These Terms and Conditions (the Terms) are the terms on which Steama Company Limited (SteamaCo) supplies utility automation software, equipment and associated services to its customers (Customers).
Capitalised terms used in these Terms have the meanings given to them in clause 20 below.
1. Orders
1.1 The Customer may place an Order by contacting SteamaCo by email, text message (including WhatsApp message) or by phone setting out the Equipment and Services required. The Customer shall be responsible for ensuring that all details and terms of any Order are accurate. SteamaCo reserves the right to reject any Order for whatever reason.
1.2 Following receipt of an Order, SteamaCo shall prepare and submit a Quotation to the Customer by email. Quotations shall remain valid for a period of 10 Business Days, unless stated otherwise in writing by SteamaCo. If SteamaCo issues a revised Quotation, such revised version shall replace the original unless otherwise expressly stated. If the Customer wishes to change any part of the Order or Quotation it shall resubmit an Order in accordance with clause 1.1. If the Customer wishes to accept the Quotation it shall promptly inform SteamaCo by email, text message (including WhatsApp message) or by phone (Customer Acceptance). The Customer Acceptance shall constitute an offer by the Customer to purchase the Equipment and/or Services as detailed in the Quotation in accordance with the Contract.
1.3 A Customer Acceptance shall only be deemed to be accepted by SteamaCo and a Contract formed once SteamaCo has confirmed the Customer Acceptance in writing or, if earlier, the date on which SteamaCo commences performance of the Contract. Following the Commencement Date, the Customer shall no longer be entitled to withdraw or cancel the Order or Customer Acceptance save as expressly set out in the Contract.
1.4 The Contract 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 Contract.
1.5 Any price lists, catalogues, samples, descriptions and other promotional or advertising materials provided to the Customer by or on behalf of SteamaCo (whether on SteamaCo's website or otherwise) 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. Save as expressly set out in the Contract, such literature shall not form part of the Contract between SteamaCo and the Customer and shall not have any contractual force.
1.6 Save where expressly stated otherwise, this Contract supersedes all other terms and conditions previously used by SteamaCo and apply to the provision of goods and services to Customers to the exclusion of any other terms that any Customer may seek 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 and each Customer hereby waives all rights it may have to rely on the same.
2. Delivery of the Equipment
2.1 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.
2.2 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.
2.3 SteamaCo shall have no liability for:
(a) any delay in delivery of the Equipment that is caused by a Force Majeure Event and/or a Customer Default; and/or
(b) any failure to activate the Equipment and/or Services as a result of incorrect or delayed installation of the Equipment by the Customer.
3. Supply of the Services
3.1 SteamaCo shall supply the Services to the Customer from the Services Start Date for the remainder of the Term with reasonable skill and care.
3.2 The Services to be provided by SteamaCo to the Customer shall be detailed in the Quotation. The Service description is set out in Schedule 1 to these Terms.
3.3 SteamaCo shall endeavour to meet the response times detailed in the Service Levels in respect of any Incidents.
3.4 The Customer hereby authorises SteamaCo and its 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).
3.5 Subject to payment by the Customer of all Charges and other sums due under the Contract, SteamaCo hereby grants to the Customer a limited, non-exclusive and non-transferable right to access, and allow its Authorised Users to access, the Interfaces 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 Contract.
3.6 If, at any time during the Term, the Customer requests a guest account for a specified third party (a Guest) to access the Interfaces and the Customer's Data, SteamaCo may (in its sole discretion) grant such access by informing the Customer in writing, subject to the following terms (or such other terms as may be notified to the Customer in writing at the time of approving the request):
(a) SteamaCo may impose an additional charge in consideration for granting the Guest access and such sum shall form part of the Services Charge;
(b) the guest account will permit the Guest read-only access of the Customer's Data (or such sub-set of the Data as is agreed);
(c) the Guest will become an “Authorised User” for the purposes of the Contract;
(d) the Customer shall enter into a written agreement with the Guest and such agreement shall require the Guest to comply with the Contract. The Customer shall procure the Guest's compliance with the terms of the Contract. The Customer shall be responsible for monitoring the Guest's access to the Interfaces and Data and shall promptly alert SteamaCo to any mis-use. The Customer shall further be responsible for ensuring that it is permitted to make any personal data available to the Guest pursuant to terms agreed with its own subscribers or customers;
(e) the Customer shall at all times remain primarily liable to SteamaCo under this Contract for any acts and omissions of the Guest. The Customer shall indemnify and keep SteamaCo indemnified on demand in respect of any Losses suffered or incurred by SteamaCo arising out of or in connection with: (i) any act or omission of the Guest relating to its access to the Interfaces and/or the Data and/or otherwise connected with this Contract; and (ii) any claims, allegations or proceedings brought, issued or made against SteamaCo by or on behalf of the Guest;
(f) the Guest's account permissions shall automatically expire at the end of each calendar year, unless the Customer requests that the Guest's account is renewed by giving SteamaCo at least 10 Business Days’ prior written notice. SteamaCo shall be entitled to terminate the Guest's access at any time and without liability to the Customer, including if SteamaCo considers that the Customer and/or the Guest has breached any provision in the Contract, if SteamaCo has concerns regarding the security of the guest account and upon termination or expiry of the Contract;
(g) SteamaCo shall terminate access to the guest account as soon as practicably possible (and in any event within 10 Business Days) upon receipt of a request from the Customer to do so at any time.
