Terms & Conditions

By signing the Agreement or accessing the services provided by Poppy (including the Poppy Application), the Client acknowledges and agrees to be bound by the Agreement and Poppy’s Terms and Conditions (the “Terms”), as may be updated from time to time:

1. SCOPE OF WORK 1.1. Poppy shall execute the scope of work defined in the Agreement Documents, except as indicated in the Agreement Documents to be the responsibility of others.

2. COMMENCEMENT DATE AND MILESTONE DATES 2.1. The commencement date of this Agreement shall be the date listed above. 2.2. Subject to the terms and conditions herein, the parties shall perform their responsibilities so as to achieve the Target Dates listed in the Agreement. 2.3. The schedule and duration of this Agreement are listed in the Agreement. 2.4. A Milestone Date means any decision point or deadline expressly identified in the Agreement at which the Client must make a binding election to proceed, select a Plan or Term, or may terminate with respect to a specific Facility, including but not limited to the Step 2 “Decision to Proceed.”

3. PAYMENTS 3.1. Payments due to Poppy for services performed under this Agreement are set forth in the Agreement. Payments may be based on (a) actual verified savings billed monthly in arrears (Weather-Adjusted Variable Plan), or (b) a fixed monthly amount subject to a year-end true-up based on actual weather-normalized savings (Fixed Monthly Plan), as selected by Client in Step 2 of the Agreement. 3.2. Vendor Compliance Platforms: If Client requires Poppy to enroll in or utilize a third-party vendor compliance, credentialing, or management platform (including, but not limited to, Avetta, ISNetworld, or similar systems) as a condition of performing work under this Agreement, Client shall reimburse Poppy for any associated enrollment, subscription, or annual fees incurred, without markup. Such fees will be invoiced to Client as pass-through costs and are payable upon receipt.

4. PERFORMANCE OF THE WORK 4.1. Poppy agrees to deliver the Performance Guarantee, if applicable. Besides the Performance Guarantee, Poppy MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. The Performance Guarantee applies solely to verified HVAC-related energy savings calculated using Poppy’s Model, and expressly excludes unmeasured conditions, third-party implementation outcomes, or any Client-initiated changes to system operation. 4.2. Poppy shall maintain a project representative who shall be reasonably available to Client. Poppy’s representative shall communicate with Client and shall be vested with the authority to act on behalf of Poppy. 4.3. Poppy shall perform the scope of work in accordance with all laws, ordinances, rules, regulations, codes, and lawful orders of public authorities (“Laws”) that apply to the parties hereto, the Agreement Documents, the project, or the scope of work. If a change in Laws occurs after this Agreement is executed, the time to perform the scope of work and/or the prices listed in this Agreement shall be equitably adjusted by Change Order to compensate Poppy for the effects of any such changes on the performance of the scope of work or any Performance Guarantee. 4.4. Poppy shall have no liability for delays, malfunctions, or results arising from improper implementation, non-compliance, or modifications made without Poppy’s prior written approval. Poppy shall not be liable for any errors, omissions, or performance deficiencies in HVAC implementation or adjustments performed by third-party contractors engaged by Client.

