The Terms and Conditions (“Terms and Conditions”) is entered into between Customer (“the Customer”) and Enersee BV, a company incorporated and acting under the laws of Belgium, with a registered office at Koning Albert II Laan 4, 1000 Brussel, BTW BE 0753.461.158. The Customer and Enersee are referred to hereinafter as “the parties”. Enersee and the Customer agree that the following Terms and Conditions will govern their business relationship and the use of the Software provided by Enersee. Any usage, including testing/software trial, of any of Enersee’ Software implies the acceptance of these Terms and Conditions. For anything beyond an initial trial of the Software, an Agreement will be signed between the Customer and Enersee.
Enersee offers its Customers data-oriented software products to automatically extract insights out of data (including but not limited to: Advanced Measurement & Verification, Leakage Detection, anomaly detection,...). Enersee offers the Software in a variety of ways, including via the Enersee API, accessible through the URL: https://api.enersee.ai/
The definitions of the capitalized words can be found at the end of these Terms and Conditions.
1. Scope, Applicability and Changes
- The Terms and Conditions shall apply to all agreements relating to the use of the Software and/or delivery of Professional Services between Enersee and Customer, except where special written terms and conditions or agreements between Enersee and Customer provide otherwise. Such terms and conditions of Enersee shall be deemed accepted by Customer even if they conflict with Customer's general or special purchase terms and conditions. The fact that Enersee has not expressly rejected the Customer's terms and conditions referred to in a contract shall not be construed by the Customer as an acceptance by Enersee of such terms and conditions.
- In the event of any conflict between these Terms and Conditions and any document submitted by the Customer, the terms of these Terms and Conditions shall prevail.
- Enersee has the right to change the Terms and Conditions and the composition of its Software, as well as the features and modules within the different Software and this whenever it decides to do so. Enersee ensures that the Customer is informed of this in advance within a reasonable term through modification on its website or through communication to existing Customers via newsletters, email or other means of communication. Such changes will become effective fifteen (15) calendar days after Enersee has notified the Customer.
- If the Customer does not agree to (i) a change of the offer or the composition of the Software, (ii) a change of the Terms and Conditions by Enersee or (iii) any announced price adjustment by Enersee (unless specified upfront in the Agreement, e.g. indexation), the Customer may at all times simply terminate the Agreement. Under no circumstances does this entitle the Customer to claim compensation or refunds from Enersee. It will not be possible to continue using the Software under the outdated conditions.
2. Acceptance and Registration
- By ordering, signing up, registering to or using the Software, the Customer acknowledges that he has read and accepted the Terms and Conditions. These Terms and Conditions can be always consulted on the Enersee website (www.enersee.ai/terms-conditions).
- By signing or accepting the Agreement and the Terms and Conditions on behalf of a company or legal entity, the Customer also confirms that the Customer has the authority to bind the company or other legal entity the Customer represents to the Agreement and the Terms and Conditions and that, in doing so, will not violate any other Terms and Conditions to which the Customer is a party.
- After the Agreement has been countersigned and delivered back by Enersee, the Software will be made accessible to the Customer.
3. Software License
- License. Subject to this Agreement and payment of the fees, Enersee grants to Customer for the Term a renewable, worldwide, limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Software for Customer's internal business purposes. The aforementioned license is granted as of the Effective Date. Customer acknowledges and agrees that Enersee may only license and will only grant access to Users. Enersee reserves the right, in its sole discretion, to make material or immaterial changes and/or updates to the functionality of the Software from time to time without prior notice to Customer. Enersee will notify Customer of material changes by email or by notice in the Software. Such changes will become effective fifteen (15) calendar days after Enersee notifies Customer in writing.
- Restrictions. Customer is not permitted to use the Software or any part thereof in any manner not permitted by Enersee. Within the limits of applicable law and unless otherwise agreed, Customer may not (i) make the Software available or sell or rent the Software to any Third Party; (ii) adapt, modify, translate or alter the Software in any way; (iii) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any Third Party; (iv) decompile, reverse engineer, disassemble or otherwise derive or attempt to derive or determine the source code (or underlying ideas, algorithms, structure or organization) of the Software, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this limitation; (v) modify, remove or render illegible any copyright notices, digital watermarks, proprietary legends or other notices contained in the Software; (vi) intentionally distribute viruses or other items of a destructive or misleading nature or use the Software for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (vii) remove or in any way circumvent any technical or other protective measures contained in the Software.
