End User Licence Agreement
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE AGREEING TO USE THE SOFTWARE: This licence agreement (Licence) is a legal agreement between you (Licensee or you) and Optimal Monitoring Limited of Prospect House, Crendon Street, High Wycombe, Bucks HP13 6LA (Licensor or we) for this web-hosted energy monitoring and targeting Platform software product (Software), which includes computer software, printed materials and online OR electronic documentation (Documentation).
THIS SOFTWARE REQUIRES A COMPUTER THAT CAN ACCESS THE INTERNET USING MICROSOFT EDGE, GOOGLE CHROME OR SAFARI OR EQUIVALENT COMPLIANT BROWSER BY PROCEEDING TO USE THE SOFTWARE OR CLICKING ON THE “ACCEPT” BUTTON ON THE ORDER FORM YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE ORDERING PROCESS NOW BY CLICKING ON THE “REJECT” BUTTON ON THE ORDER FORM. IN THIS CASE THE ORDERING PROCESS WILL TERMINATE AND YOU MAY NOT ORDER OR USE THE SOFTWARE.
1 Grant and scope of licence
1.1 In consideration of payment by you of the agreed licence fee (set out (1) in our accepted order form (Order Form) or (2) in your agreement with one of our approved resellers (Provider)) or as granted within a time limited pilot and you agreeing to abide by the terms of this Licence and the terms of the Order Form or your contract with the Provider (as the case may be), the Licensor hereby grants to you a non-exclusive, non-transferable licence to access and use the Software and the Documentation in the UK on the terms of this Licence.
1.2 You may:
1.2.1 use the Software for your internal business purposes only, either as agreed between (1) you and us on the Order Form or (2) you and our Provider, only by the number of concurrent users agreed between you and us or the Provider;
1.2.2 use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by the Licensor from time to time;
1.2.3 use any Documentation in support of the use permitted under condition 1.1 and make up to two copies of the Documentation as are reasonably necessary for its lawful use.
2 Licensee’s undertakings and acknowledgements
2.1 Except as expressly set out in this Licence or as permitted by any local law, you undertake:
2.1.1 not to copy or attempt to copy the Software or Documentation except where such copying is incidental to normal use of the Software,;
2.1.2 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
2.1.3 not to make or attempt to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
2.1.4 not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:
2.1.4.1 is used only for the purpose of achieving inter-operability of the Software with another software program; and
2.1.4.2 is not unnecessarily disclosed or communicated without the Licensor’s prior written consent to any third party; and
2.1.4.3 is not used to create any software which is substantially similar to the Software;
2.1.5 to supervise and control use of the Software and ensure that the Software is used by your authorised employees and representatives in accordance with the terms of this Licence and to maintain adequate security so as to ensure no unauthorised access to or use is made of the Software;
2.1.6 to use the current version of the Software from time to time with any updated or upgraded version or new release provided by the Licensor under the terms of this Licence;
2.1.7 not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from the Licensor.
2.2 You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises at which the Software or the Documentation is used, to the computer equipment located there, and to any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
2.3 The Licensee is responsible for all data supplied by the Licensee and the Licensee shall ensure that consumption data from only properly commissioned sites will be electronically transmitted via the internet to the Licensor’s servers in a form acceptable to the Licensor from time to time, currently a csv format transmitted as an FTP file, web post or an email.
2.4 The Licensee acknowledges and agrees that the Licensor may aggregate the Licensee’s non-confidential and non-attributable data with that or other licensees for publication (on an unattributed basis) in articles, journals and other trade or academic publications.
2.5 The Licensee acknowledges and agrees that the Licensor shall have the right to publicise that the Licensee uses the Software for the Licensor’s publicity and marketing purposes. The Licensor shall not unreasonably use such right.
3 Support
Save where support is provided to you by the Provider (in which case you must follow its support request instructions), support requests must be made by email to the Licensor’s support service as instructed on the logon page of the platform website, where a support ticket will be opened. This is the only method of registering a support request with the Provider.
4 Intellectual property rights
4.1 You acknowledge that all intellectual property rights in the Software and the Documentation anywhere in the world belong to the Licensor, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence.
4.2 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding or with comments unless otherwise specifically agreed by the Licensor.
5 Warranty
5.1 The Licensor warrants that for a period of 90 days from the date of installation (Warranty Period) the Software will, when properly used, perform substantially in accordance with the functions described in the Documentation (provided that the Software is properly used on the computer and with the operating system for which it was designed as referred to in the accompanying documentation), and that the Documentation correctly describes the operation of the Software in all material respects.
