Panoramic Power Terms and Conditions

 

1. Products and Services

1.1 Subject to the Customer's compliance with these Terms and Conditions, the Customer will purchase from Distributed Energy Customer Solutions Limited (company number 4942184) whose registered office is at Millstream Maidenhead Road, Windsor, Berkshire, SL4 5GD (the “Company”) and the Company shall Supply to the Customer an electricity monitoring and management platform for energy management (Panoramic Power ®), which includes certain hardware, software and firmware (the "Products"), and information and analysis services provided remotely over the internet, which services relate to data collected by the Products (the “Data Services”) and other professional services (collectively with the Data Services,  the  "Services"), all as set out in the Quotation and subject to these Terms and Conditions.

1.2 Data Services will be supplied to the Customer on the terms and subject to the conditions of the Service Terms as set out at Appendix A and the Customer hereby accepts such Service Terms.  The Company may modify the Data Services and will provide the Customer with notice of material changes.

 

2. Documentation

2.1 The following documentation will be provided with the Products on or shortly after the Effective Date:

(i)   Product installation instructions; and
(ii)  Product usage instructions (together "Documentation").

3. System Requirements

3.1 The following will be the responsibility of the Customer at its sole expense:  

(i)   a certified electrician to install the Products;
(ii)  outlets to provide electricity to the bridges;
(iii)  continuous internet connection; and
(iv) electrical plans of the Designated Sites (together "System Requirements").

4. Support

4.1 The Company and the Customer shall mutually agree upon the time and scope of any support services to be granted by the Company to the Customer with respect to the Product and Services and their use during the Term (as defined below).

5. Delivery

5.1 Delivery of the Products will be made to the Customer’s Designated Site(s) as set out in the Quotation ("Delivery"). Unless otherwise agreed in writing, shipment of the Products to the Designated Site(s) is at the Customer's expense, as specified in the Quotation. Risk of loss or damage relating to the Product passes to the Customer upon Delivery. Unless otherwise stated in the Quotation, title to any hardware shall not pass to the Customer until payment in full.  

6. Installation

6.1 Installation is the responsibility of the Customer, at its sole expense, in accordance with the Documentation.

7. Payment

7.1 All payments set out above (the "Fees") are payable in accordance with the payment terms set out in the Quotation above (together with these Terms and Conditions, the "Quotation"). The Fees are non-refundable and are payable by BACS transfer to the Company's bank account, as provided on the Company’s invoice. Payment terms are thirty (30) days. In the event of non-receipt of a payment, the Company will give the Customer written notice of the non-receipt of the payment and if the Customer does not pay such amount within five (5) days of the date of receipt of the notice, the Company shall be entitled to charge interest at a per annum rate of 4% above HSBC PLC’s base rate from time to time. Without prejudice to the Company's rights under applicable law and the Quotation, and upon seven (7) days written notice to the Customer, the Company may suspend or terminate the Services upon failure to timely pay the full amounts due to the Company.

7.2 All Fees are exclusive of VAT  which will be payable in addition in the manner and at the rate prescribed by law from time to time. The Fees do not include: internet connectivity, cellular modem or cellular connectivity, text services, costs relating to installation (including, without limitation, electrician), making good any decorative works, or main incoming power supplies to the Products. The Customer will fully reimburse the Company in respect of any costs and expenses, not included in the Quotation, but necessarily incurred or expended by the Company as a result of the Customer failing to carry out any of its obligations, in particular under Clauses 3 and 8.

8. Responsibilities of the Customer

8.1 The Customer will:

(i)   use the Products and Services in accordance with the applicable Documentation provided to it by the Company and all applicable laws and regulations;

(ii)  be responsible for all damage to the Products and inform the Company immediately upon becoming aware of any malfunction of the Product or Services;

(iii)  be responsible for all equipment, services, facilities, personnel and any other resources that are necessary for the Customer to use of the Products and Services;

(iv) prior to installation of the Products, ensure that the System Requirements are installed and working at the Customer’s Designated Site(s), and be responsible at its own expense for all matters relating to the System Requirements;

(v)  install any fixes, updates or upgrades as reasonably requested by the Company and in accordance with the Company's installation instructions, or allow the Company's personnel to make such an installation;

(vi) subject to the Customer’s prior approval, provide the Company with feedback and any other results produced by the use of the Product and Services, and data relating to Customer’s electric power consumption as measured by the Product and Services.

