GridDuck Reseller Terms

Standard Terms

1. Definitions and interpretation

⦁ In this Agreement, the following words and phrases shall have the following meanings:

“Activated Hardware Item” means a Hardware Item which is, in connection with a Device, activated for use with the GridDuck Service, whereby such Hardware Item is registered with and recognised by the GridDuck Service as a live data point; and “Activated” and “Activation” shall have corresponding meaning;

“Affiliate” means, with respect to a Party, a person who is for the time being controlling, controlled by or under common control of that Party; for which purposes any direct or indirect subsidiary of that Party or direct or indirect holding company of that Party or direct or indirect subsidiary of any such holding company shall be deemed to be an “Affiliate” of that Party. For the purposes of this definition, (i) “control” of a person shall mean the power, alone or with others, to direct the management and/or affairs of that person, whether by virtue of the ownership of shares, contract or otherwise; and (ii) a corporate entity shall be a “subsidiary” of another corporate entity (its “holding company”) if the holding company has direct or indirect beneficial ownership of more than 50% of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of the subsidiary;

“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

⦁ “Business Hours” means 9am to 5pm (UK local time) on a Business Day;

⦁ “Customer” means any customer of Reseller to whom Reseller supplies Hardware and/or provides access to the GridDuck Service pursuant to this Agreement;

⦁ “Customer Personnel” means the officers, employees or individual consultants of a Customer;

“Customer Records” means, in respect each Customer: the name of Customer entity and contact details, number of Activated Hardware Items and city and country location of Activated Hardware Items;

⦁ “Confidential Information” means all information, data and know-how disclosed or made available by or on behalf of one Party to the other Party pursuant to or in connection with this Agreement, in whatever medium and whether in written, oral, visual or electronic form or otherwise, including but not limited to all business, financial, commercial, technical, operational, organisational, legal, management and marketing information disclosed in connection with the negotiation of this Agreement;

⦁ “Customer Data” means raw energy consumption or usage data relating to a Customer which is transmitted by or in respect of any Hardware Item to the GridDuck Service, but excluding (a) all presentations, interpretations, reports, analyses, graphs, charts of or relating to such data which are produced or made available by the GridDuck Service and (b) all aggregated and anonymised data;

⦁ “Device” means the host equipment or device owned and/or possessed by the Customer;

“Documentation” means any installation, instruction or user manual or guides relating to the Hardware and/or Software which are provided by GridDuck to Reseller;

“End User Licence Terms” means GridDuck’s standard end-user licence terms, the current form of which is at Schedule 2;

“Fees” means any and all fees chargeable by GridDuck to Reseller under or pursuant to this Agreement, including Service Fees and charges for Hardware;

⦁ “Force Majeure Event” means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable; including strikes, lock-outs or other industrial disputes, failure of energy sources or transport networks, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions, shortage or unavailability of raw materials from normal sources or routes of supply or unforeseeable default of suppliers or subcontractors;

“GridDuck API” means GridDuck’s application programming interface(s) for use by the Reseller pursuant to this Agreement;

“GridDuck IP” means, collectively, the GridDuck Service, the Software, the Software Interface, the GridDuck API, GridDuck Outputs and the Documentation, and all Intellectual Property in and to the foregoing;

“GridDuck Outputs” means all data, databases, reports, dashboard features and content, and other results or outputs generated by the Software, and which are accessible, transmitted or made available to the Reseller or any Customer in connection with the GridDuck Service, but excluding all Reseller Data or Customer Data;

“GridDuck Service” means GridDuck’s proprietary cloud-based energy consumption management service, accessible by the Reseller or Customers via the Software Interface or GridDuck API, containing the energy and data management, analytics and reporting features and functionality as specified in the Documentation;

“Hardware” means Hardware Items collectively;

“Hardware Item” means any item of hardware and equipment sold or to be sold by GridDuck to the Reseller pursuant to and as specified in an Order Form, for onward supply by Reseller to Customers in connection with the GridDuck Service; and which may include routers, plugs, cables, sensors, switches and/or humidity trackers;

“Indemnified IP” means as defined in clause 9.2;

