The My Energy Optimizer® Partner+ Program is SMUD’s first large scale battery program using customer homes across the Sacramento area to make a steady push into the 2030 Zero Carbon plan to eliminate greenhouse gas emissions from its power supply. As part of the program, you will be paid to connect your system operations to Swell’s Virtual Power Plant control system, called GridAmp and alter the times your system charges and discharges energy from your Powerwall batteries over the duration of your enrollment.

Program Overview:

My Energy Optimizer® Partner+ Participant Agreement

Welcome to the My Energy Optimizer Partner+ Program.

To enroll your home in the program, it is necessary to read, understand, and sign this Agreement. This Agreement will describe the My Energy Optimizer Partner+ Program (“Program”), and its importance for Sacramento Municipal Utility District’s service territory 2030 Zero Carbon Plan.

This My Energy Optimizer Partner+ Participant Agreement (this “Agreement”) is between you, the customer(s) (“Customer,” “you” or “your”), and Swell Energy Inc., a Delaware corporation (“Swell,” “we,” “us,” or “our”). You and we are each referred to in this Agreement as a “Party” and collectively as the “Parties.” An affiliate of Swell entered into a Master Services Agreement with the Sacramento Municipal Utility District (the “Company” or “SMUD”) dated November 1, 2022 (the “MSA”) to implement the Program.

The eligible equipment at your Property constituting, as applicable, the battery system (“Battery System”), solar generation system (“PV System”) and other smart load control devices (“Load Control Devices*”*), are collectively referred to herein as the equipment (“Equipment” or “Eligible Equipment”).

1. My Energy Optimizer Partner+ Program Goals

The Program is one of the most advanced efforts in California to use Equipment to reduce carbon emissions and make the electric grid more renewable, resilient, and reliable. Your location will operate in concert with many others to help balance all sources of renewable energy in the Sacramento region. Since your Equipment will benefit the entire SMUD electric grid, Swell will provide Incentive compensation in exchange for participating in the Program. The Program is a six-year program that will run from January 1, 2023, until the program end date of December 31, 2028 (unless the Program terminates before this date or is extended).

2. Program Incentives

The Program provides an Enrollment Incentive (your “Enrollment Incentive”) and a quarterly Recurring Incentive payment (“Recurring Incentive”) based on the amount of enrolled battery capacity (in kWh) you provide. The incentive values associated with signing this Participation Agreement during 2024 are shown below and will remain consistent across your initial 3-year program term. Both of these incentives are paid directly to you from Swell after your program start date and within 14 days of successful enrollment verification. Since battery capacity increases with each battery your Enrollment and Recurring Incentives may be higher if you have more batteries installed.

a. Enrollment Incentive

The Enrollment Incentive value associated with participating in the Program is shown below:

• The Enrollment Incentive will be available to new battery storage customers of SMUD interconnected on or after March 1, 2022 and existing SMUD battery storage customers interconnected prior to March 1, 2022 who move from SMUD’s Net Energy Metering (NEM) rate onto SMUD’s Solar and Storage Rate (SSR).

• Customers upgrading from a lower incentive provided through a different SMUD program will be eligible for the incremental incentive value.

• The Enrollment Incentive will be paid via electronic or physical debit card which will be issued to you via the My Swell Rewards platform.

• Customers must commit to the Program for a minimum of 1-year to qualify for the Enrollment Incentive.

• Un-enrollment from the Program before meeting the minimum time requirement will require prorated repayment of the Enrollment Incentive by you.

• Income-qualified customers whose battery storage costs are fully covered by SMUD are not eligible for the Enrollment Incentive. These customers will be auto-enrolled in the initial three-year term of the program and are required to remain enrolled for a minimum of 3 years.