4. Customer Data
- Customer grants Enersee for the Term a worldwide, non-exclusive, royalty-free, transferable, assignable, sublicensable license to use, copy, store, modify, transmit and display Customer Data to the extent necessary to perform its obligations under the Agreement, in particular to provide and maintain the Software. Customer also grants Enersee, for the Term, a worldwide, non-exclusive, royalty-free, transferable, assignable, sublicensable license to compile and use Customer Data solely for the purpose of researching, developing, modifying, enhancing or supporting the Software or Professional Services provided by Enersee, provided that such data is used in an anonymous or aggregate form where such information cannot be used or will not be used directly or reasonably to identify Customer, Users or any other data subjects included therein. There cannot be missing data or data-quality issues with the data being used. When this happens, the results and the quality of the Software can be impacted. Under no circumstances will Enersee sell or transfer Customer Data to third parties for marketing or advertising purposes.
5. Intellectual Property Rights
- Software. Customer acknowledges and agrees that the Agreement is not a sale of the Software or any rights therein, and that Enersee and its suppliers shall at all times retain all Intellectual Property Rights in and to the Software. All rights in and to the Software not expressly granted to Customer in the Agreement are reserved by Enersee. No license is granted to Customer except for the use of the Software as expressly provided herein. The name of Enersee, the logo of Enersee and the product names associated with the Software are trademarks of Enersee or Third Parties, and they may not be used without the prior written consent of Enersee. In particular, Customer acknowledges and agrees that the source code of the Software is and shall remain Confidential Information and a proprietary trade secret of Enersee.
- Customer Data. Customer (or its licensors if applicable) shall be the sole and exclusive owner of all (rights relating to the) Customer Data including (i) any modification of such Customer Data or (ii) any materials resulting from the processing of the Customer Data, except, for the avoidance of doubt, any generalized tools, programs, algorithms and benchmarks built or developed by Enersee based on data collected from the Customer (whether or not such data is Confidential Information of the Customer), which shall be the sole and exclusive property of Enersee.
- Feedback. Notwithstanding any other provision of the Agreement, if Customer provides Feedback to Enersee regarding the Software or Professional Services, Enersee shall be free to use and incorporate such Feedback into the Software without payment of royalties or other compensation to Customer, provided, however, that the foregoing shall not be construed as conferring upon Enersee any right or license to Customer's patents, copyrights or trademark rights or other intellectual property rights in the Feedback.
6. Billing and Payment
- Price. Any price quoted on a price list or Commercial Offer shall be considered exclusive of any sales, use, value added, withholding, or other taxes unless explicitly stated as included.
Enersee reserves the right to adapt the fees on an annual basis in the beginning of the year based on the formula Fn = Fo (0,2 + 0,8 (Sn/So)) (where Fn = new fee; Fo = old fee; Sn = reference wage costs (national average – wages and social charges) as last published by the Belgian technology industry federation Agoria preceding the adaptation of the fee; So = reference wage costs (national average – wages and social charges) published by Agoria, valid for the month preceding the entering into force of the Agreement).
- Invoicing and Payment. Unless otherwise provided in the Agreement, Enersee will issue invoices at the start of each license period indicated in the Agreement, unless different invoicing terms are stated in the Agreement. If no specific license period and/or invoicing terms are indicated in the Agreement, Enersee will issue monthly invoices to the customer for all licenses and invoice other non-recurring costs at the moment the services or goods are ordered. The Customer shall pay all undisputed invoices within 30 days after the invoice date. Payments must be made to the bank account of Enersee (Account number: BE46 0689 5166 7936 at Belfius Bank), with reference to the invoice number and free of any local/international bank charges. All invoices are stated in Euro (€) and must be paid by the Customer to Enersee in Euro (€). The Customer is solely responsible for the payment of any bank charges.
- By ordering the Software or Professional Services,the Customer expressly agrees to electronic invoicing by Enersee, unless agreed otherwise in writing by the parties.
- The invoice will be sent to the email address provided by the Customer in the Agreement.The Customer undertakes to inform Enersee in a timely manner of any changes in respect to this.