5. CLIENT’S RESPONSIBILITIES. 5.1. Client shall, throughout the performance of the scope of work, cooperate with Poppy and perform its tasks, responsibilities, and obligations, as set forth throughout the Agreement Documents, in a timely manner to facilitate Poppy’s timely and efficient performance of the scope of work, and so as not to delay or interfere with Poppy’s performance of its obligations under the Agreement Documents. 5.2. Client acknowledges that each Facility covered by the Agreement is treated independently for purposes of assessment, implementation, billing, and reconciliation, and agrees to cooperate accordingly. 5.3. Client shall provide: (a) timely reviews of the Ventilation Energy Report and prompt written notice to Poppy if Client believes it contains errors, omissions, or is not in compliance with the Agreement; (b) timely decisions on whether to proceed or not proceed, including selection of billing Plan and Performance Period Term, as required in Step 2 of the Agreement; (c) all requested Facility information, including historical energy usage data, within the timeframes specified in the Agreement Documents; (d) prompt responses to requests for information or approvals from Poppy; and (e) any other approvals, access, or inputs reasonably required by Poppy to deliver the services under this Agreement. Client shall designate a representative who shall communicate with Poppy and shall have authority to act on behalf of Client. 5.4. Client shall be responsible for and shall pay when due all assessments, charges and sales, use, property, excise, real estate, or other taxes now or hereafter imposed by any governmental body or agency upon the provision of the scope of work, all payments due to Poppy under this Agreement, other than taxes upon the income or revenue of Poppy. If Client asserts an exemption from any taxes described above, Client must provide current tax exemption certificates to Poppy. 5.5. Client shall notify Poppy within fourteen (14) days if they move, remove, modify, alter, or change any HVAC equipment or any part thereof except as expressly set forth elsewhere in this Agreement. 5.6. Client shall notify Poppy within fourteen (14) days if any of the following changes: the facility’s energy rates; hours of operation; HVAC set points; any alteration or modification in any HVAC-related equipment or its operation, including but not limited to DCV, ERV, filtration levels; peak occupancy if an occupancy-dependent optimization has been used, except as expressly set forth elsewhere in this Agreement. 5.7. Client shall use its best efforts to notify Poppy within fourteen (14) days after Client knows or, with reasonable diligence, should have known, of the occurrence of: 5.7.1. Any malfunction in the operation of the HVAC system or any related equipment that might materially impact the expected guaranteed Energy Savings; or 5.7.2. Any interruption or alteration to the energy supply to the Client’s facility(ies); or 5.7.3. Any changes to the outdoor air settings.

6. UNFORESEEN CONDITIONS 6.1. If Poppy encounters a concealed or latent condition at the Client’s facility that (i) materially differs from the conditions indicated in either the Agreement Documents or as otherwise were expressly disclosed to Poppy before the execution of the Agreement, or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the scope of work agreed upon by the parties, then, to the extent Poppy’s costs, time of performance, and/or ability to guaranteed Energy Savings are adversely impacted by such concealed or latent condition(s), Poppy shall be entitled to an adjustment in the prices, time of performance, or Performance Guarantee listed in the Agreement Documents. 6.2. Upon encountering concealed or latent condition described above, Poppy shall provide prompt written notice to Client of such condition, and, to the extent reasonably possible, provide such notice before the condition has been substantially disturbed or altered.

7. FORCE MAJEURE 7.1. Neither party shall be responsible or liable for events that occur beyond their reasonable control, including, without limitation, severe weather, flooding, seismic disturbances, acts of God, acts of government agencies, condemnation, strikes, labor disputes, fires, explosions or other casualties, thefts, vandalism, riots or war, epidemics or pandemics, acts of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, or electronic communications systems, changes in Laws, or unavailability of parts, materials or supplies.

8. INTELLECTUAL PROPERTY AND DATA RIGHTS 8.1. Any reports, analysis, and calculations furnished by Poppy to Client under this Agreement are deemed to be instruments of service and Poppy (or its design consultants) shall retain the ownership and property interests therein, including but not limited to any intellectual property rights. Upon Client’s payment in full for all work performed by Poppy, Poppy shall grant Client a limited license to use such reports, analysis and calculations in connection with Client’s use and occupancy of the facility(ies), conditioned on Client’s understanding that any alteration or use of the design documents or plans without the involvement of Poppy is at Client’s sole risk and without liability or legal exposure to Poppy or anyone working by or through Poppy. 8.2. Client acknowledges that any software furnished in connection with the work under this Agreement is proprietary and subject to the provisions of any software license agreement associated with such software. For software manufactured or designed by Poppy, Poppy shall retain all right, title and interest in and to any and all: (a) software source and object code, documentation, technical information or data, specifications and designs and any changes, improvements or modifications thereto or derivatives thereof; and (b) processes, techniques, concepts, methodologies, tools, analytical approaches, database models and designs, discoveries, and ideas furnished, produced by, developed, employed or used by Poppy in the creation or provision of the goods described in clause (a) or in the performance of the work of this Agreement. 8.3. Client acknowledges that Poppy, as part of its work under this Agreement, will collect data and information with respect to the function and efficiency of the HVAC system and the facility(ies). Poppy shall have the right to use such data and information in connection with its general corporate efforts relating to analyzing and understanding building efficiency and performance, and the development of analytics, software, tools, and algorithms for predicting building performance, building and equipment function and management, and improve overall building energy and operational efficiency.

