SMARTEO TERMS OF SERVICE
End-user license agreement document (EULA)
Version dated: 1 August 2023
1. THE TERMS OF SERVICE
1.1. Å Insite AS ("AIAS") is a company providing reliable energy data using cutting-edge technology, and has developed an energy consumption monitoring and analysis service consisting of hardware sensors and a cloud-based data platform, which enables insight into energy consumption on which to base consumption- and cost-reducing measures ("SmartEO").
1.2. These terms (the "SmartEO Terms of Service") apply between You and AIAS governing Your use of the SmartEO service.
1.3. Capitalized terms and expressions used in these SmartEO Terms of Service shall have the meaning as defined below, including as set out in Clause 12.
1.4. The SmartEO Terms of Service govern Your use of the SmartEO service however Your access was acquired, including without limitation through a AIAS Partner or directly from AIAS.
1.3. If You do not agree to these SmartEO Terms of Service, You should not start using the SmartEO service.
2. THE SMARTEO SERVICE
2.1. The SmartEO service, including any associated hardware, is provided on an as-a-service basis meaning that, unless otherwise is explicitly agreed, no ownership in the hardware components or other parts of the SmartEO service is transferred to You or any other party.
2.2. AIAS' provision of the SmartEO service will consist of granting access to a SmartEO application programming interface ("API") providing continuous disaggregated data collected from the hardware sensors installed on Your premises (the "Site(s)").
2.3. Subscriptions to the SmartEO service are primarily sold through AIAS' network of AIAS Partners. If you have purchased SmartEO as a stand-alone or integrated part of the services of a AIAS Partner, the API access described in Clause 2.2 above will be provided to Your AIAS Partner, and included in such analyses, reports and other services as the AIAS Partner provides to You.
2.4. AIAS' services may also comprise installing and maintaining the necessary sensor hardware components on Your Site(s), based on the agreement between AIAS and Your AIAS Partner. Access to Your Site(s) in connection with installation and maintenance activities for hardware components will be agreed between You and Your AIAS Partner.
2.5. Subject to AIAS being granted the necessary access to the Site(s) (where required), AIAS will provide the SmartEO service in accordance with the requirements set out in the SmartEO service level agreement (the "Service Level Agreement" or "SLA"), which is made available on AIA's website and is to be considered incorporated herein by this reference.
2.6. With the exception of the requirements set out in the SLA, and to the extent permitted by applicable law, any access granted to the SmartEO service is provided on an "as is" and "as available" basis only. AIAS makes no representations or warranties regarding the usefulness or effectiveness of SmartEO or the results which may be obtained by using the SmartEO service. Nor does AIAS make any representations or warranties that the SmartEO service will be uninterrupted, error-free, that it is completely secure or that the data provided by the SmartEO service will be completely accurate or represent a complete picture of the energy consumption of the included Site(s).
2.7. The sole remedy with respect to any defects or errors in the SmartEO service shall be AIAS' obligation to use all commercially reasonable efforts restore the service in accordance with the SLA, and to re-perform and deliver again the affected parts of the SmartEO service to bring it into compliance with the service descriptions made available by AIAS as soon as reasonably possible.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 You acknowledge that any and all Intellectual Property Rights in and to the SmartEO service and any AIAS documentation or other materials that You are given access to by AIAS or a AIAS Partner, including any amendments, modifications, changes or improvements made thereto, is and shall be the sole and exclusive property of AIAS, or its licensors (as the case may be). To the extent You provide any suggestions or comments related to the SmartEO service, AIAS shall have the right to retain and use any such suggestions or comments in current or future AIAS services, without your approval or compensation to You.
3.2. With the sole exception of the license granted pursuant to Clause 4.1 below, nothing in these SmartEO Terms of Service shall be construed to transfer or license any Intellectual Property Rights from AIAS, or any of its licensors to You or any third party.