- The unconditional payment of part of an invoice amount is deemed to be an express acceptance of the invoice.
- Invoices may only be validly protested in writing by registered letter within 14 calendar days after the invoice date. The registered letter clearly states the invoice number, invoice date and a detailed explanation of the protest. If Customer disputes only part of the invoice, he will not be entitled to suspend payment of the undisputed amounts.
- All payment obligations are non-cancellable and all amounts paid are non-refundable.
- All amounts not paid by the Customer by the due date stated on the invoice shall accrue interest, in accordance with the Belgian Act of 2 August 2002 on combating late payment in commercial transactions. The amount due will, moreover, be increased by 10% of the invoice amount, with a minimum of one hundred euros (100 EUR, excl VAT), by way of lump sum compensation, irrespective of the right of Enersee to claim higher compensation or to temporarily suspend the Professional Services and/or access to the Software until it has received actual payment from the Customer.
- Taxes. Enersee will bill the Customer for applicable taxes as a separate line item on each invoice. The Customer shall be responsible for payment of any sales and use taxes, value added taxes (VAT), or similar charges relating to the Customer’s purchase and use of the Software. Customer shall not be liable for taxes based on Enersee’s net income or capital. In addition, any agreement of purchasing from Enersee by the Customer implies that the Customer buys from a Belgian company, complying with Belgian taxes. This implies that no additional taxes that may be applicable in the country where the Customer is located or activities of the Customer take place can be considered as included in the price, nor the responsibility of Enersee.
7. Term and Termination
- Term of Agreement. The term of the Agreement shall begin on the Effective Date as stated in the Agreement and shall continue until terminated by either party in accordance with this Section.
- Subscription Term. The Subscription Term starts upon the signature date of the Agreement. During this period the Customer will have online access to and use of the Software. The Subscription Term shall renew for successive twelve (12) month period unless either party delivers written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current Subscription Term. This automatic renewal also applies to proof of concept-licenses or other short-term licenses of the Software.
- Termination. Either party may terminate the Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
- Enersee may immediately terminate the Agreement (or otherwise, in its sole discretion, suspend the Professional Services and/or access to the Software) for material breach by written notice if Customer violates the Software restrictions described in Section 3 or infringes on Enersee’ Intellectual Property Rights.
- Enersee shall be entitled at any time, without any prior notice, summon or judicial action, to terminate the Agreement with immediate effect by sending an email to the address that the Customer has provided for the purpose of the conclusion of Enersee Terms and Conditions and/or by closing the Customer’s access to Enersee API, or to suspend the Professional Services and/or the Customer’s access to the Software, without being liable to pay any indemnity or damages, in case of the Customer’s insolvency, breach of law or breach of the Terms and Conditions or in the event of a force majeure event preventing Enersee from fulfilling its obligations under the Terms and Conditions or of any circumstance that would render Enersee’s performance of its obligations so costly it would result in an imbalance between the parties’ obligations.
- Upon termination of the Agreement:
- The Customer shall promptly pay Enersee all fees and other amounts earned by or owed to Enersee under the Agreement, up to and including the date of termination;
- The Customer’s acknowledges and accepts that all licenses and use rights related to the Software shall terminate;
- The Customer’s access to the Software shall terminate,without any refund of any amount paid by the Customer’s.
- Termination of the Agreement on any grounds whatsoever shall not affect any right or remedy that arose prior to the actual termination.
- After a legal termination of the Agreement, access to Enersee API will remain active for another three months to allow the Customer to download certain data the Customer might want to save or export. For the avoidance of doubt, this feature does not allow for access to any data previously generated with the Software.
8. Warranties
- Enersee has an obligation of means that takes into account the risks inherent in the Software used and the Professional Services offered. In this regard, the Customer is obliged to check the technical limitations and Documentation of the Software.
- Customer warrants that the Customer Data provided will be accurate and truthful and will not (i) infringe any Intellectual Property Rights of Third Parties; (ii) misappropriate any trade secret; (iii) be misleading, defamatory, obscene, pornographic or unlawful; (iv) contain viruses, whether or not intended to damage the Software; or (v) otherwise infringe the rights of any Third Party. Any use of the Software in violation of these representations and warranties by Customer shall constitute an unauthorized and improper use of the Software.
