STEAMACO TERMS & CONDITIONS FOR THE SALE OF EQUIPMENT & SERVICES

1               Definitions & Interpretation

1.1           In these terms and conditions, defined terms shall have the meanings set out below:

Affiliates: in relation to any party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party. The terms subsidiary and holding company shall have the meaning ascribed to them in section 1159 of the UK Companies Act 2006;

Agreement: the contract into which the parties will enter, upon the Customer’s acceptance of the Quotation, comprising the Quotation, any Contract of Sale, these Terms & Conditions and any schedules hereto.

Applicable Laws: all laws (including laws relating to anti-bribery and anti-corruption), statutes, regulations, decisions, rulings, sanctions, governmental and regulatory policies, industry guidelines and/or codes of practice which may from time to time be in force in a relevant territory which is relevant to any rights and/or obligations under and/or the performance of the Agreement;

Authorised Users: those employees of the Customer who are authorised to access the Web Portal and use the Services;

Bribery Act: the UK Bribery Act 2010;

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK on which banks in London are open for ordinary business;

Commencement Date: the date a Contract of Sale is made between the parties;

Confidential Information: all information of a confidential nature or which would be deemed confidential by a reasonable business person (however recorded and whether marked as confidential or not) belonging to a party which is disclosed to or received by the other party, whether before or after the Commencement Date, directly or indirectly, in connection with the Agreement, including the terms of the Agreement and any financial, technical, operational, commercial, employee, management, product and other information and/or data of whatever kind (including all information relating to the trade secrets, operations, manufacture processes, distribution channels, sales, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or business) of the disclosing party and/or its customers, clients, suppliers and/or Affiliates;

Contract of Sale: any contract between SteamaCo and the Customer (whether in writing or not) for the sale and purchase of Equipment and/or Services incorporating these Terms & Conditions;

Customer: any person or company to whom SteamaCo sells Equipment and/or Services;

Customer Default: has the meaning given to it in clause 6.3;

Customer Responsibilities: has the meaning given to it in clause 6.1;

Data: means all data and information relating to the Customer’s and its Subscribers’ use of the Services, in its raw form, collated, collected and/or recorded by the Equipment and/or otherwise by or on behalf of SteamaCo, and/or which is otherwise provided to SteamaCo, in connection with the provision of the Services pursuant to the terms of the Agreement;

Data Protection Legislation: the Data Protection Act 1998 and any other Applicable Laws relating to the processing of personal data and privacy, including any laws and regulations which supersede or replace the foregoing, and where applicable the guidance and codes of practice issued by the UK Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction;

Delivery Location: is as set out in the Quotation.

Deliverables: the Equipment, the Web Portal, the Documentation and the products of any Services provided by SteamaCo to the Customer from time to time;

Derived Data: means any information or data which is derived or created from the Data, including Data which has been adapted, amended or edited by SteamaCo, and/or Data which has been combined or aggregated with other data or information held by SteamaCo, in each case which data does not name the Customer or contain any personally identifiable information of any of its Subscribers;

Documentation: the operating manuals, user and technical documentation and/or other related materials (in any form) made available to the Customer by or on behalf of SteamaCo from time to time;

Equipment: metering devices, together with embedded firmware and such other associated equipment as may be supplied to the Customer by SteamaCo from time to time, as further described in Schedule 1.

Equipment Delivery Window: is the lead time set out in the Quotation.

Equipment Fee: the one-off sum payable in respect of the supply of the Equipment as set out in the Quotation;

Force Majeure Event: has the meaning set out in clause 17;

Improvement: any improvement, discovery, development, enhancement, modification or derivative relating to the Equipment, the Software, the Web Portal and/or the provision of the Services;

Insolvency Event: (a) where a party: suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; or is adjudicated bankrupt; or enters into a composition, compromise or arrangement to reschedule any of its debts with or for the benefit of its creditors; or compulsorily or voluntarily enters into liquidation (except for the purposes of a bona fide reconstruction or amalgamation); or has an administrator, receiver, liquidator or manager appointed over the whole, or a substantial part, of its undertaking or assets; or ceases or suspends or threatens to cease or suspend all or a substantial part of its business; or is dissolved or wound up; or (b) if any event occurs or proceeding is brought or step taken by any person with respect to that party in any jurisdiction to which it is subject that has an effect similar to any of the aforementioned events;

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

Losses: all costs, liabilities, damages, losses, fines and/or penalties (including all interest and reasonable legal and other professional fees, costs and expenses) of whatsoever nature or kind and whether or not the same arise during or after the Term;

Manufacturer Warranty: has the meaning set out in clause 10.2;

Monthly Services Charge: the amount payable in respect of the provision of the Services, set out in the Quotation;

Order: means the Customer’s initial request to acquire SteamaCo’s services as set out in clause 2 of these Terms and Conditions;

Personal Data: means Data which is defined as “personal data” under the Data Protection Act 1998;

Process and Processing: shall have the meanings given in the Data Protection Act 1998;

Quotation: means a quotation detailing proposed fees and equipment and services to be supplied to the Customer in accordance with clause 2 of these Terms and Conditions;

Services: SteamaCo’s services, as set out in Schedule 1 and as the same may be amended and updated by SteamaCo from time to time in writing;

