ENIRIS – TERMS AND CONDITIONS
1. Applicability and acceptance of these Terms
1.1. These terms and conditions (hereafter, the “Terms”) are applicable to all Order Forms executed between the Parties and govern the Client’s use of the Controller, the Controller Software and/or the Platform and the provision of the Services (if any) by Eniris.
1.2. By executing an Order Form, or other document referring to these Terms, the Client acknowledges that it has read, understands and accepts these Terms and agrees to be bound by them.
1.3. If you are an employee (or contractor) of the Client accepting these Terms on behalf of the Client, you represent and warrant that you have full legal authority to bind the Client to the Agreement and have read and understand the Terms.
1.4. The Client hereby waives its own general and special terms and conditions even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Eniris.
2. Definitions
2.1. Capitalized words used in these Terms shall have the meaning given to them below:
a) “Agreement” means the entire contractual relation between the Parties, including these Terms, the Order Form(s) and any schedules, attachments or addenda thereto.
b) “API” means application programming interface, allowing two or more computer programs to communicate with each other.
c) “Client Data” means all data provided to Eniris by the Client or its employees or representatives, or generated in the performance of the Agreement (e.g., as a result of the use of the Controller or the Platform).
d) “Client” means the entity specified in the relevant Order Form.
e) “Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including the Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs.
f) “Controller” means the energy asset management device designed to manage, monitor and optimize energy distribution and usage of an energy asset, and currently known under the name “SmartGridOne” (as such name may be varied from time to time as Eniris deems appropriate).
g) “Controller Software” means Eniris’ software installed on the Controller.
h) “Documentation” means the technical and functional information related to the Controller and the Platform, user instructions and/or operating manuals that Eniris generally makes available to its clients from time to time.
i) “Effective Date” means the date set out in the relevant Order Form.
j) “End Client” means the final purchaser or user that has purchased a Controller or a subscription to the Platform for its own internal use and not for resale, remarketing or distribution.
k) “Eniris” means Eniris BV, with office at Distelstraat 30, 9000 Gent, Belgium and registered in the Crossroad Bank for Enterprises with enterprise number 0751.828.588 (RLE Ghent, division Ghent).
l) “Terms of Use” means the end user license agreement applicable to the End Client’s use of the Controller, as made available from time to time by Eniris.
m) “Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names, rights in confidential information (including without limitation know-how and trade secrets) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
n) “Order Form” means the written or electronic document signed by both Parties, regardless its entitlement, scope and other specifics of the purchase of the Controller, or if applicable the subscription to the Platform ordered by the Client, including the specific conditions under which such offer is made.
o) “Party” means either Eniris or the Client individually.
p) “Parties” means Eniris and the Client collectively.
q) “Platform” means the cloud platform for portfolio monitoring and optimization of energy assets whose name may change in the future.
r) “Platform Terms of Use” means the terms of use that govern how Clients and End Clients (as applicable) may access and use the Platform, as such terms of use are shown during the first login to the Platform.
s) “Services” means the services provided by Eniris pursuant to these Terms, or such other services related to the Controller and the Platform (if applicable) which may be further described in an Order Form.
3. Purchase and Distribution of the Controller
3.1. The Client is authorized to purchase Controller(s) from Eniris and to resell and distribute them to its End Clients or to a sub-distributor who resells them to its End Clients. The Client (and any sub-distributor) shall do so in its own name and for its own account. Consequently, the contractual relationship between the Client and its End Clients, or the Client and its sub-distributor, shall be at the Client’s (and the sub-distributor’s) own responsibility and the Client is solely liable for the risks of its business. Where the Client engages a sub-distributor, the Client represents and warrants that such sub-distributor complies with these Terms. For the avoidance of doubt, the Client’s authorization the resell and distribute the Controllers is non-exclusive, and nothing herein shall prevent Eniris to (i) sell directly to End Clients, or (ii) to grant the same or similar resale and distribution rights to third parties.
3.2. All details of the Client’s purchase of the Controller(s), such as the quantity, specifications, and purchase price, will be agreed upon in the Order Form. Unless otherwise stated therein, any offer or quotation issued by Eniris is valid for thirty (30) days. An Order Form shall only be binding and become part of the Agreement if both Parties have accepted and signed the Order Form. In case of contradictions between the provisions of an Order Form and these Terms, the provisions of these Terms shall prevail, unless the Parties expressly deviate from a provision in these Terms (by referring to the provision that is deviated from).
