Terms and ConditionsThe following Terms and Conditions (the “Terms”) shall apply to and form an integral part of all agreements entered into between Energy Control AS (“EC”) and the purchaser (“Customer”) for any sale of hardware/equipment (“Products”) and delivery of services (“Services”) by EC to the Customer, unless and to the extent EC and the Customer explicitly agree otherwise in writing.
1. THE TERMS
EC is a company registered under the laws for Norway with the registered business address of Krokatjønnveien 11 C, 5147 Fyllingsdalen, Norway providing the Products and the Services. The Customer will procure the Products and the Services either by procurement online or by entering into an agreement with EC and by that, or by taking the Products or Services into use, accepting these Terms.
Only a person having the authority to enter into an agreement on behalf of the Customer shall agree to these Terms or in any other way make the Customer bound by the Terms such as by taking the Products or Services in use.
The Customers’ standard or general terms and conditions are explicitly rejected and shall be disregarded by EC, irrespective of whether such terms and conditions are presented or referred to by the Customer.If the Customer has agreed for Subscription Services, the additional terms in the end of these Terms apply for such services.
2. PRODUCTS AND SERVICES
2.1 The Products and the Services
EC is providing Services relating to the processing of various data recorded by and/or transmitted (“Data”) via the Products. The Services include, but are not limited to:
Software for reporting and analysis which allows to transfer Data to a computer (the “CRA Software”);reporting of data on computer or a mobile device (web or app) for monitoring and analysis; andstorage of Data on servers hosted by EC or a third party (the “Cloud Services”).The Services are provided “as is” and may be amended or modified by EC from time to time, without giving prior notice to the Customer. EC may also, at any time and at its own discretion, discontinue to offer parts of the Services without giving prior notice to the Customer. The Customer shall not be entitled to claim any form of compensation, reimbursement, direct or indirect losses or damages from EC in case of discontinuation or termination of parts of the Services if the substantial parts of the Services are being provided.
Automatic upgrades of the embedded software in the Products, of the Services and in any related areas, such as mobile apps, are accepted and is a condition for using the Products and the Services.
The term “user” as used in these Terms, means any person or entity who accesses or uses the Products or Services.
2.2 Right to use of the Services
The Customer is granted a non-exclusive, non-assignable, limited right to use the Services provided by EC solely by the Customer itself or within the Customer’s own business, subject to the terms and conditions set forth in this Agreement and to the exclusion of any and all other rights. With regard to Intellectual Property Rights, see Section 9.
3. TERM AND TERMINATION
These Terms will apply as long as the Customer is entitled to use the Services. Upon termination of the Services, either by notice or by termination due to default either by EC or the Customer (inclusive by ceasing to make payment for the Services), the Terms will end, save for provisions which has a purpose exceeding the contract term, such as provisions with regard to confidentiality and intellectual property rights.
EC is entitled to terminate Customer’s use of the Services at any time if the Customer is in material breach of their obligations under the provisions of the Terms or any agreement with EC.
In the event of termination, regardless cause of termination, the Customer is entitled to retrieve all of its Data for a period of 30 days after the effective date of termination. After this period, EC will only provide live sensor data with limited functionality.
4. ORDERS, DELIVERY AND PAYMENT TERMS
If not the Services and Products are specified in separate agreement with EC, orders are to be made on the web-page of EC or to be placed by a purchase order, stating (i) the type and amount of units in the order, (ii) shipment address, (iii) the VAT-number of Customer, if applicable, (iv) contact person with EC, (v) contact person with the Customer and (vi) the Customer’s shipping agent and account number. Purchase orders shall be sent by e-mail to tommy@energy-control.no, clearly marking the contact person with EC. All orders shall be confirmed by an order confirmation from EC. An agreement for sale and purchase of Products is concluded and binding where there is an unconditional acceptance of 1) Customer’s purchase order by EC or 2) EC’ quotation/offer by the Customer.
The Services will be available when the Customer has mounted and connected the Products to the Services.
