EMMA AI Agreement

TERMS AND CONDITIONS

Please read these Terms and Conditions carefully. All contracts that OML may enter into from time to time for the provision of the EMMA AI Services and related services shall be governed by these Terms and Conditions, and OML will ask for the Customer’s express written acceptance of these Terms and Conditions before providing any such services to the Customer.

1.      Definitions

1.1    In these Terms and Conditions:

Account” means an account enabling a person to access and use the EMMA AI Services, including both administrator accounts and other user accounts;

Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

Agreement” means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

Agreement Date” has the meaning given to it in the Services Order Form;

Agreement Period” has the meaning given to it in the Services Order Form;

Anonymised Data” means Service Data that does not constitute or contain Personal Data, where neither the Customer nor any Permitted Entity will be directly identifiable from that Service Data;

API” means any application programming interface for the EMMA AI Services that is defined and made available by OML from time to time;

AUP” means the acceptable use policy applying go the use of the EMMA AI Services as published and maintained by OML from time to time;

Break Date” has the meaning given to it in the Services Order Form;

Business Day” means any weekday other than a bank or public holiday in England;

Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

Change” means those changes to the scope of the Services referred to in Schedule 2 (Change requests);

Charges” means:

(a)    the charges specified in the Services Order Form;

(b)    such other charges as may be agreed in writing by the parties from time to time; and

(c)    charges calculated by multiplying OML’s standard time-based charging rates (as specified in the Services Order Form and varied in accordance with the Agreement) by the time spent by OML’s personnel performing any Support Services exceeding the Included Support Hours;

Confidential Information” means the OML Confidential Information and the Customer Confidential Information;

Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

Customer” means the person or entity identified as such in the Services Order Form;

Customer Confidential Information” means:

(a)    any information disclosed by or on behalf of the Customer to OML at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i)     was marked as “confidential”; or

(ii)    should have been reasonably understood by OML to be confidential;

(b)    the Customer Data; and

(c)    the Customer Personal Data,

but excluding the Anonymised Data;

Customer Data” means:

(a)    the Service Data; and

(b)    all other data uploaded to or stored on the Platform by the Customer, or supplied by the Customer to OML for uploading to or storage on the Platform;

Customer Sites” means those sites identified in the Services Order Form, subject to variations in accordance with Clause 15;

Customer Indemnity Event” has the meaning given to it in Clause 24.3;

Customer Personal Data” means any Personal Data that is processed by OML on behalf of the Customer in relation to the Agreement;

Customer Representatives” means the person or persons identified as such in the Services Order Form, and any additional or replacement persons that may be appointed by the Customer via a Change request;

Customer Systems” means the energy and/or utility consumption meters and related computer systems of the Customer that provide or will provide Service Data to the Platform as identified in the Services Order Form (subject to variations in accordance with the Agreement);

Customisation” means a customisation of the EMMA AI Services, whether made through the development, configuration or integration of software, or otherwise;

Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);

Defect” means a defect, error or bug in the Platform having a material adverse effect on the functionality or performance of the EMMA AI Services, but excluding any defect, error or bug caused by or arising as a result of:

(a)    any act or omission of the Customer or any person authorised by the Customer to use the Platform or EMMA AI Services;

(b)    a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(c)    an incompatibility between the Platform or EMMA AI Services and any other system, network, application, program, hardware or software (excluding the Supported Web Browsers, and the Customer Systems insofar as they comply with the requirements set out in the Services Order Form);

EMMA AI Services” means the EMMA AI services which will be made available by OML to the Customer as a service via the internet in accordance with these Terms and Conditions;

Expenses” means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by OML exclusively in connection with, the performance of OML’s obligations under the Agreement;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks, wars and epidemics);

Included Support Hours” means the number of hours specified in the Services Order Form;

Initial Term” means the period specified as such in the Services Order Form;

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs);

Interim Agreement” means the EMMA AI interim agreement executed by the parties before the execution of the Agreement and referenced in the Services Order Form;

Measurement Period” has the meaning given to it in the Services Order Form;

OML” means Optimal Monitoring Ltd, a company incorporated in England and Wales (registration number 03788490) having its registered office at 16 Great Queen Street, Covent Garden, London, United Kingdom, WC2B 5AH;