3.3. If a third party asserts to You that the SmartEO service infringes any third party Intellectual Property Rights, then You agree to inform AIAS in writing as soon as possible. AIAS, or whoever AIAS appoints, shall deal with the claim at its own expense. You shall, to a reasonable extent, assist AIAS in the defence of such third party claim.
4. LICENSE GRANTS
4.1. AIAS hereby grants to You, for the duration of the subscription term agreed with Your AIAS Partner, a non-exclusive, non-transferable license to access and use the SmartEO service, as part of the service provided to You by Your AIAS Partner, for Your internal business purposes.
4.2. You hereby grant to AIAS and Your AIAS partner a perpetual, non-exclusive, non-revocable, royalty-free and worldwide license to collect, aggregate, store, process, transmit, analyze and use SmartEO Data to (i) provide the SmartEO service and support relating to Your and Your AIAS Partner's use of SmartEO; (ii) improve AIAS' products and services; and (iii) create new products and services based on processed SmartEO Data. For the avoidance of doubt, AIAS is not permitted to disclose any SmartEO data collected to any third party (other than Your AIAS Partner) in a manner which may identify You or connect the SmartEO Data to You or Your energy consumption.
4.3. Your right to use the SmartEO service pursuant to Clause 4.1 will cease upon the earlier of (i) the expiration, termination or suspension of Your SmartEO subscription; or (ii) the expiration, termination or suspension of the SmartEO Terms of Service in accordance with Clause 7.
5. YOUR USE OF THE SMARTEO SERVICE
5.1. You may not, directly or indirectly:
(a) use the SmartEO service or any parts thereof for any other purpose than set out in Clause 4.1;
(b) reproduce or create or prepare derivative works of the SmartEO service or any parts thereof, or make any attempt to do so;
(c) allow unauthorized persons to access or use any access credentials You may have been provided with for the SmartEO API, unless upon AIAS' written consent;
(d) transfer, resell, sublicense or assign the right to use the SmartEO service or an interest in them to another individual or entity without AIAS' written consent;
(e) disclose, publish or otherwise make publicly available any benchmark, performance or comparison tests that you (or a third-party contracted by you) run on the SmartEO service, in whole or in part; or
(f) use the AIAS name, trademark or logo without a license thereto from AIAS.
5.2. You hereby confirm that you will take appropriate measures to ensure an adequate level of information security associated with the use of SmartEO. Where the use of SmartEO necessitate digital interfaces between SmartEO and the AIAS Partner or You, or systems or applications made available by the AIAS Partner or You, You shall implement and maintain adequate and industry-standard cybersecurity measures and incident response procedures in accordance with best practices. Upon becoming aware of any breach of security or other incident which may affect SmartEO or AIAS, You shall notify your AIAS Partner and AIAS thereof without undue delay.6. CHANGES TO THE SMARTEO TERMS OF SERVICE
6.1. These SmartEO Terms of Service apply as of the date set out above.
6.2. AIAS may make any change to these SmartEO Terms of Service (including, for clarity, any additional terms or descriptions incorporated herein by reference such as the SLA) deemed necessary and/or appropriate by AIAS. Once amended, an updated version of the SmartEO Terms of Service and/or other documentation will be made available on AIAS' website.
6.3. Changes as set out in Clause 6.2 will take effect (i) for new SmartEO subscription purchases; as of the date made available by AIAS; and (ii) for already purchased SmartEO subscriptions; as of Your next renewal or upgrade of the SmartEO subscription in question.
7. DURATION, SUSPENSION AND TERMINATION
7.1. These SmartEO Terms of Service will be effective upon Your ordering of a SmartEO subscription from Your AIAS Partner.
7.2. The SmartEO Terms of Service will remain in force for the duration of your subscription term, unless and until terminated in accordance with the terms thereof.
7.3. AIAS may terminate these terms with immediate effect, if: (a) You have breached any provision of the SmartEO Terms of Service and failed to remedy such breach within a reasonable time of being notified thereof by AIAS; or (b) AIAS is required to do so by law.