3.3. The Parties’ relationship is that of independent contractors and nothing herein shall be interpreted to mean that the Parties have agreed to form a company, association or joint venture or that the Client (or any of its employees) is an employee, agent or establishment of Eniris. The Client has no powers to commit or bind Eniris in any way or to incur any liability or obligations for or on behalf of Eniris. In its agreement with the End Client or its sub-distributor, the Client shall not have the right or the authority to act on Eniris’ behalf or to bind Eniris in any manner whatsoever. In particular, the Client shall not make any representations and warranties in respect of the Controller on behalf of Eniris and the Client is solely responsible for any representations, warranties or commitments whatsoever in respect of the Controller in its agreement with the End Client or its sub-distributor, except where Eniris has expressly agreed in writing to such representation, warranty or commitment.
3.4. The Client may not remove Eniris’ tradename or other commercial marks on a Controller or modify the Controller Software, unless that Parties have explicitly agreed, that the Controller(s) and/or the Platform will be white labelled (in which case the Parties shall mutually agree on the details and other specifics of such white labelling).
4. Delivery of the Controller
4.1. Any delivery times set forth in an Order Form or otherwise communicated to the Client are indicative estimates only and the time of delivery is not of the essence. Eniris shall in any case not be liable for any delay in delivery of the Controller(s) that is caused by a Force Majeure Event or the Client’s failure to provide Eniris with adequate delivery instructions.
4.2. If payment in advance is applicable the delivery time starts from the date of payment receipt.
4.3. The delivered Controller(s) shall be deemed to be in conformity with the Agreement and accepted by the Client unless a claim is formulated and received by Eniris within eight (8) calendar days of the actual delivery date. Any claim or dispute must be formulated in writing by registered letter. Such claims do not in any circumstances suspend the payment obligation of the Client.
4.4. Unless expressly agreed otherwise, any packaging materials will be charged to the Client at cost and will not be taken back by Eniris.
5. Use and operation of the Controller
5.1. For its operation, each Controller requires a separate license to use the Controller Software (hereafter, the “Controller License”). Each Controller License shall be activated (and the yearly license fee is payable) upon the initial use of the Controller and is valid only for the duration of one (1) year. Upon expiry of such duration, the Controller License automatically renews for subsequent periods of one (1) year. No use of the Controller is allowed without an active Controller License. Each Controller License is linked to the MAC address of the Controller and cannot be transferred to another Controller. For the avoidance of doubt, the yearly license fee is separate from and in addition to the purchase price of the Controller and shall be detailed in the Order Form.
5.2. Eniris grants to the Client a restricted, non-exclusive, non-transferrable and non-assignable license to use the Controller Software as installed on the Controller during the term of the Controller License (as specified in clause 5.1) in accordance with the Documentation and the Agreement. Furthermore, Eniris permits the Client to allow End Clients to use to use the Controller Software as installed on the Controller provided that the End Client agrees to be bound by the Terms of Use, and that such use does not violate any restrictions or obligations set forth in the Agreement or the Documentation. The Client must secure the End Client’s acceptance of the Terms of Use, and must confirm to Eniris acceptance of the Terms of Use by the End Client. Failure to provide such confirmation may result in suspension of the applicable Controller License. The Client may not modify the Terms of Use in any way without prior written approval of Eniris. The Client remains fully responsible for ensuring compliance by its End Clients with the Terms of Use and this Agreement, and any breach by an End Client shall be deemed a breach by the Client. For the avoidance of doubt, the foregoing license does not include the right to access any software code (including object code, intermediate code and source code) of the Controller Software, except as expressly permitted by Eniris in writing.
5.3. The Client shall not, directly or indirectly (including, without limitation, through the actions of any affiliate, agent, subcontractor, sub-distributor, end user, End Client or, any third party):
a) use the Controller Software other than in accordance with the Agreement and its intended purpose;
b) use the Controller Software in any way that is unlawful, illegal, fraudulent or harmful;
c) sell, lease, commercialize, rent, display, license, sublicense, or transfer the Controller Software and/or its rights to use the Controller Software;
d) permit access to (or use of) the Controller Software or the Documentation, in whole or in part, to (or by) any third party;
e) modify, decompile, disassemble, translate, reverse engineer or attempt to reconstruct, identify or (try to) discover, copy, create derivative works based upon the underlying ideas, user interface techniques, algorithms, software code (including source code) of the Controller Software (if applicable) by any means whatsoever, or disclose any of the foregoing;
f) encumber or suffer to exist any lien or security interest on (its rights to) the Controller Software (if applicable);
g) take any action that would cause the Controller Software or the source code to be placed in the public domain;
h) use the Controller Software in any computer environment not expressly permitted under the Agreement; and
i) work around any technical limitation in the Controller Software.
