Energyworx Terms of Service

  1. DEFINITIONS

Term

Definition

Consultancy Services

All services of Energyworx other than SaaS Services and Support Services;

Customer

Contracting party of Energyworx for the delivery of Services;

Defect

A malfunction in the SaaS Services (not caused by incorrect configuration or otherwise not following usage instructions in the Documentation) materially degrading functionality of the SaaS Services as described in the then current Documentation;

Documentation

The current version of the user manuals for the SaaS Services as issued by Energyworx via its website or directly to the Customer from time to time;

Energyworx

Energyworx, a SaaS provider for the Energy & Utilities industry, providing an Energy Data Management and Energy Intelligence platform;

Intellectual Property Rights

All copyrights, patents, database rights, rights in trademarks, designs, know-how, logos, confidential information and similar rights (whether registered or unregistered);

Offer

Written offer issued by an authorised representative of Energyworx for the provision of Services to the Customer;

Purchase Order

Purchase Order which is accepted by the Customer;

SaaS Services

Energyworx data crunching engine service that captures, orders, stores and analyses data from an endless stream of all types, shapes and sizes from the Smart Grid managed, hosted and made available by Energyworx for use by Customer over the internet;

Services

Services of Energyworx;

Daily Budget

This is the maximum cost Customer configures in the SaaS Services to be willing to pay for per day for Pay-per-use elements of the SaaS Services. This Daily Budget will limit the total amount Customer can be charged on any single day for such Pay-per-use service element;

Support Services

The standard support services provided to Customer as part of the SaaS Services as further described in clause 4;

Pay-per-use Service Elements

Elements of the SaaS Services which are charged to the Customer on the basis of usage of such Service Element, such as reserved processing capacity, processed transactions, stored or processed data.  

  1. APPLICABILITY OF TERMS
  1. Introduction: These are the general terms and conditions of Energyworx. These apply to all Services of Energyworx, all Offers of Energyworx and all agreements entered into by Energyworx with the Customer with respect to the supply of Services by Energyworx.
  2. Offers and Purchase Orders: Customer may accept Offers for Purchase Orders issued by Energyworx by signing them and sending these to Energyworx or by accepting them online (if the Order is offered online such as on websites, in app-stores or in apps). Offers for Purchase Orders expire if not accepted by Customer within 30 days of the date they were provided, unless another validity terms is expressly included in the Offer. Offers made by Energyworx online may be revoked without notice. Apparent typo’s and errors in Offers do not bind Energyworx and Energyworx may reject or terminate Purchase Orders based on Offers containing such apparent errors.  