Services Start Date: shall be as set out in the Quotation and/or any Contract of Sale or as otherwise agreed between the parties;

Software: SteamaCo’s proprietary software which enables the provision of the Services by SteamaCo to the Customer, including the firmware embedded in the Equipment, and online software application (“Steama”), as described further in the Schedule 1;

SteamaCo: means Steama Company Limited, (company number 8081185), whose registered office is at Pannone Corporate LLP, 378-380 Deansgate, Manchester M3 4LY;

SteamaCo Intellectual Property: all Intellectual Property Rights owned by and/or licensed to SteamaCo, including all Intellectual Property Rights subsisting in and/or pertaining to the Equipment, the Web Portal, the Software, the provision of the Services and any Improvements;

SteamaCo Personnel: the employees, personnel, contractors, officers, agents, consultants, workers and/or other third parties engaged by or on behalf of SteamaCo (or its Affiliates) and who provide services in connection with the Agreement from time to time;

Subscriber: a customer of the Customer who purchases Utilities from the Customer and who has subscribed to use any of those parts of the Services which are capable of being provided to such subscribers;

Term: has the meaning set out in clause 9.1;

Third Party Equipment: such part or parts of the Equipment provided by SteamaCo to the Customer which have not been manufactured by SteamaCo, including third party firmware embedded in the Equipment, the component parts set out in Part B of Schedule 2, and any third-party hardware or equipment with which the Equipment may be used;

Third Party Software: such third party software as is required in order to use the Web Portal, Software and/or Services, including the software set out in Part A of Schedule 2;

Utilities: the utilities with which the Equipment is interconnected (e.g. electricity, water, fuel).

VAT: value added tax imposed in any member state of the European Union or any similar tax which may be substituted for or levied in addition to value added tax and any other value added, sales, turnover or similar taxes imposed in any country that is not a member of the European Union;

Virus: any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or in part or otherwise); and/or adversely affect the user experience, including worms, Trojan horses, time-bombs, keystroke loggers, spyware, adware, viruses and other similar things or devices; and

Year: a period of twelve months, starting on the Services Start Date and each anniversary of the Services Start Date, save that the last Year shall end upon the termination or expiry of the Agreement.

1.2           References to clauses are to the clauses of these Terms & Conditions forming part of the Agreement. The Quotation, any Contract of Sale, these Terms & Conditions and any schedules thereto shall have full effect as if set out in full in a single document. Clause, paragraph and document headings shall not affect the interpretation of these Terms and Conditions.

1.3           Unless the context otherwise requires, words imparting the singular shall include the plural and vice versa.  References to persons include an individual, company, corporation, firm or partnership, wherever and however incorporated or established.

1.4       A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.5       Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2               Orders

2.1           When placing an Order the Customer shall set out the Services required, the Delivery Location, the type and number of Equipment required and approximately where the Equipment is to be installed.

2.2           Once the Order is complete and submitted, SteamaCo shall prepare and submit a Quotation to the Customer by email. The Customer shall be free to make changes to the Order and Quotation prior to acceptance. The Customer may accept the Quotation by telephone or email.

2.3           These Terms & Conditions apply to SteamaCo’s provision of the Equipment and Services to the Customer to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether by purchase order, confirmation of order or any other document), or which are implied by trade, custom, practice or course of dealing. To the extent there is any conflict between the provisions of the Quotation, any Contract of Sale, these Terms & Conditions and any schedules hereto, the order of priority shall be as follows: firstly, the Quotation, secondly any Contract of Sale and thirdly, these Terms & Conditions and any schedules hereto.

2.4           The Agreement constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SteamaCo which is not set out in the Agreement.

2.5           Any price lists, catalogues and other promotional or advertising materials provided to the Customer by or on behalf of SteamaCo are produced for the sole purpose of giving an approximate idea of the Equipment and Services described in them and do not constitute contractual offers capable of acceptance.

3               Delivery of Equipment

3.1           SteamaCo shall deliver the Equipment to the Delivery Location. Delivery shall be completed upon the arrival of the Equipment at the Delivery Location. SteamaCo shall use reasonable endeavours to deliver the Equipment within the Equipment Delivery Window, but date and time of delivery shall not be of the essence.

3.2           Unless otherwise agreed by the parties in writing, the Customer shall be responsible for installing the Equipment at the Customer’s cost. The Customer is required to notify SteamaCo once the Equipment has been installed and the Customer wishes to activate the Services, and SteamaCo will activate the Equipment and Services remotely.

3.3           SteamaCo shall not be liable for (i) any delay in delivery of the Equipment that is caused by a Force Majeure Event and/or the Customer’s failure to comply with its obligations pursuant to the Agreement, or (ii) any failure to activate the Equipment and/or Services as a result of incorrect installation of the Equipment by the Customer.

4               Title and Risk

4.1           Unless otherwise agreed in writing, risk in the Equipment shall pass to the Customer upon delivery.

4.2           Title to the Equipment shall not pass to the Customer until SteamaCo has received payment in full (in cleared funds) for the Equipment and all other sums which are due to SteamaCo from the Customer under the Agreement.

