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BigBelly Service Agreement ao�� 7o6, igbeIIy CHANGE YOUR SPACE BIGBELLY SERVICE AGREEMENT Agreement No. Full Legal Name: City of Miami Beach Legal Contact: Billing Address: 1700 Convention Center Drive Billing Contact: Miami Beach,FL 33139 US Billing Phone: Billing Email: sSales Tax ►1 Exempt (Attach Certificate) TIN or FEIN: C Status: ❑ Non-Exempt E.( Insurance: ■ Self Insured ❑ Insurance Certificate Attached Shipping Address: Shipping Contact: Shipping Phone: Shipping Email: Services Schedule • Term Monthly -Monthly - Fee System Rate 24 Bigbelly+Smartbelly Double Station—Rear Panel Standard 12 Months $ 128.00 $3,072.00 Energy with side message panels("Station(s)") (Note: advertising anywhere on the Station(including message panels) shall be prohibited; only the Bigbelly logo may be displayed on the Station) Faceplate 1:Black hopper;Faceplate 2: Single Stream Program includes the following services: • CLEAN Console and CLEAN Mobile Software Licenses (collectively,CLEAN Software") • Warranty(parts and labor—including system battery) • Shipping,Installation and Set-up • CLEAN Software and Station Hardware Training The Station(s)and CLEAN Software for use at each Station shall be collectively referred to herein as the"Equipment". The Equipment and other services being provided to the City by Bigbelly under this Agreement, including warranty and training, shall be collectively referred to herein as the"System". Total Monthly System Cost including insurance for Equipment(Paid in advance monthly) $3,072.00 This Service Agreement (the "Agreement"), made and entered into as of Veceflklc 2.Of)(the "Effective Date"), by and between the customer identified above ("Customer" or the "City") and Big Belly Solar, Inc. ("Bigbelly", "Vendor") a Delaware corporation located at 150 A Street, Suite 103, Needham, MA 02494, and incorporates herein by reference the Terms and Conditions attached hereto as Attachment A. Vendor and Customer shall each be referred to herein as a"Party." This Agreement may be executed in counterparts, each of which shall be an original, but which together shall constitute one instrument. Intending to be legally bound, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth above. The City Manager's designee for purposes of this Agreement shall be the City's Public Works Department Director. Bigbelly Service Agreement BBSA20150714 Page 1123 , CITY OF MIAMI BEACH BIG BELLY SOLAR,INC. Alli, ,J- ,.A ('/ ,04- B . B By: Y• Philip Leve, /f'( / / -- Printed Name: X72 j 7 ' Title: C ATTEST: i' __''�'.� .....���y,�11111+ WITNESS: N .. ....... , , 4 - B : di Irk I 1� •• ,,, - �� r B LL'rte/ R. el E. Granado, C'i, k -':;.- m,...._ INCORP ORATED: ,' Printed Name:YU.i& L 44 eS -. viiti 4: �S... i ••.-,�())'. Title: Skil',.�' a'Yl p .e.,r I 4141PH 2‘6 ■4g° Date: l /3---- Date: //-Z6--?..0I APPROVED AS TO FORM& LANGUAGE & FOR ECUTION C)A--AtI--- 1216 City Attorney . to !.,., Bigbelly Service ,'gree, ent BBSA20150715 ,, a • e 2 0 23 1 1 ATTACHMENT A BIGBELLY SERVICE TERMS AND CONDITIONS For purposes of this Attachment A, the "Agreement" shall mean the Bigbelly Service Agreement signed by the parties, including this Attachment A. The meaning of capitalized and undefined terms appearing in these Terms and Conditions shall be as set forth in the Bigbelly Service Agreement unless otherwise indicated herein. 1.0 Term of Agreement 1.1 Term. As outlined in the Services Schedule, the Term of this Agreement ("Term") will commence on the Acceptance Date, as defined hereinafter, and will expire one (1) year from the Acceptance Date. The Acceptance Date shall be defined as the date when all of the following has occurred: (1) all of the Equipment ordered pursuant to this Agreement has been delivered to the Customer at the receiving location designated by Customer; (2), all of the Equipment has been installed at the agreed upon Equipment Sites (as defined in Section 3.1(D)) and are operational; (3) all City designated personnel (as set forth in Section 3.1(E)) have been trained to operate the Equipment; and (4) the Equipment has been accepted by Customer in writing, as evidenced by a signed Acceptance Certificate, in the form attached hereto as Attachment C. The parties agree to cooperate so that the Acceptance Date does not exceed three (3) weeks after the date all Stations are delivered to Customer. Except to the extent otherwise provided herein, the Term is non-cancelable. 2.0 Fees Payable by Customer 2.1 Fees. In compensation for the Bigbelly System described in this Agreement, Customer agrees to pay the Service Fee (inclusive of the Equipment Insurance Cost for personal property described in Subsection 3.1(K) (4))and any fees payable for services specified in the Agreement Schedule (collectively, "Service Fee" or "Fee"). Bigbelly shall submit invoices to Customer during the term of this Agreement per the payment terms outlined in the Agreement Schedule. Customer shall pay each invoice within 15 days from the date of invoice. All payments shall be made by check or, at Customer's option, may be automatically deposited to the account of Bigbelly. Any failure by Bigbelly to provide an invoice in a timely manner shall not affect Customer's obligation to make payments. Whenever any sum due hereunder is not paid within fifteen (15) days from the due date (late payment(s)), Customer agrees to pay to Bigbelly, on the next due date, a late charge equal to five percent (5%) of the amount of such late payment (but not less than $10.00), but only to the extent permitted by Florida law. Late payments shall be subject to interest at the rate of eighteen percent (18%) per annum. Customer's payments obligations under this Agreement are absolute, unconditional, irrevocable, non-cancelable (except as expressly set forth herein) and not subject to any right of set off, counterclaim,deduction, or defense. 2.2 Service Fee Prices. Service Fees are guaranteed for the Term of the Agreement. 