GridDuck Terms and Conditions

GridDuck STANDARD TERMS

1. Definitions and interpretation

1.1. 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 the same meaning.

“Asset” means a person (including an End-User), activated hardware item, animal, device, site, cargo, means of electrification.

“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; or  means any business entity or person directly or indirectly controlling or

controlled by a party or under common ownership or control with a party, and “control” had the meaning given in section 1124 of the Corporation Tax Act 2010.

“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 GridDuck directly or via any Reseller to whom GridDuck 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 in respect of which the Services are or are agreed to be provided;

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

• “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 Customer 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 Customer in connection with the GridDuck Service, but excluding all Customer Data;

“GridDuck Service” means GridDuck’s proprietary cloud-based energy consumption management service, accessible by Customers or Resellers 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 supplied by GridDuck or by any reseller or distributor of reseller of GridDuck for use in connection with the Service; and which may include routers, smart plugs, cables, sensors, switches etc.

“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;

“Licensor” means DuckDuck Ltd (t/a GridDuck) the company granting a licence to its customers and resellers to use or resell its software. 

“Location” means the city and country location in which the Devices are located, as stated by The Customer or Reseller in the course of their registration for the Services.

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

“Services” means GridDuck’s cloud-based energy consumption management service which uses the Software, whether directly or via the Customer’s reseller’s own applications

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

“Software” means GridDuck’s software containing energy and data management, analytics and reporting features and functionality, including its proprietary graphical user interface and application programming interface (API).  

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

“Standard Terms” means these 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.

1.2 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).

1.3 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. 

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

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

1.6 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. Grant of License

By your registration for and use of the Services you hereby agree (and are deemed to agree) to the terms of this agreement. This agreement shall be binding upon you and all individuals authorised by you to use the Service on your behalf. If you are a corporate entity, this agreement shall be binding on all of your officers, employees, agents and consultants. This EULA shall take effect immediately from the date of registration or use (whichever is sooner) by you or on your behalf. GridDuck as the Licensor hereby grants you a non-exclusive, non-transferable licence during the subsistence of this licence for use of the Services with your Device(s) only on the Hardware. You may only use the Services in connection with the operation and management of the Device(s) owned or lawfully possessed by you at the Locations. You shall not be entitled to obtain any on-premises licence to any part of the Software or have any access to or rights to use any source or object code in the Software. All rights not expressly granted to you are retained by Licensor.

3. Use Restrictions

You agree that unless specifically agreed with Licensor: (a) you may only use the Services for your internal purposes and you must not use it to provide any Services to third parties; (b) you must not sub-license the Services to, or otherwise permit use of the Services by, any person who is not authorised; (c) you must not use the Services for any other device or equipment other than the Devices; and (d) if and to the extent to which the Services aggregates and/or contains any third party software components which are used under licence, then you agree that your use of the Services is subject to the terms of the relevant third party software licences as notified by Licensor to you from time to time. Use of Services or Customer Data is licensed for Permitted End User Licence Terms only.

4. Reverse Engineering

Save to the extent otherwise permitted by applicable law, you shall not and shall procure that each of your employees or contractors does not: (a) copy, adapt, reproduce, modify, translate, dissemble, decompile, recompile or reverse engineer the Services or Software or create derivative works based on the Services or Software or any part thereof or incorporate the Software into any software program, or integrate or display the Services or any part thereof within any interface, application or programme; or (b) access all or any part of the Services 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 Services or Software.

5. Compatibility

You are solely responsible for ensuring that the Services will be compatible with your other software or IT systems. You hereby accept that the Services were not designed to your individual requirements. Any information necessary to achieve interoperability of the Services with your other software is available from Licensor upon request.

6. Maintenance and Support

Licensor shall not be responsible for providing or obliged to provide any direct helpdesk or technical support to you or providing any updates or customisations for you specifically. All updates of the Software shall be implemented by Licensor centrally as and when Licensor, in its absolute discretion, determines.

7. Your Data

You hereby agree and acknowledge that in the course of the use of the Service, the Service will collect, store, analyse and otherwise process detailed data concerning energy consumption for each activated Asset Device. If the Service is provided to you via a reseller or other services aggregator, then that data will be shared to and processed by that reseller or aggregator. Subject to the foregoing, Licensor shall not share your data with anyone else in any format which might enable monitoring of one or more identified individuals. However, you hereby agree that Licensor may in its discretion collect, store, analyse, process, license and/or otherwise use or exploit for its commercial benefit your data in aggregated and anonymised form and in common with equivalent or comparable data of other customers. Licensor complies fully with all of its obligations under applicable data protection law; for further details please refer to https://gridduck.com/privacy.

8. Intellectual Property Ownership

You acknowledge and agree that no title to the Services or Software is transferred to you and that you have no rights in or to the Services or Software other than the right to use in accordance with this EULA. All intellectual property in and to the Services is owned by Licensor (or its licensors). You shall not remove any trademark, copyright or other proprietary notices from any part of the Software. You shall promptly notify Licensor if you become aware of any unauthorised use or distribution of the Software by any other person.