4. Customer Responsibilities
4.1 During the Term the Customer shall:
(a) co-operate with SteamaCo in all matters relating to the Contract;
(b) carry out, in a timely manner, all of its obligations under the Contract within any agreed timescales;
(c) comply with all Applicable Laws in respect of the performance of its obligations under the Contract and use of the Equipment and the Services;
(d) obtain and maintain all necessary licences, consents and permissions necessary for SteamaCo and the SteamaCo Personnel to perform their obligations under the Contract;
(e) 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 Equipment and the Services and (where applicable) installing the Equipment, and shall ensure that all such information is accurate in all material respects;
(f) ensure the accuracy and validity of all data and technical information provided to SteamaCo by or on behalf of the Customer;
(g) be solely responsible for obtaining, maintaining and paying for all necessary internet and network communications, computer equipment, a suitable web browser, third-party licences (including licences to use the Third Party Equipment) and such other devices and services required in order to access and use the Equipment, the Interfaces, 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;
(h) comply with any instructions and directions set out in the Documentation or given by SteamaCo Personnel from time to time with regards to installing and activating the Equipment;
(i) ensure that the Customer's personnel and other Authorised Users only use the Equipment, Interfaces, Services and Documentation in accordance with the terms and conditions of the Contract. The Customer shall remain liable for any breach of the Contract by such personnel and other users; and
(j) keep the Customer’s login details for the Interfaces secure and confidential in accordance with clause 14, and shall maintain a written, up to date list of current Authorised Users which shall be provided to SteamaCo within five Business Days of SteamaCo’s written request at any time.
4.2 The Customer shall not:
(a) decompile, disassemble, reverse engineer, translate or otherwise attempt to learn the configuration, source code or other technical features of the Equipment, the Interfaces and/or the Software, and/or adapt, vary, copy, modify, create derivative works from the Equipment, the Interfaces and/or the Software in any form or media, except as expressly permitted by the Contract and/or as may be allowed by Applicable Laws which cannot lawfully be restricted;
(b) store, distribute or transmit any Viruses (or attempt to do the same) during the course of its access to the Interfaces and/or use of the Services and/or attack the Interfaces via a denial-of-service attack or a distributed denial-of-service attack or similar;
(c) license, sell, rent, lease, transfer, assign, distribute, disclose, commercially exploit or otherwise make the Equipment, Interfaces, Software or Documentation available to any third party;
(d) use or procure the use of the Interfaces 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 unauthorized advertising or promotional content (spam);
(iii) facilitates or promotes illegal activity;
(iv) threatens the security and/or confidentiality of the Interfaces; and/or
(v) causes damage or injury to any person or property;
(e) access all or any part of the Interfaces in order to build a product or service which competes with the Services;
(f) attempt to gain unauthorized access to the Interfaces, the servers on which the Interfaces are stored, the Software and/or any server, computer or database connected to the Interfaces.
(b) modify or change the Equipment or its installation or set-up, save in accordance with SteamaCo’s express instructions.
4.3 The Customer agrees and acknowledges that the Equipment must be correctly connected to the internet or mobile telecommunications networks (as applicable), Utilities and power supply at all times in order to receive and benefit from the Services.