  1. SAAS SERVICES SCOPE
  1. Hosting and technical management: Standard SaaS Services of Energyworx include the hosting and technical management by Energyworx of such software in a secured third party data center located in Europe. The SaaS Service will be implemented by Energyworx and made available ready for use by Customer via the internet. Customer can subsequently connect to the SaaS Service via the internet, to configure the SaaS Service, load its own data in the SaaS Service and use the SaaS Services.
  2. Service commitment: Energyworx will ensure the SaaS Services are provided in a professional manner and will work to ensure they will function for the duration of the subscription of Customer for the SaaS Services in substantial conformity with the Documentation. Energyworx does not warrant the SaaS Services will operate error free or uninterrupted, but commits to address Defects in the SaaS Services in accordance with clause 4.  
  3. Usage limitations: Customer may only use the SaaS Services for the usage scope expressly agreed in the Purchase Order.  Use beyond the agreed usage scope by Customer without prior agreement in a Purchase Order entitles Energyworx to invoice Customer for the additional usage made at Energyworx’ current standard pricing for such expanded use, at that time. Customer may not copy and use any part of the SaaS Services, expressly including any software, concept, knowhow or other proprietary aspect of the SaaS Services outside the scope of the SaaS Services. Customer must in using the SaaS Service observe the usage instructions and guidelines in the Documentation and may not use the SaaS Services in a manner interfering or disrupting the integrity of the proper functioning of the SaaS Services and the data stored thereon.
  4. No use for/by third parties allowed: Customer may only use the SaaS Services for its own internal business purposes and may not make the SaaS Services available to any third party by sale, rent, sublicensing, timesharing or on any other basis nor use the SaaS Services for the benefit of any third party on any basis including reselling them or combining them with the services provided by Customer to third parties.
  5. Evolution of SaaS Services: The SaaS Services may be updated, changed and upgraded by Energyworx from time to time. For material changes to the SaaS Services with a foreseeable material impact on Customer, Energyworx will (where reasonably possible) provide at least one month prior notice (via email or posting of a message on the login screen of the SaaS Services) to enable Customer to prepare for such change. Energyworx will not charge Customer additional fees for additional features it may make available to Customer by means of such changes, unless this concerns future new features or functions for which Energyworx also generally charges other users of the SaaS Services separately. However separately charged new features will not be charged to Customer until Customer has confirmed the desire to use such new feature by concluding an Order in which the related additional charges are agreed. If a change implemented by Energyworx would remove previously available material functionality without replacing it with a reasonable equivalent alternative, Customer may terminate the SaaS Services by giving one month prior written notice to Energyworx within one month after having been informed by Energyworx of such planned change to be made to the SaaS Services. Energyworx will in case of such termination proportionally refund Customer for unused portions of any prepaid subscription fees for the SaaS Services.

  1. SUPPORT AND CONSULTANCY SERVICES
  1. Support Services – general support: Support Services included in the subscription fees for the SaaS Services include the following:
  1. Access to the Documentation of the SaaS Services and self-help tooling (such as the FAQ lists, white papers  example materials and use cases) as made available from time to time via the SaaS Services to Customer;
  2. General usage support via email and phone (during business hours, for a maximum of 2 hours per month or such other maximum number as may be agreed in the Order) to answer reasonable usage related questions regarding the SaaS Services regarding aspects not covered by the Documentation and other self-help tooling made available by Energyworx; and
  3. Proactive monitoring by Energyworx of key performance statistics of the SaaS Services to help prevent Defects and to identify Defects occurring in the SaaS Services.
  1. Support Services – Defects: Energyworx will use reasonable efforts to address and resolve Defects in a reasonable amount of time in accordance with the current service level commitments of Energyworx for the Support Services as included in the Documentation, at that time. In case a Defect effectively blocks Customer from accessing the SaaS Services or using material parts of the functionality of the Services, Energyworx will use all reasonable efforts to provide at least a workaround to allow Customer to resume use of the (affected part of) the SaaS Services as soon as practically possible, which work around may require Customer to temporarily accept to apply alternative working procedures or a reduction of minor functionality. 
  2. Customer responsibilities for receiving support: Customer must ensure that employees contacting Energyworx to receive general support and/or to report Defects have been suitably trained to operate the SaaS Service and have consulted the Documentation of the SaaS Services before contacting Energyworx for support. When reporting a Defect, Customer must provide all relevant information and co-operation to Energyworx to enable Energyworx to identify and reproduce the Defect. Resolving issues caused by failures to follow usage instructions set out in the Documentation, by uploaded materials not compliant with the related technical requirements or with respect to restoring Customer data are not part of standard Support Services, and assistance with respect thereto may be separately charged by Energyworx as Consultancy Services to Customer.
  3. Consultancy Services: All forms of services by Energyworx other than the SaaS Services and related standard Support Services as set out above, such as assistance in customising the setting of the SaaS Services for Customer, assisting in uploading and tailoring Customer Data for use with the SaaS Services, are Consultancy Services which are not included in the subscription fees for the SaaS Services and are separately chargeable to Customer as agreed in the relevant Purchase Order.
  4. Terms and dates: All delivery dates and other periods stated or agreed by Energyworx for Consultancy Services are determined based on data known to Energyworx when it agreed or communicated such dates or periods and may be subject to change. Energyworx will use its reasonable efforts to observe agreed delivery dates and other periods as much as possible, subject to the Customer’s timely performance of its obligations.
  5. Fees for Consultancy Services: Unless expressly agreed otherwise, Consultancy Services are charged on a time and material basis against the standard hourly rates of Energyworx or such hourly rates as may be agreed in the relevant Purchase Order. Communicated budgets for performing certain activities are (unless expressly agreed otherwise) non-binding estimates and not fixed prices. Energyworx will only spend time beyond the agreed budget after prior written consent from Customer. Agreed fixed prices for Consultancy Services for certain specific activities are subject to the assumptions and conditions set out in the Purchase Order. For Consultancy Services on a fixed price basis related to designing, tailoring look and feel, house style or other elements subject to the subjective approval by Customer, one correction round is included in such fixed price. Additional iterations to fine tune such aspects of the relevant deliverables is not included in the fixed price and may be charged separately by Energyworx.
  6. Customer cooperation: The Customer shall furnish Energyworx in a timely manner with all information and cooperation which is reasonably requested by Energyworx to execute its obligations. Customer will ensure any Customer Data provided for inclusion in the SaaS Services complies with the relevant technical standards as set out in the Documentation. Data conversion is not part of the scope of Services of Energyworx unless expressly otherwise agreed in the Order.
  7. Quality commitment Consultancy Services: Energyworx will provide Consultancy Services in a professional and diligent manner. In case deliverables created as the result of Consultancy Services  contain manifest errors or shortcomings caused by a failure by Energyworx to perform the Consultancy Services to the standard set out in this clause, and Customer reports this to Energyworx within 3 months after the delivery of the relevant deliverable, Energyworx will as sole remedy and without additional charge use its reasonable efforts to correct such error or shortcoming or alternatively offer Customer a proportional reduction in the fees charged for the relevant Consultancy Services.