3.0 Obligations of the Parties 3.1 Bigbelly's Obligations (A)Equipment; Software; Ongoing Services. Bigbelly will supply the Equipment identified in the Agreement Services Schedule on a rental basis to Customer for the Term of the Agreement. The initial Bigbelly Equipment will be new. (B)CLEAN Software License. The CLEAN Software License Agreement includes communication services and access to the CLEAN Management Console and CLEAN Mobile. Customer's use of the Software is subject to the then current CLEANTM Software License Agreement. Bigbeily Service Agreement BBSA20150715 P g e 3 23 f r (C)Equipment Delivery. Bigbelly will deliver the Equipment to receiving dock or to a location mutually agreed upon by the parties before the shipment. Bigbelly hereby warrants that as of the delivery date of its Equipment, the Equipment shall be: (a) good and merchantable, (b) free from defects and malfunctions, (c) free of liens, security interests or other encumbrances, (d) complies with all applicable laws, rules, regulations and orders, and (e) is fit for the purpose for which the Equipment is intended. (D)Installation. Bigbelly waste and recycling Stations will be installed by Bigbelly at mutually agreed upon locations, including semi-permanent attachment to the ground ("Equipment Sites"), as more fully set forth in Attachment C. Installation will be in accordance with the delivery and installation schedule agreed to by the parties, and memorialized in writing, as Attachment C-1, executed by Bigbelly and the City Manager, on behalf of Customer. (E)Training. Bigbelly shall, at its expense, provide Customer Equipment and Software training, ("Customer Training Plan") to the personnel designated, in writing, by the City Manager or City Manager's designee prior to the Acceptance Date, and as necessary, during the Term of the Agreement. An itemization of the topics which will be covered under the Customer Training Plans are set forth in Attachment D, attached hereto and incorporated herein by reference. The parties shall agree upon the location and method of training. (F) Defective Part Replacement and Repair Services. All Equipment failures caused by manufacturer defects, any repair or replacement required by routine maintenance (as identified by Bigbelly), or any repair which may be required so that the Equipment operates as intended, will be repaired by Bigbelly (including parts and labor) at no cost to Customer. Bigbelly agrees to dispatch a Field Service Professional (as defined in Section 3.1(H)) within one (1) business day, complete any repairs within two (2) business days, and replace any Equipment within five (5) business days. Typical repairs which Bigbelly will provide at no cost to Customer include the following: (1) Battery replacement(when battery fails due to normal end of life) (2) Hopper handle replacement (3) Side skin replacement (4) Level sensor module replacement (5) Door lock replacement (6) Circuit board reseating/replacement If Bigbelly Field Service Professional is dispatched and Bigbelly determines the issue is due to failure of Customer to provide best efforts in connection with the Customer's Repair Responsibilities (as defined in subsection 3.2(E)), to Customer error, or to damage as described in Section 4.2 below, Bigbelly reserves the right to bill Customer for the necessary parts. Furthermore, if Bigbelly had to replace a part and determines that the original part failed due to misuse or abuse, Customer shall be responsible for payment of the cost for the replacement part. (G)Third Party Damage. All repairs and part replacements required as a result of external trauma or damage (including but not limited to vehicle strikes or vandalism) (hereinafter referred to as "Third Party Damage") shall be performed by Bigbelly, with the Customer being responsible for paying for the cost of any replacement parts and Bigbelly paying for the installation and repair cost. If the Third Party Damage results in a Total Loss (as defined in Section 4.2) of the igbelly Service Agreement BBSA20150715 P .=A g e 4 123 Equipment, which is not covered under Bigbelly's all-risk loss or damage insurance policy, Customer shall be responsible for paying the cost of replacing said Equipment, based on the FMV Amount (as defined in Section 4.2). Notwithstanding the foregoing, Customer shall not be required to replace any Equipment at a particular Equipment Site more than one (1) time. Thereafter, the City Manager, in his sole discretion, may choose to remove or move the Equipment to a different site. Notwithstanding the foregoing, any loss or damage to the Equipment which is a covered loss under Bigbelly's all-risk loss or damage insurance policy, as required pursuant to Section 3.1(K) (4), shall be the responsibility of Bigbelly. (H) Customer Support and Equipment Maintenance. Except for losses described in Section 4.2 below, Bigbelly will maintain the Equipment in good working order and operational condition in accordance with best practices. Technical Customer Support ("Bigbelly Customer Service") is available Monday through Friday, 7 am to 7 pm EST to guide Customer in troubleshooting any minor common operating issues, including Customer Repair Responsibilities, and placing repair service requests. In addition, Bigbelly maintains a network of trained Field Service Professionals, in Miami-Dade County, Florida, available for dispatch upon a Customer's request to investigate and resolve issues in the field. Equipment batteries will be replaced by Bigbelly at no cost to Customer during the Term of the Agreement, but no less frequent than necessary for the normal operation of the Equipment. (I) Removal. Upon termination, Bigbelly will de-install and remove the Equipment at Customer's expense, in an amount not to exceed $300.00 per Equipment. (J) Subcontractor Services. Bigbelly may contract with third parties to provide Ongoing Services. (K) Insurance. Bigbelly and/or any of its subcontractors shall maintain and carry in full force during the Term the following insurance: 1. Worker's Compensation Insurance as required by Florida, with Statutory limits and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 2. Commercial General Liability Insurance on an occurrence basis, including products and completed operations, contractual liability, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence, and $2,000,000 general aggregate. (The general aggregate shall apply separately to this Agreement.) 3. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used in connection with the work, in an amount not less than $1,000,000 combined single limit per occurrence, for bodily injury and property damage. 