- Except as expressly provided in the Agreement and to the extent permitted under applicable law, Enersee expressly disclaims all warranties, express or implied, including but not limited to warranties of merchantability, non-infringement, satisfactory quality and fitness for a particular purpose of the Software and/or Professional Services. In particular, Enersee does not warrant that the Software and/or Professional Services will be error free or that the use and/or operation of the Software and/or Professional Services will be secure or uninterrupted, that Enersee will detect any or all defects in Customer's systems, or that any or all problems related to the Software and/or Professional Services can be resolved, and hereby disclaims any liability therefor. It is explicitly agreed that Enersee does not provide any warranty regarding internet connections or transmissions or regarding 3G/4G/LTE or other similar communications. The Software will be provided by Enersee under the Agreement on an "as-is" and "as available" basis. However, Enersee agrees to use all reasonable efforts to fix bugs reported by Customer.
9. Liability
- To the maximum extent permitted under applicable law, each party's maximum liability to the other party arising under the Agreement in respect of each event and each calendar year (or series of connected events) shall in no event exceed the fees paid or payable by Customer to Enersee during the preceding twelve (12) month period. The foregoing limitations shall not apply to a party’s liability due to (i) fraud or deceit, and/or (ii) willful misconduct. In no event shall the aggregate liability of Enersee arising out of or related to the Agreement exceed two hundred fifty thousand (250.000) euro.
- For the avoidance of doubt, it is specified that in no event either party either be liable for any indirect, consequential or other similar damages (including, without limitation, damages for loss of profits, revenues, business, contracts or customers, loss or corruption of data, loss of goodwill, damage to equipment and reputation, loss of opportunity or loss of anticipated savings), even if such party has been advised or notified of the possibility of such costs or damages.
- In the event of hardship, Enersee undertakes to renegotiate the Agreement. If the parties fail to reach an agreement, Enersee reserves the right to suspend performance of the Agreement wholly or in part for the duration of the hardship.
10. Indemnification
- Enersee shall defend, indemnify and hold Customer harmless from any substantiated and well-founded claim, demand, loss, liability or damage of any kind, including reasonable attorneys’ fees, whether in tort or contract, incurred as a result of, or arising from, against any Third Party claim to the extent that such claim is based on an infringement of such Third Party’s Intellectual Property Rights by the Software or Professional Services and excluding any claims arising from (i) any unauthorized use of the Software or Professional Services by Customer or any User or any use not in accordance with these Terms and Conditions, the Documentation and/or the Agreement, (ii) modification of the Software or Professional Services by Customer or a Third Party, (iii) Customer’s failure to use the most recent version of the Software made available to it, or (iv) Customer’s use of the Software or Professional Services in combination with Third Party products or services.
- Indemnification by the Customer. If a Third Party makes a claim against Enersee that the Customer’s Data infringes any patent, copyright or trademark, or misappropriates any trade secret, the Customer shall defend Enersee and its directors, officers and employees against the claim at the Customer’s expense and the Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by the Customer, to the extent arising from the claim.
- Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.
- In the event that the Software, Professional Services or any part thereof is, in the reasonable opinion of Enersee, likely to be or become the subject of a Third Party infringement claim, Enersee shall have the right, at its option and expense, to: (i) modify the (allegedly) infringing portion of the Software or Professional Services so that it becomes non-infringing while maintaining equivalent functionality; (ii) obtain for Customer a license to continue to use the Software or Professional Services in accordance with the Agreement.
- The foregoing indemnification of Enersee states the entire liability and obligation of Enersee and the sole remedy of Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Software, Professional Services or any part thereof.
11. User Accounts and Personal Logins of Enersee API
- A user account and accompanying personal login(s) provides the Customer with access to the Software via the Enersee API.
- The allocation of a user account is accompanied by the allocation of one or more logins. The number of logins corresponds with the number of users of the Customer allowed by Enersee. Logins can be distributed to the Customer’s own staff unless differently stated in the Agreement. Every person using the log-in accepts the Terms and Conditions.
- Enersee has the right to refuse access to Enersee API for certain login requests, if it has an objective reason for doing so. Objective reasons include:
- If Enersee has reasons to assume that the login requester’s data are false,inaccurate or obsolete.