7.4. AIAS may also suspend Your access to the SmartEO service if AIAS has a reasonable suspicion of Your breach of the SmartEO Terms of Service. Suspensions shall be temporary, and only remain in effect until AIAS has been given reasonable time to investigate the grounds for its reasonable suspicions.
8.1. AIAS shall not be liable for any incidents giving rise to a claim in connection with the SmartEO service under these SmartEO Terms of Service. In particular, and without limitation, AIAS shall in no event be liable to You or any third party for any direct, indirect, special, punitive or consequential damages, or damages for loss of profits, savings, data or data use, incurred by You or any third party arising from or related to the use of the SmartEO Service or any data derived therefrom.
8.2. Any claim that You may have or purport to have relating to Your use of the SmartEO service shall be brought exclusively toward Your AIAS Partner. Your AIAS Partner's liability toward You for any incidents giving rise to a claim is set out in the agreement between You and Your AIAS Partner.
8.3. Without limiting the foregoing, AIAS' maximum aggregate liability shall, to the fullest extent permitted by law, be limited to EUR 5,000.
9.1. You or AIAS (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”) in connection with the performance and receipt of the SmartEO service.
9.2. The Receiving Party will ensure that Confidential Information from the Disclosing Party is held strictly confidential, and that such Confidential Information is not shared or disclosed to unauthorized third parties.
9.3. The Receiving Party will use the same degree of care as to the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care).
9.4. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. The Receiving Party will give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and take reasonable steps to limit such disclosure.
10.1. You will indemnify and hold harmless (and, at AIAS’s request, defend) AIAS against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by reason of any claim, suit or proceeding from a third party arising out of or relating to (i) Your Data; or (ii) Your use of the SmartEO service.
11. APPLICABLE LAW AND VENUE
11.1. These SmartEO Terms of Service shall be exclusively governed and construed in accordance with the laws of Norway without regard to principles of conflicts of law.
11.2. Any dispute, controversy or claim arising out of or in connection with these SmartEO Terms of Service, which cannot be settled amicably through negotiations between the parties, shall be settled by arbitration in Oslo, Norway, in accordance with the Norwegian Arbitration Act of 2004 (or any successor thereto).
All capitalized terms not otherwise defined in the above shall have the following meaning:
12.1. "Confidential Information" means information not generally known to the public that is (i) made available or disclosed by a Disclosing Party to a Receiving Party in writing and (ii) designated by the Disclosing Party in the writing as confidential.
Nonetheless, Confidential Information does not include (a) any information that (a) becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party; (c) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party; or (d) was independently developed by the Receiving Party; or (f) any feedback to AIAS.
12.2. "Data" refers to all data, information, databases and other content of any type, in any electronic format, medium or form, including metadata, user data, personal data and other information of a similar nature whether personally identifiable or not, whether structured or not.
12.3. "AIAS" means Glitre Energiløsninger AS, a company registered in Norway under registration number 996 057 607 with its registered address at Grønland 67, 3045 Drammen, Norway;
12.4. "AIAS Partner" means an entity authorized by GEL to sell subscriptions for the SmartEO service to You, and which may be engaged by You to provide other services.
12.5. "Intellectual Property Rights" means all rights of industrial or intellectual property including, inter alia rights to, (i) patents, processes inventions, manufacture methods, techniques, methods and technology (whether patentable or not), all other rights to inventions, ideas, concepts; (ii) know-how, trade secrets, business models, rights in goodwill and other Confidential Information; (iii) copyrights and other authors' rights (e.g. in computer software, code and documentation), design rights, models, drawings database rights and technical information of all kinds; (iv) trademarks, trade names, service marks, trade-, business- and domain names, logos; and (v) other rights of a similar kind whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
12.6. "SmartEO Data" means the of production and diagnostic Data generated by sensors and data collection capabilities in SmartEO and connected systems and hardware, related to energy consumption, other relevant sensor Data and the use of SmartEO.
12.7. "You" and "Your" refers to the entity that has purchased one or more subscriptions to SmartEO from a AIAS Partner.