9. NON-DISCLOSURE AND CONFIDENTIALITY 9.1. During the course of the performance of the work under this Agreement, if it becomes necessary to discuss or share the following items in this section, the parties shall keep all information related to such items confidential at all times. In the event of a breach of this confidentiality provision, Client agrees that Poppy shall be entitled to seek injunctive relief, in addition to any other available remedies, to prevent further unauthorized disclosure or use of confidential information. 9.2. Confidential information and trade secrets, include, but are not limited to, the Poppy Model, calculations, pricing, processes, patents, specific technologies and applications thereof, previous and current work experience or responsibilities; Proprietary software and specific applications for generally available software; Competitive analyses, competitive positions and strategies, and other highly sensitive business information; Market opportunities, including existing and potential customers, and outstanding proposals; Agreement documents; Any additional topics, documents, or things designated as confidential by the Agreement Documents or by Poppy. 9.3. Client shall treat all confidential information of Poppy in strict confidence and will use such information only for the purpose of performance of this project and no other purpose. Client shall limit dissemination of confidential information to its employees on a need-to-know basis and shall inform them of the nature and existence of this confidentiality obligation and its applicability to them. Failure to maintain confidentiality at all times shall be considered a material breach of this Agreement, punishable under applicable laws and torts. 9.4. Upon termination of this Agreement, or upon request by Poppy, the Client shall return or destroy all confidential information and any related notes or analyses within ten (10) calendar days.

10. INDEMNIFICATION 10.1. Client and Poppy agree that they shall indemnify and hold harmless each other, and their respective employees, agents, officers, directors, representatives, assigns, and/or successors, from and against any claim, damage, loss and/or expense, including reasonable attorneys’ fees, brought by a third party that arises out of the Agreement Documents, but only to the extent that such claim, damage, loss and/or expense is (1) attributable in whole or in part to personal injury, bodily injury, sickness, death, or to damage to or destruction of property, including the loss of use resulting therefrom, caused by the willful misconduct or negligence (e.g., negligent acts, errors or omissions) of the other party or any person or entity for whom the other party is responsible, and (2) not caused by the sole negligence or willful misconduct of the party seeking indemnification hereunder. This indemnification provision shall survive the termination of this Agreement.

11. EVENTS OF DEFAULT 11.1. Each of the following shall constitute an “Event of Default” by Client: 11.1.1. Any failure by Client to pay Poppy any sum due under this Agreement more than thirty (30) days after written notification by Poppy that Client is delinquent in making payment; 11.1.2. Any other material failure by Client to perform or comply with the terms and conditions of this Agreement, including breach of any covenant contained herein, provided that such failure continues for thirty (30) days after notice to Client demanding that such failures to perform be cured or if such cure cannot be effected in thirty (30) days, Client shall be deemed to have cured default upon the commencement of a cure within thirty (30) days and diligent subsequent completion thereof; or 11.1.3. Commencement of any proceeding in bankruptcy, receivership, or insolvency by or against Client, or appointment of a trustee or receiver for Client or for any substantial part of the facility(ies). 11.2. Each of the following shall constitute an “Event of Default” by Poppy: 11.2.1. Any failure by Poppy to fulfill its obligations under this Agreement, provided that such failure continues for thirty (30) days after written notice to Poppy without cure or, if cure cannot reasonably be effected in such thirty (30) days, without commencement of a cure and diligent subsequent completion thereof within ninety (90) days; provided, however, that Poppy and Client agree that a failure by Poppy to achieve the savings promised in the Performance Guarantee will not be an Event of Default, and Client agrees that its sole right with respect to such failure is the right to assert a claim for reconciliation of promised savings under the Performance Guarantee. 11.2.2. Commencement of any proceeding in bankruptcy, receivership, or insolvency by or against Poppy, or appointment of a trustee or receiver for Poppy.