9. Restrictions on use

9.1 The Customer may not, nor attempt to, nor allow third party to:

(i)   except where specifically permitted by law, modify, translate, adapt, arrange, develop or create derivative works of, decompile, disassemble, decrypt, extract, reverse engineer or assemble the Product or Services or any part thereof;

(ii)  connect the Product to other software or systems without the prior written approval of the Company;

(iii)  make any representation to a third party regarding Customer's approval or disapproval of the Product;

(iv) remove from the Product any notices of proprietary rights or other product identification contained on or within the Product or alter or obscure such notices;

(v)  use the name of Company or its trade names or trademarks or use the name, trade names or trademarks of any licensor of the Company, or obtain access to the source code of the Product (and if applicable law obliges the Customer to do any of the foregoing, the Customer will inform the Company prior to engaging in such actions). The Customer may not directly or indirectly distribute, rent, loan, encumber, lease, sell, assign or sublicense or otherwise transfer (or grant access to) all or any portion of the Product or Services, or any rights or license granted to it hereunder, by agreement or by operation of law, without the prior written consent of the Company.

9.2 The Customer shall use Products and Data Services in compliance with applicable laws and regulations, including without limitation, applicable safety regulations governing the proper use of the Product and such standards and requirements applicable at the installation location.

10. Subcontractors

10.1 The Company may engage third party sub-contractors to perform services under the Quotation.

11. Proprietary Rights

11.1 The Company or its licensors reserves all rights in and to the Products and Services, and all ancillary documents including instruction manuals and other Company documentation.  Title to and ownership of all proprietary rights (including, without limitation, patent, copyright, trade secret, trademark, trade dress and moral rights and other proprietary or intellectual property rights of any kind) in or related to Products, Services, and related documentation including, without limitation, all partial or complete copies or parts thereof, and any and all modifications or improvements, reports, recommendations, feedback, inventions, specifications and other data and materials in connection with the Products and Services and/ or the Customer’s use of the Product and Services, and all intellectual property rights therein not explicitly granted in the Commercial Offer (the “Developments”), whether prepared by the Company or the Customer remain at all times with the Company or its licensors.

11.2 The Customer hereby assigns to the Company or its licensors all of its ownership rights in the Developments and agrees to cooperate with the Company or its licensors as reasonably required to perfect such assignments.

11.3 Software elements of Products or Services are licensed to the Customer and there is no transfer of ownership to the Customer.

11.4 The Quotation will not be construed as a sale of any rights in the Products, Services or related documentation.

12. Indemnification

12.1 The Customer will be solely responsible for, and will indemnify and hold harmless the Company from and against all actions, causes of action, damages, losses, injury, costs, expenses and liabilities whatsoever arising out of or by virtue of any claim in respect of:

(i) any misuse, abuse, negligence or failure to maintain the Products as specified by the Company;
(ii) any modifications, alterations or attachments to the Products which were not undertaken by the Company or pre-authorised by the Company in writing;
(iii) installation, operation or use of the Products or Data Services not in strict conformity with the Company’s instructions or the Commercial Offer;
(iv) modification or disassembly of the Products in any way without the Company’s prior written consent; and
(v) use of the Products and/or Data Service in combination with items, articles or materials not authorised in writing by the Company.

13. Confidentiality

13.1 The Customer will not disclose to any third party, without the Company’s prior written consent, any information regarding the Product (including its existence, nature and specific features), Services and Developments.

14. Warranty

14.1 Warranty terms in respect of Products are set out in Appendix B (Product Warranty). Warranty terms for Data Services are set out in section 7 of the Service Terms. These warranties are the sole warranties in respect of Products or Data Services and  are in lieu of any other warranty, whether express or implied, written or oral (including any warranty of merchantability, fitness for a particular purpose or non-infringement), all of which are expressly excluded to the fullest extent permitted by applicable law.