  1. IP RIGHTS, THIRD PARTY LICENSE TERMS
  1. Ownership SaaS Services: All Intellectual Property Rights in or related to the SaaS Services, and any modifications thereto, including those suggested or requested to be made by Customer (but excluding any Customer Data) are and will remain to be fully and wholly owned by Energyworx and its licensors.
  2. Ownership Customer Data: All data which Customer uploads in the SaaS Services or sends to the SaaS Services or gathers from its relations via the SaaS Services, expressly including but not limited to messages texts, Customer logo’s and trademarks, Customer house style elements and other Customer prepared texts and images, are considered Customer Data and are and will remain to be fully and wholly owned by Customer and its licensors.  Energyworx will not use the Customer Data for any other purpose than to provide the Services to Customer, to manage maintain and improve the Services, to gather anonymous usage statistics (which cannot be traced back to Customer or any individual) and to comply with applicable laws.
  3. Return of Customer Data: Energyworx will upon termination of the SaaS Services for up to one month after such termination allow Customer to download from the SaaS Services any copies of Customer Data available for download from the SaaS Services. Thereafter Energyworx will erase all Customer Data from its systems.  
  4. Third party license terms: If the parties agree in the relevant Order that the SaaS Services will be based on or utilize standard saas services and/or standard IT tools of a third party licensor (hereafter Third Party Tools), then with respect to the use of such Third Party Tools, the relevant license and usage terms with respect to such Third Party Tools as imposed by the relevant third party licensor as shared by Energyworx with Customer will apply to the use thereof, in addition and where relevant in deviation of these terms of Energyworx. For the avoidance of doubt, the fees payable for the use of Third Party Tools are included in the fees agreed for the SaaS Services and not separately payable by Customer unless expressly otherwise agreed in the relevant Purchase Order.