5.4. Eniris may update the Terms of Use from time to time on no less than [thirty (30) days] prior notice to the Client. Any such updated Terms of Use shall immediately apply to new End Clients. With regard to existing End Clients, the updated Terms of Use shall apply as from the renewal of their Controller License pursuant to clause 5.1.
5.5. The Client acknowledges that operation of the Controller (and any gateway-equipment) requires an adequate and stable internet connection (meaning a connection with a latency of less than 100ms) and a data volume of at least five (5) gigabytes per month. Notwithstanding the foregoing, Eniris is not responsible if the Client (or the End-Client) exceeds its available data volume as a consequence of using the Controller. It shall be the Client’s (or the End-Client’s) responsibility to monitor data usage.
5.6. Eniris does in no way guarantee that the use of the Controller shall result in any explicit or implicit cost improvement or efficiency of the energy assets or other systems of the End Client. Any predictions regarding cost improvements, revenue or performance are based on estimates and are indicative only. Actual results are variable and depend on circumstances beyond Eniris’ control.
6. Set-up and Configuration of the Controller
6.1. The Controller shall be installed by the Client (or its sub-distributor) unless otherwise between the Parties in writing. Eniris shall not bear any responsibility for errors, faults, or damages resulting from incorrect or improper installation performed by the Client or any third party engaged by the Client.
6.2. If requested by the Client, Eniris may perform set-up and/or configuration services in relation to the Controller on a time and material basis at Eniris’ then-current hourly rate (unless otherwise agreed in writing) in which case the Parties shall specify the scope thereof in an Order Form.
6.3. The Client retains full responsibility for ensuring the correct installation and configuration of the Controller, regardless of whether Eniris provides assistance or performs the configuration upon request. This includes but is not limited to, ensuring a secure environment when installing the Controller (e.g. disabling any electrical installations when performing electric installations). Eniris will make reasonable efforts to support the Client and the End Clients (in case of second line support) during the installation and configuration process, however, the Client is obligated to clearly communicate all necessary preconditions, requirements, and relevant details about the specific situation.
6.4. Even when Eniris provides installation or configuration support, the Client remains ultimately accountable for conducting thorough testing within the environment where the Controller is installed. This testing is essential to verify that all parameters are correctly set and that all monitored and controlled systems are operating as intended. Eniris shall not be held liable for any damages resulting from incorrect or improper configuration or insufficient testing by the Client.
7. Use of the Platform
7.1. If the Client has purchased a subscription to the Platform, and subject to these Terms and the timely payment of the applicable fees, Eniris grants to the Client a restricted, non-exclusive, non-transferrable and non- assignable license to access and use and the Platform (if applicable) during the term of the Client’s subscription (as specified in the Order Form) in accordance with the, the Platform Terms of Use Documentation and the Agreement. Furthermore, Eniris permits the Client to allow End Clients to use the Controller and the Platform (if applicable) provided that the End Client agrees to be bound by the Platform Terms of Use, and that such use does not violate any restrictions or obligations set forth in the Agreement or the Documentation. The Client remains fully responsible for ensuring compliance by its End Clients with the Platform Terms of Use and this Agreement, and any breach by an End Client shall be deemed a breach by the Client. For the avoidance of
doubt, the foregoing license does not include the right to access any software code (including object code, intermediate code and source code) of the Platform, except as expressly permitted by Eniris in writing.
7.2. Unless to the extent expressly permitted under the Agreement or by applicable law, the Client shall not, directly or indirectly (including, without limitation, through the actions of any affiliate, agent, subcontractor, sub- distributor, end user, End Client or, any third party):
a) use the Platform other than in accordance with the Agreement and its intended purpose;
b) use the Platform in any way that is unlawful, illegal, fraudulent or harmful;
c) sell, lease, commercialize, rent, display, license, sublicense, or transfer the Documentation and/or its rights to use the Platform;
d) permit access to (or use of) the Platform or the Documentation, in whole or in part, to (or by) any third party or otherwise use the Platform on a service bureau basis;
e) modify, decompile, disassemble, translate, reverse engineer or attempt to reconstruct, identify or (try to) discover, copy, create derivative works based upon the underlying ideas, user interface techniques, algorithms, software code (including source code) of the Platform (if applicable) by any means whatsoever, or disclose any of the foregoing;
f) encumber or suffer to exist any lien or security interest on (its rights to) the Platform (if applicable);
g) take any action that would cause the Platform or the source code to be placed in the public domain;
h) use the Platform in any computer environment not expressly permitted under the Agreement; and
i) work around any technical limitation in the Platform.
7.3. The extent of the licenses granted under the Agreement is restricted to the scope expressly set forth in the Agreement and there are no implied licenses under the Agreement. Eniris reserves any right not expressly granted to the Client hereunder.