- If Enersee discovers or has substantial reasons to suspect that the login requester has intentions to use Enersee API for unauthorized purposes.
- The Customer is responsible for the protection and security of his data concerning the user account and logins, including, but not limited to, the username and the password. The Customer is expected not to transfer this information to Third Parties and to immediately restrict any unauthorized use, and to notify Enersee immediately.
12. Specific Rules for the Use of Enersee API
- It is prohibited to perform actions or attacks that may negatively affect the performance of Enersee API, such as hacking attempts, brute force attacks, the use or transmission of spyware, viruses and worms.
- If the Customer violates these rules, at the sole discretion of Enersee, Enersee may warn the Customer, suspend the access of the Customer or permanently revoke access to the Enersee API.
- Customer is prohibited from sharing the (access to) Enersee API in any way with Enersee' competitor companies offering similar software.
- The Customer agrees that any application or service incorporating results obtained from Enersee API shall display in a clear and legible manner the message “Powered by Enersee” near the data or any information derived from any data from the Software. This message must, if possible, open a link to https://www.enersee.ai when clicked or touched. The Customer may not display or invoke the Software or Enersee’ name or logo in any manner that implies a relationship or affiliation with, sponsorship, promotion, or endorsement by Enersee, except as authorized by the Agreement.
- If the Customer’s application for access to the Software is approved, Enersee API will provide the Customer with an API Key which will enable the Customer to access the Software. The Customer’s API Key is to be kept confidential and is not to be published or otherwise made accessible to the general public. If the Customer becomes aware of any unauthorized use of the Customer’s API Key, the Customer will immediately inform Enersee. Enersee reserves the right to unilaterally reset the Customer’s API Key if it becomes aware of any unauthorized use.
13. Support and Maintenance
- Support and Maintenance is included in the Software license and entitles the Customer to the following:
- Telephone or email support to help Customer identify and correct defects with the Software and/or Enersee API when the Software is not functioning as specified in the Documentation. Enersee will decide in its sole discretion whether support is provided by phone or electronically (and through which medium), and will make commercially reasonable efforts to answer and resolve any Defects within a reasonable time.
- Bug fixes and code corrections to correct malfunctions of the Software in order to bring the Software into substantial conformity with the Terms and Conditions.
- All enhancements, improvements and other changes that Enersee, in its sole discretion, makes or adds to the Software as part of the standard software and that Enersee provides at no cost to all other Customers of the Software. This does not include custom developments, Professional Services or features for specific Customers.
- Up to three (3) dedicated contacts designated by the Customer in writing that will have access to the support services.
14. Professional Services
- Upon agreement between Enersee and the Customer, as specified in writing in the Commercial Offer, Enersee may provide Professional Services related to the Software to the Customer. Such Commercial Offer shall be in a format agreed between the parties, shall incorporate by reference the terms of the Agreement, and shall set forth the Professional Services and/or deliverables to be provided by Enersee, the applicable assumptions and Customer dependencies, the fees and expenses to be paid to Enersee, the applicable acceptance criteria, if any, and such additional terms and conditions as the parties may mutually agree.
- Enersee shall perform the Professional Services in a professional manner and shall use reasonable skill and care in performing the Professional Services. Enersee shall provide reasonable efforts to deliver the Professional Services in accordance with any delivery dates set out in the applicable Commercial Offer. However, any timeframe for performance specified in a Commercial Offer shall be indicative target dates only, unless expressly stipulated in the relevant Commercial Offer to be binding milestones.
- The Customer shall co-operate with Enersee and provide such assistance, information and equipment as reasonably requested by Enersee to be able to adequately perform the Professional Services. Where performance of the Professional Services is delayed by the Customer (or a third party acting under the Customer’s control or on the Customer’s behalf), including as a result of Customer dependencies not being met, any costs incurred by Enersee as a result thereof shall be paid by the Customer. The Customer acknowledges and agrees that in the event the Customer fails to fulfil any of its obligations under the Agreement or a Commercial Offer or should any assumptions specified in a Commercial Offer prove incorrect, the timeline and fees as specified in the relevant Commercial Offer may be adversely impacted.
- Enersee shall not be responsible or held liable for any delay or failure in the provision of the Professional Services resulting from the Customer’s obligation to cooperate in good faith or to provide the necessary input. The scope of the Professional Services may only be changed in mutual agreement and such change(s) shall be documented in writing.