• Enrollment incentives are limited and subject to change by SMUD.

b. Recurring Incentive

The Recurring Incentive value associated with installing battery storage under the Program for 2024 period is shown below:

*final quarterly payment amount may differ slightly due to rounding

**A home with three Powerwall3 batteries with DC expansion may limit how much energy can be discharged for the program.

• The values in the table above reflect the additional recurring payments you’ll receive based on your individual enrolled battery capacity.
• Your first quarterly payment will be prorated based on the month of enrollment verification into the program.
• Swell will not charge you any fees or other charges for participating in the Program.
• Managing your Equipment to support the Program may increase your utility bill compared with if you did not participate. By participating, however, you will receive the Enrollment Incentive and the Recurring Incentive.
• Recurring Incentives will be paid on a quarterly basis via electronic or physical debit card provided through My Swell Rewards.
• Recurring Incentives are taxable. Swell will report Recurring Incentives greater than $600 to the IRS. You are encouraged to consult a tax advisor concerning the taxability of the Recurring Incentives. You are responsible for any taxes imposed as a result of the receipt of Recurring Program Incentives.

Swell and SMUD expressly reserves the right to modify or amend the Program Incentives in whole or in part, at any time and for any reason without prior notice.

3. Grid Services

Your Equipment will provide Grid Services to the Program managed by Swell. The Grid Services are described below.

4. Swell Energy Optimization Services

After you have enrolled in the Program, you will never need to manage your Equipment to receive the benefits of the Program and deliver the Grid Services from your Equipment to SMUD. Swell’s Energy Optimization Services will manage your Equipment’s operations to balance the value of the Program and existing utility bill savings and backup energy. Swell will monitor and manage your Equipment as follows:

• Swell will not alter, reduce, or manage the Equipment during a grid outage. During grid outages, your Equipment will operate in its default operating mode.
• Swell will not cause your Battery System to discharge below 20% energy capacity.
• Swell will schedule times when your Equipment charges and discharges energy to provide the Grid Services set forth in Section 3.
• Because Swell is managing your Equipment, certain operating modes in the Original Equipment Manufacturer’s Mobile App (including Self Consumption, Backup, Advanced Time-of-Use, Storm Watch, etc.) may not change how your Equipment operates.
• Data in the Original Equipment Manufacturer’s Mobile App, including usage and operational graphs, will be unaffected by Swell’s Energy Optimization Services.
• Swell will ensure the Equipment has an appropriate amount of stored energy to provide the Grid Services.
• Swell will monitor, store, and share system performance data with SMUD to meet the Program requirements.

5. Term

Your Agreement will be effective on the date that it is signed by both you and us (the “Effective Date”). Your Program start date is the date your enrollment is completed with SMUD. The Agreement shall end at the earlier of (i) when termination is allowed under this Agreement or (ii) 36 months from the Program start date (the “Term”).

At the end of the Term, you may be given the option by Swell Energy to renew your enrollment in the My Energy Optimizer Partner+ program for up to an additional 36 months or until December 31, 2028 (depending on your original effective date). When you renew, your recurring program incentives may change. You may also decide not to renew without any penalties.

6. Purpose

Under this Agreement, you authorize Swell to act as your Program Grid Service Provider (as defined in Section 8) so that your Eligible Equipment can provide Grid Services to SMUD.  Swell will use the Equipment already installed in your location or the Equipment included in your signed solar and energy storage contracts to meet the requirements of the Program. No other additional Equipment needs to be installed by you to meet the requirements of the Program. Your Equipment will continue to be owned by their current owners. If you do not already have Eligible Equipment, you have separately arranged for some or all the Equipment to be installed by a licensed contractor at the address set forth below your signature (your “Property”). The ownership of your newly installed Equipment will be determined by the home improvement contracts you enter into.

