Welcome, and thank you for signing up for the Spruce Flow™ software as a service (the “SpruceFlow Software,” the “Software,” or the “Service”).  This agreement sets forth the terms and conditions for use of the Software.  By clicking the “I have read and agreed’ checkbox displayed as part of this sign up process for the SpruceFlow Software (or, if you signed up prior to [October 10, 2016], its predecessor software such as the CPF Tools® Software pursuant to the below terms), you agree to this agreement governing your use of the Software, including offline components. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE THAT AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT SELECT THE ‘I HAVE READ AND AGREED’ BUTTON AND DO NOT USE THE SERVICE.

This agreement, and any materials available on the Spruce corporate website specifically incorporated by reference, as such terms or use and materials may be updated from time to time (this “Agreement”) is entered into between you, the company or entity that is the user of the Software and is agreeing to this Agreement (“Licensee”, “Channel Partner,” “you” or “your”), and Kilowatt Financial, LLC, a Spruce Finance company, on behalf of ourselves and our affiliates and subsidiaries that offer Channel Partner Agreements  (collectively, “Spruce”, “we” “us” or “our”).  Our affiliates and subsidiaries include but are not limited to Spruce Finance Inc., CPF Asset Management, LLC, CPF Market, LLC, CPF Capital & Trading, LLC, and Viewtech Financial Services, Inc.

You further agree and acknowledge that the SpruceFlow Software is the successor software under the applicable Channel Partner Agreement to (1) the CPF Tools® Software (the rights to which were formerly held by our affiliate Clean Power Finance Inc.); and the CPF Market® Platform (the rights to which were formerly held by our affiliate CPF Market, LLC) and (2) the Viewtech Contractor Portal (currently owned by our affiliate Viewtech Financial Services, Inc). The terms of this Agreement are intended to operate in conjunction with the terms of the applicable Channel Partner Agreement(s);furthermore, the terms of this Agreement replace and supersede any prior terms of use that may apply to the software, including but not limited to the Consolidated Subscription Agreement.  In the event of any conflict between the terms of this Agreement and the terms of an applicable Channel Partner Agreement, the Channel Partner Agreement shall govern.

Unless otherwise defined herein, the following definitions shall apply:

“Authorized User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by us at your request).

“Channel Partner Account” means that your account with us is pursuant to a Channel Partner Agreement(s), and no subscription fees are applicable in accordance with the terms of the Agreement.

“Channel Partner Agreement” means any agreement in effect between you and a Spruce affiliate governing your participation in a Spruce solar financing program, including but not limited to a Standard Master Installation Contract, a Transaction Services Agreement, an Originator partner agreement, a Spruce Solar or Energy Efficiency Finance Program Agreement and/or Master Purchase Sale Agreement, and any addenda or amendments thereto.

“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;

“Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service.

“Direct Competitor” means any person or entity that offers or provides either (i) software or information management services that are intended for use or are likely to be used by installers of clean energy systems, energy efficient home improvement or otherwise in connection with the installation of clean energy systems or energy efficient home improvements; or (ii) financing solutions for residential or commercial clean energy systems or energy efficient home improvements, including but not limited to loans, equipment leases or power purchase agreements;

“Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Service;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

“License Administrator(s)” means the primary designated Authorized User, designated by you who is(are) authorized to administer your use of the Services.

“Technology” means all of our (including our affiliates’ and subsidiaries’)  proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) we make available to you in providing the Service.

“Service(s)” means the specific edition of Spruce’s online services developed, operated, and maintained by Spruce, accessible via http:// sales.sprucefinance.com and http://tools.sprucefinance.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by, to which you are being granted access under this Agreement, including our Technology and the Content. The CPF Tools Software and CPF Market Platform are expressly deemed to be a part of and incorporated into the Services, to the extent that we continue to operate them and make them available to you.

“Subscription Account” means that your account with us is subject to payment of subscription fees; and you do not have applicable Channel Partner Agreement(s).

2. About the Platform

From time to time, we will provide you with use of the Service, including a web interface and data encryption, transmission, access and storage, as well as access to consumer financing (subject to the terms of the applicable Channel Partner Agreement). Your registration for, or use of, the Service will be deemed to be your agreement to abide by this Agreement including any materials available on the Spruce corporate website incorporated by reference herein, including but not limited to the Spruce privacy and security policies.

3. Privacy & Security; Disclosure

Our privacy and security policies may be viewed at https://sprucefinance.com/about/terms-conditions.

We reserve the right to modify our privacy and security policies in our discretion from time to time. Because the Service is a hosted, online application, we occasionally may need to send you important announcements regarding the operation of the Platform.

4. License Grant & Restrictions

We hereby grant you a non-exclusive, non-transferable, revocable worldwide license to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement and if applicable, your current Channel Partner Agreement(s). We and our licensors reserve all rights not expressly granted to you.  You may not access the Service if you are a Direct Competitor of Spruce, except with prior written approval by an authorized officer of Spruce who has been informed that you are a Direct Competitor. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.  You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way except with our written consent; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device except with our written consent; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.  You may use the Service only for your internal business purposes and may not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

5. Your Responsibilities

You are responsible for all activity occurring under your Authorized User accounts and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You will: (i) notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to us immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another of our users or provide false identity information to gain access to or use the Service.

6. Account Information and Data

You will have sole responsibility for, and we will have no responsibility for, the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your Data.  We will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your Data. We reserve the right to withhold, remove and/or discard your Data without notice for any breach. Upon termination for cause, your right to access or use your Data immediately ceases, and we will have no obligation to you with respect to your Data.