8. Maintenance and Support
8.1. The Client shall be responsible to provide functional support services directly to the End Clients, shall maintain all contact with the End Clients and provide first-line support directly to the End Clients.
8.2. Eniris shall provide second-line maintenance and support services to the Client on a best efforts basis and during Eniris’ business hours only. The Client may notify a problem or incident related to the Platform or one or more Controllers via the designated ticketing system available at
https://eniris.io/support or through other support channels as communicated by Eniris to the Client from time to time and Eniris shall try to provide a resolution or workaround as soon as commercially possible, but Eniris makes no warranty whatsoever to provide a resolution or workaround for each specific problem that could arise. The Client must make all information available to Eniris to enable Eniris to provide second-line support services. The Client can only request support via telephone through one of its employees that has received adequate training about Eniris’ products and services. By submitting a support ticket, the Client explicitly authorizes (and procures that the End Client authorizes) Eniris to access the Platform, Controller and any related systems or data to investigate and troubleshoot the reported issue. The Client acknowledges that during such investigative and troubleshooting efforts, unavailability or other bugs may occur and that Eniris shall not be responsible for any such unavailability or bugs.
8.3. Eniris does not warrant that the Platform shall be available on an uninterrupted basis or that it shall be completely free of bugs or defects, however, it shall, to the best of its abilities, try to enable the undisturbed usage of the Platform. The Client agree(s) that the Platform may be unavailable during periods of maintenance or if a Force Majeure Event occurs. To the extent reasonably feasible, Eniris shall inform the Client of such periods of unavailability.
8.4. Eniris reserves the right to charge for maintenance and support services on a time and material basis (at its then current rates) if the Client (or End-Client) request maintenance and support for non-Eniris related products or services, or where the Client (or End-Client) does note comply with guidelines or instructions from Eniris.
8.5. If the Parties have entered into a separate service level agreement, such service level agreement shall prevail over the provisions of this clause 8.
9. Performance of the Services
9.1. Where Eniris is requested to perform Services, Eniris shall perform such Services (i) to the best of its ability; (ii) in accordance with the competence, care, and diligence expected of a professional service provider; and (iii) in complete independence (meaning that it shall plan its activities as it sees fit). This independence constitutes an essential element of the Agreement, without which the Parties would not have concluded it. The obligation to perform the Services shall be regarded as an obligations of means (“middelenverbintenis”) and shall not bind Eniris to achieve a predefined result.
9.2. Any timeframe for the performance of Services that may be set out in the Agreement or an Order Form are indicative target dates only, unless such timings are expressly agreed to be binding milestones.
9.3. The Client acknowledges that the performance of the Services by Eniris is at all times subject to the Client’s (or the End Client’s) cooperation in good faith. In particular (but not limiting the generality of the foregoing), the Client shall (and procures that the End Clients shall):
a) provide such assistance, information, equipment and access to the Client’s facilities and systems as reasonably required by Eniris to adequately perform the Services;
b) respond diligently to inquiries from Eniris and provide any management decisions, approvals or acceptances on a timely basis; and
c) perform the Client’s obligations that may be specified in an Order Form.
9.4. Eniris shall not be responsible or held liable for any delay or failure in the provision of the Services resulting from the Client’s failure to comply with clause 9.3. The scope of the Services may only be changed in mutual agreement and such change(s) shall be documented in writing.
10. Client Data
10.1. All Client Data shall remain the property of the Client (or its licensor(s)). The Client hereby grants to Eniris a non-exclusive license to copy, reproduce, store and display the Client Data to the extent required for the performance of Eniris’ obligations under this Agreement and to improve the functioning of Eniris’ products and services. Eniris may also use aggregated and anonymized Client Data for analytical, research, and development purposes, including but not limited to improving system performance, developing new functionalities, and optimizing operational efficiency, provided that such use does not disclose any personally identifiable or confidential information of the Client. The Client also grants to Eniris the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Eniris’ obligations under this Agreement.
10.2. The Client is solely responsible for the accuracy and correctness of Client Data. Eniris shall in no case be responsible for damages or liability resulting from inaccurate or incorrect Client Data inputted in the Controller and the Platform (if applicable).
10.3. The Client warrants to Eniris that the Client Data shall not infringe the Intellectual Property Rights or other legal rights of any third party, and shall not breach applicable law.
11. Data Interfaces
11.1. The Controller and the Platform may interact with third party software, data, devices, equipment or systems (hereinafter generally referred to as “Third Party Systems”) through one or more API’s or other types of integration.