4.3           Until title to the Equipment has passed to the Customer, the Customer shall:

(a)            (unless agreed otherwise by SteamaCo in writing) store such Equipment separately from all other goods held by the Customer so that they remain readily identifiable as SteamaCo’s property;

(b)            not remove, deface or obscure any identifying mark or packaging on or relating to such Equipment;

(c)            maintain such Equipment in satisfactory condition and keep them insured for its full price against all risks on SteamaCo’s behalf from the date of delivery;

(d)            notify SteamaCo immediately if it becomes subject to an Insolvency Event; and

(e)            give SteamaCo such information relating to the location and condition of the Equipment as SteamaCo may require from time to time.

4.4           If, before title to the Equipment passes to the Customer, the Customer becomes subject to an Insolvency Event or SteamaCo reasonably believes that such an Insolvency Event is about to occur and SteamaCo notifies the Customer accordingly, then, without limiting any other right or remedy SteamaCo may have, SteamaCo may at any time require the Customer to deliver up such Equipment and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Equipment is stored in order to recover the Equipment.

5               Provision of Services

5.1           SteamaCo shall provide the Services to the Customer from the Services Start Date for the remainder of the Term with reasonable skill and care and in all material respects in accordance with the Services description as set out in Schedule 1.

6               Customer Responsibilities

6.1           During the Term, the Customer shall:

(a)            co-operate with SteamaCo in all matters relating to the Services;

(b)            provide, for SteamaCo Personnel, in a timely manner and at no charge, access to the Customer’s premises, data and other facilities, and such information, as required by SteamaCo from time to time for the purpose of providing the Services, and shall ensure that all such information is accurate in all material respects;

(c)            ensure the accuracy and validity of all data and technical information provided to SteamaCo by or on behalf of the Customer;

(d)            carry out, in a timely manner, all of its obligations under the Agreement and within any agreed timescales;

(e)            comply with all Applicable Laws with respect to its use of the Services under the Agreement;

(f)              keep the Customer’s login details for the Web Portal secure and confidential in accordance with clause 13, and shall maintain a written, up to date list of current Authorised Users and shall provide such list to SteamaCo within five Business Days of SteamaCo’s written request at any time;

(g)            ensure that the Authorised Users use the Web Portal, Equipment, Services and Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;

(h)            be solely responsible for obtaining, maintaining and paying for all necessary internet and network communications, computer equipment, a suitable web browser and such other devices and services required in order to access and use the Web Portal and otherwise receive the Services. The Customer shall ensure such equipment complies with all technical requirements notified to the Customer by SteamaCo from time to time and shall be responsible for the cost of such equipment and services;

(i)              not modify or change the Equipment or its installation or set-up, save in accordance with SteamaCo’s express instructions;

(j)              not decompile, disassemble, reverse engineer, translate or otherwise attempt to learn the configuration, source code or other technical features of the Software or Equipment, or adapt, vary, copy, modify, create derivative works from the Software or Equipment in any form or media, except as expressly permitted by the Agreement and/or as may be allowed by Applicable Laws which cannot lawfully be restricted; 

(k)             not store, distribute or transmit any Viruses (or attempt to do the same) during the course of its access to the Web Portal and/or use of the Services and/or attack the Web Portal via a denial-of-service attack or a distributed denial-of-service attack or similar;

(l)              not use or procure the use of the Web Portal to transmit, upload, disseminate or otherwise distribute any material that:

(i)              is unlawful, harmful, threatening, defamatory, obscene, indecent, infringing, harassing, racially, religiously or ethnically offensive or discriminatory or otherwise objectionable or which infringes any Intellectual Property Rights, rights of privacy, personality or publicity or other third party rights;

(ii)            contains unsolicited or unauthorised advertising or promotional content (spam);

(iii)           facilitates or promotes illegal activity;

(iv)           threatens the security and/or confidentiality of the Web Portal; and/or

(v)             causes damage or injury to any person or property;

(p)            obtain and maintain at all times throughout the Term all necessary licences, consents and permissions necessary for SteamaCo and the SteamaCo Personnel to perform their obligations under the Agreement;

(q)            not access all or any part of the Web Portal in order to build a product or service which competes with the Services;

(r)              not attempt to gain unauthorised access to the Web Portal, the servers on which the Web Portal is stored, the Software and/or any server, computer or database connected to the Web Portal; and

(s)             not license, sell, rent, lease, transfer, assign, distribute, disclose, commercially exploit or otherwise make the Equipment, Web Portal or Documentation available to any third party,

(together the Customer Responsibilities).

6.2           The Customer agrees and acknowledges that the Equipment must be correctly connected to the internet or mobile telecommunications networks, Utilities and power supply at all times in order to receive and benefit from the Services.

6.3           If the Customer fails to comply with any of the Customer Responsibilities or any other terms of the Agreement (a Customer Default):

(a)               SteamaCo shall, without limiting its other rights or remedies:

(i)              have the right to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays SteamaCo’s performance of any of its obligations;

(ii)            be entitled, without liability, to temporarily suspend access to the Web Portal;

(b)            the Customer acknowledges that it may not receive the full benefits of the Services, including that the Data provided via the Web Portal may be inaccurate, incomplete and/or incorrect and it may not be possible to correct the same, but this shall not relieve the Customer of its obligation to pay the Monthly Services Charges in full in accordance with the Agreement and the Customer shall not be entitled to any discounts, refunds or rebates from SteamaCo as a result; and

(c)            SteamaCo shall not be liable to the Customer for any Losses arising directly or indirectly from SteamaCo’s failure or delay to perform any of its obligations pursuant to clause 6.3(a)(i).