7. Intellectual Property Ownership

We alone (and our licensors, where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to our Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, our Technology or the Intellectual Property Rights we own. Our name, our logo, and the product names associated with the Service are trademarks of us or third parties, and no right or license is granted to use them.

8. Charges and Payment of Fees

If you have a valid Channel Partner Agreement, we will waive any subscription fees applicable to your use of the SpruceFlow Software in conjunction with such Channel Partner Agreement.  Such waiver shall continue for the duration of any “tail” period after termination or expiration of a Channel Partner Agreement to permit you to finish all obligations under such Channel Partner Agreement.

If you do not have a valid Channel Partner Agreement (ie a subscription account), we reserve the right to introduce and modify fees and charges  at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.

9. Excess Data Storage Fees

For paid subscription accounts, we may designate a maximum disk storage space provided to you at no additional charge per Authorized User. If the amount of disk storage required exceeds these limits, you may be charged additional storage fees or denied additional storage. We will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by us to so notify you will not affect this Agreement. We reserve the right to establish or modify our general practices and limits relating to storage of Customer Data.  Storage Fees shall be waived to the extent excess storage is required for your participation under a Channel Partner Agreement.

10. Contact Information and Renewal

You agree to provide us with complete and accurate information about the Licensee and each Authorized User. This information includes the legal company name, street address, e-mail address, and name and telephone number of an authorized contact and administrator for the Licensee; and applicable information for each Authorized User. You agree to provide updates to this information within 30 days of any change to it. If any contact information you have provided is false or fraudulent, we reserve the right to terminate your access to the Service in addition to any other legal remedies.

11. Suspension

In addition to any other rights granted to us herein, we reserve the right to suspend or terminate this Agreement and your access to the Service if you breach the terms hereof.

12. Termination for Cause

Any breach of your obligations or unauthorized use of the Technology or Service will be deemed a material breach of this Agreement. We, in our sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, we may terminate a free account at any time in our sole discretion. You agree and acknowledge that we have no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

13. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

14. Indemnification

You will indemnify and hold us, our licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of your Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Authorized Users of this Agreement, provided in any such case that we (a) give written notice of the claim promptly to you; (b) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release us of all liability and such settlement does not affect our business or Service); (c) provide to you all reasonably available information and assistance; and (d) have not compromised or settled such claim.

15. Disclaimer of Warranties

WE AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. WE AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SPRUCE.

16. Internet Delays; Accuracy of Information

Service availability and uptime are a priority for us, as is providing accurate data within the Service. However, the Service may be subject to the limitations, delays, and other problems inherent in the use of the Internet and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems. Further, while we make reasonable efforts to ensure the accuracy of the information provided through the Service, inaccuracies may arise. Therefore, we are not responsible for any problems or losses resulting from or arising out of any inaccuracy of information provided or made available through the Service.

17. Limitation of Liability

IN NO EVENT WILL OUR AGGREGATE LIABILITY EXCEED $5,000. IN NO EVENT WILL WE AND/OR OUR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

18. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

19. Notice

We may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in account information we have on file for you, or by written communication sent by first class mail or pre-paid post to your address on record in account information we have on file for you. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or immediately upon sending (if sent by email). You may give notice to us (such notice will be deemed given when received by us) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Kilowatt Financial, LLC, c/o Spruce Finance Inc., 201 Mission Street Suite 1100, San Francisco, CA 94105, Attn: Legal Department; or by email to legal@sprucefinance.com.

20. Modification to Terms

We reserve the right to modify the terms and conditions of this Agreement or our policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on (or via link posted to) the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes will constitute your consent to such changes.

21. Assignment; Change in Control

This Agreement may not be assigned by you (including in connection with your merger or consolidation with another party or the acquisition of all or substantially all of your assets or business by another party) without our prior written approval. Any purported assignment in violation of this section will be void. Any actual or proposed change in control of you that results or would result in a Direct Competitor directly or indirectly owning or controlling 50% or more of you will entitle us to terminate this Agreement for cause immediately upon written notice.  We may assign this Agreement without your consent.

22. General

This Agreement will be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.  No standard provisions, text, terms or conditions set forth on any other purchase order, preprinted form or document will add to or vary the terms and conditions of this Agreement. Nothing set forth in any other document that pertains to the subject matter of this Agreement (including any Channel Partner Agreement(s)) will, if unfavorable to us, be enforceable against us unless such document is signed by an authorized officer of Spruce and has not expired or been terminated.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Spruce or any of its affiliates as a result of this agreement or use of the Service.  Our failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. This Agreement comprises the entire agreement between you and us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.  The following provisions of this Agreement will survive the termination of this Agreement for any reason: Sections 6 (Account Information and Data), 7 (Intellectual Property Ownership), 6 (Third Party Interactions), 14 (Indemnification), 15 (Disclaimer of Warranties), 16 (Internet Delays; Accuracy of Information), and 17 (Limitation of Liability).

23. Retroactive Effect

If at the time you accept this Agreement you are already registered with the Service or were previously a subscriber to the Service subject to the terms and conditions of an earlier use agreement, you agree that all of the provisions of this Agreement will be effective retroactively as of the date on which you first subscribed to the Service and will replace and supersede any prior subscription agreement you may have already accepted.

Connect with Spruce

For information about SpruceFlow contact support@sprucefinance.com

Kilowatt Financial, LLC | a Spruce Finance company
201 Mission Street Floor 11 | San Francisco CA 94105 | Ph 866-525-2123