12. REMEDIES UPON DEFAULTS 12.1. If an Event of Default by the Client occurs, Poppy may exercise all remedies available at law or in equity, or institute other proceedings including, without limitation, bringing an action or actions from time to time for recovery of amounts due and unpaid by Client, and/or for damages, which shall include all costs and expenses reasonably incurred in exercise of its remedy. Election of one remedy is not a waiver of other available remedies. 12.2. If an Event of Default by Poppy occurs, the Client may exercise and any all remedies at law or equity, or institute other proceedings, including, without limitation, bringing an action or actions from time to time for the recovery of amounts due and unpaid and/or for damages, which shall include all costs and expenses reasonably incurred. Election of one remedy is not a waiver of other available remedies.

13. ANNUAL TESTING AND RECONCILIATION 13.1. The annual testing and reconciliation process and reporting is subject to the following terms and conditions: 13.1.1. Client shall maintain accurate records of energy consumption and system operation throughout the Agreement term. Poppy shall have the right, upon reasonable notice and during normal business hours, to audit such records to validate savings calculations or compliance with the Optimization Plan. Client shall retain such records for at least two (2) years following the end of the Performance Period. 13.1.2. Client agrees and acknowledges that factors beyond Poppy’s control may adversely affect the Shared Savings. Poppy’s Model is predicated on the assumption that certain conditions will remain constant, and such assumptions are stated in those documents. Client expressly assumes the risk of changes to those conditions, including, without limitation: changes in occupancy or operation of the facility(ies); changes to hours of operation or HVAC system setpoints; Client’s failure to adhere to the Optimization Plan; HVAC system equipment malfunction or degradation; utility rate changes; or changes to other operational or environmental conditions that adversely affect the Performance Guarantee. If such changes occur to the foregoing conditions, Client agrees that Poppy may make appropriate modifications to the Model in order to equitably adjust the Shared Savings to account for the changed conditions. 13.1.3. The parties agree that, for adjustments that may need to be made to the Model involving atypical weather conditions, operational changes in the HVAC system, and utility rate increases, the Performance Guarantee will be adjusted. 13.1.4. The parties agree that, if Client deviates from the Optimization Plan, Poppy shall be entitled to its full compensation as if the Performance Guarantee had been achieved. If Client materially interferes with, disables, or modifies the implemented optimization strategies without Poppy’s prior written approval, Poppy’s obligations under the Performance Guarantee shall be void. 13.1.5. For all other types of adjustments that may need to be made to the Performance Guarantee, the parties agree that the Performance Guarantee will be equitably adjusted before the annual reconciliation is performed. 13.1.6. Client agrees that it shall notify Poppy in writing of any objection or disagreement Client has with Poppy’s annual reports and savings reconciliations within fourteen (14) days of receiving such reports. Client agrees that, if it does not provide written notice to Poppy of any objection or disagreement Client has with Poppy’s annual reports and savings reconciliations within that fourteen (14) day period, Client waives any right to challenge, dispute, assert a claim, or seek damages arising out of such a report and shall be deemed to have accepted the reconciliation calculation. 13.1.7. Utility Rate Adjustments. Client acknowledges that utility rate fluctuations are outside of Poppy’s control and shall not, on their own, constitute grounds for asserting that the Performance Guarantee has not been met, provided that the calculated Energy Savings (e.g., kWh, BTU) have been delivered as measured by Poppy’s Model. Client shall notify Poppy in writing of any utility rate change within thirty (30) days of becoming aware of such change and shall provide reasonable supporting documentation, such as an updated utility rate schedule, invoice, or notice from the utility provider. If utility rates increase or decrease by less than five percent (±5%) relative to the rates used in the original Ventilation Energy Assessment, Poppy shall not adjust savings calculations for the current performance year, and the Client shall retain the benefit or absorb the loss resulting from such minor fluctuation. If utility rates increase or decrease by five percent (±5%) or more, Poppy shall update the applicable utility rates on a prospective basis only, beginning with the next monthly reporting cycle. Updated rates shall also apply for any renewal periods (e.g., Performance Period – Year 2 and beyond), as applicable.