6.4           The Customer shall indemnify SteamaCo in respect of any Losses suffered or incurred by SteamaCo as a result of a breach by the Customer of clause 6.1(e), 6.1(j), 6.1(k), 6.1(l) and 6.1(p).

6.5           The Customer hereby authorises SteamaCo and SteamaCo’s Affiliates to receive information from and remotely connect to the Equipment for the purpose of obtaining Data and providing the Services (including information relating to the usage of the Utilities).

7               Maintenance and Updates

7.1       SteamaCo may need to carry out planned or emergency maintenance from time to time on the Web Portal or the Software which may affect their availability and/or accessibility. The Customer acknowledges and agrees that SteamaCo may restrict or suspend, without notice, the Customer’s ability to use and/or access the Web Portal for the purposes of repair, maintenance, improvement and/or upgrade of the Web Portal and/or the provision of the Services. SteamaCo shall try to minimise the duration of any unavailability of any of the Services, but shall have no liability in respect of the same.

7.2           SteamaCo may from time to time, without notice, make such changes to the Software (including the Software embedded on the Equipment) or Services as it sees fit (including to comply with any Applicable Laws), including providing programming fixes, enhancements, updates and upgrades, to any part of the Software and adding or removing features or functions to or from the Services, provided that such changes to the Software or Services does not materially adversely affect the Services. SteamaCo has no obligation to provide the Customer with any updates, upgrades or enhancements, or make available to the Customer any subsequent versions of the Software.

7.3           In the event that SteamaCo issues any update to the Software to the Customer, the Customer is required to install such update as soon as reasonably practicable following receipt. The Customer acknowledges that the operation of the Equipment, Software and Services is dependent on the Customer’s use of the current version of the Software provided by SteamaCo.

8               Charges and payment

8.1           In consideration for the supply of the Equipment, the Customer shall pay to SteamaCo the fee specified in the Quotation.

8.2           In consideration for the provision of the Services, the Customer shall pay to SteamaCo the Monthly Services Charge each month during the Term, such Monthly Services Charge to become payable from the Services Start Date.  SteamaCo shall be entitled to change the Monthly Services Charge without restriction from time to time by notifying the Customer in writing at least three months’ prior to the date such change will take effect. Unless otherwise agreed by the parties in writing, the Monthly Services Charge shall be payable in arrears each month.

8.3           Unless otherwise agreed in writing, all amounts due by the Customer pursuant to the Agreement shall be payable by the Customer in pounds sterling on the relevant payment date stated in the Quotation to such bank account nominated in writing by SteamaCo from time to time.

8.4           All sums payable under the Agreement are exclusive of VAT, import levies, customs duties and other similar taxes of whatsoever nature, which shall be added to the invoice where applicable. All sums shall be paid in full without any deduction or withholding whether by way of set-off, counterclaim, discount, abatement or otherwise. If any deduction or withholding is required by law the Customer shall pay to SteamaCo such sum as shall, after the deduction or withholding has been made, leave SteamaCo with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.

8.5           Without limiting any other right or remedy of SteamaCo, if the Customer fails to make any payment due to SteamaCo by the due date for payment:

(a)            SteamaCo shall be entitled to immediately suspend the Customer’s access to the Web Portal and/or suspend the provision of the Services and SteamaCo shall be under no obligation to provide the same whilst any sums overdue remain unpaid; and

(b)            SteamaCo shall have the right to charge the Customer interest in respect of the overdue amount (before and after judgment) at the rate of 5% per cent per annum above the base rate from time to time of the Bank of England from the due date until the date actual payment is received in full by SteamaCo.

8.6           SteamaCo may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by SteamaCo to the Customer.

9               Term and Termination

9.1           The Agreement shall commence on the Commencement Date and shall continue in force unless and until either party terminates the Agreement in accordance with its terms (Term).

9.2           Either party shall be entitled to terminate the Agreement by giving the other party at least three months’ written notice.

9.3           Without prejudice to any other rights or remedies to which SteamaCo may be entitled, SteamaCo may terminate the Agreement in whole or in part, without liability to the Customer, on giving the Customer written notice, which may take effect immediately if the Customer:

(a)            fails to pay any amount due under the Agreement on the due date for payment and remains in default for at least seven days after receiving notice that such sum is overdue;

(b)            commits a material breach of any of the terms of the Agreement (other than breach of a payment obligation) and (if such a breach is remediable) fails to remedy that material breach within 30 days of being notified in writing of the breach; or

(c)            is subject to an Insolvency Event.

9.4           Without prejudice to any other rights or remedies which the Customer may have, the Customer may terminate the Agreement in its entirety, without liability to SteamaCo, on giving SteamaCo written notice, which may take effect immediately, if SteamaCo:

(a)            commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that material breach within 30 days of being notified in writing of the breach; or

(b)            is subject to an Insolvency Event.