7. Grid Programs

Swell and you are participating in the “My Energy Optimizer Partner+ Program” specified in Section 1, which we also call a “Grid Program”. By entering into this Agreement, you agree to cooperate with these efforts in exchange for the benefits specified in Section 2 (“Program Incentives”). Specifically, you agree that Swell may remotely manage the Equipment at your Property to modify energy usage at specific times and meet other goals of the Program as specified in Section 4 (the “Swell Energy Optimization Services”). Swell will monitor and manage the capabilities of the Equipment to allow it to provide the grid services set forth in Section 3 (the “Grid Services”). Swell will cover its out-of-pocket costs, overhead, and from compensation under the Grid Program. In addition to the Program for SMUD, other Grid Programs may from time to time become available. Before one of these other Grid Programs begins, we will provide you with program details and give you an opportunity to opt-in to the program. If you do not opt-in by written notice to Swell within thirty (30) days of receiving the details, you may lose your chance to participate in and receive the benefits of the new Grid Program.

8. Appointment of Grid Services Provider.

You acknowledge and agree that you are hereby appointing Swell, or another party designated by Swell, to act on your behalf as your sole and exclusive agent and provider for all Grid Services related to the Program (“Grid Services Provider”). You hereby authorize us, as your Grid Services Provider, subject to the opt-in provisions in Section 7, to act on your behalf and to enroll, register, or otherwise cause the participation of the Equipment in any Grid Program in which you have opted in, including: (i) receiving notices from SMUD and any other third parties regarding any such Grid Program, (ii) payments to and from the utility sponsoring the Grid Program (if allowed by the Grid Program) and any other third parties regarding any such Grid Program, and (iii) unenrolling or de-registering you from any other programs that conflict with or prevent your participation in the Grid Programs. You grant to us all rights to use the Equipment to provide Grid Services and to otherwise participate in any Grid Program. You understand that such use of the Equipment by Swell may override other Equipment operating modes while preserving key capabilities, such as, for example, providing back-up power. You agree to cooperate with us to give effect to the authorizations and granting of rights in this Section 8, including by promptly signing and returning documents and otherwise assisting us as reasonably required. None of the foregoing prevents you from declining to opt-in (or opt-out of) individual Grid Program opportunities pursuant to Section 7 above. You shall not enroll in (and if enrolled, you shall, within fifteen (15) days, unenroll from) any other demand response or Grid Program through SMUD or another provider that, at Swell's discretion, conflicts with you providing Grid Services to SMUD. This includes but is not limited to SMUD’s other programs listed at www.smud.org/en/Going-Green/Battery-storage/Homeowner. If you have questions, please contact gridprograms@swellenergy.com. You agree to execute any forms or enact any utility tariff changes required by Swell for the Program. If you are in another program that conflicts with the Program, you agree to take any action and execute any form required to end your participation in such other program. By signing this Agreement, you hereby appoint Swell to act as your demand response aggregator for the Program. You agree to move to a different rate schedule if the Grid Program requires that you receive electrical service from SMUD on a different rate schedule from your current one.

9. Access to Data & Equipment.

You agree that Swell may access and use your personal data, including data related to Equipment performance and usage, your electrical utility account information, usage history, and meter data. We take data privacy and security seriously, and all data access, use, and sharing is subject to the terms of our privacy policy (available at www.swellenergy.com/privacy-policy) and applicable law.  You agree to provide the Equipment with a reliable, always-on, broadband internet connection at your cost. We recommend a wired internet connection to your Equipment. You agree to provide Swell with available electrical design information about the Equipment, your Property, and other electrical hardware attached to your Property, including single-line diagrams and permits. You agree to allow Swell and our affiliates, contractors, employees, and representatives, SMUD, and governmental bodies, (collectively, “Grid Services Entities”) to come to your Property at agreed-upon times to inspect your Equipment and other electrical devices, including, as agreed-to by you, installing additional hardware on or around and modifying the Equipment, as required to comply with any Grid Program in which you are participating. Specifically, you agree that SMUD may enter the Property to install a smart meter and otherwise access the Equipment as needed to further SMUD’s rights under the MSA. You agree to participate in and complete all surveys received from Swell and the Grid Services Entities.

10. Moving from Your Property.

If you move from your Property during the Term, you may: (i) request that we perform Grid Services at your new property if your new property is eligible for Grid Services, (ii) transfer this Agreement to your Property’s new owner(s) if the new owner(s) assume your obligations hereunder and are deemed eligible, at Swell’s discretion, for Grid Services, or (iii) terminate this Agreement.