  1. COMPLIANCE TO LAWS
  1. Customer responsibility for legal use: Customer is fully responsible for all use Customer makes of the SaaS Services, all data it uploads to and distributes via the SaaS Services and all related instructions it gives to Energyworx in configuring and using the SaaS Services for Customer. Customer shall at all times ensure that all such use complies with applicable laws, does not violate any third party rights (expressly including any intellectual property rights or trademark rights) and does not constitute a tort against any third party. Further, Customer commits not to use the SaaS Services for sending obscene, threatening, defamatory, fraudulent, or otherwise tortious or offensive messages that could hurt the reputation of Energyworx and its licensors.
  2. Right to suspend services: Energyworx reserves the right to block any use of the SaaS Services expressly including the sending of any messages via the SaaS Services which it reasonably deems to violate these terms, any applicable law or any third party right.
  3. Commitment to comply to privacy laws: Each party will ensure compliance of its activities to the applicable privacy laws in using respectively providing the SaaS Services. Where Energyworx processes personal data while performing the Services, it will act as data processor under the direction and responsibility of Customer as controller in accordance with EU Privacy Directive 95/46 and the implementation thereof in local privacy laws. Customer will at all times ensure compliance with applicable data protection laws, when using the Services and when instructing Energyworx in configuring and using the SaaS Services for Customer.
  4. Security commitment Energyworx: Energyworx shall implement appropriate technical and organizational measures to protect personal data stored and processed via the SaaS Services against abuse. Energyworx shall ensure that the data centres used to host the SaaS Services and to store Customer Data are located in Europe unless expressly otherwise instructed by Customer. Energyworx will prior to the start of the SaaS Services share the name, location and observed security standards committed to be employed to secure the data center and the computer environment used to host the SaaS Services with Customer.

  1. PRICE AND PAYMENT
  1. Taxes and costs: All prices of Energyworx are, unless explicitly otherwise agreed, exclusive of value added tax (VAT), withholding tax and other taxes, levies or duties imposed by governmental authorities which will be separately payable by Customer as reflected on the invoice. Pricing of Services is excluding applicable transportation, travel and accommodation costs that will be charged separately as incurred to provide the agreed Services except as explicitly agreed otherwise in the relevant Purchase Order.
  2. Pay-per-use Service Element Fees and Daily Budget: Fees for Pay-per-use Service Elements are payable on the basis of the use made by Customer of the relevant Pay-per-use Service Element as registered in the SaaS Services on the account of Customer.  Customer can set a Daily Budget for certain Pay-per-use Service Elements. Customer must ensure such Daily Budget is large enough to be able to handle spikes in resource usage. When the actual usage of Customer for the relevant Pay-per-use Service Element reaches the applicable Daily Budget, an operation that would cause the Daily Budget to be exceeded may fail. Reporting on fees due via reporting tools in the SaaS Services and setting and reporting of Daily Budgets is excluding any applicable taxes unless otherwise expressly noted. On invoicing such applicable taxes will be added as applicable to the fees due by Customer as reflected on the invoice
  3. Payment terms:  Unless otherwise agreed in the Order for prepaid cost models, Pay-per-use fees for SaaS Services become payable and will be invoiced monthly in arrears based on actual usage. Fees for consultancy services are payable in accordance with the payment schedule set out in the Purchase Order or in absence thereof, monthly in arrears on the basis of actual hours spent in the past month. The Customer shall pay each invoice within thirty days after the invoice date. The Customer shall not be entitled to offset any counterclaims or to suspend payment of an invoice. In case payment is not made within the applicable payment term and Customer does not make payment within 10 days of receiving a written reminder, Energyworx will be entitled to suspend access to the SaaS Services in part or in whole until full payment is made, notwithstanding Energyworx’ other rights and remedies.
  4. Pricing: For SaaS Services, the pricing in the Order is valid for the initial subscription term of the SaaS Services as specified in the Order. In case of renewal of the term of SaaS Services, the current standard prices for the SaaS Services as published by Energyworx on its website or notified by Energyworx to the Customer in writing will be applicable to the SaaS Services as of the date of renewal. When charging in local currency, Energyworx will convert the prices listed into applicable local currency pursuant to the conversion rates published by leading financial institutions.