5.2 You acknowledge that the Software has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.
5.3 You acknowledge that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this Licence.
5.4 If, within the Warranty Period, you notify the Licensor in writing of any defect or fault in the Software in consequence of which it fails to perform substantially in accordance with the Documentation, and such defect or fault does not result from you having amended the Software or used it in contravention of the terms of this Licence, the Licensor will, at its sole option, either repair or replace the Software, provided that you make available all the information that may be necessary to help the Licensor to remedy the defect or fault, including sufficient information to enable the Licensor to recreate the defect or fault.
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6 Licensor’s liability
6.1 Nothing in this Licence shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation.
6.2 Subject to condition 6.1, the Licensor’s liability for losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall exclude, even if such losses result from the Licensor’s deliberate repudiatory breach of this agreement:
6.2.1 loss of income;
6.2.2 loss of business profits or contracts;
6.2.3 business interruption;
6.2.4 loss of the use of money or anticipated savings;
6.2.5 loss of information;
6.2.6 loss of opportunity, goodwill or reputation;
6.2.7 loss of, damage to or corruption of data; or
6.2.8 any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise;
provided that this condition 6.2 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of condition 5 or any other claims for direct financial loss that are not excluded by any of conditions 6.2.1 to 6.2.8 inclusive of this condition 6.2.
6.3 Subject to condition 6.1 and condition 6.2, the Licensor’s maximum aggregate liability under or in connection with this Licence, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall be limited to a sum equal to the lesser of £10,000 or 125% of the platform data charges in the 12 months preceding the date on which the claim arose.
6.4 Subject to condition 6.1, condition 6.2 and condition 6.3, the Licensor’s liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
6.5 This Licence sets out the full extent of the Licensor’s obligations and liabilities in respect of the supply of the Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Licensor except as specifically stated in this Licence. Any condition, warranty, representation or other term concerning the supply of the Software and Documentation which might otherwise be implied into, or incorporated in, this Licence, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
7 Suspension and Termination
7.1 The Licensor may terminate this Licence immediately by written notice to you if:
7.1.1 you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or
7.1.2 a petition for a bankruptcy order to be made against you has been presented to the court; or
7.1.3 the Licensee becomes insolvent or unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.
7.2 Upon termination for any reason:
7.2.1 all rights granted to you under this Licence shall cease;
7.2.2 you must cease all activities authorised by this Licence;
7.2.3 you must immediately pay to the Provider any sums due to the Provider under this Licence; and
7.2.4 you must immediately cease to use the Software and immediately destroy or return to the Licensor (at the Licensor’s option) all copies of the Documentation then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
7.3 As an alternative to termination, the Licensor (at its sole discretion) may elect to suspend the Licensee’s use of the Software if (1) the Licensor has not been paid the appropriate fees by the Provider, or (2) (in its reasonable opinion) the security or integrity of the Software is compromised by the Licensee’s misuse of the Software. The Licensor shall be under no obligation to reinstate access to the Software until it reasonably believes that there is no ongoing exposure to the security or integrity of the Software.
8 Transfer of rights and obligations
8.1 This Licence is binding on you and us, and on our respective successors and assigns.
8.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
8.3 We may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of our rights or obligations arising under it, at any time during the term of the Licence.
9 Events outside our control
9.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by events outside our reasonable control (Force Majeure Event).
9.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
9.2.1 strikes, lock-outs or other industrial action;
9.2.2 civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
9.2.3 fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
9.2.4 impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
9.2.5 impossibility of the use of public or private telecommunications networks;
9.2.6 the acts, decrees, legislation, regulations or restrictions of any government.
9.3 Our performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
10 Waiver
10.1 If we fail, at any time during the term of this Licence, to insist upon strict performance of any of your obligations under this Licence, or if we fail to exercise any of the rights or remedies to which we are entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
10.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
10.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
11 Severability
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12 Entire agreement
12.1 This Licence and any document expressly referred to in it constitute the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of the Software and Documentation.
12.2 We each acknowledge that, in entering into this Licence (and the documents referred to in it), neither of us relies on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Licence or not) other than as expressly set out in this Licence or those documents.
12.3 Each of us agrees that the only rights and remedies available to us arising out of or in connection with a Representation shall be for breach of contract as provided in this Licence.
12.4 Nothing in this clause shall limit or exclude any liability for fraud.
13 Law and jurisdiction
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.