4. All risks property insurance, including earthquake, flood, named windstorm, containing a waiver of subrogation rights which Bigbelly insurers may have against Customer and against those for whom Customer is in law responsible including, without limitation, its directors, officers, agents, and employees, (without contribution). Such insurance shall insure the System in an amount not less than the full replacement cost thereof (new). Such policy shall include Customer as additional insured. Additional Insured Status The City of Miami Beach must be covered as an additional insured with respect to liability arising out of work or operations performed by or on behalf of Bigbelly. Bigbeily Service Agreement BBSA20150715 Page 5123 Waiver of Subrogation Bigbelly hereby grants to City of Miami Beach a waiver of any right to subrogation which any insurer of Bigbelly may acquire against the City of Miami Beach by virtue of the payment of any loss under such insurance. Bigbelly agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Miami Beach has received a waiver of subrogation endorsement from the insurer. Other Insurance Provisions 1. For any claims related to this Agreement, Bigbelly's coverage shall be primary insurance as respects the City of Miami Beach, its officials, officers, employees, and volunteers. Any insurance or self-insurance maintained by the City of Miami Beach shall be in excess of Bigbelly's insurance and shall not contribute with it. 2. Each policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City of Miami Beach. Acceptability of Insurers Insurance is to.be placed with insurers with a current A.M. Best's rating of no less than AN IL unless otherwise acceptable to the City of Miami Beach Risk Management Office. Verification of Coverage Consultant shall provide the required insurance certificates, endorsements or applicable policy language effecting coverage required by this Section. All certificates of insurance and endorsements are to be received prior to any work commencing. However, failure to obtain the required coverage prior to the work beginning shall not waive the Consultant's obligation to provide them. The City of Miami Beach reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Special Risks or Circumstances, The City of Miami Beach reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. Certificate Holder CITY OF MIAMI BEACH do PROCUREMENT DEPARTMENT 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FL 33139 Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation under this section or under any other section of this agreement. L. Reporting/Monitoring of System. Within thirty (30) days from the end of each month during the Term, Bigbelly will employ best efforts to provide Customer with a report or the capability to generate a report, using reasonable criteria requested by Customer, at Customer's sole discretion, showing the service levels and station performance levels, as well as the recycling levels. Additionally, Customer shall be given access to the Station's CLEAN Software through an Internet Protocol Address (IPA) or dashboard accessibility so that Customer may monitor the effectiveness of the System. Bigbeily Service A s,reement BSA20150715 Page 6 123 1 r 3.2 Customer's Obligations (A)Customer agrees that Bigbelly's ability to perform the Services under the Agreement in a timely manner is dependent upon access to Customer's installation information and locations. Deadlines imposed by this Agreement shall be extended in the event that Customer fails to provide such information and/or access in a timely manner. (B)Customer agrees to pay for the shipping expense of the System, in the lump sum of$2,819.00, and to provide an appropriate facility that can received inspect and stage all Bigbelly Equipment until the Equipment is installed. (C) Customer agrees to provide a poured concrete pad if the intended installation surface does not meet Bigbelly specifications. If Customer's installation surface does not meet such specifications, the Customer will be provided an estimate for approval of any additional cost associated with Bigbelly's efforts to properly prepare the surface, which will be at Customer's expense. It is the Customer's responsibility to remove at Customer's expense, existing bins or any other items from the locations where Bigbelly stations will be installed. Notwithstanding the foregoing, Customer reserves the right to change the location of an Equipment site, if, in the City Manager's sole discretion, the site preparation cost or other installation factors are not acceptable to Customer. (D)Unsafe Condition. Customer agrees to provide immediate notice to Bigbelly with respect to any damage or other event which causes the Equipment to pose a public safety issue or create unsafe operating conditions. Bigbelly authorizes the City to remove from the public space any damaged equipment that poses an immediate threat to the public or operator safety ("Unsafe Condition"). Upon receipt of notification of said Unsafe Condition, Bigbelly will dispatch a Field Service Professional, repair any Equipment, or replace any Equipment that Customer has identified as causing an Unsafe Condition, within the timelines set forth in the preceding subsection 3.1(F). (E)Automated System Monitoring and Customer Support Escalation. Customer will respond to issues they observe or are notified of via automated CLEAN alerts such as a dirty sensor alert or minor operational issues such as a jammed hopper or a Station is not connecting to the network due to location or placement of Station (collectively "Customer Repair Responsibilities). Customer will use best efforts to promptly resolve these Customer Repair Responsibilities and may contact Bigbelly Customer Service to receive troubleshooting assistance and instructions for proper handling. If Customer's efforts do not resolve these Customer Repair Responsibilities, or the alert relates to a maintenance issue or a repair issue (as described in the preceding subsections 3.1(F) and 3.1(G), the Customer needs to inform Bigbelly of the action taken and the status of the Station, and Bigbelly will investigate and repair the Station at Bigbelly's expense. Notwithstanding the foregoing, if the issue is found to be due to Customer not taking ordinary precautions to correct any of Customer's Repair Responsibilities, , then Bigbelly reserves the right to bill customer for reasonable and customary incurred expenses. If Customer cannot resolve a network interruption using the guidelines provided by Bigbelly, Customer will inform Bigbelly and Bigbelly will investigate at Bigbelly's cost. (F) Customer is a Florida municipal corporation and self-insures for liability coverage. Customer does not carry insurance with an insurance company, so Customer cannot provide Bigbelly with a certificate of insurance. However, in compliance with and subject to limitations of Florida Statutes, Section 768.28 and 440.09, provisions have been made by Customer to process any liability claims that may arise and the same protection will be afforded as would be provided by a policy of insurance. Upon the request of Bigbelly, Customer will provide a letter confirming self-insurance coverage for the liability coverage. Bigbelly Service Agreement BBSA20150715 Page 70 23 (G) Customer reserves the right to change Equipment Sites, at the City Manager's sole discretion and at Customer's sole expense. Within five (5) business days following relocation of any Equipment, Customer shall notify Bigbelly in writing of the specific location of such Equipment. 