  1. LIMITATION OF LIABILITY
  1. Liability limit direct damage: The total liability of Energyworx under any Purchase Order for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to the 50% of the total fees actually paid by Customer to Energyworx during the previous full calendar year under the Order (or if no Services were provided in the previous calendar year to Customer under the Order, the total fees paid in the initial 6 months of the term of the Order), but this amount can never exceed the amount covered by the insurance for liability of Energyworx.  
  2. No limitation: The limitations mentioned in the preceding paragraph of this clause shall not apply if and insofar as the damage or injury are the result of intentional misconduct or gross negligence of Energyworx.
  3. Exclusion liability indirect damage: Energyworx shall not be liable towards Customer or towards third parties for any consequential or incidental damage, damage to data, lost turnover, lost profits, lost savings or damage to good name, whether such damages arise under a tort, contract or other claim, even if Energyworx has been informed of the possibility of such damages.
  4. Employees and subcontractors: The provisions in this clause shall also apply for the benefit of the employees of Energyworx and of the subcontractors utilized by Energyworx in executing its obligations toward the Customer.
  5. Third party claims: The Customer will indemnify and hold Energyworx harmless from any third party claims and related reasonable legal costs caused by Customer’s use of the SaaS Services, expressly including any claim from any third party caused by a violation of such third party’s rights or of applicable privacy or other laws by Customer in using the SaaS Services.

  1. TERMINATION
  1. Term and renewal of SaaS Services: The right for Customer to use the SaaS Services is granted for the relevant subscription period as set out in the Purchase Order. If no subscription period is specified in the Purchase Order, the initial subscription period is one year starting on the date the SaaS Services are first made available for use to Customer, after which the subscription is automatically renewed for additional one year periods until either party gives at least 2 months prior written notice of its desire not to renew the SaaS Services. Customer may reduce the scope of the SaaS Services for the following renewal period (e.g. by reducing the amount of prepaid Pay-per-use Service Elements) by giving 2 months prior written notice to Energyworx.
  2. Termination rights, both parties: A party may terminate a  Purchase Order by giving written notice to the other party in the following circumstances:
  1. if the other party violates an obligation under a  Purchase Order and does not remedy such violation within a reasonable period of at least 30 days set by the other party in a written notice of default sent by registered mail to the defaulting party; or
  2. if the other party is declared bankrupt or a receiver is appointed to administer its assets or otherwise becomes unable to satisfy its debts when due.
  1. Services Discontinuation: Energyworx may terminate the current term of a subscription for SaaS Services and the related Orders, but will do so only in case Energyworx decides to end support for the relevant SaaS Service for all its customers. Energyworx will in such case use its reasonable effort to provide at least 6 months prior notice of such termination. Where possible Energyworx will offer a migration path for Customer to alternative SaaS Services replacing the terminated SaaS Services which Customer will be free to accept or reject.
  2. Consequences of termination: Upon termination or expiration (for whatever reason) of a Purchase Order all amounts owed under such Purchase Order shall immediately become fully due  and payable, including for subscription and minimum fees for Pay-per-use Service Elements that would have become due for the remainder of the agreed initial term of the subscription period for the SaaS Services. No refunds are provided for amounts prepaid for SaaS Services, except in case the Purchase Order was justly terminated by the Customer for an uncured default of Energyworx.