4.4 If the Customer fails to comply with any of the Customer Responsibilities or any other terms of the Contract (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 suspend access to the Interfaces;
(b) the Customer acknowledges that it may not receive the full benefits of the Services, including that the Data provided via the Interfaces 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 Services Charges in full in accordance with the Contract 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 4.4(a).
5. Maintenance & Updates
5.1 If SteamaCo issues:
a) a new component, patch or firmware that corrects a fault, adds functionality or otherwise amends or upgrades the Equipment and SteamaCo requires the Customer to install such new component (an Equipment Update); and/or
b) a release of the Software that corrects a fault, adds functionality or otherwise amends or upgrades the Software and SteamaCo requires the Customer to install such Software (a Maintenance Release);
then the Customer shall install such Equipment Update and/or Maintenance Release as soon as reasonably practicable following receipt of the same and in any event within twenty-one days of the Equipment Update or Maintenance Release (as applicable) being issued (ie. sent by email, file transfer of physical post) to the Customer by or on behalf of SteamaCo (the Installation Date);
5.2 the Customer shall comply with any instructions and directions given by SteamaCo Personnel from time to time with regards to installing the Equipment Update and/or Maintenance Release.
5.3 If the Customer fails to install the Equipment Update and/or Maintenance Release by the Installation Date:
a) SteamaCo shall be permitted to enter the premises of the Customer and install such Equipment Update and/or Maintenance Release on behalf of the Customer;
b) until such time as the Equipment Update and/or Maintenance Release has been installed, the Customer shall be in breach of the Contract (a Customer Default) and SteamaCo shall be entitled to rely on such Customer Default pursuant to clause 4.4;
c) SteamaCo shall not be liable whatsoever for any delay to the Customer receiving the Equipment Update and/or Maintenance Release due to courier delays, customs holdups and/or telecommunications issues;
d) the Customer shall reimburse SteamaCo on written demand in respect of any Losses sustained and/or incurred by SteamaCo arising directly or indirectly from any such Customer Default, including any increased data, network and telecommunications charges.
e) SteamaCo shall be entitled to install the Equipment Update and/or Maintenance Release remotely without the Customer’s intervention and the Customer hereby consents to SteamaCo doing so in accordance with the Contract.
5.4 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 Equipment and Software provided by SteamaCo.
5.5 From time to time, SteamaCo may need to carry out planned or emergency maintenance on the Interfaces and/or the Software which may affect 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 Interfaces for the purposes of repair, maintenance, improvement and/or upgrade of the Interfaces 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.
5.6 SteamaCo may from time to time, without notice, make such changes to the Software (including the firmware and 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 Software, provided that such changes to the Software do not materially adversely affect the Services.
5.7 SteamaCo has no obligation to provide the Customer with any new versions, upgrades or enhancements of the Software.
6. Charges & Payment
6.1 In consideration for the supply of the Equipment and Services (as applicable), the Customer shall pay the Charges in accordance with this clause 6.
6.2 The Charges shall be set out in the Quotation or, where applicable Charges are not detailed in the Quotation, the Charges shall be as set out in SteamaCo's price list in force from time to time.
6.3 Unless specified otherwise in the Quotation or otherwise agreed by the parties in writing:
(a) all Charges shall be payable by the Customer in United States Dollars to such bank account nominated in writing by SteamaCo from time to time;
(b) the Equipment Fee shall be payable by the Customer within seven days of the Commencement Date (or upon the relevant instalment dates specified in the Quotation);
(c) the Services Charge, where applicable, shall be payable in advance each month from the Services Start Date;
(d) the Communications Charge, where applicable, shall be payable in arrears each month from the Services Start Date.
6.4 Invoices shall be payable within seven days of receipt in accordance with clause 6.3(a) above.
6.5 SteamaCo may, by giving at least 30 days' prior written notice to the Customer, increase the Charges to reflect any increase in the cost supplying the Equipment and/or Services that is due to: (a) any factor beyond SteamaCo's reasonable control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, telecommunications, hosting, data and other overheads); (b) any request by the Customer to change the delivery dates, specification, quantity or type of Equipment and/or Services; (c) the Customer's failure to provide adequate, timely or accurate information or instructions; and/or (d) a Customer Default.
6.6 Notwithstanding clause 6.5 above, SteamaCo shall be entitled to change the 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.