“Intellectual Property” means all inventions (whether patentable or not) patents, utility models, designs (both registered or unregistered), copyright, trade and service marks (both registered and unregistered) together with all rights to the grant of and applications for the same and including all similar or analogous rights throughout the world and all future rights of such nature;

“Location” means the location of Reseller’s offices or such other address as advised by Reseller for delivery in the Order Form;

“Order Form” means a purchase order form as set out in Schedule 1;

“Reseller Data” means any and all data or information relating to Reseller’s own requirements, parameters, fields, objectives or business information which are uploaded or provided by Reseller to the Software Interface or the GridDuck Service;

“Reseller Licence” means a licence granted to Reseller under clause 3.1;

“Service Fees” means monthly fees chargeable by GridDuck to Reseller in respect of the provision of the GridDuck Service to Customers, and which are calculated per Hardware Item and/or by reference to data usage, as specified in the relevant Order Form;

“Software” means GridDuck’s proprietary software used or required for use in connection with the GridDuck Service, including the Software Interface and the GridDuck API;

“Software Interface” means GridDuck’s proprietary graphical user interface for the GridDuck Service;

“Standard Terms” means these reseller terms and conditions and the schedules;

⦁ “Term” means a period of 1 year commencing on the Commencement Date, subject to early termination in accordance with this Agreement; and

⦁ “Territory” means the country where the GridDuck system is being sold and used.

⦁ In this Agreement, unless the context requires otherwise, a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its successors or permitted assigns; and a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted, and includes any subordinate legislation made under that statute or statutory provision (as amended or re-enacted).

⦁ Any phrase in this Agreement introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to “writing” or “written” includes e-mails.

⦁ This Agreement shall apply to the exclusion of any other terms that Reseller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

⦁ Any quotation given by GridDuck shall not constitute an offer and shall only be valid for the period stated in the quotation.

⦁ In the event of any ambiguity, conflict or inconsistency between these Standard Terms and the Order Form, the provision in the Order Form shall prevail.

2. Appointment of Reseller

3. GridDuck hereby appoints Reseller, and Reseller agrees to be appointed, on a non-exclusive basis, during the Term and in the Territory, as reseller of the Hardware and the GridDuck Service to Customers, on and subject to the terms and conditions of this Agreement.

⦁ Reseller shall enter into a written agreement with each Customer in connection with the sale of Hardware and provision of access to the GridDuck Service. Reseller shall prior to, and as a condition of, the provision of access to the GridDuck Service, notify the Customer of the End User Licence Terms and procure that the Customer agrees to comply with the same for the benefit of GridDuck.

⦁ Reseller hereby acknowledges and agrees that the GridDuck Software shall be made available to Customers as a software-as-a-service solution; and that neither Reseller nor Customer shall be entitled to obtain any on-premises licence of any part of the Software, or have access to or rights to use any source or object code in the Software.

4. Reseller shall:

⦁ not represent itself as an agent of GridDuck for any purpose, give any condition or warranty on GridDuck’s behalf or make any representation on GridDuck’s behalf;

⦁ not pledge GridDuck’s credit, commit GridDuck to any contracts, or otherwise incur any liability for or on behalf of GridDuck; or

⦁ not, without GridDuck’s prior written consent, make any promises or guarantees in respect of the Hardware or Software.

5. Nothing in this Agreement shall prevent or restrict GridDuck from appointing any other reseller, distributor or agent for the Software and Hardware or supplying the same to customers directly.

⦁ Any support or consultancy services provided by GridDuck to Reseller in addition to services provided under this Agreement shall be subject to execution of a separate agreement setting out all relevant details (including related fees).

6. Reseller Licence

7. GridDuck hereby grants Reseller a non-exclusive, non-transferable licence and right (collectively the “Reseller Licence”):

⦁ to market, demonstrate and promote the GridDuck Service to potential Customers (provided that no potential Customer shall be granted pilot, evaluation or trial rights in respect of the GridDuck Service without the express prior consent of GridDuck);

⦁ subject to each Customer agreeing to comply with the End User Licence Terms pursuant to clause 2.2, to enable access by each such Customer to the GridDuck Service via provision of a link and/or registration details to the Software Interface or via its own applications (utilising the GridDuck API);

⦁ itself to use the Software Interface in order to provide energy consumption monitoring and management services to Customers, and to use the GridDuck API in order to integrate the GridDuck Service into its own applications for use by Customers; and

⦁ to possess and use the Documentation in connection with the foregoing.

