd (the “Master Agreement”). Capitalized terms used but not defined in this SOW have the meaning assigned them in the Master Agreement. In the event that there is a conflict or inconsistency between this SOW and the Master Agreement, the terms of the Master Agreement will prevail unless specifically stated in this SOW to the contrary. Notwithstanding the foregoing, in the event of any conflict or inconsistency between an ComEd Responsibility or a Joint Responsibility designated under this SOW and an ComEd Responsibility designated in the Master Agreement, the terms of this SOW will control with regard to such ComEd Responsibility. To the extent a task is designated as a Joint Responsibility in this SOW, the portion of such task to be performed by ComEd shall be deemed an ComEd Responsibility for which this SOW will control.

Definitions

“Data Extract Project” means the project undertaken by ComEd under this SOW. The Data Extract Project comprises all responsibilities assigned to the Parties under this SOW. Data Extract Project does not include ***.

“Anchor Read” means the *** in the *** as installed in the ***.

“Back Office” means Silver Spring’s ***, including without limitation, servers housing *** and *** (including ***).

“Interval Read” means, for ***, the *** in the channels in the ***, which are recorded on the***.

“Statement of Work” or “SOW” means this Statement of Work.

***,***means ***.

Summary

Silver Spring Networks has copied ComEd *** events to a *** appliance for the purpose of jointly prototyping analytics capabilities with ComEd. ComEd has requested these data be extracted and delivered in electronic format to ComEd to support analytics development with a third-party vendor.

Given these data were created for prototyping purposes and have not been used for several months, it is unknown exactly how far back the data goes, what its current state is, or if any gaps are present. This SOW covers all work to analyze, build, and test a one-time data extract from the ***.

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Services

Task 1 - Program Management

Task 2- UIQ Historical Data Extract

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General Assumptions

Approvals

IN WITNESS WHEREOF, the parties hereto have caused this SOW to be executed by their duly authorized representatives as of the SOW Effective Date.

 

 

[End]

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***.

***.

***.

 

 

 

 

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This Statement of Work #N-4 (“SOW N-4”) is entered into as of April_ 2014 (“SOW N-4 Effective Date”) between Silver Spring Networks, Inc. (“Silver Spring”) and Commonwealth Edison Company (“ComEd”). This SOW N-4 is subject to the terms of the Amended and Restated Services and Materials Agreement between Silver Spring and ComEd dated January 25, 2012 (“Master Agreement”). Capitalized terms used but not defined in this SOW N-4 have the meaning assigned them in the Master Agreement. In the event that there is a conflict or inconsistency between this SOW N-4 and the Master Agreement, the terms of this SOW N-4 will control.

Summary

This SOW N-4 describes the Services Silver Spring will provide to ComEd to migrate all delivered *** from the ***. Silver Spring will work with *** to change *** (as defined herein) *** (as defined herein) and with *** to change *** (as defined herein). Additionally, Silver Spring will work with both *** to establish *** to allow the data to traverse from the *** back to the ***. Upon Silver Spring’s request, ComEd shall issue to *** allowing Silver Spring to work with *** for purposes of this SOW N-4.

The Parties acknowledge that performing these changes to Access Points already deployed by ComEd may result in a subset of Access Points becoming non-functional. If such Access Points become non-functional, ComEd’s exclusive remedy and Silver Spring’s sole obligation will be to repair or replace such non-conforming Access Points in accordance with Section 4.1.1 of the Master Agreement. For purposes of clarity, Silver Spring’s obligation to repair or replace Access Points is limited to those Access Points that become non‑functional as a direct result of Silver Spring’s work pursuant to this SOW N-4.

Definitions

“Access Point Name” or “APN” means the name of a gateway ***.

“AMI” or Advanced Metering Infrastructure” means the integration of advanced metering data from the meter all the way through to back office systems.

“DA” or “Distribution Automation” means the intelligent control and monitoring of the electrical power grid down to the distribution and substation level.

“Internet Protocol” or “IP” means the principal communications protocol in the Internet protocol suite for relaying datagrams across network boundaries.

“***Access Point” means a ***

“***Access Point” means a ***.

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Project Description

Exhibit 2 contains a list of ***.  There are *** that are in the ordering process that will also be a part of this Project, for a total of ***. This Project will focus on the migration of the *** already delivered as a part of the *** to a private ***, however if any other ***, they will be included in this scope of work.

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There are two goals of the ramp up stage. The first goal is to fine tune the *** to develop the *** documents for two types of ***. ComEd will follow the standard *** for any *** that fails the migration procedure subject to Section 1.1.2.b above.

The second goal of this stage is to complete the migration of a set of *** identified for this stage of the Project with primary focus on ***. This stage will include migration of *** on both the ***.

General Assumptions

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Approvals

IN WITNESS WHEREOF, the parties hereto have caused this SOW N-4 to be executed by their duly authorized representatives as of the SOW N-4 Effective Date.

 

[End]

 

 

 

 

 

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***:***.

***:***.

***:***:***.

***:***,.

 

 

***:***.***.

***:***.***.

***:***.

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