OML Confidential Information” means:

(a)    any information disclosed by or on behalf of the OML to the Customer at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by the Customer (acting reasonably) to be confidential;

(b)    the financial terms of the Agreement;

(c)    any roadmaps for the development of the Platform or EMMA AI Services made available by OML to the Customer; and

(d)    access credentials for the EMMA AI Services;

OML Indemnity Event” has the meaning given to it in Clause 24.1;

OML Representatives” means the person or persons identified as such in the Services Order Form, and any additional or replacement persons that may be appointed by the OML giving to the Customer written notice of the appointment;

Permitted Entities” means those entities identified as such in the Services Order Form;

Permitted Purposes” means the purposes of monitoring and managing the energy consumption, utility consumption and/or carbon emissions of the Customer and each Permitted Entity at the Customer Sites;

Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;

Platform” means the platform managed by OML and used by OML to provide the EMMA AI Services, including the application and database software for the EMMA AI Services, the system and server software used to provide the EMMA AI Services, and the computer hardware on which that application, database, system and server software is installed;

Renewal Term” means a period of 12 months beginning at the end of the Initial Term or at the end of an earlier Renewal Term;

Service Data” means energy consumption data, utility consumption data, environmental data, geographic data and/or feedback data collected by the Platform;

Services” means any services that OML provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

Services Order Form” means a digital or hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

Set Up Services” means the configuration, implementation and integration of the EMMA AI Services in accordance with the Services Order Form;

SLA” means the service level agreement set out in Schedule 1 (SLA);

Specification” means the specification for the Platform and EMMA AI Services set out in the Services Order Form;

Support Services” means support in relation to the use of, and the identification and resolution of errors in, the EMMA AI Services, but shall not include the provision of training services;

Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, providing that if any such web browser is not maintained and updated in accordance with generally accepted web browser standards it shall cease to be a Supported Web Browser;

Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clauses 2.2, 2.3 and the other provisions of the Agreement;

Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time; and

Territory” means the territory or territories identified in the Services Order Form, subject to any variations agreed by the parties in writing.

2.      Term

2.1    The Agreement shall be deemed to have come into force upon the Agreement Date.

2.2    The Agreement shall continue in force for the Initial Term.

2.3    At the end of the Initial Term the Agreement shall automatically renew for the first Renewal Term, and at the end of each Renewal Term the Agreement shall automatically renew for a further Renewal Term, subject in each case to termination in accordance with any provision of these Terms and Conditions.‌

3.      N/A

4.      Set Up Services

4.1    OML shall provide the Set Up Services to the Customer.

4.2    OML shall use reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in the Services Order Form.

4.3    The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 25.1 OML will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

4.4    Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by OML shall be the exclusive property of OML.

5.      EMMA AI Services

5.1    OML hereby grants to the Customer a worldwide, non-exclusive licence to use the EMMA AI Services by means of:

(a)    a Supported Web Browser;

(c)    the API,

for the Permitted Purposes during the Term.

5.2    The licence granted by OML to the Customer under Clause 5.1 is subject to the following limitations:

(a)    the EMMA AI Services may only be used, via a Supported Web, by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and

(b)    the EMMA AI Services may only be used, via the API, by the Customer Systems.

5.3    Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by OML to the Customer under Clause 5.1 is subject to the following prohibitions:

(a)    the Customer must not sub-license its right to access and use the EMMA AI Services;

(b)    the Customer must not permit any unauthorised person to access or use the EMMA AI Services;

(c)    the Customer must not without the prior written consent of OML resell the EMMA AI Services or use the EMMA AI Services to provide services to third parties;

(d)    the Customer must not republish or redistribute any content or material from the EMMA AI Services (excluding reports relating to the Customer’s energy use, utility use, and/or carbon emissions, generated by means of the EMMA AI Services);

(e)    the Customer must not make any alteration to the Platform, excluding alterations to the Customer Data; and

(f)    the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or EMMA AI Services without the prior written consent of OML.

5.4    The Customer shall use reasonable endeavours, including reasonable security measures relating to access credentials for the EMMA AI Services, to ensure that no unauthorised person may gain access to the EMMA AI Services.