⦁ Save to the extent otherwise permitted by applicable law, or as necessary in the normal course of the exercise of its rights under this Agreement, Reseller shall not (and shall not attempt to): (a) copy, adapt, reproduce, modify, translate, dissemble, decompile, recompile or reverse engineer the GridDuck Service or Software or create derivative works based on it or any part thereof or incorporate the GridDuck Service or Software into any software program or product not supplied by GridDuck; or (b) access all or any part of the GridDuck Service or Software in order to build or have built any product or service which competes with, or replicates the underlying functionality, features or business logic, of the GridDuck Service or Software.

⦁ Reseller shall notify GridDuck if, and as soon as, it becomes aware of any unauthorised use or distribution of the GridDuck Service, Software or Documentation by any person.

⦁ Reseller shall, within 10 days of the end of each calendar month during the Term, provide GridDuck with an electronic report (in such format as reasonably requested by GridDuck) of the Customer Records for that calendar month.

⦁ GridDuck shall not assert rights of ownership over any Reseller Data or Customer Data, provided however that GridDuck may in its discretion collect, store, analyse, process, license and/or otherwise use or exploit for its commercial benefit any aggregated and anonymised Reseller Data and/or Customer Data in common with equivalent or comparable data of other Resellers and/or Customers.

⦁ GridDuck reserves the right, on behalf of itself and/or its authorised representatives to have access to the Hardware, Software Interface (remotely or otherwise) and/or relevant records of Reseller (and to inspect and take copies of the same) during Business Hours in order to verify Reseller’s compliance with its obligations under this Agreement. GridDuck shall give Reseller at least 30 days’ prior written notice of any such verification exercise and shall use reasonable endeavours to ensure that the conduct of such verification exercise does not unreasonably disrupt Reseller’s business activities. Any such verification exercise shall be undertaken at GridDuck’s cost and expense unless such exercise reveals any material non-compliance by Reseller with this Agreement, in which event Reseller shall reimburse GridDuck for all reasonable and proper expenses incurred by GridDuck under this clause.

8. Order of Hardware

9. Reseller may at any time during the Term request the supply of Hardware by GridDuck, and the parties shall thereupon discuss in good faith and use reasonable endeavours to agree upon the details of such supply; provided that all such discussions shall not be contractually binding pending execution of the corresponding Order Form.

10. GridDuck shall prepare and issue an Order Form, for the review and approval of Reseller, in respect of each request for Hardware. The specifications, quantities, pricing and other details of Hardware and related Service Fees set out in the Order Form shall be valid for 10 days from the date of its issue. Reseller shall be responsible for ensuring the accuracy and completeness of all such details such Order Form.

11. Signature of the Order Form by Reseller shall constitute irrevocable acceptance of that Order Form, from which date each such Order Form shall be deemed to have contractual effect and form a part of this Agreement.

12. Any samples, drawings, images or descriptive matter or advertising materials of the Hardware and/or Software issued by GridDuck are for illustrative purposes only and shall not form part of this Agreement or have any contractual force.

13. Supply and installation of Hardware

⦁ Subject to GridDuck having received the relevant Fees from Reseller, GridDuck shall use reasonable endeavours to deliver or procure the delivery of the specified Hardware on the delivery dates specified in the Order Form to the Location. If no Delivery Date is stated, then GridDuck shall notify Reseller of estimated delivery date(s). Delivery dates are approximate and time of delivery is not of the essence.

⦁ Delivery shall be deemed complete once the Hardware is made available by GridDuck or its authorised carrier for collection or off-loading at the Location during Business Hours, at which point all risk in the Hardware shall automatically pass to Reseller. Reseller shall promptly undertake all collection or off-loading of such Hardware. Reseller shall, at the time of delivery, be responsible for inspecting Hardware and its packaging for damage which would be readily apparent on a visual inspection, and shall notify GridDuck in writing within 2 Business Days of delivery of any damage to Hardware or its packaged revealed by such inspection. Reseller shall be deemed to have accepted all Hardware delivered as being undamaged after the expiry of 2 Business Days from the date of its delivery.