11. Termination Rights.

a. Swell may suspend or terminate this Agreement if you fail to perform any obligation under this Agreement.

b. You may terminate this Agreement if Swell fails to perform any obligation under this Agreement.

c. To the fullest extent permitted under applicable law, your termination of this Agreement shall be the exclusive remedy for any Swell default. Subject to the other provisions of this Agreement, Swell will indemnify you for all claims that flow from a breach of Swell’s representations under this Agreement.

d. With exception to the terms described above in Section 2 pertaining to the Enrollment Incentive, you may terminate this Agreement at any time with no penalty and will be removed from the Program within 60 days after Swell receives your notice.

1. There are no penalties associated with termination, though if you terminate this Agreement within the first year, you will be required to prorate repayment of the Enrollment Incentive received, if any.
2. Swell will automatically prorate your Recurring Incentive from the un-enrollment date and stop your future Recurring Incentives.

e. Swell may terminate this Agreement at any time without cause. If Swell terminates this Agreement without cause within your first year of enrollment, then your repayment obligation will be forgiven.  Swell and SMUD expressly reserves the right to terminate the Program Incentive in whole or in part, at any time and for any reason without prior notice.

f. The Agreement shall end at the earlier of(i) when termination is allowed under this Agreement or (ii) 36 months from the Effective Date (the “Term”)

12. Miscellaneous.

a. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SWELL OR SMUD BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

YOU AGREE THAT SWELL’S LIMITATION OF LIABILITY: (I) WILL NOT APPLY TO DAMAGES RESULTING FROM ITS GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, AND (II) WILL BE CAPPED FOR COVERED DAMAGES AT $10,000 PER PROGRAM PARTICIPANT, UP TO AN AGGREGATE LIABILITY TO ALL PROGRAM PARTICIPANTS EQUAL TO $2,000,000.

b. Disclaimer of Warranties. YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR SOLE DISCRETION AND RISK. THE PROGRAM IS OFFERED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND. SMUD AND SWELL EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE GRID SERVICES, THE PERFORMANCE OF THE EQUIPMENT, ANY OTHER SERVICE OR GOOD PROVIDED BY US UNDER THIS AGREEMENT, OR ANY OTHER MATTER CONTEMPLATED HEREUNDER, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR ANY MATERIALS OR CONTENT AVAILABLE FROM US WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SWELL DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO ITS USE OF THE EQUIPMENT AND MAKES NO GUARANTEE REGARDING ENERGY SAVINGS OR PERFORMANCE OF THE EQUIPMENT.

c. Equipment Warranties. THE EQUIPMENT IS SUBJECT TO THE WARRANTY(IES) TERMS AS ESTABLISHED BY THE EQUIPMENT MANUFACTURER(S). Swell will ensure that all Equipment is operated within warranty parameters.

d. Indemnification. You agree to indemnify, and hold Swell and SMUD, their officers, directors, employees and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with your participation in the Program.

e. Our Assignment. We may assign our rights and responsibilities (in whole or in part) under this Agreement without your consent, but we will provide you in advance of assignment with the contact information for the new party to whom we assign such rights and responsibilities. To avoid doubt, our obligations under this Agreement may be separated and assigned to different third parties. If an assignee (or multiple assignees, collectively) agree(s) in writing to assume all of our rights and obligations under this Agreement, we will have no further liability or obligation under this Agreement upon the effectiveness of such assignment(s).

f. Utility Payments. You shall not cause or allow a disconnection of the Equipment from SMUD’s electrical facilities, including because of non-payment of bills from SMUD.

g. Non-Reliance for Medical Uses. If you are powering medical equipment using the Equipment, you are ineligible to participate in the Program.

h. Notice. All notices under this Agreement shall be given via email (notices@swellenergy.com for Swell; email in signature page for Customer) and shall be deemed received within one (1) business day of delivery.