2 Equipment Rental Terms and Conditions 4.1 Title To and Use of Equipment (A)Title. As further set forth in Section 5.4 below, Bigbelly is and will at all times be the sole owner of the Equipment. Customer shall not acquire any title or interest, legal or equitable, in the Equipment, other than the use rights set forth in this Agreement. In the event this Agreement is deemed to be disguised sale, Customer hereby grants to Bigbelly a security interest in the Equipment(and all accessions thereto and substitutions therefore) and the proceeds thereof. (B)Use of Equipment. Customer shall use the Equipment solely for waste collection and recycling operations. Customer shall ensure safe operation of the Equipment by trained personnel. Customer and Bigbelly shall comply with all Bigbelly and governmental guidelines, laws, rules, regulations and ordinances applicable to the use and operation of the Equipment. The Equipment cannot be used for advertising purposes and may only contain the Bigbelly logo. (C)No Pledge. Customer shall not pledge, lend, create a security interest in or permit any lien to attach to the Equipment or any part thereof or attempt in any other manner to dispose the Equipment. (D)No Attachments. Customer represents and warrants that the Equipment is, and shall at all times remain, fully removable personal property notwithstanding any affixation or attachment to real property or improvements. Customer shall give Bigbelly immediate notice of any such attachment or other judicial process affecting the Equipment and shall immediately take all action necessary to remove such attachment and terminate the effect of such judicial process on the Equipment. (E)Equipment Inspection Rights. Bigbelly and its agents shall have the right to enter any premises where Equipment is located to inspect such Equipment at any time with reasonable advance written notice to Customer. 4.2 . Risk of Loss. From the Acceptance Date of the Equipment by Customer until the expiration of the Term, Bigbelly will bear the entire risk of whole or partial loss, destruction or damage to the Equipment resulting from causes, including earthquake, flood, named windstorm, defects, flaws or malfunctions in the Equipment, requisition of the Equipment by any governmental entity, or expropriation or the taking of the Equipment by eminent domain or otherwise ("Bigbelly Losses); however, excluding any losses resulting from Customer's or its employees', contractors' or agents', actions or omissions with respect to the Equipment ("Customer Losses")(collectively, Bigbelly and Customer Losses shall be referred to herein as a `Loss'). Notwithstanding the forgoing, any Loss covered under Bigbelly's all-risk loss or damage insurance policy, as required pursuant to Section 3.1(K) (4), shall not be included as a Customer Loss. Customer will give Bigbelly written notice within 10 days of any Loss (`Loss Notice'). Except as provided in this section, no Loss will condition, reduce, or relieve Customer's rental obligations, including its obligation to pay any fees pursuant to the Agreement and any Attachments thereto. Notwithstanding the foregoing sentence, if Bigbelly does not repair the Equipment within the timeline set forth in the preceding subsection 3.1(F) or replace the Equipment, as applicable, within a maximum of ten (10) business days from receipt of the Loss Notice; thereafter, Customer shall be entitled to a per diem rent abatement until such time as the Equipment is repaired or replaced. The per diem rent abatement shall be determined by taking the total monthly payment for the Equipment divided by the number of days in the month during the Loss). If any Equipment is damaged but can be economically repaired, Bigbelly shall immediately have the Equipment restored to good working order and condition at Bigbelly's or Customer's expense, as applicable. Customer agrees to immediately pay, on demand,the igbelly Service Agreement BBSA20150715 Page 3123 cost of any replacement part incurred in connection with any Customer Loss. Upon the occurrence of any other kind of Loss, or if the Equipment is not economically repairable, or the repair cost of the Equipment exceeds its FMV Amount (as defined herein) ("Total Loss"), Bigbelly shall replace the Equipment within ten (10) days from receipt of the Loss Notice, and Bigbelly or Customer, as applicable, shall be responsible for the replacement cost of the Equipment. If the Total Loss resulted from a Customer Loss, Customer will, upon Bigbelly's written demand, pay Bigbelly the fair market value of the Equipment ("FMV Amount"). For purposes of this section the FMV Amount shall mean the replacement cost of the Equipment, plus the cost of shipping, delivery and installation of the Equipment, as determined by Bigbelly. Typical terms for repairs, including the cost for typical replacement parts and rates for the labor associated with typical repairs for the Equipment is set forth in Attachment E. 5.0 General Terms and Conditions 5.1 Taxes and Other Charges. Bigbelly acknowledges that Customer is a municipal corporation organized under the State of Florida and as such, is exempt from payment of taxes pursuant to this section (including sales, use and personal property tax), fees, and assessments (collectively, "Taxes") that may be imposed by any governmental entity or taxing authority in connection with this Agreement or the Equipment or any amount due hereunder. 5.2 Ongoing Services. Customer agrees that during the Term of the Agreement, it shall keep in effect the Ongoing Services as defined in the Agreement. Unless otherwise agreed in a written amendment to this Agreement, Bigbelly or its subcontractors shall be the sole and exclusive suppliers of the Ongoing Services. 5.3 Additions and Modifications of Equipment. Unless otherwise expressly agreed by an officer of Bigbelly in writing, Customer shall not make any additions, alterations or modifications to the Equipment. Customer shall not remove, cover or damage any Bigbelly logos or other identification markings on the Equipment. 