⦁ Notwithstanding delivery and passing of risk in the Hardware, title to the Hardware supplied to Reseller shall not pass until GridDuck has received payment in full of the purchase price of the Hardware and all other related fees and charges (for which payment is then due) whereupon title in such Hardware shall automatically pass to Reseller. Until title in the Hardware passes to Reseller, Reseller shall: (i) store the Hardware separately from all other goods held by Reseller or those of third parties, so that they remain readily identifiable as GridDuck’s property; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware; (iii) maintain the Hardware in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (iv) notify GridDuck immediately if Reseller become subject to any of the events listed in Clause 12.5.2 and 12.5.3; and (v) give GridDuck such information relating to the Hardware as they may require from time to time.

⦁ If any Hardware is required to be delivered to a Location outside the United Kingdom, Reseller shall be responsible at its own cost for complying with all applicable laws and regulations governing export or import thereof and for obtaining all required export or import authorisations and paying all related taxes and duties.

⦁ Reseller shall be responsible at its own cost and risk for storing, transporting and delivering Hardware to its Customers, and installing, configuring and testing (as applicable) such Hardware in accordance with the Documentation.

⦁ Reseller shall be responsible for ensuring that the Customer’s Devices and network infrastructure are in satisfactory condition and repair, and comply with minimum technical requirements specified in the Documentation or otherwise directed by GridDuck, for connection to and use with the Hardware supplied to that Customer. Reseller shall engage suitably qualified and experienced electrician or equivalent contractors in respect of all relevant installation activities.

14. Returns and Support

⦁ In the event that any item(s) of Hardware is defective or faulty, Reseller shall notify GridDuck of such failure and serial number (or other identifying details) of the relevant Hardware. GridDuck shall, to the extent that the manufacturer’s warranty provides for replacement of such Hardware, use reasonable endeavours to procure replacement(s) for such item(s) of Hardware as soon as reasonably possible. Where any faulty or defective Hardware is out of manufacturer warranty then Reseller shall not be entitled to receive any replacement or repaired item. Reseller hereby acknowledges and agrees that all Hardware is manufactured by third parties; and accordingly to the fullest extent permissible by law this sub-clause states GridDuck’s entire liability in respect of faulty or defective Hardware and GridDuck shall not (to the fullest extent permissible by law) be liable to Reseller or any Customer for any faults or defects whatsoever arising due to or in respect of such Hardware or any related liability, loss, damage, cost or expense suffered or incurred by Reseller or any Customer.

⦁ GridDuck shall provide a remote helpdesk facility via telephone and email (the contact details for which are as set out in the Documentation) during the Business Hours, for the provision of advice and assistance on technical issues relating to the use and operation of the Hardware and/or the GridDuck Service and/or Software Interface but not for general ad hoc training.

⦁ GridDuck shall use reasonable endeavours during Business Hours to remedy (or assist Reseller in remedying) demonstrable errors or defects in the functionality of the GridDuck Service or Software Interface, which are not due to telecommunications network failures, Reseller’s or Customer’s underlying IT environment, network configuration, other hardware or software or any other factors outside GridDuck’s control, and which have been notified by Reseller to GridDuck by such means as reasonably required by GridDuck and in sufficient detail to enable replication of the error or defect by GridDuck. All such notified errors or defects shall be acknowledged and logged by GridDuck as soon as possible during Business Hours.

⦁ GridDuck shall not be obliged to provide any maintenance or support in respect of any errors or faults which are a result of: the improper use of the GridDuck Service or use outside the parameters specified in the Documentation; use of the GridDuck Service for a purpose for which it was not designed; use in combination with any third party software or operating system not approved by GridDuck; or any repair, adjustment, alteration, configuration or modification of the GridDuck Service or Software Interface which has not been authorised by GridDuck.

⦁ GridDuck reserves the right to charge Reseller on a time and materials basis at the rates advised to Reseller by GridDuck, in connection with any maintenance or support services provided which fall outside the scope of this clause or which are provided outside Business Hours or which are provided in circumstances in which any reasonably skilled and competent IT engineer would have judged Reseller’s request or notification as unnecessary or irrelevant.