6.7 All Charges and other sums payable under the Contract 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.
6.8 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 Interfaces 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 at the rate of 5% per cent per annum above the base rate from time to time of the Bank of England. Such interest shall accrue on a daily basis from the due date until the date actual payment of the overdue amount is received in full by SteamaCo (whether before or after judgment). The Customer shall pay the interest together with the overdue amount.
6.9 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.
7. Change Request
7.1 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 Contract.
7.2 In respect of any request made pursuant to clause 7.1 above, 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 Contract.
7.3 If the Customer wishes SteamaCo to proceed on the terms advised pursuant to clause 7.2 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 Contract in accordance with clause 19.
7.4 Until such time as a Change Order is agreed, the parties shall, unless otherwise agreed in writing, continue to perform the Contract in compliance with its terms prior to the Change Request.
8. Title & Risk
8.1 Unless otherwise agreed in writing, risk in the Equipment shall pass to the Customer upon delivery of the Equipment in accordance with clause 2.1 above.
8.2 Title to the Equipment shall not pass to the Customer until SteamaCo has received payment for the Equipment Fee in full (in cleared funds) and all other outstanding Charges which are due to SteamaCo from the Customer under the Contract.
8.3 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.
8.4 Subject to clause 8.6, the Customer may use the Equipment in the ordinary course of its business (but not otherwise) before SteamaCo receives payment for the Equipment.
8.5 SteamaCo may, on written notice to the Customer, transfer title to the Equipment to the Customer at any time prior to when title would otherwise pass in accordance with clause 8.2.
8.6 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:
(a) the Customer's right to use the Equipment immediately ceases; and
(b) 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.
9. Equipment Warranty
9.1 Subject to the provisions of this clause 9, 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.
9.2 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.
9.3 Subject to clause 9.4 below, if:
(a) the Equipment (other than Third Party Equipment) (or any part of it) does not comply with the warranty in clause 9.1 above;
(b) the Customer notifies SteamaCo in writing, within 12 months of the delivery date of the Equipment, of the 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 9.1.
9.4 SteamaCo shall have no liability under clause 9.1 above if:
(a) the defect arises (directly or indirectly) due to a Customer Default (including a failure to install any Equipment Update and/or Maintenance Release by the relevant Installation Date);
(b) the Customer makes any further use of such Equipment after notifying SteamaCo of the defect in accordance with clause 9.3(b);
(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 or telecommunications 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.
9.5 Except as provided in this clause 9, SteamaCo shall have no other liability to the Customer in respect of defective Equipment.
10. Term & Termination
10.1 The Contract shall commence on the Commencement Date and shall continue in force unless and until either party terminates the Contract in accordance with its terms (Term).
10.2 Either party shall be entitled to terminate the Contract without liability to the other party by giving the other party at least three months’ written notice.
10.3 Without prejudice to any other rights or remedies to which SteamaCo may be entitled, SteamaCo may terminate the Contract in whole or in part, without liability to the Customer, on giving the Customer written notice, which may take effect immediately if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default for at least seven days after receiving notice that such sum is overdue;
(b) the Customer commits a material breach of any of the terms of the Contract (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;
(c) the Customer challenges the ownership or validity of SteamaCo's Intellectual Property;
(d) the Customer is subject to an Insolvency Event; and/or
(e) there is a change of Control of the Customer.
10.4 Without prejudice to any other rights or remedies which the Customer may have, the Customer may terminate the Contract 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 Contract 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.
10.5 Upon the termination or expiry of the Contract for any reason:
(a) the Customer’s right to access the Interfaces pursuant to clause 3.5 and to use the Services shall immediately terminate and any log-in details provided to the Customer for the Interfaces may be immediately de-activated by SteamaCo;
(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, 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).
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10.7 Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.
11. Warranties, Indemnity & Liability
11.1 Each party hereby represents, warrants and undertakes to the other party that:
(a) it has full authority and capacity to enter into the Contract and to perform its obligations and accepts to be legally bound by the same; and
(b) the individual executing the Contract on its behalf has all requisite corporate authority to act on its behalf and to make the Contract valid and binding upon it.
11.2 The Customer hereby represents, warrants and undertakes that:
(a) 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 Contract, including those relating to health and safety, anti-bribery and corruption, anti-slavery and data protection;
(b) the Customer shall not do or omit to do any act which may place SteamaCo in breach of Applicable Laws and/or cause SteamaCo to lose any licence, permission, authority, consent or permit upon which it relies for the purposes of conducting its business;
(c) the Customer has, and shall at all times during the Term maintain in force, all licences, permissions, authorisations, consents and permits as required by Applicable Laws and/or customary industry practice to enable the Customer to perform its obligations and accept the benefit of the Equipment and/or Services supplied under the Contract; and
(d) the Customer shall not use the Equipment and/or any Services for any unlawful activities.