9.5           Upon the termination or expiry of the Agreement for any reason:

(a)            the Customer’s right to access the Web Portal pursuant to clause 12.2 and to use the Services shall immediately terminate and any log-in details provided to the Customer for the Web Portal shall be immediately de-activated;

(b)            all outstanding sums payable by the Customer to SteamaCo shall immediately become due and payable;

(c)            save to the extent required by Applicable Laws and as permitted under clause 14.1 of these Terms & Conditions, each party shall immediately cease use of and promptly return to the other all Confidential Information belonging to the other party which is in that party’s power, possession or control (or at the other party’s option, destroy or procure destruction of the same).

9.6           Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect, including this clause 9 and clauses 4, 6.4, 8, 11, 12.1, 12.3, 13, 14, 18, 19, 20 and 21 of these Terms & Conditions.

9.7           Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

10            Equipment warranty

10.1        Subject to the provisions of this clause 10, SteamaCo warrants that, upon delivery, the Equipment (other than Third Party Equipment) shall be free from material defects in design, material and workmanship. The Customer acknowledges that SteamaCo gives no warranty in respect of, and shall not be liable for any fault or defect in, any Third Party Equipment, to which clause 10.2 applies.

10.2        The Customer acknowledges and agrees that SteamaCo is not the manufacturer of any Third Party Equipment. Accordingly, if there is a defect in the materials and/or workmanship of any Third Party Equipment, the Customer shall be entitled to the benefit of any warranty and/or guarantee as is given by the manufacturer (or such other third party) to SteamaCo in relation to such Third Party Equipment (Manufacturer Warranty) to the extent that such Manufacturer Warranty is assignable by SteamaCo to the Customer.

10.3        Subject to clause 10.4 below, if:

(a)            the Equipment (other than Third Party Equipment) (or any part of it) does not comply with the warranty in clause 10.1;

(b)           the Customer notifies SteamaCo in writing promptly (and in any event within 30 days of the delivery date of the Equipment) of a defect with the Equipment;

(c)            the Customer provides SteamaCo with a detailed report outlining the alleged defects and SteamaCo is given a reasonable opportunity of examining the Equipment; and

(d)           upon request by SteamaCo, the Customer returns such Equipment to SteamaCo's place of business (or to such other address nominated by SteamaCo), using pre-paid delivery, at the Customer's cost,

SteamaCo shall (at its option) repair or replace any Equipment (other than Third Party Equipment) which does not comply with the terms of the warranty in clause 10.1.

10.4        SteamaCo shall have no liability under clause 10.1 above if:

(a)            the defect arises (directly or indirectly) due to any act or omission of the Customer in breach of the Agreement;

(b)           the Customer makes any further use of such Equipment after notifying SteamaCo of the defect in accordance with paragraph 10.3;

(c)            the defect arises because the Customer failed to follow SteamaCo 's oral or written instructions as to the storage, installation, use and/or maintenance of the Equipment or (if there were none) good trade practice;

(d)           the defect arises as a result of any faults, errors or problems relating to any Third Party Equipment, or to the Customer’s PC, hardware, software, network, network setup or security, internet connection and/or any other similar problem;

(e)            the defect arises as a result of any adaptation, change, amendment, modification, repair, alteration or maintenance of the Equipment by any party other than SteamaCo or without the prior written consent of SteamaCo;

(f)             the Customer makes use of the Equipment in conjunction with any other software or with equipment which is faulty, incorrectly installed or with which the relevant Equipment is incompatible or attempts to operate or run the Equipment on any platform or in any environment inappropriate for the Equipment;

(g)           the Customer seeks to make use of the Equipment in a manner or for a purpose not otherwise agreed to by SteamaCo in writing;

(h)           the defect arises as a result of a Force Majeure Event (directly or indirectly); and/or

(i)             the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions.

10.5        Except as provided in this clause 10, SteamaCo shall have no other liability to the Customer in respect of defective Equipment.

11            Warranties and Liability

11.1        The Customer hereby represents, warrants and undertakes that:

(a)            the Customer has full capacity and authority to accept and be legally bound by the Agreement;

(b)            the individual entering into the Agreement on the Customer’s behalf has all requisite corporate authority to act on the Customer’s behalf and to make the Agreement valid and binding upon the Customer;

(c)            the Customer shall at all times comply with Applicable Laws in connection with the performance of its obligations and exercise of its rights under the Agreement and the Customer shall not do or omit to do anything which would cause SteamaCo to be in breach of the same; and

(d)            the Customer shall not use the Equipment and/or any Services for unlawful activities.

11.2        SteamaCo hereby represents, warrants and undertakes that:

(a)            SteamaCo has full capacity and authority to accept and be legally bound by the terms of the Agreement; and

(b)            the individual entering into the Agreement on SteamaCo’s behalf has all requisite corporate authority to act on SteamaCo’s behalf and to make the Agreement valid and binding upon SteamaCo.

11.3        Except as expressly provided in the Agreement, the Customer assumes sole responsibility for the use of the Deliverables, and any conclusions drawn from use of the same.

11.4        The Customer hereby acknowledges that the use and functionality of the Web Portal and the Services provided by SteamaCo may be dependent on Third Party Equipment, Third Party Software and third party web services. The Customer acknowledges and agrees that SteamaCo is not responsible for any Third Party Equipment, Third Party Software and other infrastructure, networks and services (including the internet) operated by third parties and which are outside of its control (including any technical failure of any of the foregoing which impacts upon the performance of the Web Portal and/or other provision of the Services) and SteamaCo shall not be liable in respect of the same. Accordingly, if there is a technical defect, outage or other problem with such Third Party Equipment, Third Party Software, or third party infrastructure, networks and/or services which impacts on the provision of the Services or availability of the Web Portal, such event shall be deemed a Force Majeure Event and clause 17 below shall apply.