Products shall be delivered DDP in Norway & US and DAP to all other countries as designated by EC, unless otherwise agreed in writing. The risk and title to the Products are transferred and passed to the Customer at the time of delivery.
Delivery dates communicated or acknowledged by EC are approximate only, unless explicitly stated otherwise. EC shall use commercially reasonable efforts to meet the delivery dates communicated or acknowledged, on the condition that Customer provides all necessary order and delivery information sufficiently prior to such delivery date. However, EC shall neither be liable nor be in breach of its obligations for any delivery made within a reasonable time before or after the communicated delivery date.
EC reserves the right to perform partial deliveries if such action would not unreasonably affect the Customer. EC is under no circumstance responsible for any consequential or indirect costs or losses which are caused by delay in delivery or non-delivery of Products.
The Products purchased and the Services to be provided and the remuneration for the Services are specified upon the purchase of the Products and the Services. Payment shall be made when purchasing the Products and the Services, either online, by a reseller or by individual agreement with EC, if not otherwise explicitly agreed in written with EC.
5. FORCE MAJEURE
EC shall not be liable for delayed or defective Products, or any other failure to meet its obligations under these Terms and Conditions and/or the agreement entered into with the Customer, provided that the event in question is due to an unforeseen circumstance or cause beyond its reasonable control. This includes any strike, lock out, labour dispute, act of God, inability to obtain labour, utilities or services, application of applicable laws, enemy or hostile actions, sabotage, war, blockades, insurrections, riots, epidemics (including also matters reasonably attributable to the SARS-CoV-2 epidemic or circumstances related thereto), washouts, nuclear and radiation activity or fall-out, civil disturbances, explosions, fire or other casualty, or any other cause, whether similar to or dissimilar from the foregoing, provided that it is beyond the control of EC. EC shall promptly notify the Customer of the occurrence of any such event.
In the event of any such delay, defect or failure to fulfil an obligation, performance of the affected obligation shall be suspended for a period of time equal to the time of such delay and for a reasonable time thereafter, unless the delay continues for more than two (2) months, in which case EC may terminate the agreement in question with immediate effect without incurring any liability.
6. LIMITED WARRANTY
6.1 Limited warranty for Products
EC warrants that the Products shall substantially conform to EC’ specifications and be free from defects in design, materials and workmanship under the normal use and service for which the Products were designed for a period of twelve (12) months, calculated from the date of delivery.
The warranty does not extend to any implied warranty or fitness for a particular purpose or use, irrespective of whether such purpose or use has been communicated by Customer to EC or not.
EC shall, at its option and within reasonable time, either repair, replace or refund defective or non-conforming Products which, in EC’ opinion, are covered by the warranty. The said remedies are exclusive, and Customer shall not be entitled to put forth any other remedy or claim related to defective or non-conforming Products at its own initiative.
The warranty shall only apply to Products which have been paid for in full. The warranty shall only be for the benefit for Customer only, and does not extend to third parties. In order to exercise its warranty rights, Customer must notify EC in accordance with the instructions described under section 7 below.
The limited warranty does not extend to Products damaged by reason of alteration, accident, abuse, neglect or misuse or improper or inadequate handling; improper or inadequate wiring utilized or installed in connection with the Products; installation, operation or use of the Products not made in strict accordance with the specifications and written instructions provided by EC; use of the Products for any purpose other than those for which it was designed; ordinary wear and tear; disasters or Force Majeure events; unauthorized attachments, alterations or modifications to the Products; the misuse or failure of any item or equipment connected to the Products not supplied by EC; improper maintenance or repair of the Products; or any other reason or event not caused by EC.
The warranty constitutes the entire liability of EC towards Customer with regard to defective or non-conforming Products, Customer shall not be entitled to pursue any other claim or remedy related to defective or non-conforming Products otherwise available under applicable law, including background legislation or statutes relating to sale of goods.