- Enersee does not ensure that any customizations or Professional Services on the current Software will remain compatible with any new release, version or hotfix of the Software, which is used or will be used by the Customer. To the extent that one or more customizations or Professional Services are not fully compatible with any new release or version of the Software, Enersee can agree to make changes as may be required to make them compatible with such a new release or version. Such changes will be subject to a separate Commercial Offer. In no event shall Enersee be obliged to provide Professional Services or assistance to Third Parties, engaged by the Customer.
- Deliverables. Unless expressly specified otherwise in the relevant Commercial Offer, all rights, title and interest, including any Intellectual Property Rights, in and to any deliverables and all copies thereof, and in the Professional Services (including any and all related ideas, concepts, know-how, techniques, inventions, discoveries, improvements, specifications, designs, methods, devices, systems, reports, studies, computer software, programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever (in any medium and in any stage of development or completion, in object code and in source code form) that are conceived, designed, practiced, prepared, produced or developed by Enersee in the course of providing the Professional Services) are and shall at all times remain the sole and exclusive property of Enersee, and the Customer shall obtain no rights in the deliverables and the Professional Services pursuant to this Agreement except for the rights expressly granted pursuant to this Agreement and the relevant Commercial Offer. Subject to the terms and conditions of this Agreement and subject to timely payment of the corresponding fees, unless expressly agreed otherwise in the applicable Commercial Offer, Enersee will grant Customer a personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use the deliverables in object code format for Customer’s internal business purposes.
15. Data Protection
- Each Party shall and will ensure that its personnel and (sub)contractors will at all times comply with its/their respective obligations under all applicable Data Protection Legislation.
- Enersee’ Privacy Policy is available on the following URL: enersee.ai/privacy-policy for more information about how we collect, use or disclose information about Users of the Software.
- All personal data entered into Enersee API and/or the Software by the Customer will be treated confidentially by Enersee to the best of its ability and with the utmost care.
- Enersee will confine itself merely to analyzing the user behavior of its Customers with regards to improving its Software. A list of employees who have access to the input data can be requested by sending an email to info@enersee.ai.
- Enersee will only grant access to Third Parties to the Customer Data if we are requested to do so by law. Any costs or damage for Enersee resulting from such access will be at the expense of the Customer.
16. Confidential Information
- The receiving party shall use its best efforts to protect Confidential Information of the disclosing party from unauthorized disclosure to Third Parties. Any information exchanged between Enersee and a (potential) Customer prior to the conclusion of the Agreement will be treated as Confidential Information, including the Agreement.
- The receiving party may only disclose Confidential Information to its employees on a “need to know” basis to the extent that it must be disclosed to them for the purpose of possible cooperation or the execution and performance of the Agreement.
- Each of the receiving parties is obliged to observe perpetual confidentiality, unless this information provided has become public through no fault of the receiving party, or if the receiving party is required to do so by law.
- Each of the receiving parties undertakes not to exploit this information in any way or to use it for any other purpose than to explore the feasibility of cooperation between the parties or performance of the Agreement.
17. General Provisions
- Assignment. The Agreement may not be assigned by a party to a Third Party or User without the prior written consent of the other party. However, a party may assign the Agreement to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of the assets involved in activities relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported transfer in violation of this Section shall be null and void. This Agreement shall be enforceable by and binding upon permitted successors and assigns. Either party may employ subcontractors in performing its duties under the Agreement, provided, however, that such party shall not be relieved of any obligation under the Agreement.
- Severability. If any provision of the Agreement or these Terms and Conditions is held to be invalid or unenforceable, such provision(s) shall be construed, to the fullest extent possible, in accordance with the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
- Entire Agreement. The Agreement contains the entire Agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter. The Agreement may be amended solely in a writing signed by both parties. Standard or printed terms in a purchase order or sales confirmation shall be deemed rejected and shall be null and void unless expressly accepted in writing by the party against whom they are relied upon; the mere commencement of work or payment on the basis of such terms shall not be deemed an acceptance of such terms.
- Publicity. Unless agreed otherwise in writing, Enersee shall have the right to use any trademarks or other marks of Customer (including Customer’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) client references on Enersee’ website, announcement of a new customer and sales presentations.