11.5        The Web Portal is provided on an “as is” basis and SteamaCo does not guarantee, or make any representation that the Web Portal will be available, uninterrupted or error free, nor that the Services will meet the Customer’s requirements.

11.6        Save as expressly provided for in the Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.

11.7        Nothing in the Agreement excludes the liability of a party for death or personal injury caused by a party’s negligence, or for fraud or fraudulent misrepresentation.

11.8        Subject to clause 11.7, SteamaCo shall have no liability under any circumstances whatsoever whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise for the following, whether or not the same were reasonably foreseeable or foreseen: any direct or indirect loss of profits, sales, business or revenue; loss of anticipated savings; loss of opportunity; loss or corruption of data, information or software; any special, indirect, consequential or pure economic losses, costs or damages; punitive damages; and/or loss of goodwill arising out of or in connection with the Agreement.

11.9        In the event of any loss or corruption of or damage to any Data, SteamaCo shall use reasonable endeavours to restore any such lost or damaged Data from the latest back-up within SteamaCo’s possession and such obligation shall be SteamaCo’s sole and entire obligation and liability to the Customer in respect of such loss or damage to such Data.

11.10     Subject to clause 11.7, SteamaCo's total aggregate liability under the Agreement in respect of all claims arising in each Year, whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise, shall not exceed the total Monthly Services Charge actually paid by the Customer during the previous Year.

11.11     The Customer acknowledges and agrees that the limitations contained in this clause 11 are reasonable in light of all the circumstances.

12            Intellectual Property

12.1        The Customer hereby acknowledges and agrees that, as between the parties, SteamaCo absolutely and unconditionally owns all Intellectual Property Rights which subsist (now or in the future) in and/or relate to the Equipment, the Software, the Documentation, the Web Portal, the provision of the Services and any Improvements.

12.2        Subject to payment by the Customer of all sums due under the Agreement, SteamaCo hereby grants to the Customer a limited, non-exclusive and non-transferable right to access, and allow its Authorised Users to access, the Web Portal and use the Services, solely to the extent required and for the purpose of receiving the Services, in accordance with and subject to the terms of the Agreement. The Customer acknowledges that the Customer is solely responsible for obtaining a licence to use any Third Party Software required in order to use the Services.

12.3        The benefit of and all goodwill that the Customer acquires in respect of the Customer’s use of any SteamaCo Intellectual Property shall at all times enure to SteamaCo (or, at SteamaCo’s request, its nominee). Other than as expressly set out in the Agreement, SteamaCo does not grant any right, title or interest in or to any SteamaCo Intellectual Property to the Customer. The Customer shall promptly do or procure to be done all such further acts and things (including the execution of documents) as SteamaCo may reasonably require in order to give full effect to this clause 12.3 and/or in order to maintain the validity and enforceability of any SteamaCo Intellectual Property.

12.4        During the Term, the Customer shall notify SteamaCo immediately in writing if it becomes aware of any actual, threatened or suspected: (a) infringement or passing off of any SteamaCo Intellectual Property which is the subject of the Agreement; and/or (b) claim or allegation that such SteamaCo Intellectual Property infringes any third party rights, is subject to third party interests or is liable to be invalidated, revoked or cancelled.

12.5        SteamaCo shall be entitled, in its absolute discretion and without liability, to determine what action (if any) shall be taken in respect of any matters notified to it pursuant to clause 12.4 and shall be entitled to all damages which may be paid or awarded as a result of any such action. Without limitation, SteamaCo shall be entitled to:

(a)            direct the Customer to immediately cease using the affected Deliverables and the Customer shall comply with the same;

(b)            suspend the provision of the Services; and/or

(c)            replace and/or modify all or any part of the Deliverables with an appropriate equivalent.

If, after having used reasonable endeavours SteamaCo is unable to resolve the relevant issue without a significant adverse effect upon the Services, SteamaCo may terminate the Agreement with immediate effect on written notice to the Customer, in which case, SteamaCo shall refund any Monthly Services Charges paid by the Customer in advance calculated on a pro rata basis, and SteamaCo shall not have any further liability in respect of such termination.

12.6        The Customer agrees that all rights it may have, in statute or otherwise, to bring or defend proceedings in relation to SteamaCo Intellectual Property are hereby excluded to the fullest extent permitted by law and shall not be exercised by the Customer without the prior written consent of SteamaCo.

12.7        The Customer shall not:

(a)            challenge SteamaCo’s ownership of and/or indicate that it has any right, title or interest (other than as conferred by the Agreement) in or to any SteamaCo Intellectual Property;

(b)            use and/or copy any SteamaCo Intellectual Property, save as expressly provided in accordance with the Agreement;

(c)            register, apply to register or otherwise seek to obtain any legal rights in or to any SteamaCo Intellectual Property or any other Intellectual Property Rights which would conflict with or infringe any SteamaCo Intellectual Property; and/or

(d)            do or suffer any act or thing to be done which may in any way impair the rights of SteamaCo in any SteamaCo Intellectual Property and/or bring into question the validity of any such rights.