5.5    The parties acknowledge and agree that Schedule 1 (SLA) shall govern the availability of the EMMA AI Services.

5.6    The Customer must not use the EMMA AI Services in any way that causes, or may cause, damage to the EMMA AI Services or Platform or impairment of the availability or accessibility of the EMMA AI Services.

5.7    The Customer must not use the EMMA AI Services:

(a)    in any way that is unlawful, illegal, fraudulent or harmful; or

(b)    in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

5.8    The Customer shall comply with the AUP and shall ensure that all persons using the EMMA AI Services with the Customer’s authorisation or access credentials, or on behalf of the Customer, comply with the AUP.

5.9    For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

6.      Customisations

6.1    OML and the Customer may agree that OML shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in writing by the parties.

6.2    All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of OML.

6.3    From the time and date when a Customisation is first delivered or made available by OML to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer’s rights to use the Customisation shall be governed by Clause 5.

6.4    The Customer acknowledges that OML may make any Customisation available to any of its other customers or any other third party.

7.      Support Services

7.1    OML shall provide the Support Services to the Customer in accordance with Schedule 1 (SLA).

8.      Customer obligations

8.1    The Customer must:

(a)    act in good faith in relation to the supply of Service Data and use all reasonable endeavours to ensures that the Customer Systems provide accurate Service Data to the Platform; and

(b)    provide to OML, promptly following receipt of a request from OML, any requested half-hourly consumption data (which may include billing information) relating to the consumption monitored by the EMMA AI Services.

8.2    Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to OML, or procure for OML, such:

(a)    co-operation, support and advice; and

(b)    information and documentation,

        as are reasonably necessary to enable OML to perform its obligations under the Agreement.

8.3    The Customer must provide to OML, or procure for OML, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by OML to enable OML to perform its obligations under the Agreement.

8.4    The Customer shall ensure that the Customer Systems comply, and continue to comply during the Term, with the requirements of the Services Order Form in all material respects, subject to any changes agreed in writing by OML.

9.      Data

9.1    The Customer warrants to OML that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation.

9.2    The Customer hereby grants to OML non-exclusive licences to:

(a)    use Customer Data during the Term to the extent reasonably required for the provision of the Services and the performance of OML’s other obligations under the Agreement;

(b)    anonymise Service Data during the Term, and promptly following the end of the Term, in order to produce Anonymised Data;

(c)    use Service Data during the Term for the purposes of operating the Platform generally, including providing services to other OML customers, providing that the only Service Data that may be provided or made available to other OML customers will be Anonymised Data; and

(d)    use Anomymised Data during and after the Term (on a perpetual basis) for the purposes of operating, maintaining and improving the Platform and the services provided by OML generally, including providing services to other OML customers.

9.3    The Customer also grants to OML the right to sub-license the rights licensed in Clause 9.2 to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in Agreement.

  1. Back-ups

10.1  OML shall create a back-up copy of the Customer Data stored in the principal database for the EMMA AI Services at least daily, shall ensure that each such copy is sufficient to enable OML to restore the EMMA AI Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.

10.2  Within the period of 1 Business Day following receipt of a written request from the Customer, OML shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by OML in accordance with Clause 10.1. The Customer acknowledges that this process will overwrite Customer Data stored on the Platform prior to the restoration.

11.    N/A

12.    No assignment of Intellectual Property Rights

12.1  Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from OML to the Customer, or from the Customer to OML.

13.    Representatives

13.1  OML shall ensure that all instructions given by OML in relation to the matters contemplated in the Agreement will be given by an OML Representative to a Customer Representative, and the Customer:

(a)    may treat all such instructions as the fully authorised instructions of the OML; and

(b)    may decline to comply with any other instructions in relation to that subject matter.

13.2  The Customer shall ensure that all instructions given by the Customer in relation to the matters contemplated in the Agreement will be given by a Customer Representatives to an OML Representatives, and the OML:

(a)    may treat all such instructions as the fully authorised instructions of the Customer, providing that the instruction is within the defined authority level for the relevant Customer Representative; and

(b)    may decline to comply with any other instructions in relation to that subject matter.

14.    Management

14.1  The parties shall hold management meetings at each party’s offices, by telephone conference or using internet-based conferencing facilities:

(a)    in accordance with the Services Order Form (or otherwise by the parties in writing); and

(b)    at the reasonable request of either party.