15. Limitation of Liability

15.1 Subject to clause 15.2 and notwithstanding anything to the contrary contained herein, in no event, including without limitation, infringement of any third party’s intellectual property rights, shall the Company be liable under contract, tort (including negligence), under statute or otherwise to the Customer or any third party for any loss of profit, business, opportunity, goodwill, or data (and in each case whether direct or indirect), or any indirect, special or consequential damages. Without limitation of the foregoing, the Company shall have no liability arising from or relating to the Customer's use of Usage Data and/or Customer Data or reliance on Usage Data (as such term is defined in the Service Terms) and/or Customer Data to make business decisions.

15.2 Nothing in this Agreement will operate to exclude or restrict the Company or the Customer’s liability for:

(i)   death or personal injury resulting from its negligence;
(ii)   its fraud or fraudulent misrepresentation; or
(iii)  any matter which it is not permitted by law to exclude or limit.

15.3 The Company accepts no liability for any defects in relation to the Products (including to repaired or replaced Products) and/or Services, which is caused directly or indirectly by the negligence or default of the Customer, or any third party.

15.4 Subject to clauses 15.1 and 15.2, the Company’s total liability aggregate liability arising under or in connection with the Commercial Offer is limited to the greater of the total Fees received from the Customer in the twelve (12) months prior to the date of any claim, or £1,000.

15.5 The parties acknowledge that the Company has set its prices and entered into the Commercial Offer in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein.

15.6 Subject to clause 15.2, the Customer acknowledges that notwithstanding anything to the contrary in the Commercial Offer, Terms and Conditions, or any document referenced therein, the Products and Services are provided to the Customer by the Company, and no licensor or third party, including those referenced in such documents, shall have any liability whatsoever towards the Customer.

16. Term

16.1 Subject to Clause 20, the Commercial Offer will commence as of the date first indicated in the Commercial Offer (the "Effective Date") and will continue with full force and effect for the duration set out in the Commercial Offer, unless terminated in accordance with Clause 17 (the "Term").

17. Termination

17.1 Either party may terminate the Commercial Offer:

(i)   upon the occurrence of a material breach or default as to any material obligation, representation or warranty hereunder by the other party and the failure of such breaching party to remedy such breach within thirty (30) days after receiving written notice of such; or

(ii)  upon the filing of a petition in bankruptcy, insolvency or reorganisation against or by the other party (if such petition or proceeding is not dismissed within sixty (60) days of filing), such other party becoming subject to a composition for creditors, whether by law or agreement, such other party going into receivership or otherwise becoming insolvent or such other party suspending operations, such termination immediately effective upon giving written notice of termination.

17.2 Without limitation, the Company may terminate the Commercial Offer immediately upon written notice to the Customer:

(i) if the Customer has failed to pay any Fees or other amounts outstanding under the Commercial Offer, and fails to cure such default within five (5) days after receipt of written notice (including by email) containing a demand for payment, or if the Customer on more than three (3) occasions during a consecutive twelve (12) month period fails to timely pay any amount due to the Company;

(ii)  if the Customer has used or taken any action in respect of the Products or Services in violation of the Commercial Offer or in any manner other than as expressly permitted by the Commercial Offer; or

(iii)  if the Customer violates, contests or opposes any intellectual property rights associated with the Products or Services or if the Customer advises or consults with any party engaging in any such violation or contest.

 

18. Effect of Termination

18.1 Upon expiration or termination of the Term for any reason:

(i) the Customer will pay to the Company all amounts outstanding as of the date of expiration or termination, including but not limited to the Company’s reasonable costs and expenses incurred as a result of removing Products from a Designated Site (if applicable), (and interest will continue to accrue on unpaid amounts in accordance with clause 7); and

(ii) in the event of termination by the Company pursuant to Clauses 17.2(i) and 17.2(ii), prior to the expiration of two (2) years from the Effective Date, the Customer shall also pay the Company the cellular connectivity Fee set out in the Commercial Offer, for the period equal to two (2) years from the Effective Date, in one lump sum payment; and

(iii) the Company may immediately cease providing the Services and terminate the Customer’s access to the Data Services. The Company will be released from any further obligations to the Customer, including without limitation the Product Warranty and Data Service Warranty which will end upon the effective date of termination hereunder. Except as otherwise provided herein, payment obligations due as of the date of termination of the Commercial Offer and any other provision of the Commercial Offer which in accordance with its terms is intended to survive the termination of the Commercial Offer will survive the termination.