11.2. If no (third party) API or integration is readily available for a specific Third Party System, the Client may request, and Eniris may, in its sole discretion, decide to develop an API or integration for such Third Party System and the Parties shall mutually agree on the scope, costs (which shall include a handling fee of maximum thirty (30) percent) and other specifics in writing. In such case, the interfaces, integrations, API’s or functions developed requested by the Client will be subject to a mandatory test period of six (6) months following the initial deployment thereof (hereafter, the “Test Period”). During this period, the Client must ensure that testing takes place in a controlled environment where errors will not adversely affect ongoing operations or systems. During the Test Period, Eniris shall not be held liable for any damages, losses, or disruptions arising from the improper functioning of the new the interfaces, integrations, API’s or functions. The Client further agrees to provide reasonable cooperation and feedback to Eniris during the test period to facilitate the resolution of any identified issues.
11.3. The Client acknowledges that the use of Third Party Systems shall be solely governed by the applicable third party terms and conditions. The Client is solely responsible to obtain and maintain the necessary user rights and/or licenses to use the Third Party Systems together with the Controller or the Platform. Eniris is not responsible for any effect the Third Party System may have on the functionality or performance of the Controller and the Platform and Eniris cannot be held liable for errors resulting from integrations with Third Party Systems where the cause of the error originates with the third party.
11.4. The Client acknowledges that all API-connections are provided on an “as is” and “as available” basis. Eniris expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, availability, security, and non- infringement. Without limiting the generality of the foregoing, Eniris makes no warranty that:
a) each API-connection will meet Client’s (or the End Client’s) requirements,
b) each API will be uninterrupted, timely, secure, or error-free;
c) the Controller and the Platform will at all times remain compatible with, or can interface and interwork with each Third Party System; or
d) any errors in each API will be corrected.
11.5. If due to any changes in a Third Party System, an API or other type of interface made available by Eniris needs to be modified to continue compatibility, the Client can request Eniris, and Eniris can in its sole discretion agree to, make such modifications. In such case the Parties shall mutually agree on the scope and costs of such modification in writing.
12. Intellectual Property Rights
12.1. Eniris (or its licensors) retain(s) all rights, titles, and interest, including any Intellectual Property Rights, in or related to (i) its Confidential Information, (ii) the Controller, (iii) the Controller Software); (iv) the Platform, (v) the Documentation and (vi) the Services (including any resulting deliverables), including any modifications or improvements thereto (collectively, the “Eniris IP”).
12.2. The Client and the End Client will not acquire any rights, licenses, title or interest, Intellectual Property Rights, or other proprietary rights of whatever nature, in or over Eniris IP other than as expressly stated in these Terms.
13. Confidentiality
13.1. Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose to any third party, other than its agents, officers, employees, professional advisors, insurer s, subcontractors, or consultants where such disclosure is necessary for the performance of the Agreement, any Confidential Information learned during the negotiation and performance of the Agreement, except in the event it is granted prior written consent of the disclosing Party to disclose such Confidential Information. Confidential Information disclosed under the Agreement shall not be used by the receiving Party thereof for any purpose other than as required for the performance of its obligations under the Agreement.
13.2. Both Parties shall take precautions to maintain the confidentiality of the Confidential Information and, in particular, each Party covenants that it: (i) shall not copy or otherwise exploit any component of the Confidential
Information other than as herein provided, nor make any disclosures with reference thereto to any third party, and (ii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection therewith.
13.3. The provisions of this clause shall not apply to any information which: (i) is published or comes into the public domain other than by a breach of the Agreement, (ii) can be shown to have been known by the receiving Party before disclosure by the disclosing Party, (iii) is lawfully obtained from a third party or, (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of this Agreement. Additionally, the restrictions in this clause do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request. In such case the Parties shall cooperate in good faith to ensure the protection of the Confidential Information concerned to the maximum extent permitted by law.
13.4. Upon expiry or termination of the Agreement, the receiving Party will discontinue use of the disclosing Party’s Confidential Information and return (or in the disclosing Party’s sole discretion alternatively delete and certify such deletion of) all documents (or copies) belonging to the disclosing Party.
13.5. The provisions of this clause shall commence from the start of negotiations and shall continue in force during five (5) years following the termination or expiry of the Agreement.
13.6. Each Party remains liable for non-compliance with the obligations mentioned under this clause 13 by its employees, subcontractors, or other representatives.
14. Privacy and Data Protection
14.1. Each Party shall comply with its obligations under the applicable data protection legislation when processing personal data.
15. Financial Conditions
15.1. The Client shall pay the fees in the amounts and times set forth in the applicable Order Form(s).
15.2. Unless set out otherwise, fees for the provision of the Services shall be charged on a time and material basis at the rates set out in the applicable Order Form(s).