13            Confidentiality

13.1        Each party shall hold the other party's Confidential Information in confidence and, save as provided in clause 13.3, shall not make it available to any third party, or use it for any purpose other than the implementation of the Agreement.

13.2        A party's Confidential Information shall not be deemed to include information that:

(a)            is or becomes publicly known other than through any (direct or indirect) act or omission of the receiving party;

(b)            was in the other party's lawful possession before the disclosure and not subject to obligations of confidentiality;

(c)            is lawfully disclosed to the receiving party by a third party without restriction on disclosure; and/or

(d)            is required to be disclosed under any Applicable Law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that to the extent it is legally permitted to do so, the party required to disclose such information gives the other party as much notice of such disclosure as possible, limits the information so disclosed, takes into account the reasonable requests of the other party in relation to the content of such disclosure and provides all reasonable assistance (at the other party’s cost) in seeking a protective or similar order restricting the extent of the disclosure.

13.3        SteamaCo shall be entitled to disclose Confidential Information of the Customer to those of its sub-contractors and Affiliates who need to know such Confidential Information in order to provide the Services.

13.4        Each party shall take all reasonable steps to ensure that the persons to whom it discloses the other party's Confidential Information comply with the confidentiality obligations contained in this clause 13 as though they were a party to the Agreement.

13.5        It is acknowledged and agreed that the Software, the Web Portal (and associated login details) and the Documentation shall be deemed Confidential Information for the purposes of the Agreement and proprietary to SteamaCo. The Customer shall notify SteamaCo immediately in writing upon becoming aware of any actual or suspected disclosure of any of SteamaCo’s Confidential Information. Without prejudice to any other rights or remedies that SteamaCo may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for any unauthorised disclosure of such Confidential Information and accordingly, SteamaCo shall be entitled to the remedies of injunction, specific performance or other equitable or discretionary relief for any threatened or actual disclosure of the same.

13.6        SteamaCo may publicly refer to the Customer as a customer of SteamaCo and may issue a press release regarding the relationship with the Customer.

14            Data

14.1        The Customer hereby consents to SteamaCo Processing and storing, accessing and using the Data, including the Personal Data, for the purposes of:

(a)            providing the Services;

(b)            monitoring use of the Services and Utilities, research, analysis of the Data (including in combination with other data held by SteamaCo), benchmarking and improving and/or developing the Services; and

(c)            using the Data in accordance with clause 14.4,

and SteamaCo’s right to use the Data under clause 14.1(b) and 14.1(c) shall continue following termination or expiry of the Agreement.

14.2        The Customer shall be responsible for obtaining all relevant consents and permissions required under all Applicable Laws, including Data Protection Legislation, in order for SteamaCo to process the Personal Data in accordance with this clause 14.

14.3        It is agreed and acknowledged that the Data (other than Derived Data) shall be owned by the Customer.

14.4        The Customer hereby grants to SteamaCo a non-exclusive, irrevocable, royalty-free, perpetual, sub-licensable right and licence to:

(a)        adapt, edit and amend the Data (in whole or in part);

(b)        combine and/or aggregate the Data (in whole or in part) with other data or information;

(c)        make copies of, store, access and view the Data; and

(d)        create Derived Data.

14.5        It is agreed and acknowledged that all right, title and interest in and to the Derived Data shall be owned by SteamaCo and SteamaCo shall be entitled to distribute, sub-license and sell Derived Data.

14.6        The Customer shall indemnify SteamaCo against all Losses suffered or incurred by SteamaCo as a result of the Customer failing to obtain the relevant consents and permissions pursuant to clause 14.2.

14.7        SteamaCo makes no representations or warranties as to the accuracy or completeness of any Data provided to the Customer by or on behalf of SteamaCo or otherwise in connection with the provision of the Services.

15            Change request

15.1        If the Customer wishes to change the scope of the Services, it shall submit details of the requested change to SteamaCo in writing (a Change Request). SteamaCo has no obligation to agree to a Change Request or other variation to the Agreement.

15.2        In respect of any request made pursuant to clause 15.1, SteamaCo shall either inform the Customer that it is not able to comply with the Customer’s request or provide a written notification to the Customer detailing the:

(a)            full details of the change or additional services;

(b)            applicable charges payable by the Customer in respect of the change or additional services; and

(c)            impact, if any, of the change on other aspects of the Agreement.

15.3        If the Customer wishes SteamaCo to proceed on the terms advised pursuant to clause 15.2 above, the parties shall record their agreement in writing, such document to be signed by an authorised representative of each of the parties (a Change Order). A Change Order shall constitute a variation to the Agreement in accordance with clause 20.4.

15.4        Until such time as a Change Order is agreed, the parties shall, unless otherwise agreed in writing, continue to perform the Agreement in compliance with its terms prior to the Change Request.

16            Anti-Bribery

16.1        Each party shall:

(a)            comply with all Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act; and

(b)            not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act if such activity, practice or conduct had been carried out in the UK.

17            Force majeure

SteamaCo shall have no liability to the Customer if SteamaCo is prevented from or delayed in performing its obligations under the Agreement by acts, events or omissions beyond its reasonable control, including strikes or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, malicious damage, compliance with any law, order, rule or regulation, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event). SteamaCo shall inform the Customer of such an event and its expected duration.