15. Fees

⦁ GridDuck shall invoice Reseller:

⦁ in respect of Hardware charges (and any related charges, including delivery or packaging charges) as specified on an executed Order Form, at any time on or after execution of the Order Form; and

⦁ for Service Fees monthly in advance on a calendar month basis, subject to and in accordance with clauses 7.2 and 12.2.

⦁ A Service Fee shall automatically accrue in respect of, and with the effect from the date of, an Activated Hardware Item. The Service Fee shall be calculated by reference to the Service Fee price per Hardware Item per month, as stated in the Order Form under which the relevant Hardware Item was sold to Reseller. The Service Fee relating to a Hardware Item shall be apportioned on a pro-rata basis in the first month of Activation of that Hardware Item, by reference to the number of days during which the Hardware Item is Activated as a proportion of the total number of days in that month.

⦁ Reseller shall pay all Fees invoiced to it by GridDuck under or pursuant to this Agreement within 30 days of the date of the relevant invoice.

⦁ All payments under or pursuant to this Agreement are stated exclusive of value added tax or any goods or services or other sales tax that may be payable by reference to the relevant payment(s), all of which taxes shall (if and to the extent applicable) be payable by Reseller in addition to the relevant payments(s). Reseller shall be responsible for paying any tax which arises under this Agreement, save for any tax based on GridDuck’s income.

⦁ All Service Fees are subject to annual increase by GridDuck with effect on each anniversary of the date of this Agreement, by either (a) a percentage increase equal to the percentage increase in the United Kingdom Consumer Price Index (as published from time to time) over the previous 12 month period; or (b) 3% per annum, whichever is the greater.

⦁ Reseller shall pay all amounts due under this Agreement in full and without set-off, deduction or counterclaim. If Reseller is required to make any withholding by way of withholding tax it shall gross up the payment to GridDuck so that GridDuck receives the sum that would have been received had no such withholding been made. All amounts due to GridDuck under this Agreement are non-cancellable and non-refundable.

⦁ GridDuck may charge interest on a daily basis on all outstanding amounts from the relevant due date, both before and after judgment, until such time as these sums and any interest accrued are paid in full at the rate of eight per cent (8%) per annum above Barclays Bank plc UK base rate or the rate to which GridDuck shall be entitled under the Late Payment of Commercial Debts (Interest) Act 1998, whichever is greater.

⦁ In the event that any undisputed Fees are overdue from Reseller to GridDuck, GridDuck shall (without prejudice to its other rights and remedies) be entitled to decline to supply any further Hardware to Reseller and/or to permit or enable use of the GridDuck Service by any new Customers.

16. Confidentiality

⦁ Each Party shall keep all Confidential Information of the other Party disclosed to it (by whoever disclosed) secret and shall use such Confidential Information only for the purpose of performing its duties or exercising its rights under or pursuant to this Agreement, and shall not without the disclosing Party’s written consent disclose or permit the disclosure of the Confidential Information except in confidence for the purpose of performing its duties or exercising its rights under the Agreement to those of its employees, officers and professional advisers who need to have access to it. Without limitation to the foregoing, each Party shall take all reasonable precautions (and at least as great as those it takes to safeguard its own confidential information) to safeguard every part of the Confidential Information.

⦁ The provisions of this clause shall not apply to Confidential Information that:

⦁ the receiving Party can reasonably demonstrate was known to the receiving Party or in its possession before that information was acquired from, or from some person on behalf of, the disclosing Party;

⦁ is in or enters the public domain through no wrongful default of the receiving Party or any person on its behalf, provided that this sub-clause shall only apply from the date that the relevant Confidential Information enters the public domain;

⦁ the receiving Party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence; or

⦁ is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure.

⦁ The provisions of this clause shall not apply to any information which is required to be disclosed by any applicable law or by order of any court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure, provided that the receiving Party shall use all reasonable endeavours (a) to give the other Party as much written notice of the disclosure as it reasonably can to enable the other Party to seek a protective order or other action protecting such information from disclosure; (b) to furnish only that portion of the information that it is legally obliged to disclose; and (c) to consult with the other Party with a view to agreeing the timing and content of any such is disclosure.