14.2  A party requesting a management meeting shall give to the other party at least 10 Business Days’ written notice of the meeting.

14.3  Wherever necessary to enable the efficient conduct of business, OML shall be represented at management meetings by at least 1 OML Representative and the Customer shall be represented at management meetings by at least 1 Customer Representative.

15.    Changes

15.1  The Customer may request a Change at any time; and the provisions of this Clause 15 shall apply to each Change requested by the Customer.

15.2  When requesting a Change, the Customer shall provide to OML the information specified in Schedule 2 (Change requests) in the manner specified in that Schedule.

15.3  Following receipt of a Change request, OML shall promptly:

(a)    accept the Change request, by giving to the Customer written notice of that acceptance;

(b)    reject the Change request, in which case OML must inform the Customer of this rejection; or

(c)    suggest amendments to the Change request,

and the Charges with respect to any Change shall be in accordance with Services Order Form, except that new Charges (to be agreed by the parties) may be payable with respect to any change in the Territory or any Customer Sites that are not within the Territory.

15.4  A proposed Change will not take effect until such time as OML has approved the relevant Change request in writing.

16.    Charges

16.1  The Customer shall pay the Charges to OML.

16.2  All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to OML.

16.3  OML may increase the Charges upon and from each anniversary of the Agreement Date, by a percentage up to the lesser of:

(a)    the annual percentage increase in the Retail Price Index (all items); and

(b)    the annual percentage increase in the Consumer Price Index,

(in each case as published by the UK Office for National Statistics) with respect to annual period ending in the calendar month preceding that anniversary.

17.    Expenses

17.1  The Customer shall reimburse OML in respect of any Expenses, providing that OML must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

17.2  OML must collect and collate evidence of all Expenses, and must retain such evidence during the Term and for a period of 90 days following the end of the Term.

17.3  Within 10 Business Days following receipt of a written request from the Customer to do so, OML must supply to the Customer such copies of the evidence for the Expenses in the possession or control of OML as the Customer may specify in that written request.

18.    Payments

18.1  OML shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in the Services Order Form.

18.2  Save to the extent that the Services Order Form provides otherwise, the Customer must pay the Charges to OML within the period of 30 days following the issue of an invoice.

18.3  The Customer must pay the Charges by bank transfer (using such payment details as are notified by OML to the Customer from time to time).

18.4  If the Customer does not pay any amount properly due to OML under these Terms and Conditions, OML may:

(a)    charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)    claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

18.5  OML may suspend the provision of any of the Services if any amount due to be paid by the Customer to OML under the Agreement is overdue, and OML has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend Services on this basis.‌

19.    Confidentiality obligations

19.1  OML must:

(a)    keep the Customer Confidential Information strictly confidential;

(b)    not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the Customer Confidential Information as OML uses to protect OML’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)    act in good faith at all times in relation to the Customer Confidential Information.

19.2  The Customer must:

(a)    keep the OML Confidential Information strictly confidential;

(b)    not disclose the OML Confidential Information to any person without the OML’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c)    use the same degree of care to protect the confidentiality of the OML Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)    act in good faith at all times in relation to the OML Confidential Information.

19.3  Notwithstanding Clauses 19.1 and 19.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.

19.4  No obligations are imposed by this Clause 19 with respect to a party’s Confidential Information if that Confidential Information:

(a)    is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)    is or becomes publicly known through no act or default of the other party; or

(c)    is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.

19.5  The restrictions in this Clause 19 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.

19.6  The provisions of this Clause 19 shall continue in force indefinitely following the termination of the Agreement.

20.    Publicity

20.1  Neither party may make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

21.    Data protection

21.1  Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.

21.2  The Customer warrants to OML that it has the legal right to disclose all Personal Data that it does in fact disclose to OML under or in connection with the Agreement.

21.3  The Customer shall only supply to OML, and OML shall only process, in each case under or in relation to the Agreement:

(a)    the Personal Data of data subjects falling within the categories specified in Schedule 3 (Data processing information); and

(b)    Personal Data of the types specified in Schedule 3 (Data processing information).

21.4  OML shall only process the Customer Personal Data for the purposes specified in Schedule 3 (Data processing information).