5.4 Ownership Rights. The Equipment and Software contain intellectual property including but not limited to patented and unpatented inventions, trade secrets, know-how, and copyrights all of which is owned and will continue to be owned exclusively by Bigbelly and/or its licensors and Customer will obtain no rights thereto other than the limited rights of use under this Agreement. Customer acknowledges and agrees that all technology, materials, hardware, software is the sole and exclusive property of Bigbelly (Bigbelly Property). Bigbelly hereby grants Customer a royalty-free, non-exclusive, fully paid up right and license to use the Equipment, the Software, and any intellectual property rights therein as necessary for Customer and its contractors to use the Equipment and Bigbelly Service consistent with the terms and conditions of the Agreement and these Terms and Conditions. Bigbelly reserves the right, at its sole cost and expense and subject to applicable governmental guidelines, laws, rules, regulations and ordinances, at any time upon notice to Customer, to enhance or otherwise modify the Equipment and/or Software made available to Customer under this Agreement, including but not limited to enhancements or modifications for the purpose of implementing Wi-Fi network capability to the Equipment, instituting mechanisms for data collection,processing and analysis. Notwithstanding the foregoing, any content, data or material of which the Equipment and Software is comprised or which is otherwise contained within or attached to, generated, collected or processed by the Equipment and/or CLEAN Software, in connection with the performance of this Agreement, shall remain the sole and exclusive property of Customer ("Customer Property"). Additionally, Bigbelly will cooperate with Customer in connection with any requests for records which Customer may receive pursuant to any Public Records' Laws including, without limitation, Chapter 119, Florida Statutes. 5.4.1 Advertising. The parties acknowledge that no advertising is permitted on any portion of the Bigbelly Equipment. ='rigbelly Service A•ree ent BEISA20150715 Page 9023 5.5 Termination (A)Effect of Termination. Except as provided for in Section 5.7 below, or otherwise specified in this Agreement, any termination of the Agreement by Customer, without cause, shall not relieve Customer of its obligations to make any and all payments which obligations are absolute, unconditional, irrevocable, non-cancelable and subject to no right of set off, counterclaim, deduction,or defense. (B)Post Termination Duties / Surrender of Equipment. Upon the expiration or earlier termination or cancellation of the Agreement, Bigbelly shall remove the Equipment as described in Section 3.1 (I) above. 5.6 Indemnifications by the Parties (A)Indemnity by Bigbelly. Bigbelly shall indemnify, defend, and hold harmless Customer and its directors, officers and employees, agents, and contractors, (collectively Customer and/or its representatives), as to all actions (whether at law or in equity), claims, liabilities, losses, damages and expenses (including reasonable attorneys' fees and other legal expenses and amounts paid in settlements) brought against Customer and/or its representatives because of (a) any negligent acts, errors, omissions or other wrongful conduct of Bigbelly, its officers, employees, agents, contractors, or any other person or entity acting under Bigbelly's control or supervision, in connection with, related to, or as a result of Bigbelly's performance pursuant to this Agreement or the use of the Bigbelly Equipment; (b) breach or alleged breach by Bigbelly of any of its warranties to, or agreements with, Customer, (c) any claim that any of the products or services infringes any patent, trademark, copyright or other intellectual property right, anywhere in the world, or (d) any death, injury or damage to any person or property caused by Bigbelly's negligent performance of this Agreement. In no event will Bigbelly be liable for or indemnify Customer or its representatives against any damage, claim or injury arising out of Customer or its representative's gross negligence or any third party's actions, including but not limited to accidental or intentional tampering with the Equipment. (B) Survival of Indemnity. The rights and obligations of Bigbelly under this Section 5.6 survive the termination, cancellation or expiration of this Agreement. 5.7 Default; Dispute Settlement; Governing Law (A)Definition of Default. The term "Default" means any of the following events: (i) Customer fails to make any payment required under this Agreement within fifteen (15) days after the same shall have become due; (ii) Customer or Bigbelly fails to perform any other obligation under this Agreement and such non-performance is not cured within thirty (30) days following notice; (iii) Customer or Bigbelly defaults under any other Agreement between Customer and Bigbelly (iv) Customer or Bigbelly becomes insolvent or makes an assignment for the benefit of its creditors; (v) a receiver, trustee, conservator or liquidator of Customer or Bigbelly of all or a substantial part of such party's assets is appointed with or without the application or consent of such party; (vi) a petition is filed by or against Customer or Bigbelly under any bankruptcy, insolvency or similar law; or (vii) any warranty or representation made by either party herein proves to have been false or misleading when made; or, (viii) there is a material adverse change in Customer's financial condition. (B)Default by Customer. Upon the occurrence of a Default by Customer, Bigbelly may do one or more of the following as Bigbelly in its sole discretion shall elect: (i) initiate Dispute Settlement procedures pursuant to subsection (D) herein to enforce performance by Customer of the Agreement or to recover damages for the breach thereof; (ii) cause Customer, at Customer's expense (as more particularly set forth in Section 3.1(I)), to promptly return the Equipment to Bigbelly at such place as Bigbelly designates in writing; (iii) by notice in writing to Customer, cancel or terminate the Agreement, without prejudice to any other remedies hereunder; (iv) enter Bigbelly Service Agreement BBSA20150715 Page 10023 upon, or instruct its agents or assigns to enter upon, the premises of Customer or other premises where any Equipment ma be located and take possession of and remove all or any portion of Y may p Yp such Equipment without liability to Customer by reason of such entry or taking possession; (v) subject to the limitations on Customer's liability in Section 5.14 hereof, declare the entire balance of the unpaid payments for the full term immediately due and payable, (vi) collect from Customer all expenses incurred by Bigbelly in connection with the enforcement of any remedies, including all expenses of repossessing, storing, shipping, repairing and selling the Equipment and reasonable attorneys' fees; and (vii) exercise any other right or remedy available to Bigbelly under applicable law. (C)Default by Bigbelly. Upon the occurrence of a Bigbelly Default, Customer may do one or more of the following as Customer in its sole discretion shall elect; (i) initiate Dispute Settlement procedures pursuant to subsection (D) herein to enforce performance of the Agreement or recover damages for the breach thereof; (ii) cause Bigbelly, at its expense, to promptly collect the Equipment; (iii) by notice in writing to Bigbelly, cancel or terminate the Agreement, without prejudice to any other remedies hereunder; (iv) subject to the limitations on Bigbelly's liability in Section 5.14 hereof, collect from Bigbelly all expenses incurred by Customer in connection with the enforcement of any remedies, including all