⦁ The obligations of confidentiality contained in this clause shall survive expiry of the Term and shall continue in full force and effect for a period of 5 years thereafter.

⦁ This clause shall operate without prejudice to clause 3.5.

1. Intellectual Property

⦁ Reseller acknowledges and agrees that, as between the Parties, all Intellectual Property in and to the GridDuck IP shall at all times belong to GridDuck. Reseller shall have no rights in or to any of the foregoing save as and to the extent expressly licensed pursuant to this Agreement.

⦁ GridDuck undertakes at its own expense to defend Reseller or, at its option, settle any claim or action brought by a third party against Reseller alleging that the use or copying by Reseller or any Customer of the Software Interface or any other elements of the GridDuck Service available to Reseller or such Customer, GridDuck API and/or any GridDuck Outputs (or any part thereof) (collectively, the “Indemnified IP”) pursuant to and in accordance with the terms of this Agreement infringes the copyright or database right of such third party in the Territory (“Infringement Claim”). GridDuck shall indemnify Reseller in respect of (a) losses, and reasonable costs and expenses, incurred by Reseller as a direct result of such Infringement Claim and (b) damages awarded against Reseller by a court of competent jurisdiction not subject to appeal due to a finding of infringement of copyright and/or database right in the United Kingdom made by such court against Reseller as a result of such Infringement Claim.

⦁ GridDuck shall have no liability for any Infringement Claim, or any other claim of infringement howsoever arising, based on (or to the extent it relates to):

⦁ use of any GridDuck IP (or any part thereof) by Reseller other than in accordance with the terms of this Agreement;

⦁ use of any GridDuck IP in combination with any software or systems, but for which combination the infringement would have been avoided;

⦁ any repair, adjustment, alteration or modification of the GridDuck IP which has not been authorised by GridDuck.

⦁ GridDuck’s obligations under clause 9.2 are subject to and conditional on Reseller:

⦁ as soon as reasonably practicable, giving written notice and reasonable details of the Infringement Claim to GridDuck, and thereafter providing all reasonable co-operation and assistance to GridDuck in relation thereto;

⦁ not making any admission of liability, settlement, agreement or compromise in relation to the Infringement Claim without the prior written consent of GridDuck, or otherwise prejudicing the defence or settlement by GridDuck of any such Infringement Claim;

⦁ giving GridDuck (or such person as GridDuck shall direct) immediate and complete control of the conduct or settlement of all negotiations and litigation arising from any Infringement Claim, provided that GridDuck shall consult periodically in relation to such conduct or settlement; and

⦁ giving GridDuck and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Reseller, so as to enable GridDuck and its professional advisers to examine them and to take copies for the purpose of assessing the Infringement Claim.

⦁ If any Infringement Claim is made, or in GridDuck’s reasonable opinion is likely to be made, against Reseller, GridDuck may at its sole option and expense:

⦁ procure for Reseller the right to continue to use the GridDuck IP (or any part thereof) in accordance with the terms of this Agreement;

⦁ modify the GridDuck IP so that it ceases to be infringing, provided that such modifications do not entail a material diminution in performance or function;

⦁ replace the GridDuck IP or infringing part thereof with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; or

⦁ terminate all licences and rights granted pursuant to this Agreement immediately by giving notice in writing to Reseller.

⦁ This clause constitutes Reseller's exclusive remedy and GridDuck’s entire liability in respect of any claims for infringement of Intellectual Property.

17. Warranties and disclaimers

⦁ Each Party hereby warrants that it has the power to enter into, perform and comply with its obligations under this Agreement and that its entry into, performance of or compliance with such obligations does not violate any law to which it is subject or its constitutional or enabling documents.

⦁ Reseller warrants to GridDuck that it will carry out its obligations under this Agreement and provide the services to the Customer with reasonable skill and care.

⦁ GridDuck shall not be liable in respect of any delay or other default that is caused by or attributable to any non-compliance or delay or default in complying with this Agreement by Reseller.