9. Intellectual property Indemnity

Licensor shall at its own expense, and at its option, defend or settle any claim or action brought by a third party against Customer alleging that the possession or use by Customer of the Services or any part thereof pursuant to and in accordance with this EULA infringes the copyright of such third party (“Infringement Claim”). Licensor shall indemnify Customer in respect of damages awarded against Customer by a court of competent jurisdiction not subject to appeal due to (and which are awarded in respect of) a finding of infringement of copyright made by such court against Customer as a result of such Infringement Claim. However Licensor shall have no liability for any such Infringement Claim based on (and to the extent it relates to): (a) use of the Services or any part thereof by Customer other than in accordance with this EULA; (b) use of the Services in combination with any software or systems not approved by Licensor, but for which combination the infringement would have been avoided; or (c) any repair, adjustment, alteration or modification of the Services which has not been authorised by or on behalf of Licensor. Customer shall notify any Infringement Claim to Licensor as soon as reasonably practicable, and thereafter provide all reasonable assistance to Licensor, and Customer shall not make any admission, compromise, settlement or take any other action prejudicial to the defence or settlement of such Infringement Claim. If any Infringement Claim is made, or in Licensor’s reasonable opinion is likely to be made, against Customer, Licensor may at its sole option: (a) procure for Customer the right to continue to use the relevant Services; (b) modify or replace the Services or part thereof so that it ceases to be infringing; or (c) terminate this EULA immediately by giving notice in writing to Customer. This clause constitutes Customer’s exclusive remedy against Licensor, and Licensor’s entire liability in respect of, any Infringement Claims.

9. Confidentiality

You shall keep confidential all information which is disclosed or made available by Licensor to you and which is not at the time of such disclosure already known to you or in the public domain (“Confidential Information”). You shall only use such Confidential Information for the purposes of exercising your rights and performing your obligations under this EULA. This clause shall not prevent you from complying with any applicable law or order of any court of competent jurisdiction or any government body, agency or regulatory body, in respect of the disclosure of Confidential Information, provided that the disclosure shall not exceed that required in order to comply, and provided that you shall give Licensor as much written notice of the disclosure requirements as reasonably possible in order to enable the Licensor to seek a protective order or other action protecting such information from disclosure. The obligations of confidentiality contained in this clause shall survive expiry of this licence and shall continue in full force and effect for a period of 5 years thereafter.

10. Disclaimers

The Service: Licensor does not warrant or otherwise represent that your use of the Services will be uninterrupted or error-free, or that the Services or the information obtained by you through use of the Services will meet your requirements or result in any savings in energy or costs; and Licensor is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over the internet or any other communications networks. Third party providers: Licensor shall not, to the fullest extent permissible under applicable law, bear any responsibility or liability to you for any products or services provided by third parties engaged by you or your reseller in connection with the installation, configuration, implementation and/or maintenance of the Services. Hardware: In the event of any defect or failure in any Hardware, you shall notify Licensor (or where supplied to you by a reseller or services aggregator, that reseller or aggregator). To the extent that the manufacturer’s warranty provides for replacement of such Hardware, Licensor shall (if notified by you or your reseller) use reasonable endeavours to procure relevant replacement(s) on a like-for-like basis as soon as reasonably possible. You acknowledge that all Hardware is manufactured by third parties, and that accordingly to the fullest extent permissible by law this clause states Licensor’s entire liability to you in respect of faulty or defective Hardware, and Licensor shall not (to the fullest extent permissible by law) be liable to you or any other person authorised by you to use the Service 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. General: Without limitation to the foregoing, save as expressly stated otherwise in this EULA, all conditions and warranties, express or implied, statutory or otherwise, are to the fullest extent permitted by law excluded.

11. Order of Hardware

11.1 Customer 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. The term “Order Form” may include a quote from GridDuck, or a basket in GridDuck’s e-commerce store, for example.

11.2 Where required or at Customer’s request, GridDuck shall prepare and issue an Order Form, for the review and approval of Customer, 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. Customer shall be responsible for ensuring the accuracy and completeness of all such details such Order Form.

11.3 Confirmation of the Order Form by Customer 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.

11.4 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.

12. Supply and installation of Hardware

12.1 Subject to GridDuck having received the relevant Fees from Customer, 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 Customer of estimated delivery date(s).  Delivery dates are approximate and time of delivery is not of the essence.  

12.2 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 Customer. Customer shall promptly undertake all collection or off-loading of such Hardware.  Customer 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.  Customer 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.

12.3 Notwithstanding delivery and passing of risk in the Hardware, title to the Hardware supplied to Customer 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 Customer. Until title in the Hardware passes to Customer, Customer shall: (i) store the Hardware separately from all other goods held by Customer 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 Customer 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.

12.4 If any Hardware is required to be delivered to a Location outside the United Kingdom, Customer 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.

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

12.6 Customer 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.  Customer shall engage suitably qualified and experienced electrician or equivalent contractors in respect of all relevant installation activities. 

13. Returns and Support

13.1 In the event that any item(s) of Hardware is defective or faulty, Customer 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 Customer shall not be entitled to receive any replacement or repaired item.  Customer 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 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 any Customer or Customer.   

13.2 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.