expenses of repossessing, storing, shipping, repairing and selling the Equipment and reasonable attorneys' fees; and (v) exercise any other right or remedy available to Customer under applicable law. (D)Dispute Settlement. In the event of any dispute arising due to a Default or with respect to the terms of the Agreement or obligations of the parties, the parties agree to discuss the dispute in an attempt to amicably resolve such dispute within 30 days of the date of a written notice of such dispute by one party to the other. Failing any such resolution, either party will be free to seek remedy through a court of competent jurisdiction. (E)Continuation of Obligations. The occurrence of a dispute under or relating to the Agreement shall not relieve Bigbelly of, or change in any way, Bigbelly's obligation to provide the Ongoing Services in accordance with the terms of the Agreement nor shall the occurrence of a dispute under or relating to the Agreement relieve Customer of its obligations to make any and all payments described in the Agreement including the Attachments, which obligations are absolute, unconditional, irrevocable, non-cancelable and subject to no right of set off, counterclaim, or deduction,unless otherwise specified in this Agreement. (F) Governing Law. The Agreement including the Attachments shall be interpreted under the laws of the courts of the State of Florida, without regard to principles of conflicts of law or the United Nations Convention on the International Sale of Goods. Each party consents to the personal jurisdiction of federal and state courts located in Miami-Dade County, Florida EACH PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE EQUIPMENT. 5.8 Assignment. Customer may not assign this Agreement or any rights hereunder, or sublease or lend any Equipment without the prior written consent of Bigbelly. No assignment or sublease shall relieve Customer of its obligations hereunder and Customer shall remain primarily liable for such obligations. Any sale, assignment, transfer, encumbrance, delegation or sublease by Customer not consented to by Bigbelly shall be void ab initio. Bigbelly may at any time assign to any person (an "Assignee") any interest in this Agreement in part or in whole or grant security interests in the Equipment and/or the Bigbelly's rights hereunder. In such event, all the provisions of this Agreement for the benefit of Bigbelly shall inure to the benefit of and be exercised by or on behalf of such Assignee, but the Assignee shall not be liable for or be required to perform any of Bigbelly's obligations to Customer and Bigbelly shall retain such obligations. Customer acknowledges that Assignee is providing financing for the Equipment only and agrees that (a) as between Customer and Bigbelly, all of Customer's payment obligations shall be absolute, unconditional and not subject to Bigbeily Service Agree' ent B:SA20150715 Page 11123 set-off, counterclaim, reduction, recoupment or other defense (b) it will not assert any defenses, set- offs, counterclaims or claims against any Assignee that Customer may have against Bigbelly at any time; and (c) any such assignment shall not materially change Customer's duties or obligations hereunder. Subject to the foregoing, the Agreement shall inure to the benefit of, and be binding upon, the successors and permitted assigns of the parties hereto. 5.9 Relationship of Parties. Bigbelly and Customer are each independent entities and the relationship between Bigbelly and Customer under the Agreement is not a joint venture, partnership,principal-agent, broker, sales representative or franchise relationship. Bigbelly has no authority to make any promise, commitment or agreement on Customer's behalf, and Bigbelly will not represent to anyone that it does have such authority. 5.10 Notices. Each notice provided for in the Agreement shall be given in writing and become effective when: a. served by personal delivery to the recipient's Legal Department or Contract Administrator; Customer: BIGBELLY SOLAR, INC.: Name: Steve Delaney Title: CFO Address: 150 A Street, #103 Needham, MA 02494 b. deposited, postage prepaid in the United States registered or certified mails addressed to the recipient's Legal Department or Contract Administrator; c. dispatched to the recipient's Legal Department or Contract Administrator via overnight mail using UPS, Federal Express or similar carrier; or, d. sent to recipient's Legal Department or Contract Administrator: via facsimile or other electronic means if delivery does not require a signature or other confirmation of delivery. 5.11 Force Majeure. Any delay or failure of either party to perform its obligations (other than payment obligations) shall be excused if it is caused by an extraordinary event or occurrence beyond the control of the nonperforming party and without the nonperforming party's fault or negligence, such as acts of God, fires, floods, windstorms, explosions, natural disasters, wars and sabotage. Raw material or labor shortages are not force majeure events. Each party shall promptly notify the other of the reason for the delay and use its best•efforts in curing such cause and shall take all action practicable to minimize the adverse impact of the delay on the other party. 5.12 No Warranties. Customer hereby acknowledges that it has not entered into the Agreement including the Attachments in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth therein. 5.13 Use of Trade Names and Trademarks. Neither party may use the trade name, service mark, logo or trademark of the other party for any purpose without previous permission in writing from the other party. 5.14 Damages. Unless otherwise provided in the Agreement, in no event shall either party, or their respective affiliates, shareholders, officers, directors, employees, agents, or representatives, or assigns be liable to the other for lost revenue, lost profits, incidental, indirect or consequential damages, resulting from any Services provided in connection with this Agreement. The Customer and Bigbelly's maximum aggregate liability to the other in relation to or in connection with a breach of the terms of this Agreement will be limited to the total amount paid by Customer to Bigbelly under the Agreement. Bigbelly Service Agreement B SA20150715 4 a g e '12123 5.15 Injunctive Relief. If there is a breach or threat of a breach of the terms of the Agreement, the parties agree that compensation alone would not be an adequate remedy for the harm suffered by the non- breaching party, which harm would be immediate and irreparable. Therefore, if there is a breach or threatened breach, then the non-breaching party shall be entitled to seek injunctive relief to stop the breach or threatened breach. The rights and obligations of the parties under this provision survive the termination, cancellation, or expiration of the Agreement. 