14. TERMINATION, ELECTION NOT TO PROCEED, AND WORK STOPPAGE 14.1. Termination for Cause 14.1.1. Upon the occurrence of an Event of Default by Poppy, Client must provide written notice to Poppy that it intends to terminate the Agreement unless the specified default is cured, or commenced to be cured, within fourteen (14) days of receipt of such notice. If Poppy fails to cure, or reasonably fails to commence to cure, such default, then Client may declare the Agreement terminated for default by providing written notice to Poppy. 14.1.2. Upon the occurrence of an Event of Default by Client, Poppy must provide written notice to Client that it intends to terminate the Agreement unless the specified default is cured, or commenced to be cured, within fourteen (14) days of receipt of such notice. If Client fails to cure, or reasonably fails to commence to cure, such default, then Poppy may declare the Agreement terminated for default by providing written notice to Client. 14.2. Termination at Milestone Dates or Election Not to Proceed 14.2.1. If Client terminates the Agreement at an appropriate Milestone Date, or otherwise elects not to proceed with the work under this Agreement when Client is given the right to do so at an applicable Milestone Date, then Client shall so notify Poppy in writing of Client’s intent and shall immediately pay any resulting costs or fees as required by the Agreement Documents. 14.2.2. If the Assessment determines that a Facility does not meet the Minimum Savings Rate threshold, this Agreement shall automatically terminate with respect to that Facility with no further obligation for either party. 14.3. If either Client or Poppy terminates this Agreement, then the Performance Guarantee shall automatically terminate and Poppy shall have no liability thereunder. 14.4. Poppy’s Right to Stop Work 14.4.1. In addition to any other rights it may have under the Agreement Documents or at law, Poppy may stop work under this Agreement if: (a) Client fails to pay amounts due to Poppy as and when due under the Agreement Documents; or (b) Client fails to cure an Event of Default as required under the Agreement; or (c) Facility is found to be running below local Building Code standards. 14.4.2. If Poppy intends to stop work under this Agreement, Poppy shall provide written notice to Client of such intent. If Client fails to cure the issue cited in Poppy’s written notice within seven (7) days of receipt of the noticed, then Poppy may stop work until such time as Client cures the deficiency. If Client cures the deficiency, Poppy shall be entitled to seek an adjustment of the prices or fees listed under this Agreement, and/or an extension of time to perform the work, if Poppy’s performance has been adversely impacted by the stoppage of the work.

15. CLAIMS AND DISPUTE RESOLUTION PROCESS 15.1. If either Poppy or Client believes that it is entitled to claim for damages or other relief against the other party, the claimant shall provide prompt written notice to the other party of the basis for its claim for relief, in accordance with the notice requirements provided below. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific Agreementual adjustment or relief requested, and the basis of such request. 15.2. If either party presents a claim as provided above, or otherwise has a dispute with the other party, the parties agree that they shall first attempt to resolve such claim or dispute informally through discussions between their respective representatives. Such informal discussion shall occur within twenty-one (21) days after submission of a claim or dispute. 15.3. If the parties cannot resolve a claim or dispute through the informal meeting of representatives, then the parties shall appoint officers of their respective companies to meet informally and discuss resolution of the claim or dispute. Such officer discussion shall occur within thirty (30) days after the informal meeting of representatives took place. 15.4. If the parties cannot resolve a claim or dispute through the officer discussion listed above, then the parties shall submit their claim or dispute to mandatory mediation as a condition precedent to arbitration or any other dispute resolution proceeding. The mediation shall be conducted by a mutually agreeable mediator, or, if the parties cannot agree on a mediator, then a mediator appointed by the American Arbitration Association, according to its then-applicable Commercial Mediation Procedures. The mediation shall occur within ninety (90) days of the submission of the dispute to mediation. 15.5. If the parties do not resolve their claim or dispute through informal discussion, officer discussion, or mediation, then the parties shall submit their claim or dispute to mandatory, binding arbitration administered by the American Arbitration Association under its then-applicable Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