- No Third-Party Beneficiaries. The Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
- Force Majeure. Except for the payment of the fees or any other charge due from Customer, if the performance of the Agreement by either party is prevented, hindered, delayed or otherwise made impossible by any circumstance beyond the control of the parties that could not be foreseen and could not be avoided by means of reasonable efforts, including, but not limited to flood, riot, fire, judicial or governmental action, labor disputes, act of God, power outages, cybercrime, unauthorized access to Enersee' information technology systems by Third Parties, or any other cause beyond such party's control, such party shall be excused to the extent it is prevented, hindered or delayed by such causes.
- Independent Contractor. The parties have the status of independent contractors, and nothing in the Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in the Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
- Applicable Law and Jurisdiction. The Agreement shall be construed in accordance with its provisions, without any strict interpretation in favour of or against one of the parties and in accordance with Belgian law, without application of any conflict of laws. All disputes or controversies arising out of or in connection with this Agreement or its subject matter that cannot be resolved by amicable settlement within a term of thirty (30) days from the date that the dispute is referred from one party to the other, shall be subject to the exclusive jurisdiction of the courts of the court district where Enersee has its registered office.
18. Definitions
- Agreement: means the contractual relationship between Enersee and the Customer, including these Terms and Conditions, the Commercial Offer, the purchase agreement (if applicable), the reseller agreement (if applicable), including any annexes and/or schedules thereto, and any other applicable agreement between Enersee and the Customer;
- API Key: means the key needed to access the Enersee API;
- Commercial Offer: means the offer as agreed upon between the Customer and Enersee;
- Confidential Information: means any information disclosed by a disclosing party to a receiving party whether orally, in writing or in electronic or other form, or otherwise obtained by a receiving party through observation or investigation of the disclosing party's activities. Whether or not the Confidential Information is marked or identified, it contains all information that may reasonably be considered confidential, including, but not limited to, prices, terms and conditions, attachments, appendices, and all information related to the Software associated with this Agreement. Confidential Information of Enersee shall be deemed to include the Software and all general tools, programs, algorithms and benchmarks built or developed by Enersee based on data collected from Customer (whether such data is Customer Data or Customer Confidential Information). Customer Confidential Information shall be deemed to include Customer Data;
- Customer: The customer that enters into an agreement with Enersee with regards the use of the Software and/or delivery of Professional Services;
- Customer Data: means data, information or material provided or submitted by Customer or its Users to Enersee whether through the Software, Enersee API or otherwise;
- Data Protection Legislation: means the EU Regulation 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), together with the codes of practice, codes of conduct, regulatory guidelines and standard clauses and other related legislation arising from such Directive or Regulation, as updated from time to time;
- Documentation: means any documentation provided or made available by Enersee regarding the use and technical specifications of the Software and/or Enersee API;
- Effective Date: means the date of signature of the Agreement;
- Enersee API: means the open API of Enersee that allows Customers to directly integrate their own data-platform or software with the Software;
- Feedback: means any ideas, suggestions or recommendations to Enersee regarding the Software.
- Intellectual Property Rights: means all (a) rights now known or hereafter existing in relation to works of authorship, including copyrights, design rights and moral rights; (b) rights to trademarks or service marks; (c) rights to trade secrets, know-how; (d) patents, patent rights, and industrial property rights (e) layout design rights, design rights, (f) trade and business names, domain names, database rights and any other industrial or intellectual property or similar rights (whether registered or unregistered) (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the foregoing items, in each case in any jurisdiction throughout the world;
- Professional Services: mean the development, implementation and integration services (including, but not limited to customizations) or such other services in relation to the Software such as first level technical assistance, training, specialized consulting or outsourcing service, may be agreed between Customer and Enersee from time to time and set out in the Commercial Offer.
- Software: means the proprietary data-oriented software as a service and related services, features, content, programs or applications developed and owned by Enersee;
- Subscription Term: means the term of the subscription to the Software;
- Support: means the support and maintenance services as described in Section 13.
- Term: means the term of the Agreement;
- Terms and Conditions: means the present terms and conditions;
- Third Party: means any legal entity or natural person that is not a Party or User;
- User: means a user of the Software who are authorized to access the Software through a user account created by Enersee or the Customer.