5.16 Fiscal Funding This Section 5.16 is effective only if Customer is a governmental entity, agency or authority. Customer hereby represents and warrants to Bigbelly that: (a) Customer is a State, possession of the United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Internal Revenue Code and Treasury Regulations and Rulings related thereto (the "Code"); (b) If Customer is incorporated, it is duly organized and existing under the Constitution and laws of its jurisdiction of incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect; (c) Customer has been duly authorized by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Bigbelly, is attached hereto), to execute and deliver the Agreement and to carry out its obligations hereunder; (d) All legal requirements have been met, and procedures have been followed, including public bidding, in order to ensure the enforceability of the Agreement; (e) The Equipment will be used by Customer only for essential governmental or proprietary functions of Customer consistent with the scope of Customer's authority and will not be used in a trade or business of any person or entity, by the federal government or for any personal, family or household use (f) The Customer shall comply at all times with all applicable requirements of the Code. If sufficient funds are not appropriated to make contracted payments under the Agreement ("Payments"), the Agreement shall terminate and Customer shall not be obligated to make contracted Payments under the Agreement beyond the then- current fiscal year for which funds have been appropriated. Upon such an event, Customer shall, no later than the end of the fiscal year for which contracted Payments have been appropriated, deliver possession of the Equipment to Bigbelly. If Customer knowingly and willfully prevents Bigbelly from removing the Equipment, as provided in Section 3.1(I), then the termination shall nevertheless be effective but Customer shall be responsible for the payment of damages in an amount equal to the per diem portion of contracted Payments thereafter coming due that is attributable to the number of days after the termination during which the Customer fails to allow Bigbelly access to Customer's property for the removal of the Equipment. The per diem amount shall be determined by taking the total monthly payment for the Equipment divided by the number of days in the hold over month) Customer shall notify Bigbelly in writing within seven (7) days after the failure of the Customer to appropriate funds sufficient for the payment of the contracted Payments, but failure to provide such notice shall not operate to extend the Agreement term or result in any liability to Customer. 5.17 Entire Agreement. The Agreement including the Attachments constitute the entire agreement between the parties regarding its subject matter and supersede all prior agreements, oral and written, negotiations, commitments and writings, and may not be released, discharged, abandoned, changed or modified in any manner, orally or otherwise, except by an instrument in writing signed by a duly authorized representative of each party. Any purchase order or other ordering document issued by Customer is for administrative purposes only and does not form part of this Agreement. 5.18 Amendment; Modification; Waiver. No modification, amendment, waiver or release of any provision of the Agreement or any right, obligation, claim or cause of action arising under the Agreement shall be valid or binding unless in writing and duly executed by the party against whom enforcement is sought. No waiver by either party of any breach, or the failure of either party to enforce any of the terms and conditions of the Agreement, shall affect, limit or waive that party's right to enforce and compel compliance with all terms and conditions of the Agreement or to terminate the Agreement as permitted by its terms. Any provision of this Agreement which for any reason may be held unenforceable in any one jurisdiction shall, as to such jurisdiction, be ineffective Bigbelly Service Agre1-meat BBSA20150715 Page 13 123 to the extent of such unenforceability without invalidating the remaining provisions of this Agreement, and any such unenforceability in any one jurisdiction shall not render such provision unenforceable in any other jurisdiction. This Agreement may be executed in any number of counterparts and by different parties hereto or thereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together consist of but one and the same instrument. 5.19 Representations. Customer hereby represents, warrants and covenants to Bigbelly that: (a) Customer is organized and validly existing under the laws of the jurisdiction of its organization, with adequate power and capacity to enter into the Agreement and any other documents, instrument or agreement related to this Agreement; (b) The Agreement has been duly authorized, executed and delivered by Customer and constitutes a valid, legal and binding agreement, enforceable in accordance with its terms, except to the extent that the enforcement of remedies therein provided may be limited under applicable bankruptcy and insolvency laws; (c) no approval, consent or withholding of objections is required from any governmental authority or instrumentality with respect to the entry into or performance by Customer of the Agreement, except such as have already been obtained; (d) there are no suits or proceedings pending or threatened in court or before any regulatory commission, board or other administrative governmental agency against or affecting Customer, which will have a material adverse effect on the ability of Customer to fulfill its obligations and liabilities under the Agreement. End of Attachment A. Bigbelly Service Agreement Bt'SA2®150715 Page 14023 ATTACHMENT B ACCEPTANCE CERTIFICATE FOR THE BIGBELLY SERVICE AGREEMENT (AGREEMENT) WITH THE CITY OF MIAMI BEACH, FLORIDA (CUSTOMER), DATED The Customer hereby acknowledges that the following conditions have been met and acknowledges the Acceptance Date below: 1. all of the Equipment ordered pursuant to this Agreement has been delivered to the Customer at the receiving location designated by Customer; 2. all of the Equipment has been installed at the agreed upon Equipment Sites (as defined in Section 3.1(D) of the Agreement and is operational; and 3. all City designated personnel have been trained to operate the Equipment. CUSTOMER: CITY OF MIAMI BEACH By: Print Name and Title: Date: Bigbelly Service Agreement B SA20150715 Page 15123 • , ATTACHMENT C • EQUIPMENT SITES 1 • 1• ,'s , ,_.—r,•�_4...... i'f e+-7...,• .. r--'`,.._:.77._=.____...:..... 11 1 r- : .....), 1 0,, .v---- ._:.:,.- ,/,,, . ! ...'t . . . , it.',- ',..t."-.7.