21.5  OML shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 21.

21.6  OML shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area and the United Kingdom), as set out in these Terms and Conditions or any other document agreed by the parties in writing.

21.7  The Customer hereby authorises OML to make the following transfers of Customer Personal Data:

(a)    OML may transfer the Customer Personal Data to its sub-processors in the jurisdictions identified in Schedule 3 (Data processing information), providing that such transfers must be protected by any appropriate safeguards identified therein; and

(b)    OML may transfer the Customer Personal Data to a country, a territory or sector to the extent that the competent data protection authorities have decided that the country, territory or sector ensures an adequate level of protection for Personal Data.

21.8  OML shall promptly inform the Customer if, in the opinion of OML, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.

21.9  Notwithstanding any other provision of the Agreement, OML may process the Customer Personal Data if and to the extent that OML is required to do so by applicable law. In such a case, OML shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

21.10 OML shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

21.11 OML and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.

21.12 OML must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, OML shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate the Agreement on 7 days’ written notice to OML, providing that such notice must be given within the period of 7 days following the date that OML informed the Customer of the intended changes. OML shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on OML by this Clause 21.

21.13 OML is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the third parties, and third parties within the categories, identified in Schedule 3 (Data processing information).

21.14 OML shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.

21.15 OML shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. OML may charge the Customer at its standard time-based charging rates for any work performed by OML at the request of the Customer pursuant to this Clause 21.15.

21.16 OML must notify the Customer of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 36 hours after OML becomes aware of the breach.

21.17 OML shall make available to the Customer all information necessary to demonstrate the compliance of OML with its obligations under this Clause 21 and the Data Protection Laws. OML may charge the Customer at its standard time-based charging rates for any work performed by OML at the request of the Customer pursuant to this Clause 21.17, providing that no Charges shall be levied with respect to the completion by OML (at the reasonable request of the Customer, not more than once per calendar year) of the standard information security questionnaire of the Customer.

21.18 OML shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.

21.19 OML shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of OML’s processing of Customer Personal Data with the Data Protection Laws and this Clause 21. OML may charge the Customer at its standard time-based charging rates for any work performed by OML at the request of the Customer pursuant to this Clause 21.19, providing that no Charges shall be levied where the request to perform the work arises out of any breach by OML of the Agreement or any security breach affecting the systems of OML.

21.20 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

22.    Warranties

22.1  OML warrants to the Customer that:

(a)    OML has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions;

(b)    OML will comply with all applicable legal and regulatory requirements applying to the exercise of OML’s rights and the fulfilment of OML’s obligations under these Terms and Conditions;

 (c)   OML shall use reasonable endeavours to ensure that the Platform and EMMA AI Services will conform in all material respects with the Specification;

(d)    OML shall use reasonable endeavours to ensure that the EMMA AI Services will be free from Defects;

(e)    OML shall use reasonable endeavours to ensure that the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(f)    the Platform will incorporate security features reflecting the requirements of good industry practice.

22.2  OML warrants to the Customer that the EMMA AI Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person under English law.

22.3  If OML reasonably determines, or any third party alleges, that the use of the EMMA AI Services by the Customer in accordance with these Terms and Conditions infringes any person’s Intellectual Property Rights, OML may at its own cost and expense:

(a)    modify the EMMA AI Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b)    procure for the Customer the right to use the EMMA AI Services in accordance with these Terms and Conditions.

22.4  The Customer warrants to OML that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.

22.5  All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into Agreement or any related contract.

23.    Acknowledgements and warranty limitations

23.1  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, OML gives no warranty or representation that the EMMA AI Services will be wholly free from defects, errors and bugs.

23.2  The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, OML gives no warranty or representation that the EMMA AI Services will be entirely secure.

23.3  The Customer acknowledges that the EMMA AI Services are designed to be compatible only with that software and those systems specified as compatible in the Specification; and OML does not warrant or represent that the EMMA AI Services will be compatible with any other software or systems.

24.    Indemnities

24.1  OML shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of:

(a)    any breach by OML of the Data Protection Laws; and

(b)    any breach or alleged breach by OML of Clause 22.2,

        (an “OML Indemnity Event“).