15.3. Eniris does not guarantee that it will maintain its general prices that may be listed in any catologues, offers, quotations or otherwise communicated, and Eniris reserves the right to adjust its general pricing from time to time. The agreed price for a particular purchase shall be identified in the relevant Order Form.
15.4. Eniris reserves the right to revise its rates and/or fees in an Order From, annually on the first (1st) of January, on the basis of the Agoria DIGITAL index which is linked to the reference hourly wages in the technological industry published by the employers’ federation Agoria, using the following formula:
P = P0 * [0.2 + 0.8 * (S/S0)], whereby:
“P” stands for the revised fee/price;
"P0" stands for the price/fee on the Effective Date of the relevant Order Form;
“S0” shall be the national average reference wages in the digital and technological industry as published by Agoria (i.e. Agoria DIGITAL) ("Reference Salary") on Effective Date of the relevant Order Form available at
www.agoria.be (or, if this index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labor cost (in the digital or technological industry));
“S” shall be the Reference Salary at the moment of revision.
15.5. All payments under the Agreement are due to Eniris within thirty (30) days from the invoice date. Any disputes relating to invoiced amounts must be submitted by registered mail (containing the reasons for such dispute)
within ten (10) calendar days following the invoice date, failure of which shall result in the invoice being deemed accepted by the Client. Any undisputed portion of the invoice must be paid in full.
15.6. Any amounts of undisputed invoices that have not been paid within thirty (30) days after the invoice date shall automatically and without notice be subject to a late payment interest equal to the legal interest rate in accordance with applicable law, which interest shall be compounded daily as of the due date until receipt of full payment. In addition, the Client shall pay all costs incurred by Eniris as a result of the (extra)judicial enforcement of the Client’s payment obligations. In the event of late payment, all payment obligations of the Client to Eniris will immediately become due and payable.
15.7. Amounts payable under the Agreement are in euro (unless expressly agreed otherwise) and do not include any applicable value added tax or other taxes and reasonable expenses, which shall be additionally charged to the Client.
15.8. All payments hereunder shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same is required by law, in which case the Client undertakes to pay Eniris such additional amounts as are necessary in order that the net amounts received by Eniris after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding.
15.9. All fees paid by the Client hereunder are final and non-refundable.
15.10. Eniris retains ownership of the Controller(s) and any other goods and/or materials (whether delivered or not) until the full payment of all amounts the Client owes Eniris under the Agreement has been made.
16. Disclaimer
16.1. The Controller, the Controller Software, the Platform and the Services (if any) are provided “as is”, and except to the extent expressly provided otherwise in the Agreement, Eniris does not make any representations or warranties, express or implied, concerning any matter under this Agreement. To the maximum extent permitted by applicable law, Eniris disclaims any representations or warranties, express or implied, including (without limitation) any warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
16.2. The Client acknowledges that a correct functioning of the Controller and the Platform is dependent on third party systems (such as but not limited to battery systems, solar panels or other energy assets) and data provided by third parties (such third party systems and third party data collectively referred to as “Third Party Services”). Eniris assumes no responsibility whatsoever regarding the Third Party Services, and Eniris shall not be liable for any defects, faults, inadequacies, failures or other types of shortcomings that are caused by a Third Party System. Furthermore, any list of supported Third Party Services published by Eniris (whether online or by other means) is for information purposes only and does not represent a guarantee of compatibility of the Controller and Platform with such Third Party Services at all times, unless Eniris explicitly agrees otherwise.
16.3. Eniris does not accept returns of sold Controllers, except in the case of defective Controller hardware that are covered under Warranty. For such goods, Eniris will, at its discretion, repair or replace the defective items and return them to the Client. Under no circumstances will Eniris issue refunds to the Client. Furthermore, no right of withdrawal applies to the purchase of goods from Eniris. As used in this clause “Warranty” means that the hardware of the Controller shall function properly under normal use for a period of (1) year after installation at an End Client. The Warranty shall not cover any defects or damages caused by or resulting from (i) improper operation, improper storage, misuse or abuse, accident, neglect or physical or cosmetic damage; (ii) a failure to properly package and ship the Controller to an End Client; (iii) contact with or exposure to liquid or other moisture, corrosive substances, water, weather and the elements, sunlight, extreme humidity, heavy perspiration, foreign particles, sand, dirt, dust or the like, extreme heat, or food; (iv) environmental conditions, such as vibration, electrical work external to the Controller or failure to provide electro-static discharge (ESD) protection, (v) improper installation or installation error, system integration, programming, systems engineering, relocation, reconstruction of data, or removal of part or any component of the Controller (including breakage of a connector, cover, glass, pins, seals or other components); (vi) service, modification or repair not performed by Eniris or an Eniris-authorized service provider, or by tampering, use of counterfeit or other non-Eniris components, assemblies, accessories or modules; (vii) unreasonable maintenance, operator error, and use of
cleaning products or other accessories not approved by Eniris; (viii) use of the Controller in contravention of recommended procedures or specifications; or (ix) failure to install firmware updates or releases available by or through Eniris for the Controller; (x) other acts that are not the fault of Eniris.