11.3 Save as expressly provided for in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
11.4 The Customer hereby indemnifies SteamaCo and shall keep SteamaCo, its Affiliates and the SteamaCo Personnel indemnified on demand from and against all Losses suffered or incurred by SteamaCo, its Affiliates and/or the SteamaCo Personnel arising out of or in connection with:
(a) a Customer Default;
(b) infringement or other violation of any SteamaCo Intellectual Property by or on behalf of the Customer;
(c) any acts or omissions of the Customer which cause (directly or indirectly) any SteamaCo Personnel to die or suffer from personal injury and/or any damage to any physical property belonging to or under the control of SteamaCo, save where the same is directly attributable to a breach of the Contract by SteamaCo and/or the negligent act or omission of SteamaCo and/or any SteamaCo Personnel.
11.5 The Interfaces are provided on an “as is” basis and SteamaCo does not guarantee or make any representation that the Interfaces will be available, uninterrupted or error free, nor that the Services will meet the Customer’s requirements.
11.6 The Customer assumes sole responsibility for the use of the Deliverables, and any conclusions drawn from use of the same.
11.7 The Customer hereby acknowledges that the use and functionality of the Equipment, Interfaces and 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 Interfaces 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 Interfaces, such event shall be deemed a Force Majeure Event for the purposes of clause 16.
11.8 Nothing in these Terms or the remainder of the Contract limits or excludes any liability for death or personal injury caused by negligence, fraud or which is otherwise not permitted by law.
11.9 Subject to clause 11.8 above, 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 any loss of profits, sales, contracts, business or revenue, loss of anticipated savings, loss of opportunity, loss or corruption of data, information or software and/or for any special, indirect, consequential or pure economic losses, costs or damages, or punitive damages and/or loss of goodwill arising out of or in connection with the Contract.
11.10 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.
11.11 Subject to clause 11.8 above, SteamaCo's total aggregate liability under the Contract in respect of all claims arising in respect of any Year, whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise, shall not exceed the total Services Charge actually paid by the Customer during the previous Year or (if more) £5,000.
11.12 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 Interfaces, the provision of the Services, any Improvements and any other Deliverables.
12.2 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 Contract, 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 12.2 and/or in order to maintain the validity and enforceability of any SteamaCo Intellectual Property.
12.3 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 Contract; 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.
12.4 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 12.3 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 Contract with immediate effect on written notice to the Customer, in which case, SteamaCo shall refund any 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.
12.5 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.
12.6 The Customer shall not:
(a) indicate that it has any right, title or interest (other than as conferred by the Contract) in or to any SteamaCo Intellectual Property;
(b) use and/or copy any SteamaCo Intellectual Property, save as expressly provided in accordance with the Contract;
(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. Data
13.1 The parties shall comply with the Data Processing Addendum where SteamaCo processes any personal data (as defined in the Data Processing Addendum) on behalf of the Customer in connection with the Contract.
13.2 It is agreed and acknowledged that the Data (other than Derived Data) shall be owned by the Customer.
13.3 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.
provided always that to the extent such Data contains any personal data (as defined in the Data Processing Addendum), SteamaCo shall either:
(i) comply with the provisions of the Data Processing Addendum; or
(ii) de-identify, hash or otherwise reconfigure the Data so that it no longer contains any personal data or its use is otherwise not restricted by Data Protection Legislation (as defined in the Data Processing Addendum).
Such licence to use the Data shall continue following termination or expiry of the Contract. This clause 13.3 shall take precedence over any provision to the contrary in the Data Processing Addendum.
13.4 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 (subject to compliance with clause 13.3(i) or (ii)).
13.5 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.
14. Confidentiality
14.1 Each party shall hold the other party's Confidential Information in confidence and, save as provided in clause 14.3, shall not make it available to any third party, or use it for any purpose other than the implementation of the Contract.
14.2 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.
14.3 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.
14.4 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 14 as though they were a party to the Contract.
14.5 It is acknowledged and agreed that the Software, the Interfaces (and associated login details), the Derived Data and the Documentation shall be deemed Confidential Information for the purposes of the Contract 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.