16. MEASUREMENT AND VERIFICATION 16.1. At the Client’s request, Poppy’s annual energy savings report and reconciliation may be subject to formal Measurement and Verification (“M&V”) to confirm realized savings. If M&V is pursued, it shall be conducted by a qualified, third-party energy consultant mutually agreed upon by the parties, with all associated costs borne by the Client. Neither party shall unreasonably withhold consent to a qualified provider. 16.2. The M&V process shall follow Option A (Key Parameter Measurement) of the 2012 EVO International Performance Measurement and Verification Protocol (IPMVP), which is appropriate where reasonable correlations exist between energy use and independent variables. The selected M&V consultant shall issue a written report within two (2) months of engagement, detailing the data analyzed, the methodology applied, and the resulting savings and reconciliation calculations. 16.3. Poppy shall support the formal, Client-funded M&V process by providing necessary data, model calibration assistance, and applicable testing protocols. Testing may include “week-on / week-off” comparisons using alternating outside air levels, ideally conducted at the air handler or rooftop unit level. All testing assumes the availability of clean, downloadable data and building control systems capable of toggling ventilation modes. 16.4. M&V shall be conducted outside of shoulder seasons—defined as transitional periods between peak heating and cooling seasons—so as to ensure representative HVAC system performance under typical load conditions. 16.5. If the third-party consultant’s findings are within ±15% of Poppy’s original annual savings report, the original report shall govern. If the variance exceeds 15%, the third-party findings shall prevail, and appropriate adjustments to the Client’s monthly savings payments shall be made for the applicable performance year, whether positive or negative. 16.6. In the unlikely event that verified savings are less than the total payments made by the Client, Poppy shall reimburse the difference, ensuring the project remains budget-neutral or better.

17. LIMITATION OF LIABILITY 17.1. SOLELY WITH THE EXCEPTION OF SUCH FEES OR AMOUNTS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER POPPY NOR CLIENT SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN AGREEMENT, WARRANTY, STRICT LIABILITY, TORT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION, OPPORTUNITY OR FINANCING, REGARDLESS OF A PARTY HAVING BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR RELIEF, ARISING IN ANY MANNER FROM THIS AGREEMENT, THE WORK UNDER THIS AGREEMENT, THE FACILITY(IES), OR OTHERWISE. FURTHER, POPPY AND CLIENT ABSOLUTELY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE THE RIGHT TO CLAIM OR RECEIVE PUNITIVE DAMAGES IN ANY DISPUTE RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES, OR ANY PARTIES’ ACTS OR OMISSIONS. 17.2. POPPY’S LIABILITY UNDER THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND WHETHER SUCH LIABILITY IS ASSERTED IN AGREEMENT, TORT, INDEMNITY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AGGREGATE OF ALL PAYMENTS MADE BY CLIENT TO POPPY PURSUANT TO THIS AGREEMENT. IN THE EVENT THAT VERIFIED SAVINGS ARE LESS THAN THE TOTAL FEES PAID, CLIENT’S SOLE AND EXCLUSIVE REMEDY SHALL BE REIMBURSEMENT OF THE DIFFERENCE. UNDER NO CIRCUMSTANCES SHALL POPPY BE LIABLE FOR ANY OTHER FORM OF DAMAGES OR PENALTIES RELATED TO UNMET PROJECTED SAVINGS. 17.3. No liability for asbestos-containing materials, lead, other hazardous substances, or mold. Client acknowledges that the presence of asbestos-containing materials, lead, other hazardous substances, or mold depends largely on how Client manages and maintains its facility(ies), as well as a number of other factors that are not within Poppy’s control. Accordingly, Client acknowledges and agrees that Poppy shall have no liability for any damages caused by asbestos-containing materials, lead, other hazardous substances, or mold that may occur in Client’s facility(ies), including, without limitation, any property damage, personal injury, loss of income, emotional distress, death, loss of use, loss of value, adverse health effects, or any other injury or harm. 17.4. The foregoing waivers and limitations are fundamental elements of the basis for this Agreement between Poppy and Client, and each party acknowledges that Poppy would not be able to provide the work contemplated by this Agreement in an economically efficient or viable manner in the absence of such waivers and limitations, and would not have entered into this Agreement without such waivers and limitations.