i. Authority to Sign. You represent that you are the primary and rightful account holder of record with SMUD for the electrical service delivered to the Property. You represent that you possess the full right and authority to execute this Agreement on behalf of yourself and any other owners of the Property.

j. Insurance. You represent that you have and will maintain during the full Term, property and liability insurance (e.g., homeowner’s insurance) that sufficiently covers damage to the Equipment.

k. Force Majeure. Neither party shall be liable to the other Party, nor be deemed to have breached this Agreement, for any failure or delay in performing any non-monetary obligation under this Agreement if such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party, including, without limitation, acts of God, flood, fire, earthquake, pandemic, extreme weather, explosion, governmental actions, war, terrorist threats or acts or other civil unrest, lock-outs, strikes or other labor disputes.

l. Dispute Resolution. This Agreement is governed by the laws of California. Any dispute arising from or relating to this Agreement shall first be promptly referred to the parties’ senior level management for resolution. If they are unable to resolve any such dispute within 20 days after referral, either party may take such dispute to binding arbitration in accordance with the then-current Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Services (“JAMS”).  The existence, content and result of the arbitration shall be held in confidence by the parties, their representatives, any other participants and the arbitrator.  The arbitration will be conducted by a single arbitrator selected by agreement of the parties or, failing such agreement, appointed in accordance with the JAMS rules.  The arbitration shall be conducted in English and in Sacramento, California.  Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award reasonable costs and fees to the prevailing party.  Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction.  Either party may bring a lawsuit if the other party does not demand arbitration. We will not demand arbitration of any lawsuit you bring as an individual action in small-claims court. However, we may demand arbitration of any appeal of a small-claims decision or any small-claims action brought on a class basis. You agree not to bring or join any arbitration on a class basis.

m. Eligible Equipment List. Equipment that is eligible to participate in the Grid Program are listed below. Swell expressly reserves the right to amend the Eligible Equipment List at any time and for any reason without prior notice.

1. Tesla Powerwall 2 and associated communications equipment
2. Tesla Powerwall+ and associated communications equipment
3. Tesla Powerwall 3 and associated communications equipment

n. Equipment Installation.  Pursuant to Section 6, if you do not already have Eligible Equipment, you may separately arrange for some or all of the Equipment to be installed by a licensed contractor at your Property. You agree that SMUD is not responsible or liable for Equipment installation, operation, services, or service related defects. You will contact the installation contractor of the Equipment for any operation, installation, or service related issues.

13. Consent and Release

a. The undersigned customer(s) is/are executing this Consent and Release in connection with that certain Agreement entered into by the customer(s) with Swell Energy, Inc. Capitalized terms that are used in this Consent and Release and not defined herein shall have the meanings given them in the related Agreement.

b. You agree that Swell may access, use, and disclose your personal data to SMUD and its contractors and agents to effectuate the purpose of the Agreement, including data related to Equipment performance and usage, your electrical utility account information, usage history, and meter data, and for no other purposes. You agree to provide Swell with available electrical design information about the Equipment, your Property, and other electrical hardware attached to your Property, including single-line diagrams and permits.

c. You agree to grant SMUD the right, without restriction, to use all your data produced as a result of your participation in the Program for all legal purposes, including granting SMUD the right to share some data with Swell solely for the purpose of meeting Program requirements.

d. We take data privacy and security seriously, and all data access, use, and sharing is subject to the terms of our privacy policy (available at **https://www.swellenergy.com/privacy-policy) and applicable law. In addition to the specific types of information that we may disclose that are listed in paragraph (b) above, the other specific types of information we may disclosed and the reasons for obtaining such information can be found in our privacy policy.

e. You may revoke this Consent and Release at any time by contacting us (to revoke our rights to your data) or SMUD (to revoke SMUD’s rights to your data), provided, however, that if you continue to participate in the Program your revocation of this Consent and Release shall only apply to the access, use, and disclosure of your personal data that is not required for you to continue to participate in the Program. If you wish that we no longer access, use, or disclose any of your personal data, then you must terminate the Agreement and your participation in the Program.