24.2  The Customer must:

(a)    upon becoming aware of an actual or potential OML Indemnity Event, notify the OML;

(b)    provide to the OML all such assistance as may be reasonably requested by the OML in relation to the OML Indemnity Event;

(c)    allow the OML the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the OML Indemnity Event; and

(d)    not admit liability to any third party in connection with the OML Indemnity Event or settle any disputes or proceedings involving a third party and relating to the OML Indemnity Event without the prior written consent of the OML,

        and the OML’s obligation to indemnify the Customer under Clause 24.1 shall not apply unless the Customer complies with the requirements of this Clause 24.2.

24.3  The Customer shall indemnify and shall keep indemnified OML against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by OML and arising directly or indirectly as a result of:

(a)    any breach by the Customer of the Data Protection Laws; and

(b)    any breach or alleged breach by the Customer of Clause 9.1,

        (a “Customer Indemnity Event“).

24.4  OML must:

(a)    upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;

(b)    provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;

(c)    allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and

(d)    not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,

        and the Customer’s obligation to indemnify OML under Clause 24.3 shall not apply unless OML complies with the requirements of this Clause 24.4.

24.5  The indemnity protection set out in this Clause 24 shall not be subject to the limitations and exclusions of liability set out in the Agreement, except that the liability cap in Clause 25.8 shall apply.

25.    Limitations and exclusions of liability

25.1  Nothing in these Terms and Conditions will:

(a)    limit or exclude any liability for death or personal injury resulting from negligence;

(b)    limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)    limit any liabilities in any way that is not permitted under applicable law; or

(d)    exclude any liabilities that may not be excluded under applicable law.

25.2  The limitations and exclusions of liability set out in this Clause 25 and elsewhere in these Terms and Conditions:

(a)    are subject to Clauses 24.5 and 25.1; and

(b)    govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

25.3  Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

25.4  OML shall not be liable to the Customer in respect of any:

(a)    loss of profits or anticipated savings; or

(b)    loss of business, contracts or opportunities.

25.5  OML shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 25.5 shall not protect OML unless OML has fully complied with its obligations under Clause 10.

25.6  Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

25.7  The liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the greater of:

(a)    GBP 100,000; and

(b)    the total amount paid and payable by the Customer to OML under Agreement in the 12 month period preceding the commencement of the event or events.

25.8  The aggregate liability of each party to the other party under the Agreement shall not exceed GBP 1,000,000.

26.    Force Majeure Event

26.1  If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

26.2  A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:

(a)    promptly notify the other; and

(b)    inform the other of the period for which it is estimated that such failure or delay will continue.

26.3  A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

27.    Termination

27.1  Either party may terminate the Agreement at the end of the Initial Term or any Renewal Term by giving to the other party not less than 60 days’ prior written notice of termination.

27.2  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party commits any material breach of the Agreement, and the breach is not remediable; or

(b)    the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.

27.3  Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)    the other party:

(i)     is dissolved;

(ii)    ceases to conduct all (or substantially all) of its business;

(iii)   is or becomes unable to pay its debts as they fall due;

(iv)   is or becomes insolvent or is declared insolvent; or

(v)    convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)    an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or

(c)    an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.

27.4  OML may terminate the Agreement immediately by giving written notice to the Customer if:

(a)    any amount due to be paid by the Customer to OML under Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)    OML has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate Agreement in accordance with this Clause 27.4.

27.5  A‌ party may also terminate the Agreement under any express termination rights set out in the Services Order Form.

27.6  The Agreement may only be terminated in accordance with its express provisions.

28.    Effects of termination

28.1  Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 3.3, 5.3(d), 5.9, 8.1(b), 9.2(b) and (d), 17, 18, 19, 20, 21, 24, 25, 28, 29, 32, 33, 34, 35, 36, 37, 38 and 39.

28.2  Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

29.    Non-solicitation of personnel

29.1  The Customer must not, without the prior written consent of OML, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of OML who has been involved in any way in the negotiation or performance of the Agreement.

29.2  OML must not, without the prior written consent of the Customer, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of the Customer who has been involved in any way in the negotiation or performance of the Agreement.

30.    Notices

30.1  Any notice given under these Terms and Conditions must be in writing, whether or not described as “written notice” in these Terms and Conditions.