6.2 No representations, warranties or liability for the functionality or use of the Services
EC does not make any representations or warranties in relation to the functionality or use of the Services – neither express, implied, statutory or otherwise – including but not limited to representations and warranties related to accuracy of data, merchantability, fitness for a particular use and/or non-infringement of intellectual property rights.
7. NOTIFICATION OF CLAIM. OBTAINING WARRANTY SERVICE
Customer shall notify EC without undue delay after it has detected that the Services or the Products are non-conforming or defective.
Customer shall contact EC’ customer service at by submitting a request here in order to obtain a returned material authorization (“RMA”).
Customer shall prepay and cover the costs of shipping for Products returned to EC for warranty service, while EC will pay for return of Products to Customer. However, Customer shall pay all shipping charges, duties and taxes for Products returned to EC from outside Norway.
EC does not accept returns for products which are not broken or delivered incorrectly.
8. TRANSFER OF PRODUCT
If the Customer transfer a Product to a new owner, the Customer’s right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Product or Services under the Customer’s account(s) (as described below) and will need to register for a separate account with EC and accept these Terms.
9. INTELLECTUAL PROPERTY RIGHTS
The sale and Purchase of Products or the Customer’s or any user’s access to and use of the Services shall not imply any transfer or licensing of any intellectual property rights from EC unless otherwise is stipulated in these Terms.
The Customer shall comply with any applicable intellectual property rights and/or restrictions related to the Data and/or the Services, including proprietary content or information which the Customer and any user may access through the Services. The Customer is not entitled to use, copy, reproduce, modify, publish, distribute, license, sell or otherwise exploit for any purpose any Data or other information related to the Services which is not owned by, or originating from, the Customer itself.
EC owns the Services and neither the Customer nor any third party may modify, transmit, transfer, sell, reproduce or create derivative works based on, or otherwise exploit, any of the Services in any other manner than described in these Terms.
10. LIMITATION OF LIBILITY
EC shall not in any event have any liability towards the Customer, any user or any third party related to the functionality or use of the Services, not even in case of incorrect Data or malfunctioning Services.
EC shall in no event, irrespective of its conduct, be liable for any lost profits or savings, loss of reputation or goodwill, claims of third parties or any indirect, incidental, punitive, special or consequential damages, whether based on these Terms, other contract, applicable law or otherwise, or for any other indirect or consequential losses, expenses or damages incurred by the Customer, any user or any third party related to the functionality or use of the Services or defective Products. Under no circumstances shall EC assume any liability for any losses of or damages whatsoever to data stored by the Customer or its user's through the Services. This includes, but is not limited to, losses and damages due to network and server crashes.
The Customer is liable for, and shall indemnify EC against, any and all claims regarding breach of applicable law or regulation, or infringement of any third-party rights, in connection with the Customer’s and its user’s use of the Services.
EC’s liability for breaches of the Uptime Guarantee is limited to the accrued penalties as set forth in Section 5, which shall be the Customer’s sole and exclusive remedy.
EC’ maximum and accumulated liability towards Customer related to EC’ performance, whether based on provisions in these Terms, applicable law, statutes, tort law or otherwise, and irrespective of EC’ conduct, shall in any event be limited to an amount equal to the remuneration for the Services paid by the Customer the last 12 months.
11. SECURITY
EC undertakes to implement security procedures to protect the Services from security attacks. Notwithstanding, EC does not warrant that the security procedures are error-free or unbreachable, nor that transmissions of Customer’s or its user's data is always secure, nor that unauthorized third parties will never be able to defeat EC’s or EC’s third party provider's security.
The Customer is responsible for assessing and implementing adequate measures, including but not limited to backup procedures, to ensure sufficient protection of own or user data and to be prepared to conduct their business without access to the Services. Furthermore, the Customer is solely responsible for maintaining the security of the Customer’s and its user's Service account, such as safekeeping of passwords and usernames.