18. INSURANCE 18.1. Poppy shall procure and maintain the insurance coverages listed in its certificate of insurance, attached hereto. 18.2. Owner shall maintain its typical property insurance coverage. 18.3. Mutual Waiver of Subrogation. If either party suffers loss or damage that is caused by the other party, but which is covered by the injured party’s insurance, the injured party waives any claim it might have against the other party to the extent that it is compensated by the insurance required under this Agreement. Each party agrees to obtain from its insurer a provision and acknowledgment of this waiver and an agreement that the insurer shall not be subrogated to the rights of the injured party.

19. MISCELLANEOUS. 19.1. No Assignment. Neither party may assign this Agreement or its rights or obligations hereunder without the express prior written consent of the other; provided, however, that Poppy may assign and transfer its rights and obligations under this Agreement to an affiliate entity or by virtue of operation of law in connection with any divestiture, restructure, merger, or acquisition. 19.2. Governing Law. Any disputes arising out of or relating to this Agreement, or the parties’ relationship created hereby, shall be governed by the laws of the Governing Jurisdiction, including its statutes of limitation, without reference to its choice of law rules or any principle calling for application of the law of another jurisdiction. 19.3. Independent Agreementor. The relationship of the parties hereunder shall be that of independent Agreementors. Nothing in this Agreement shall be deemed to create a partnership, joint venture, fiduciary, or similar relationship between the parties. 19.4. Severability. If any clause, provision, or portion of this Agreement or any part thereof shall be declared invalid, void, or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly inequitable or materially impair the benefits intended to inure to either party under this Agreement. 19.5. Complete Agreement. It is understood and agreed that this Agreement contains the entire agreement between the Parties relating to all issues involving the subject matter of this Agreement. No binding understandings, statements, promises, or inducements contrary to this Agreement exist. This Agreement supersedes and cancels all previous agreements, negotiations, communications, commitments and understandings with respect to the subject matter hereof, whether made orally or in writing. Each of the parties to this Agreement expressly warrants and represents to the other that no promise or agreement which is not herein expressed has been made to the other, and that neither party is relying upon any statement or representation of the other that is not expressly set forth in this Agreement. Each party is relying exclusively on the terms of this Agreement, its own judgment, and the advice of its own legal counsel and/or other advisors in entering into this Agreement. 19.6. Survival. The following provisions shall survive termination or expiration of this Agreement for any reason: Sections related to Confidentiality, Intellectual Property and Data Rights, Indemnification, Limitation of Liability, Dispute Resolution, and any other provision that by its nature should reasonably be understood to survive termination. Client’s obligation to pay all undisputed amounts due as of the termination date shall also survive. The Performance Guarantee shall survive only to the extent required to reconcile any verified savings owed or refund due based on the final reconciliation period prior to termination. 19.7. Counterparts: Electronic Signatures. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one single agreement between the parties. The parties agree that this Agreement may be executed and delivered by electronic signatures (including, without limitation, PDF, facsimile, typed signatures, or electronically imaged signatures provided by DocuSign or any other digital signature provider) and that such signatures appearing on the Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. 19.8. Notices. All notices or communications related to this Agreement shall be in writing and shall be deemed served if and when sent by: (a) email, but only on the first business day following the day the notice was sent; or (b) certified or registered mail to the addresses listed at the beginning of this Agreement, on receipt of such notice. 19.9. Confidentiality. The receiving party agrees to maintain the confidentiality of such information that the transmitting party designates as confidential, and agrees to use such confidential information solely in connection with the project. 19.10. No Waiver. The failure of either party to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Agreement Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 19.11. Amendments. The Agreement Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party.