30.2  Any notice given by one party to the other party under these Terms and Conditions must be:

(a)    sent by courier;

(b)    sent by recorded signed-for post; or

(c)    sent by email,

        using the relevant contact details set out in the Services Order Form.

30.3  The addressee and contact details set out in the Services Order Form may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 30.

30.4  A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

30.5  A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)    in the case of notices sent by courier, upon delivery;

(b)    in the case of notices sent by recorded signed-for post, 48 hours after posting; and

(c)    in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent).

31.    Subcontracting

31.1  Subject to any express restrictions elsewhere in these Terms and Conditions, OML may subcontract any of its obligations under the Agreement, providing that OML must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.

31.2  OML shall remain responsible to the Customer for the performance of any subcontracted obligations.

32.    Assignment

32.1  Save to the extent expressly permitted by applicable law, OML must not assign, transfer or otherwise deal with OML’s contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that OML may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of OML or to any successor to all or a substantial part of the business of OML from time to time.

32.2  Save to the extent expressly permitted by applicable law, the Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under these Terms and Conditions without the prior written consent of OML, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

33.    No waivers

33.1  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

33.2  No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of Agreement.

34.    Severability

34.1  If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

34.2  If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

35.    Third party rights

35.1  The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.

35.2  The exercise of the parties’ rights under the Agreement is not subject to the consent of any third party.

36.    Variation

36.1  The Agreement may not be varied except by means of a written document signed by or on behalf of each party, without prejudice to the requirements of Clause 15.

37.    Entire agreement

37.1  The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

37.2  Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

37.3  The provisions of this Clause 37 are subject to Clause 25.1.

38.    Law and jurisdiction

38.1  These Terms and Conditions shall be governed by and construed in accordance with English law.

38.2  Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

39.    Interpretation

39.1  In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a)    that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)    any subordinate legislation made under that statute or statutory provision.

39.2  The Clause headings do not affect the interpretation of these Terms and Conditions.

39.3  References in these Terms and Conditions to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

39.4  In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

SCHEDULE 1 (SLA)

  1. Introduction

1.1    This SLA sets out OML’s availability commitments relating to the EMMA AI Services, alongside OML’s commitments relating to the provision of the Support Services.

  1. Availability

2.1    In this SLA:

(a)    “Uptime” means the percentage of time during a given period when the EMMA AI Services are available at the gateway between public internet and the network of the hosting services provider for the EMMA AI Services, subject to Section 3.6; and

(b)    “Downtime” means, with respect to a given period, 100 per cent minus the Uptime percentage during that period.

2.2    OML shall use all reasonable endeavours to ensure that the Uptime for the EMMA AI Services is at least 99.9% during each calendar month.

2.3    OML shall be responsible for measuring Uptime and shall do so using any reasonable methodology.

2.4    OML shall make available any Uptime measurements to the Customer in respect of each calendar month, within 10 Business Days following the end of the relevant calendar month.

  1. Service credits

3.1    In respect of each calendar month during which the Uptime of the EMMA AI Services is less than the commitment specified in Section 2, the Customer shall earn service credits in accordance with the provisions of this Section 3.

3.2    The service credits earned by the Customer shall be as follows, subject to Section 3.6:

Uptime during a calendar month

 

Service credits*

99.9% or greater

 

N/A

99.0% or greater, but less than 99.9%

 

 

10%

95.0% or greater, but less than 99.0%

 

20%

Less than 95.0%

 

40%

 

 

 

        *The service credit percentage shall be applied to the Charges payable by the Customer to OML in consideration for the provision of the EMMA AI Services under the Agreement with respect to the relevant calendar month (such amount to be calculated by OML using any reasonable methodology).

3.3    OML shall deduct an amount equal to the service credits due to the Customer under from amounts invoiced in respect of the Charges for the EMMA AI Services. All remaining service credits shall be deducted from each relevant invoice issued following the reporting of the relevant failure to meet the Uptime commitment, until such time as the service credits are exhausted.

3.4    Service credits shall be the sole remedy of the Customer in relation to any failure by OML to meet the Uptime guarantee in Section 2, except where the failure amounts to a material breach of this Agreement.