18            Notices

18.1        Any notice given by a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service to the other party’s address as notified to it (in accordance with this clause) from time to time.  Notices may also be given by email if a party has notified the other party (in accordance with this clause) of the relevant email address to which notices must be sent and that service of notices by email will be accepted.

18.2        Notices shall be deemed to have been delivered: (i) at the time of delivery where delivered by hand; (ii) two Business Days after the date of posting where sent by domestic post; (iii) five Business Days after the date of posting where sent by airmail; or (iv) (where notices by email are permitted) one Business Day after transmission in the case of email (provided that no delivery failure notification is received by the sender). 

19            Non-solicitation

The Customer shall not, without the prior written consent of SteamaCo, at any time during the Term or within 12 months of termination or expiry of the Agreement, solicit or entice away from SteamaCo or employ or attempt to employ any person who is, or has been, engaged as SteamaCo Personnel during such period.

20            General

20.1        No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver or abandonment of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

20.2        The Customer shall not, without the prior written consent of SteamaCo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. SteamaCo may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

20.3        If any provision (or part of a provision) of these Terms & Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20.4        Unless expressly stated otherwise in the Agreement, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

20.5        Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

20.6        Nothing in the Agreement shall limit or interfere in any way with SteamaCo’s ability to freely supply the Equipment and/or any Services to third parties.

20.7        The Agreement does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.

21            Governing law and jurisdiction

The Agreement and any disputes or claims arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the courts of England shall have non-exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with the Agreement (including non-contractual disputes and claims).

 

SCHEDULE 1

SERVICES AND EQUIPMENT DESCRIPTION

This Schedule 1 sets out the description of the Services and Equipment that the Customer may request SteamaCo to provide from time to time in consideration of the Monthly Services Charge and Equipment Fee. SteamaCo’s technology platform comprises two integrated technologies: (a) smart meter devices and embedded firmware (together the Equipment); and (b) its cloud software (the Software). The Equipment operates as part of an integrated technology platform with the Software.

The Equipment collects data and actuates circuits. The Equipment processes and stores sensor data and circuit status and at intervals defined by the Customer, transmits data summaries to the Software, which processes these messages and transmits various commands related to circuit actuation and system configuration back to the Equipment.

1.              Web Portal

SteamaCo shall provide the Customer with a secure login to access the Web Portal, a user interface which will allow the Customer to access Data relating to usage of the Customer’s Utilities as monitored by the Equipment and as further described below. Provided the Equipment is correctly configured, installed and maintained, the Web Portal will enable the Customer to access the following functionalities:

data collection - automatically collect, process and store Data;

data visualisation - display Data at Subscriber and site level through interactive and downloadable charts and tables;

remote automation - automatically control the Utilities using parameters defined by the Customer;

remote control - manually control the Utilities from anywhere; send commands from the Web Portal or from a mobile phone;

connection and asset setup - set up and edit connected customers and asset records; define parameters such as basic tariffs, installed Equipment and site location;

CSV downloads - download all raw Data, including: payments, energy use, Subscriber records, Equipment status;

unlimited logins - set up multiple account users within the Customer’s organisation;

instant alerts to Subscribers - SteamaCo sends SMS or email alerts to Subscribers according to parameters defined by the Customer

Summaries, calculations, alerts and error logs shall be made available to the Customer and the Subscribers under the Customer’s account through the following channels: the Web Portal, email alerts and SMS text alerts.

2.              Mobile Money and Other Payments

advanced tariffs - allows Customer to set flat rates, tariff bundles and time of use tariffs by individual customers and by site

It is acknowledged and agreed that SteamaCo does not control payments, but simply displays payments which have been received by third party mobile money services and calculates Utilities’ balances on Subscriber accounts depending on the payments received by such third-party services.

3.              SMS Text Alerts

instant alerts to subscribers

SteamaCo shall send SMS text or email alerts to Subscribers according to Customer-defined parameters

4.              Remote Access to Control the Utilities

scheduled events - auto switch connected Utilities’ equipment on/off at times or on days that are defined by the Customer

triggered events - auto switch connected equipment on / off under parameters that the Customer defines

5.              Enhanced Data Options

advanced data visualisation - compare patterns across the Customer’s portfolio; understand the Data with interactive charts

project reports - KPIs on Utilities’ use, technology performance and payment behaviour at site and portfolio level; downloadable in CSV format

finance reports - Revenues by Subscriber and type at site and portfolio level; downloadable in CSV format

daily email digest - understand the Data quickly and simply; delivered every morning

 

SCHEDULE 2

THIRD PARTY PRODUCTS AND SERVICES

This schedule describes third party products and services with which the Software integrates. The Software relies on the correct functioning and / or installation of the following third party products and services for normal operation.

Part A – Third Party Software

●      Software

○      Amazon Web Server: cloud back end database servers and front end web servers

○      Android OS and Android applications

○      Any mobile network operator’s SMS gateway API

○      Other web services, web browsers, web infrastructure and web middleware

Part B – Third Party Equipment

●      Hardware

○      various peripheral sensors connected to bitHarvester

○      various peripheral relays connected to bitHarvester

○      any other equipment interconnected with bitHarvester and its peripherals