14.6 SteamaCo may publicly refer to the Customer as a customer of SteamaCo and may issue a press release regarding the relationship with the Customer.
15. Anti-Bribery & Anti-Slavery
15.1 Each party shall:
(a) comply with all Applicable Laws relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010;
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the UK Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with all Applicable Laws relating to anti-slavery and human trafficking, including the Modern Slavery Act 2015; and
(d) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the UK Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
16. Force Majeure
SteamaCo shall have no liability to the Customer if SteamaCo is prevented from or delayed in performing its obligations under the Contract by acts, events, circumstances or omissions beyond its reasonable control, including strikes, industrial action, lock-outs or other industrial or trade disputes (involving the workforce of any party); interruption or failure of a utility service or transport or telecommunications network; war, civil war, armed conflict, terrorist attack, riot or civil commotion; nuclear, chemical or biological contamination; malicious damage; compliance with any Applicable Law; any law or action taken by a governmental or public authority; collapse of buildings, fire, explosion or accident; breakdown of plant or machinery; act of God, flood, drought, storm, earthquake or other natural disaster; epidemic or pandemic; sonic boom; and/or non-performance or default by suppliers or sub-contractors (Force Majeure Event). SteamaCo shall inform the Customer of such an event and its expected duration.
17. Notices
17.1 Any notice given by a party under or in connection with the Contract 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.
17.2 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 UK domestic post; (iii) five Business Days after the date of international 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).
18. 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 Contract, 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.
19. Variation
19.1 SteamaCo shall be entitled to vary the Contract (and any part thereof) at any time:
(a) to reflect changes to methods of supply to customers generally;
(b) to comply with Applicable Laws;
(c) if, in SteamaCo's reasonable opinion, changes are required to avoid, mitigate or settle any third-party claim or to comply with its insurers' requirements;
(d) if the changes are, in SteamaCo's reasonable opinion, not material and/or will not materially affect the nature or quality of the Equipment and/or Services (as applicable);
(e) in order to correct any mistake or ambiguity in the Quotation;
(f) pursuant to clause 6.5 and/or 6.6; and/or
(g) in response to any Customer Default which may lead to suspension of performance and/or variation of any performance times, dates or milestones as SteamaCo deems necessary,
and shall confirm in writing such changes to the Customer. Save as stated above, any variation of the Contract must be agreed in writing and signed by the parties' authorised representatives.
20. Definitions & Interpretation
20.1 In these Terms, 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;
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 Contract;
Authorised Users: those employees of the Customer who are authorised to access the Interfaces and use the Services, and any Guests who are granted access to the Interfaces in accordance with clause 3.6;
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;
Business Hours: 9am to 5pm UK time on a Business Day;
Charges: the sums payable by the Customer in respect of the provision of the Equipment and Services (as applicable) as detailed in the Quotation;
Commencement Date: the date on which the Contract is formed in accordance with clause 1.3;
Communications: GPRS data and SMS transmissions sent between the Software and the Equipment and between the Software and Consumers via telecommunications networks;
Communications Charge: the cost of any Communications overages, as set out in the Quotation and subject to the Fair Use Addendum;
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 Contract, including the terms of the Contract 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, software development, hosting arrangements, data processing activities, distribution channels, sales, plans, intentions, strategy, product information, know-how, designs, market opportunities, transactions, affairs, businesses and/or interests) of the disclosing party and/or its customers, clients, suppliers and/or Affiliates;
Consumer: a customer of the Customer who purchases Utilities and / or related services from the Customer;
Contract: the contract between SteamaCo and the Customer for the supply of Equipment and/or Services, comprising the Quotation, these Terms, the Data Processing Addendum, the Fair Use Addendum and, to the extent applicable, the Service Level Addendum;
Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and the expression change of control shall be construed accordingly;
Custom Software: Software modifications developed by SteamaCo for the Customer from time to time;
Customer: the person purchasing Equipment and Services from SteamaCo under a Contract;
Customer Acceptance: has the meaning set out in clause 1.2;
Customer Default: has the meaning given to it in clause 4.4;
Customer Responsibilities: the obligations of the Customer as set out in clauses 4.1, 4.2 and 4.3 of these Terms;
Data: means all data and information relating to the Customer’s and its Consumers’ use of the Services, in its raw form, collated, collected and/or recorded by the Equipment (or any similar third-party 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 Contract;
Data Processing Addendum: SteamaCo's addendum, available at http://steama.co/gdpr, containing terms relevant to the processing of personal data by SteamaCo on behalf of the Customer;