=::::---__ :7 ::. . " li ---A 49 /.,..ii..e.: ... ---s.,„,■.,. .,,.. •. • --, ,., u J'` r:l'�... "L...2.71., �� s„7,,,,„�.1 .. • •t. RF, ''.5 '' :� j , a f • 04 '3 � I 'it P• it if' r! 'dam �," r ' ,,,,� V .; 1.,r , ..._..i, ..... . _.....:_:-7-, - -27....,.,_.-/,' z ...... t)'1......ii . ,c,--,--,, -1-..- -.... i : (-mt. (-- n-. „p ,.....j.„;:...... ; .... ; / i. ; , 4.1 1: ......z._! ..., . 1._.___.-�_.-..,,�._ -.-1▪�`;j I I I*j --._.:,?�..:.... ' ,... 1 � �. '. I- I I 1 • • • \'� • . N.... � wn.M40oo6411golosCae.• UAL® ritel Liortel City of Miami Beach • TM,.a..Tlo« .«wosIreut.0 Trash Cans: Proposed Big Belly Type .9'1 Bigbelly Service Agreement BBSA20150715 P a g e 16 123 ATTACHMENT C-1 DELIVERY AND INSTALLATION SCHEDULE Bigbefly Service Agreement BBSA20150715 Page 17123 ATTACHMENT D CUSTOMER TRAINING PLAN Timeframe Customer Training Agenda Upon PO • Review the Connect Guidelines to set expectations. • Highlight site selection and partnership to maintain system in great working condition. • Establish criteria for success and how to measure them. 1-3 Weeks Prior to Installation • Update CLEAN software system with user names so users can access the system Upon Installation At a mutually agreed upon time, Bigbelly will train users to use the CLEAN software for optimal results. Training includes site customization: o Setting up users o Updating station location descriptions o Establishing groups o Setting up Email notifications. o How to make adjustments in the system and using the alert notifications to address any hardware/software issues. 1 Week After Initial CLEAN Training • Reach out for feedback and adjustments to system set up. • Answer any questions 1 Month After Installation • Review reports and how to extract data Monthly Thereafter • Provide a monthly summary of performance against goals. END OF ATTACHMENT D Bigbelly Service Agreement BBSA20150715 Page 18123 ATTACHMENT E LIST OF TYPICAL REPLACEMENT PARTS (INCLUDING COST) AND HOURLY SERVICE RATES AND TERMS Bigbelly Service and Parts Price List US Dollars Pricing Effective August 1,2015 Prices are subject to change with 30 days notice Display Name/Part Number Description Direct Service labor and travel per hour for Bigbelly Services troubleshooting, repair, inspection, audit and $125.00 in field training AC ADAPTOR BB5 AC Adaptor BBS Factory Installed $175.00 KITBB50089 AC Adaptor BB5 Field Install Kit $175.00 ASH'PRAY BB5 Ashtray BB5 Factory Installed $125.00 KITBB50088 Ashtray BB5 Field Install Kit $125.00 FSSBB50013 Side-Skin Screw(Qty 2) $2.95 FUSBB3002 Fuse (20A AGC) $5.95 ODOR MASK Odor Mask Factory Installed $24.95 KITBB3102 Odor Mask Starter Kit(2 per package) $24.95 Cucumber Melon Scent- Field Installed KITBB311 I Odor Mask Refill Kit(4 per package) $20.00 Cucumber Melon Scent KITBB3024 Kit to Downgrade a BB5 Paddle Lock to Use $34.95 a BB3 Single Sided Key KITBB3042 Front Door Key $395.00 KITBB3092 Messaging Panel with Insert $135.00 Bigbelly Service Agreement BBSA20150715 Page 19 123 KITBB3106 Rod Retainer $21.95 KITBB50002 Main Circuit Board for United States Verizon $450.00 network KITBB50003 Main Circuit Board for Canada GSM network $450.00 KITBB50404 Main Circuit Board for International GSM $450.00 network KITBB50005 Main Circuit Board for United States GSM $450.00 network KITBB50014 18Ah Battery Assembly Includes: battery, $75.00 harness &boot KITBB50016 2.3Ah Battery Assembly Includes: battery, $49.95 harness KITBB50017 18Ah Battery Harness $18.95 KITBB50019 Battery Cable - Smartbelly $18.95 KITBB50020 BigBelly Battery Strap $9.95 KITBB50021 Smartbelly Battery Strap $9.95 KITBB50022 Trash Sensor Module $39.95 KITBB50023 Trash Sensor Cable Assembly $42.95 KITBB50024 Door Sensor Circuit Board $42.95 KITBB50025 Rear Door Cable $36.95 KITBB50026 Hub Sensor Cable $35.95 KITBB50029 Companion Cable Assembly: Single Door $39.95 KITBB50032 Hopper Assembly: Trash $225.00 KITBB50033 Hopper Assembly: WM $225.00 KITBB50034 Hopper Assembly: Recycle Blue $225.00 BigBelly Service Agreement BBSA20150715 P a g e 20123 KITBB50035 Hopper Assembly: Recycle Green $225.00 KITBB50036 Hopper Handle Kit $59.95 KITBB50037 Hopper Handle Screws $8.95 KITBB50038 Hopper Rod Pivot $21.95 KITBB50039 Hopper Liners $65.00 KITBB50040 Top Door Assembly: No Panel $425.00 KITBB50041 Top Door Assembly: Standard Panel $695.00 KITBB50042 Top Door Assembly: HE $795.00 KITBB50043 Solar Bubble $135.00 KITBB50045 Top Door Lock $29.95 KITBB50047 BB5 Standard Solar Panel $335.00 KITBB50054 Front Door Kit(BB) $395.00 KITBB50055 Front Door Kit(SB) $395.00 KITBB50056 Rear Door Kit Trash $395.00 KITBB50057 Rear Door Kit Recycle $395.00 KITBB50058 Rear Skin Trash $145.00 KITBB50059 Rear Skin Recycle $145.00 KITBB50060 Rear Skin Rear Ad $145.00 KITBB50061 Rotary Strike Kit $26.95 KITBB50062 Replacement BB5 Paddle Lock $49.95 Bigbelly Service Agreement BBSA20150715 Page 21123 ' r KITBB50065 Door Magnet $9.95 KITBB50066 Side Skin: BB Trashman $145.00 KITBB50067 Side Skin: BB Kiosk $145.00 KITBB50068 Side Skin: BB Recycle $145.00 KITBB50069 Side Skin: BB Blank $145.00 KITBB50070 Side Skin: WM Trashman $145.00 KITBB50071 Side Skin: WM Kiosk $145.00 KITBB50072 Side Skin: WM Recycle $145.00 KITBB50073 Side Skin: WM Blank $145.00 KITBB50074 Complete Kiosk Kit $89.95 KITBB50076 Kiosk Fascia $42.95 KITBB50077 Kiosk Tombstone $94.95 KITBB50078 Mount Plate $49.95 STUB OUT PLATE BB5 Stub Out Plate BB5 Factory Installed $24.95 KITBB50086 Stub Out Plate BB5 Field Install Kit $24.95 KITBB50094 Kiosk Top Plate $15.95 KITBBS0300 SIM Card Cleaning Kit $21.95 KITBBS0301 Solar Bubble Cleaning Kit $32.95 KITBBS0302 Service Tool Kit $1,295.00 MSG Panel-Rear-DBL Rear Messaging Panel For Double Station $270.00 Bigbelly Service Agreement BBSA20150715 Page 22123 , MSPBB50056 Top Door Key $9.95 MTLBB50052 BB5 Security Shield $78.00 MTLBB50053 BB5 Smartbelly Security Shield $78.00 MTLBB3008 Hopper Rod $19.95 Security Plate Stickers Security Plate Stickers $15.00 RPPBB50032 BigBelly Bin $65.00 RPPSCR3001 Recycler Bin $120.00 RPPBB3037 Smartbelly Sleeve $35.00 KITBB3116 Smartbelly Sleeve Constraint Kit $45.00 STICKER 1-49 Custom Stickers (Order quantity up to 49) $69.95 STICKER 50-149 Custom Stickers (Order quantity 50-149) $59.95 STICKER 150+ Custom Stickers (Order quantity 150+) $39.95 WRAP-BB-SGL Custom Wrap for Single Station $395.00 WRAP-BB-SGL-AG Anti-Graffiti Custom Wrap for Single Station $495.00 WRAP-BBSB-DBL Custom Wrap for Double or Duo Station $650.00 WRAP-BBSB-DBL-AG Anti-Graffiti Custom Wrap for Double or $695.00 Duo Station WRAP-BBSB-TRI Custom Wrap for Triple Station $995.00 WRAP-BBSB-TRI-AG Anti-Graffiti Custom Wrap for Triple Station $1,095.00 BAGS Replacement BigBelly and Smartbelly bags are available for purchase through WasteZero at www.wastezero.com/bigbelly. BigBelly Service Agreement BBSA20150715 Page 23 123