3.5    Upon the termination of this Agreement, the Customer’s entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by OML in respect of EMMA AI Services following such termination.

3.6    Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether OML has met the Uptime commitment given in Section 2.2 or when calculating any service credits due under Section 3.2:

(a)    a Force Majeure Event;

(b)    a fault or failure of the internet or any public telecommunications network;

(c)    a fault or failure of OML’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between OML and that company;

(d)    a fault or failure of the Customer’s computer systems or networks;

(e)    any breach by the Customer of this Agreement; or

(f)    scheduled maintenance carried out in accordance with this Agreement.

  1. Customer support system

4.1    OML shall make available to the Customer a customer support system.

4.2    The Customer may use the customer support system for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the customer support system for any other purpose.

4.3    OML shall ensure that the customer support system is accessible by telephone, email and web.

4.4    OML shall ensure that the customer support system is operational and adequately staffed during Business Hours during the Term.

4.5    The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the customer support system.

  1. Response and resolution

5.1    Requests raised through the customer support system shall be categorised as follows:

(a)    critical: the EMMA AI Services are inoperable, or a core function of the EMMA AI Services is unavailable;

(b)    serious: a core function of the EMMA AI Services is significantly impaired;

(c)    moderate: a core function of the EMMA AI Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the EMMA AI Services is significantly impaired; and

(d)    minor: any impairment of the EMMA AI Services not falling into the above categories; any cosmetic issue affecting the EMMA AI Services; and any request for training in the operation of the EMMA AI Services.

5.2    OML shall determine, acting reasonably, into which severity category an issue falls.

5.3    OML shall use all reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:

(a)    critical: 2 Business Hours;

(b)    serious: 4 Business Hours;

(c)    moderate: 2 Business Days;

(d)    minor: 10 Business Days.

5.4    OML shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

5.5    OML shall use all reasonable endeavours to resolve issues raised through the Support Services promptly but does not guarantee resolution within any particular period.

  1. Limitations on Support Services

6.1    The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

6.2    If the total hours spent by the personnel of OML performing the Support Services during any calendar month exceed the Included Support Hours then:

(a)    OML will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)    OML may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

6.3    OML shall have no obligation to provide Support Services in respect of any issue caused by:

(a)    the improper use of the EMMA AI Services by the Customer; or

(b)    any alteration to the EMMA AI Services made without the prior consent of OML.

  1. Scheduled maintenance

7.1    OML shall where practicable give to the Customer at least 5 Business Days’ prior written notice of scheduled maintenance that is likely to affect the availability of the EMMA AI Services or is likely to have a material negative impact upon the EMMA AI Services, without prejudice to OML’s other notice obligations under this Schedule.

7.2    OML shall use all reasonable endeavours to ensure that any such scheduled maintenance is conducted outside Business Hours.

 

 

 

SCHEDULE 2 (CHANGE REQUESTS)

All Change requests must be submitted using OML’s support ticket system. In the event that the support ticket system is unavailable, Change requests may be submitted by email or telephone.

Change requests must include the relevant information listed below.

Changes to Customer Sites

  • Site name(s) and address(es)
  • Action to take: update / add / delete

Changes to meters or data points

  • Meter or data point name
  • The unique point references (MPAN/MPU/SPID etc.)
  • The associated site
  • Data point units
  • The data provider
  • Action to take: update / add / delete

Changes to data provider

  • Account manager contact details
  • Letter of introduction
  • Letter of authority

Changes to Customer Representatives

  • Full Name
  • Contact details, included email and telephone number
  • Level of authority: update / add / delete
  • Action to take: update / add / delete

 

 

 

SCHEDULE 3 (DATA PROCESSING INFORMATION)

1.      Categories of data subject

Users of the EMMA AI Services.

2.      Types of Personal Data

Names, email addresses, telephone numbers, other contact information, feedback relating to the EMMA AI Services.

3.      Purposes of processing

The provision of the Services, the monitoring of the Services, use of Customer Data in accordance with Clause 9.2 and communications with the Customer.

4.      Sub-processors of Personal Data

OML is authorised (on a general basis) to use sub-processors within the following categories:

  • Hosting infrastructure services providers
  • Telecommunications services providers
  • Support services infrastructure providers
  • Data and AI processing services providers
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