⦁ Save as specified in this clause, all conditions and warranties, whether express or implied and whether statutory, common law, trade practice, custom, course of dealing or otherwise (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979) in relation to this Agreement are, to the fullest extent permitted by law, excluded from this Agreement.

18. Liability

⦁ Nothing in this Agreement shall limit or exclude either Party’s liability to the other Party for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) any other matter in respect of which it would be unlawful to exclude or restrict liability.

⦁ Subject to clause 11.1, GridDuck shall not in any circumstances be liable to Reseller, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any: (a) loss (whether direct or indirect) of revenue, goodwill, profit, business, contracts, business opportunity, anticipated savings or data (including the cost of restoration of data); or (b) any indirect, consequential, special or punitive loss, damage, costs or expenses; arising under or in connection with this Agreement.

⦁ Subject to clauses 11.1 and 11.2, GridDuck’s total and aggregate liability to Reseller (collectively) arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 120% of the total Fees (excluding VAT) actually paid by Reseller to GridDuck in the 12 month period immediately preceding the event which gave rise to the claim.

⦁ Reseller agrees and acknowledges on its own behalf that nothing in this Agreement shall allow multiple recovery by Reseller in respect of the same loss or liability. Reseller shall be the only entity entitled to pursue remedies against GridDuck in the event of any breach of this Agreement by GridDuck or negligence or other tortious act or omission by GridDuck in connection with this Agreement.

19. Duration and termination

⦁ This Agreement shall commence on the Commencement Date and shall continue for the Term unless terminated early in accordance with the provisions of these Standard Terms.

⦁ The GridDuck Service provided under this Agreement may be terminated with respect to any specific and identified Customer:

⦁ by Reseller in circumstances in which either such Customer or Reseller has validly given notice to terminate the agreement between them; provided that Reseller may not serve notice of termination under this sub-clause with respect to any Customer unless all Service Fees accrued in respect of such Customer have been paid in full as at the date of service of notice (and accordingly any notice served by Reseller in circumstances in which such Service Fees remain outstanding and unpaid shall be ineffective and void); or

⦁ by GridDuck, in circumstances in which such Customer or GridDuck has validly given notice to terminate the End User Licence Terms (and in such circumstances GridDuck shall not in any event be entitled to continue to charge Service Fees after the effective date of termination in respect of such Customer);

⦁ in each case PROVIDED THAT (a) the terminating Party shall give at least 7 days’ written notice to the other Party (such termination to take effect on the last day of the month in which the notice expires); and (b) the terminating Party provides written evidence to the reasonable satisfaction of the other Party to demonstrate the valid termination of the relevant agreement with such Customer. In circumstances the GridDuck Service has been terminated with respect to a specific Customer pursuant to this sub-clause, GridDuck shall on or after the effective date of termination remove access and availability of the GridDuck Software in respect of all Hardware Items possessed by that Customer, and the Service Fees in respect of such Hardware Items shall cease as at the effective date of termination.

⦁ Reseller may terminate this Agreement for convenience in its entirety, subject to giving at least one months’ prior written notice to GridDuck, such notice to expire at the end of the month in which such notice expires. All notices of termination under this clause must state the date of intended termination. In the event of termination for convenience by Reseller under this clause, Reseller shall not be entitled to any refund of any prepaid Service Fees, or payment of other compensation by GridDuck.

⦁ Without affecting any other right or remedy available to it, GridDuck may terminate this Agreement with immediate effect in its entirety by giving written notice to Reseller if Reseller fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment.

⦁ Either Party may terminate this Agreement with immediate effect, on giving written notice to the other, if:

⦁ the other Party commits a material breach of any term of this Agreement which is not capable of remedy or which is capable of remedy but has not been remedied within 30 days of a written request to do so (save in respect of non-payment by Reseller in which event clause 12.4 shall apply); or