Deliverables: the Equipment, the Interfaces, the Documentation and the products of any Services provided by or on behalf of SteamaCo to the Customer from time to time;
Delivery Location: is as set out in the Quotation;
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;
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 set out in the Quotation;
Equipment Delivery Window: is the lead time set out in the Quotation;
Equipment Fee: the sum payable in respect of the supply of the Equipment, as set out in the Quotation;
Equipment Update: has the meaning set out in clause 5.1(a);
Fair Use Addendum: SteamaCo's addendum, available at https://support.steama.co/article/284/, containing terms relevant to the Communications and the Communications Charge;
Force Majeure Event: has the meaning set out in clause 16;
Improvement: any improvement, discovery, development, enhancement, modification or derivative relating to the Equipment, the Software, the Interfaces and/or the provision of the Services created, acquired, developed or otherwise established by or on behalf of either party;
Incident: any fault or issue affecting the functionality or performance of the Equipment or Interfaces;
Insolvency Event: (as applicable in each case to the legal entity of the Customer) the Customer becomes insolvent or is adjudicated bankrupt; proposes or makes an arrangement, compromise or composition to reschedule or restructure its indebtedness with or for the benefit of its creditors; has an administrator, receiver, liquidator or manager appointed over the whole or a substantial part of any of its assets or undertakings or circumstances arise which entitle a court or a creditor to appoint such an administrator, receiver, liquidator or manager; is subject to a petition or order for bankruptcy; 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 UK Insolvency Act 1986; passes a resolution or documents are filed with a court or other steps are taken to put the Customer into (compulsorily or voluntarily) or is subject to an order for administration (including notice of intent given to appoint an administrator), liquidation or dissolution (save for a bona fide amalgamation or reconstruction with the prior written approval of SteamaCo); ceases or threatens to cease to carry on all or a material part of its business (except in a bona fide amalgamation or reconstruction with the prior written approval of SteamaCo as above); is dissolved or struck off the relevant register of companies; has a distress or execution on its property; or if any event occurs or processing is taken with respect to the Customer or the Customer is subject to any event analogous to the foregoing in any applicable jurisdiction;
Installation Date: has the meaning set out in clause 5.1;
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, rights in trade, business and domain names, rights in goodwill and get up and to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or registrable and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Losses: all costs, liabilities, damages, losses, fines and/or penalties (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest and 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 9.2;
Order: the Customer's request to acquire Equipment and/or Services as described in clause 1.1 of these Terms;
Quotation: the quotation issued to the Customer by SteamaCo detailing the Equipment and/or Services required by the Customer and SteamaCo's charges for the same (which document may be issued in the form of an invoice) and as updated and amended pursuant to clauses 6.5, 6.6 and/or 7 from time to time;
Request: a request made by the Customer for the provision of specific Services as detailed in the Service Level Addendum;
Services: the services to be provided by SteamaCo in connection with the automation of Utilities, as detailed in the Quotation, including: a) software services such as the Interfaces and; b) business support services such as logistics and technical support;
Services Charge: the amount payable per month in respect of the provision of the Services, as set out in the Quotation;
Service Credits: the services credits set out in Part 2 of the Service Level Addendum;
Service Levels: the service levels responses and response times set out in Part 1 of the Service Level Addendum;
Services Start Date: the date as set out in the Quotation or as otherwise agreed in writing between the parties;
Service Level Addendum: SteamaCo’s addendum, available at https://support.steama.co/article/283/, setting out the customer support Service Levels and Service Credits;
Software: SteamaCo's proprietary software, including the Interfaces, the online software and the firmware embedded in the Equipment, which enable the provision of the Services by SteamaCo to the Customer;
SteamaCo Intellectual Property: all Intellectual Property Rights owned by and/or licensed to SteamaCo (other than by the Customer), including all Intellectual Property Rights subsisting in and/or pertaining to the Equipment, 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 (and/or its Affiliates) and who provide services in connection with the Contract from time to time;
Term: has the meaning set out in clause 10.1;
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 the Schedule, and any third-party hardware or equipment with which the Equipment may be used;
Third Party Software: such third-party software as is required for the proper function of the Software and/or Services, including the software set out in Schedule 2;
Interfaces: the online user interface (UI) and the application programming interface (API), which allow the Customer to access the Software, Services and Data;
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;
Year: each consecutive period of twelve months during the Term, starting (in each case) on the Commencement Date or anniversary of the Commencement Date (as applicable) and ending on the day before the anniversary of the Commencement Date, save that the last Year shall end upon the termination or expiry of the Contract.