16.4. The Client understands that the Controller and the Platform are only intended to be used as tools to facilitate the End Client’s energy management. The Client is responsible for ensuring that all necessary facilities, infrastructure, and stable internet connections are in place to operate the Controller and the Platform effectively. Eniris shall not be held liable for any issues, disruptions, or damages arising from the absence or inadequacy of such facilities or connections. The Client is responsible for ensuring that all installations, including inverters and energy meters, comply with the applicable regulations and standards. Eniris shall not be held liable for any non- compliance or penalties resulting from failure to adhere to these requirements. In particular, where energy feed-in is prohibited by regulatory or technical requirements, the Client must always equip the inverters with their own energy meter to function independently of the Controller.
16.5. The Client is solely responsible for the implementation or interpretation of any output (such as advice or recommendations) produced by the Controller and the Platform, and for any decisions based thereon.
16.6. Where the Controller is used in connection with battery systems, the Client acknowledges that:
a) Eniris does not fulfill the role of a battery management system and damage to batteries, including but not limited to unbalanced cells, cannot be attributed to Eniris;
b) Eniris is not liable for the proper functioning, failure, wear, or any other issues related to devices connected to the energy management systems (hereafter “EMS”);
c) Eniris cannot be held responsible for any alleged impact on the lifespan of devices connected to the EMS.
d) Eniris is not responsible for battery wear or damage caused by the use of imbalance services, which is a matter between the Client (or End-Client) and the supplier of the imbalance services;
e) Eniris acts only as a conduit for control signals via an API and is not liable for damage or wear caused by signals from the Client or third parties;
16.7. Eniris is not liable for the Client’s provision to third parties (including but not limited to End Clients) of services or products derived from Eniris’ products and services, or of other products or services linked to Eniris’ products or services. Eniris is not responsible for the Client’s interpretation of information provided by Eniris related to its products or services.
17. Limitation of Liability
17.1. Subject to the maximum extent permitted under applicable law, Eniris’ liability under the Agreement shall per event (or series of connected events) and in the aggregate per contract year not exceed an amount equal to all amounts paid by the Client during the contract year in which the damage cause event occurred.
17.2. Subject to the maximum extent permitted under mandatory law, under no circumstances shall Eniris be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever, and third parties’ claims.
17.3. To the maximum extent permitted under applicable law, the Client agrees not to hold the advisers, directors, employees, representatives, and subcontractors of Eniris personally liable for or in connection with the Agreement. Any liability claim (including any extra-contractual liability claim) shall be brought by the Client exclusively against Eniris, except in the case of fraud. The Client further undertakes (and procures that any of its sub-distributors, if applicable) to include in its contract with the End Client relating to the Controller or the Platform, that (i) the End Client agrees, and accepts, not to hold the suppliers of the Client personally liable for or in connection with the Controller or Platform, and (ii) any liability claim of the End Client for or in connection with the Controller or Platform (including any extra-contractual liability claim) shall be brought by the End Client
exclusively against the Client (except in case of fraud, and subject to the maximum extent permitted under applicable law).
17.4. The Client shall indemnify Eniris against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Supplier arising out of or in connection with any claim made against Eniris by the End Client in relation to the Controller or the Platform.
18. Term and Termination
18.1. The Agreement shall commence on the Effective Date as specified in the Order Form and shall continue in effect for the duration of the initial subscription term as specified in the Order Form (the “Initial Term”). After the Initial Term, the Agreement shall automatically and tacitly renew for consecutive periods of one (1) year (each a “Renewal Term”), unless either Party notifies the other Party in writing of its intent not to renew the Agreement) at least one (1) month before the end of the Initial Term or the then-current Renewal Term, or unless terminated earlier in accordance with this clause 18.
18.2. Either Party may immediately terminate (or Eniris may suspend) the whole or any portion of the Agreement, the Client’s Subscription, an Order Form without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if:
a) the other Party performs a material breach to any provision of the Agreement and, if capable for remedy, fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach; or
b) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding, or otherwise liquidates or ceases to do business.