The Customer must ensure that no viruses or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data, is transmitted to the Services. The Customer shall regularly monitor its adherence to this obligation and shall immediately notify EC in writing if there is evidence or a significant risk that this obligation can no longer be met, in which case the Customer must either cease processing or immediately take other reasonable and appropriate steps to remediate such failure to provide adequate level of protection.
12. PERSONAL DATA PROTECTION
The Customer is responsible for complying with all applicable privacy, data security, and data protection laws and rules when accessing or otherwise processing personal data as defined in these regulations in connection with the use of the Services. Furthermore, the Customer shall implement appropriate organizational and technical measures to protect the personal information against loss, misuse, and unauthorized access, disclosure, alteration and destruction. The Customer must notify EC immediately of any factual or potential breach of these obligations.
For the processing of any personal data with regard to the Services where EC is regarded as the Data Processor, the EC Data Processing Terms shall govern the processing of personal data by EC on behalf of the Customer. For EC processing of personal data as a Data Controller, EC privacy policy comply.
13. TRANSFER OR ASSIGNING OF CONTRACT OR SERVICES
EC is entitled to freely assign or subcontract the operation of the Services to a third party, in which event EC shall remain liable for the performance of the Services by such third party.
14. GOVERNING LAW AND DISPUTE RESOLUTION
These Terms shall be governed by Norwegian law inclusive with regard to the validity, interpretation and enforcement of these Terms and of any contract of which these Terms are a part, unless otherwise agreed to.
Any dispute between EC and the Customer or any other user of the Services shall be subject to the exclusive jurisdiction of the district court of Oslo (“Oslo tingrett”). Notwithstanding the foregoing, EC reserves the right to institute any legal proceedings against the Customer in the jurisdiction of Customer’s place of business, or in any other jurisdiction where harm to EC is occurring.
SPECIFIC TERMS FOR SUBSCRIPTION SERVICES
1. SUBSCRIPTION SERVICES AND SUBSCRIPTION TERMS
If EC and the Customer has entered into an agreement for providing the Services continuously until terminated by either party after a period of time (“Subscription Services”), the following Terms and Conditions for Subscription Services (“Subscription Terms”) shall apply in addition to the above general Terms and Condition.
In case of conflict between the Terms and the Subscription Terms, the Subscription Terms shall prevail.
When agreeing to the Subscription Services, the Customer will receive the Products (as further specified in the agreement with EC or in the order given by the Customer) necessary to use the Services.
2. TERM
The minimum term for the Subscription Services is 12 months (the “Initial Period”).
The term for the Subscription Services is automatically renewed after the Initial Period and will be automatically renewed for 12 months periods if not terminated by either party within three months prior to renewal.
If the Services are discontinued, the Customer will have access to live sensor data with limited functionality.
3. REMUNERATION AND PAYMENT TERMS
The Subscription Services shall be prepaid for the Initial Period (12 months) and every 12 months period shall be paid in advance, if not EC has agreed to issue invoice to the Customer. Online orders placed at the www.energy-control.no webstore must be paid using credit card or PayPal. In case of previous payment default or reasonable doubt regarding the solvency or credit standing of the Customer, EC reserves the right to demand security or prepayment for any outstanding delivery, or to declare immediate maturity of all outstanding claims.
If payment is not made within 30 after due date according to invoice, EC is entitled to terminate the Services. Payment is considered to be made on the day the payable sum is received by EC. All payments shall be made to the agreed upon EC bank account.
In the event that Customer does not fulfil its payment obligations to EC or gives reason to believe that it will not fulfil any or part of their payment obligations, Customer shall upon the request by EC be obliged to return the Products not yet paid for to EC, at Customer’s cost. Customer agrees to fully cooperate with EC in order to enable EC or any representative authorized by EC to collect the Products in question.
All late payments accrue interest at the rate of nine and a half per cent (9.5%) per annum or any higher statutory rate applicable, from the due date until payment has been made in full. This shall not preclude any other rights and remedies EC may have under applicable law in consideration to such late payments. If the Customer later pays the outstanding payable amount including with interests on late payment, EC may reinstate access to the Services provided that the Data for the Customer is still available according to Section 3 above.