20.2 References to clauses are to the clauses of these Terms. Clause, paragraph and document headings shall not affect the interpretation of these Terms.
20.3 The Contract shall have full effect as if set out in full in a single document. To the extent there is any conflict between any parts of the Contract, save as expressly stated otherwise, the order of priority shall be as follows: firstly, the Data Processing Addendum, secondly the Quotation, thirdly the Service Level Addendum, fourthly the Fair Use Addendum and finally, these Terms.
20.4 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.
20.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
20.6 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.
20.7 Reference to a person includes a natural person, any body corporate, unincorporated association, firm, body (statutory or otherwise) or authority (supreme, municipal, local or otherwise) whether or not having separate legal personality.
21. General
21.1 No failure or delay by a party to exercise any right or remedy provided under the Contract 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 Contract 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.
21.2 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 Contract. 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 Contract.
21.3 If any provision (or part of a provision) of these Terms 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.
21.4 Unless expressly stated otherwise in the Contract, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.5 Nothing in the Contract 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.
21.6 Nothing in the Contract shall limit or interfere in any way with SteamaCo’s ability to freely supply the Equipment and/or any Services to third parties.
21.7 The Contract does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
22. Governing Law & Jurisdiction
22.1 The Contract 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.
22.2 The courts of England and Wales shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of or in connection with the Contract (including non-contractual disputes and claims). Notwithstanding the foregoing, nothing in this Deed shall prevent SteamaCo from taking court proceedings or bringing claims in any jurisdiction in which the Customer and/or any of the Customer's Affiliates are resident and/or have assets.
Schedule 1
Products & Services Description
This Schedule 1 sets out the description of the services that the Customer may request SteamaCo to provide from time to time.
1. Integrated Technology
SteamaCo's product comprises two integrated technologies: (a) the Software and (b) the Equipment. The Software and the Equipment operate together to form an integrated product.
The Equipment processes and stores data, transmits this data (a) locally between devices via a private long range packet radio network (LoRa) and (b) regionally between the Equipment and the Software via telecommunications networks and Internet gateways. The Software processes Customer, Consumers and Equipment Data, along with other Internet data, and transmits commands and Data to the Equipment, the Customer and Consumers in connection with the automation of Utilities.
2. The Software & Interfaces
SteamaCo shall provide the Customer with a secure login to access the Software via the Interfaces (comprising the UI and API). The Interfaces enable the Customer to use and configure the Software and Equipment:
a) Data collection: automatically collect, process and store Data;
b) Data visualisation: display Data at Consumer and site level through interactive charts and tables;
c) Remote automation: automatically control the Utilities using;
d) Site and Consumer setup: set up and edit connected Consumers and asset records;
e) Alerts: SMS and / or email alerts to the Customer and Consumers;
f) Tariffs: set a variety of tariffs by Consumer and by site.
3. Payment Processing
SteamaCo calculates Consumer payment balances based on Utility usage and payment information received from third-party payment services, and switches Utilities on or off accordingly. It is acknowledged and agreed that SteamaCo does not control payments or handle the Customer’s funds directly.
4. Software Customisation
If agreed by the parties in writing, SteamaCo shall develop Custom Software in accordance with the requirements of an agreed written technical specification.
All Intellectual Property Rights in the Custom Software shall vest absolutely and unconditionally in SteamaCo and the Customer shall be granted a licence to use such Custom Software in accordance with clause 12. SteamaCo shall not be restricted in any way whatsoever from licensing the Custom Software to any third parties.
5. Customer Support
SteamaCo shall provide support to the Customer subject to the Service Level Addendum.
Schedule 2
Third Party Software
This Schedule 2 describes the Third-Party Software with which the Software integrates. The Software relies on the correct functioning and/or installation of the following Third-Party Software for normal operation:
· Amazon Web Services: cloud computation and storage resources;
· Android OS and Android applications;
· Telecommunications networks, gateways, APIs and / or mobile money services;
· Other web services, web browsers, web infrastructure and web middleware.