  1. IP INDEMNITY
  1. IP indemnity commitment: As far as Energyworx is aware, the Services do not infringe upon any third party Intellectual Property Rights when used in accordance with the applicable terms. Energyworx shall, as sole and exclusive remedy, defend the Customer at its expense against any claim from a third party that the use of the Energyworx Services by the Customer infringes any third party's Intellectual Property Rights.
  2. Conditions for IP indemnity: Energyworx shall pay all costs, damages and attorney's fees that a court finally awards as a result of such a claim or make all payments related to a settlement agreed by Energyworx with such third party concerning such claim, provided that:
  1. Such claim is not in any way caused by any Customer Data or any act or omission of Customer;
  2. Customer promptly notifies Energyworx in writing of such claim; and
  3. allows Energyworx to control, and fully co-operates with Energyworx in, the defence against, such claim and any related settlement negotiations.
  1. Resolving infringement: If a claim for infringement of Intellectual Property Rights of a third party is made or in the reasonable opinion of Energyworx is likely to be made then, at Energyworx' option:
  1. Energyworx will procure a license from the holder of the relevant Intellectual Property Rights to enable the Customer to continue to use the Services; or
  2. Energyworx will replace the relevant part to the Services with a modified version thereof, which does not infringe the third party Intellectual Property Rights; or
  3. Energyworx may terminate the relevant Order against a proportional repayment of the fees paid by the Customer for unused portions of the subscription for the SaaS Services.  

  1. CONFIDENTIALITY
  1. Confidentiality commitment: Each party (Recipient) undertakes to the other party (the Disclosing Party) to treat as confidential all information in any medium or format (whether marked "confidential" or not) which the Recipient receives from the Disclosing Party either directly or indirectly which concerns the business, operations, software or customers of the Disclosing Party and which can reasonably be deemed to be of a confidential nature (Confidential Information). The contents and existence of this Agreement is considered Confidential Information.
  2. Usage restriction: The Recipient may only use the Confidential Information for the purposes of performing the activities set out in this Agreement. The Recipient may only provide its employees, directors, subcontractors and professional advisers (Permitted Users) with access to the Confidential Information on a strict "need-to-know" basis for this purpose.  The Recipient shall ensure that each of its Permitted Users is bound to hold all Confidential Information in confidence.  Where a Permitted User is not an employee or director of the Recipient (and is not under a professional duty to protect confidentiality) the Recipient shall ensure that the Permitted User shall enter into a written confidentiality undertaking with the Recipient on substantially equivalent terms to this clause.
  3. Exclusions: This clause 11, shall not apply to any information which:
  1. is in or subsequently enters the public domain other than as a result of a breach of this clause 11;
  2. has been or is subsequently received by the Recipient from a third party which is under no confidentiality obligation in respect of that information; or
  3. is required to be disclosed to any competent governmental or regulatory authority.

  1. MISCELLANEOUS
  1. Rejection of third party purchasing terms: The applicability of the Customer's purchasing or other general terms and conditions is expressly rejected. If the Customer accepts an Offer or requested an offer with reference to additional or deviating terms or conditions of Customer (such as purchasing terms of the Customer), then such deviating or additional terms shall not apply between the parties unless these are explicitly accepted in a written statement issued and signed by an authorized representative of Energyworx. In any case the terms of the Offer itself, including these general terms and conditions, shall take precedence over any deviating terms and conditions of the Customer.
  2. Non-poaching of employees: neither party will during the term of a Purchase Order and up to a year after the end of such term directly or indirectly employ, hire or procure services from any employee or freelancer hired by the other party which was during the term of such Purchase Order involved for the other party in providing the SaaS Services or using the SaaS Services. Violation of this clause will entitle the other party to claim as liquidated damages the higher of 50.000 euro or a year’s salary (or other yearly total compensation) of the relevant individual, without limiting the right to claim specific performance.
  3. Applicable law: These terms and conditions and all agreements to which they apply shall be governed by the laws of the Netherlands.
  4. Dispute resolution: All disputes arising in connection these terms or any agreement they are applicable to, shall be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands.  
  5. Settlement commitment: No legal proceedings shall be started, except if for immediate injunctive relief, until after the party which wishes to start such legal proceedings has in good faith attempted to settle the dispute out of court.