All prices are based on delivery DAP/DDP (4) as designated by EC and are quoted as net prices and do not include value added tax or any other potential taxes or customs duties, which are to be paid additionally by the Customer in the amount specified by applicable law.
4. EC API
EC grants the Customer a limited, non exclusive, non-sublicensable, non-transferable license under intellectual property rights to use the EC application programming interface (“EC API”) for the purpose of developing and implementing customer specific software solutions, products and applications integrating with products and services.
Rate-limiting may be applied to traffic to avoid service disruption for other API users. Rate-limits are observable through the API, and the Customer should develop their own software with rate limit handling in mind. The Customer must not attempt to exceed or circumvent limitations on access, calls and use of the EC API, or otherwise use the EC API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of these Terms or the API Documentation.
EC may, in its sole discretion, set a quota on the Customer’s EC API usage based on, among other things, the total number of Things (ie. Sensors and HUBs) of the accounts under management by the API access. Usage beyond these quotas may be charged by EC to the billing account associated with the API access in accordance with applicable price schedules.
The EC API is constantly evolving and will have irregular changes, including backwards incompatible ones. API changes that break backwards compatibility will be introduced as a new API version. New API versions will go through a beta period of stabilisation and testing before being marked as final. During the beta window the version number will end in “.beta” to indicate that changes might still be applied to the API, and that it should not be used in a production setting.
EC will give notice to the Customer in due course before removing deprecated API versions. EC offers no guarantees, but will make commercially reasonable efforts to make APIs backwards compatible within major version releases. The replacement version will be available and production ready at time of deprecation at the latest.
5. UPTIME/AVAILABILITY
The following requirements with regard to availability for the Services (uptime) shall apply with regard to Subscription Services: EC shall use commercially reasonable efforts to ensure a minimum average uptime percentage for Services of 99.5%. By “uptime” is construed the access to the Data in the Services in order to present reporting to the Customer or users. Any connection between Products, inclusive any underlying infrastructure, network or other non-cloud related services, are not subject to any requirements for uptime.
Average uptime percentage means aggregated minutes of uptime experienced in a calendar month divided by the number of minutes in the relevant calendar month (44,640 for January, March, May, July, August, October and December, 43,200 for April, June, September and November and 40,320 or 41,760 (as relevant) for February).
Penalties will accrue according to the table below under the circumstances that the minimum average uptime is not met with. The Customer must notify EC in writing within 30 days of experiencing the breach and must supply evidence of breach. Penalties are credited on next billing. Average Uptime Percentage Claimable Discount on the calculated monthly fee:
99.0% to < 99.5%: 10%95.0% to < 99.0%: 25%< 95.0%: 50%
The requirement for uptime does not apply under any of the current circumstances:
Agreed upon suspension of the Services.Planned maintenance by EC, provided however that the Customer is given at least three (3) calendar days written notice. If maintenance is required due to security concerns or upon instruction by competent authorities, maintenance can be performed without prior notice being served.Latency due to the Services being unreachable or not delivering data for a period of two (2) consecutive minutes or less.Errors caused by factors outside the reasonable control of EC or EC’s subcontractors.Errors caused by Customer and/or third parties the Customer is responsible for, including but not limited to the users of the Services.The above does not comprise the availability of the Services due to battery in the Products, and the Customer is responsible to replace batteries when notified and due to the instructions given by the EC.
5. MARKETINGThe Supplier shall, unless otherwise explicitly agreed, have the right to use the Customer's name, logo, trademark as a reference for ongoing and completed projects in the marketing the Supplier's products and services. This would typically include a reference to the Customer’s name on the Suppliers website, presentations and other marketing materials . This does not include a right to disclose information that is to be considered as confidential under existing agreements between the Supplier or that otherwise could reasonably be considered as adverse to the Customer’s interests, goodwill or reputation.
EC Terms and Conditions, September 2022