⦁ the other Party is dissolved, struck off the register of companies or has a winding-up order made against it, or a petition is presented, a resolution passed, or a meeting is convened for or with a view to such winding-up, in all cases except for the purpose of a scheme of solvent reconstruction, reorganisation, merger or consolidation; or the other Party has a receiver, administrative receiver, manager or insolvency practitioner or similar officer appointed over the whole or any part of its undertaking or assets; or a notice of intention to appoint an administrator is given by any person, or any other step is taken by any person with a view to placing the other Party into administration; or the other Party enters into a composition, scheme of arrangement or voluntary arrangement with any of its creditors or otherwise, or any such composition or arrangement is proposed, or a moratorium is agreed, imposed or declared in respect of or affecting all or a material part of (or of a particular type of) the debts of the other Party; or in any other jurisdiction any event or circumstance analogous or equivalent to those referred to above occurs or arises; or

⦁ the other Party suspends or threatens to suspends, or ceases or threatens to cease, all or substantially all of its business.

⦁ On expiry or termination (for any reason) of this Agreement:

⦁ Reseller shall immediately pay to GridDuck all amounts due and payable and (where due) interest thereon, including any amounts accrued in respect of the provision of part-completed services (in respect of which GridDuck shall deliver to Reseller a final invoice as soon as reasonably possible);

⦁ all licences granted thereunder (including any and all licences to Customers of Reseller who receive the services) shall immediately cease and accordingly Reseller shall, and Customers of Reseller shall, immediately cease use of and/or access to the GridDuck Service, Software Interface and Documentation;

⦁ the accrued rights and remedies of the Parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and

⦁ clauses of this Agreement which expressly or by implication have effect after termination shall continue in full force and effect.

20. General

⦁ Reseller shall not, during the Term or for a period of 6 months thereafter, directly or indirectly induce or attempt to induce any employee to leave GridDuck’s employment, or engage, attempt to engage, employ, attempt to employ or offer employment or work to any employee, provided that this clause shall not preclude Reseller from running general and non-specific recruitment campaigns in the normal course of its business.

⦁ Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement, other than an obligation to make payment due to the other Party, if and to the extent that such failure or delay is caused by a Force Majeure Event. If the Force Majeure Event prevails for a continuous period of more than 3 months, either Party may terminate this Agreement by giving 14 days’ written notice to the other Party.

⦁ This Agreement shall constitute the entire understanding between the Parties with respect to the subject matter of this Agreement, and shall together supersede and replace all prior agreements, discussions, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the Parties relating to such subject matter.

⦁ Reseller hereby acknowledges and agrees that it has not been induced to enter into this Agreement on the basis of, nor have it or they otherwise relied upon, any representation, promise, assurance, warranty or undertaking (whether in writing or not) made by or on behalf of GridDuck save as expressly set out in this Agreement. Accordingly, Reseller acknowledges and agrees on behalf of itself that the only remedy available to it in respect of the subject matter of this Agreement shall be for breach of contract under the terms of this Agreement. However nothing in this Agreement shall exclude liability for fraud or fraudulent misrepresentation.

⦁ No variation to the terms of this Agreement shall be valid unless it is in writing and signed by an authorised representative of each of the Parties.

⦁ Reseller shall not without the prior written consent of GridDuck (such consent not to be unreasonably withheld) assign, novate or otherwise dispose of or deal in any of its rights or obligations under or pursuant to this Agreement. GridDuck may assign or novate this Agreement or otherwise dispose of any of its rights and obligations under this Agreement to any Affiliate of GridDuck or to any successor-in-title to the business and/or undertaking of GridDuck (or any part thereof).

⦁ Save in respect of GridDuck Affiliates (if and to the extent that this Agreement extends to such GridDuck Affiliates), the Parties agree that nothing in this Agreement shall confer or purport to confer on any third party any benefit or any right to enforce any term of this Agreement or operate to give any third party the right to enforce any term of this Agreement. The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not however subject to the consent of any other person.

⦁ Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

⦁ Any notice given to a Party under or in connection with this Agreement shall be in writing and addressed to that Party at its address as set out in the signature page to this Agreement or such other address as that Party may specify from time to time for receipt of notices; and such notice shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

⦁ If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

⦁ A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

⦁ This Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England. In relation to any legal action or proceedings (a) arising out of or in connection with this Agreement or its implementation or effect or (b) relating to any non-contractual obligations arising out of or in connection with this Agreement, each of the Parties irrevocably submits to the non-exclusive jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an appropriate forum.