13.3 GridDuck shall use reasonable endeavours during Business Hours to remedy (or assist Customer in remedying) demonstrable errors or defects in the functionality of the GridDuck Service or Software Interface, which are not due to telecommunications network failures, 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 Customer 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.  

13.4 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.

13.5 GridDuck reserves the right to charge Customer on a time and materials basis or at the fixed rates advised to Customer 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 Customer’s request or notification as unnecessary or irrelevant.

14. Fees

14.1 GridDuck shall invoice Customer:

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

14.1.2 for Services Fees monthly in advance on a calendar month basis.

14.2 A Service Fee shall automatically accrue in respect of, and with the effect from the date of this Agreement or End User Licence Terms, whichever is earlier. The Service Fee shall be calculated by reference to the Service Fee price per Activated Hardware Item per month. 

14.3 Customer 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. 

14.4 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 which taxes shall (if and to the extent applicable) be payable by Customer in addition to the relevant payments(s). Customer shall be responsible for paying any tax which arises under this Agreement, save for any tax based on GridDuck’s income. 

14.5 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. 

14.6 Customer shall pay all amounts due under this Agreement in full and without set-off, deduction or counterclaim. If Customer 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.

14.7 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.

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

15. Confidentiality

15.1 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.

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

15.2.1 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;

15.2.2 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; 

15.2.3 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

15.2.4 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.

15.3 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.

15.4 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.

16. Intellectual Property

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

16.2 GridDuck undertakes at its own expense to defend Customer or, at its option, settle any claim or action brought by a third party against Customer alleging that the use or copying by Customer or any Customer of the Software Interface or any other elements of the GridDuck Service available to Customer 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 Customer in respect of (a) losses, and reasonable costs and expenses, incurred by Customer as a direct result of such Infringement Claim and (b) damages awarded against Customer 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 Customer as a result of such Infringement Claim.

16.3 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):

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

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

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

16.4 GridDuck’s obligations are subject to and conditional on Customer:

16.4.1 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;

16.4.2 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;

16.4.3 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

16.4.4 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 Customer, so as to enable GridDuck and its professional advisers to examine them and to take copies for the purpose of assessing the Infringement Claim.

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

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

16.5.2 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;

16.5.3 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

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

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

17. Warranties and Disclaimers

17.1 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.

17.2 Customer warrants to GridDuck that it will carry out its obligations under this Agreement. 

17.3 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 Customer.

17.4 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

18.1 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.

18.2 GridDuck shall not in any circumstances be liable to Customer, 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.  

18.3 GridDuck’s total and aggregate liability to Customer (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 Customer to GridDuck in the 12 month period immediately preceding the event which gave rise to the claim.

18.4 Customer agrees and acknowledges on its own behalf that nothing in this Agreement shall allow multiple recovery by Customer in respect of the same loss or liability.  Customer 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

19.1 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. 

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

19.2.1 For Breach. Either party may terminate the Agreement or any End User Licence Terms by written notice immediately upon material breach by the other party if such breach cannot be remedied, or if the other party fails to cure any material remediable breach within 30 days of receipt of written notice; or

19.2.2 For Bankruptcy. GridDuck may terminate the Agreement immediately if any of the following events occur affecting Customer: (a) voluntary bankruptcy or application for bankruptcy; (b) involuntary bankruptcy or application for bankruptcy not discharged within 60 days; (c) appointment of receiver or trustee in bankruptcy for all or a portion of Customer’s assets; or (d) an assignment for the benefit of creditors.

19.3 After providing a written reason of termination, Customer may terminate this Agreement 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. 

19.4 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 Customer if Customer 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.

19.5 On expiry or termination (for any reason) of this Agreement: Obligations on Termination

19.5.1 All Service Fees accrued to be paid in full as at the date of service of notice (and accordingly any notice served by Customer in circumstances in which such Service Fees remain outstanding and unpaid shall be ineffective and void); or

19.5.2 GridDuck, in circumstances in which such Customer has validly given notice to terminate the Agreement and End User License Terms 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;

19.5.3 in each case PROVIDED THAT (a) the terminating Party shall give at least 30 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 provided the Customer agrees and pays all associated expenses to remove Activated Hardware, and the Service Fees in respect of such Hardware Items shall cease as at the effective date of termination.

19.5.4 Customer 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 Customer a final invoice as soon as reasonably possible);

19.5.5 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;

19.5.6 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

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

20. Automatic Renewal

Upon the expiration of the original term, this agreement shall be automatically renewed for a one (1) year period unless, at least thirty (30) days prior to the renewal date, either party gives the other party written notice in the form of a letter addressed to the other party of its intent not to continue the arrangement. During any renewal term, the terms, conditions and provisions set forth in this Agreement shall remain in effect.

21. General

21.1 Customer 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 Customer from running general and non-specific recruitment campaigns in the normal course of its business. 

21.2 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.

21.3 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.

21.4 Customer 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, Customer 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.

21.5 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.

21.6 Customer 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).

21.7 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.

21.8 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).

21.9 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.

21.10 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.

21.11 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.

21.12 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.

21.13 Registered office is Hop Exchange, 24 Southwark St, London SE1 1TY care of our London Accountants.