18.3. Eniris may immediately terminate or suspend the whole or any portion of the Agreement, the Client’s Subscription, an Order Form without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies, and/or claim to which it may be entitled by law, upon providing the Client with written notice of termination if:
a) the Client fails to pay to Eniris any amounts due hereunder and fails to cure such failure within thirty (30) calendar days from the date of a written notice of default from Eniris to the Client; or
b) the Client violates Eniris’ Intellectual Property Rights or its confidentiality obligations.
19. Effects of Termination
19.1. Upon termination of the Agreement for whatever reason:
a) if applicable, the Client’s right to access or use the Platform shall automatically cease;
b) the Client shall return, within a reasonable time of such termination or expiration all Confidential Information of Eniris (or alternatively destroy any copies thereof that cannot be returned and confirm in writing that such copies have been destroyed);
c) the Client shall promptly pay to Eniris all fees and other amounts due to Eniris hereunder up to and including the date of termination.
19.2. The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination of the Agreement including, without limitation, the provisions relating to Intellectual Property Rights, Confidentiality and Limitation of Liability.
20. Miscellaneous
20.1. Entire agreement – This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
20.2. Severability – If any provision of the Agreement is held to be illegal, void, invalid or unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be illegal, void, invalid or unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
20.3. Waiver – The terms and conditions of this Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. The terms or conditions of this Agreement may be waived only by a written document signed by the Party entitled to the benefits of such terms or conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
20.4. Assignment – Eniris may assign, transfer and/or subcontract its rights and obligations under the Agreement to any third party. The Client shall not assign or otherwise transfer any of its right or obligations under the Agreement without Eniris’ prior written consent.
20.5. Interpretation and conflict – Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit interpretation of the words, description, definition, phrase or term preceding those terms. If there is a conflict between these Terms and any Order Form, these Terms shall govern, except where it is expressly stated in an Order Form that a specific provision of these Terms is to be varied or overridden.
20.6. Changes to the Terms – Eniris may change these Terms from time to time. In such case Eniris shall notify Client of the changes via appropriate means at least thirty (30) calendar days before the changes take effect. If the Client does not agree to the proposed changes, the Client may terminate the Agreement by providing written notice within thirty (30) calendar days of receiving the aforementioned notification. If the Client does not object within the thirty (30) calendar days period, the changes shall be deemed accepted and will automatically take effect on the date specified in the notification.
20.7. Force Majeure – Neither Party will be liable for any delay in performing, or failure to perform, any of its (non- monetary) obligations under the Agreement due to an event, or a series of related events, that is/are reasonably beyond the control of the Party affected (including but not limited to, power failures, social strikes or other labor actions, changes to the law, disasters, epidemics or pandemics, explosions, fires, floods, riots, terrorist attacks, wars, wrecks or delays in transportation, inability to obtain the necessary labor or materials, embargo, unfavorable weather conditions, force majeure on the part of the subcontractors of Eniris, failures in goods, equipment, software or materials of third parties, government measures, disruption of internet, data network or telecommunication facilities, unavailability of third party servers, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections unavailability of personnel, general transportation problems and electricity outages) (hereafter, a “Force Majeure Event”). If a Party refers to a Force Majeure Event, it must immediately inform the other Party of the nature of the Force Majeure Event, stating the date when the Force Majeure Event comes or has come into effect. In the event of delay in performance due to a Force Majeure Event, the execution of the relevant obligation shall be extended by a period reasonably necessary to overcome the effect of such delay. If the delay in performance is likely to extend for a period of ninety (90) days or more, the Parties shall have the right to terminate the Agreement.
20.8. Notices – With the exception of notices of default or termination, any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses indicated in the Order Form (or such other email addresses as notified by either Party from time to time). All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from the receiving Party within five (5) business days. In case no confirmation of receipt was given by the receiving Party within five (5) business days, or for notices of default or termination, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address specified in the Order Form (or such other addresses as notified by either Party from time to time). All notices shall be deemed to have been given
either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (ii) if sent by registered or certified mail, on the fifth (5th) business day following the day such mailing is made.
20.9. Relationship of the Parties – The relationship between the Parties is that of independent contractors. Neither Party is agent of the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of the Agreement.
20.10. Publicity – Eniris shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on Eniris website, social media announcements and sales presentations.
20.11. Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonable good faith efforts to amicably settle any disputes that might arise during the execution of this Agreement.
20.12. Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium, without giving effect to the conflict of law principles thereof, and the Parties hereto submit to the exclusive jurisdiction of the courts of Ghent in the event the agreement cannot reasonably be amicably settled. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.