19. Publicity

19.1 The Customer agrees that the Company may publicly refer to the Customer as a Customer of the Company. The Company will seek the Customer’s permission before publishing any case studies or press releases referencing the Customer.

20. Miscellaneous

20.1 The Commercial Offer and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. The Courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Commercial Offer including in relation to any non-contractual obligations. Notwithstanding the foregoing, the Company may, in its sole discretion, bring any action in which it seeks preliminary, equitable or injunctive relief in any forum or court of competent jurisdiction.

20.2 The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Customer will not assign any rights or obligations under the Commercial Offer without the prior written consent of the Company, and any assignment in violation of the foregoing will be void.

20.3 All rights and remedies are cumulative and (unless stated otherwise) not exclusive of any other rights or remedies provided at law or in equity.

20.4 The parties do not intend that any term of the Commercial Offer or these Terms and Conditions will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.

20.5 The failure to enforce any of these provisions will not be construed to be a waiver.

20.6 Except for the obligation to pay the Fees, neither party shall be liable for any loss or damage resulting from delay in or failure to comply with the Commercial Offer and Terms and Conditions to the extent that such delay or failure is caused by circumstances beyond that party's reasonable control, including, but not limited to: acts of God; war; riots; insurrections; embargoes; acts of civil or military authorities; fire; flood; earthquake or other natural disaster; accident; internet backbone outage; or inability to secure transportation, machinery, facilities, fuel, energy, materials or labour disputes.

20.7 If any provision of the Terms and Conditions shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable such invalidity, illegality or unenforceability shall not prejudice the other provisions of the Terms and Conditions which shall remain in full force and effect and if the provision in question would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid.

20.8 The Commercial Offer and these Terms and Conditions constitute the entire agreement between the parties with respect to its subject matter, and supersedes any prior oral or written agreement.

20.9 No modification to the Commercial Offer or Terms and Conditions shall be binding, unless in writing and signed by the parties.

20.10 Nothing contained in any purchase order submitted by the Customer, or similar form shall in any way modify the terms or add any additional terms or conditions.

20.11 Notices will be deemed accepted one (1) calendar day following transmission by email (with a confirmation from the receiver), or seven (7) calendar days after delivery by registered mail. All notices under the Commercial Offer will be given to the party to which such notice is directed at the address set out in the Commercial Offer or such other address as that party may have notified to the other party by prior written notice.

21. Acceptance

21.1 Unless otherwise stated in the Commercial Offer, if the Customer wishes to accept the Commercial Offer and these Terms and Conditions, the Customer should either (i) countersign the Commercial Offer in the space provided and return to the Company, or (ii) send a purchase order under Customer's letterhead, to the Company referencing the Commercial Offer, such letter and purchase order shall be deemed acceptance of the Commercial Offer and these Terms and Conditions by the Customer.


21.2 The Commercial Offer is valid only for the next thirty (30) day period and thereafter shall expire, unless accepted by the Customer in accordance with this Clause 20. The Company reserves the right to withdraw the Commercial Offer at any time prior to acceptance by the Customer, by notice in writing.

Appendix A: Terms and Conditions for Data Services

1. General

1.1 These terms and conditions ("Service Terms") set out the terms on which the Customer may use the Company’s Data Services. The Customer should read these Service Terms carefully before using the Company’s Data Services as by using the Company’s Data Services, the Customer is confirming that it accepts these Service Terms and that it will comply with them.

1.2 These Service Terms do not apply to the supply or use of other products or services provided by the Company, which shall be agreed to under separate terms.

1.3 The Customer is responsible for ensuring that anyone who accesses the Data Services through the Customer's internet connection is aware of these Service Terms and that they comply with them.

2. Definitions

2.1 The "Customer" shall mean the entity that has purchased Products and Data Services from the Company.

2.2 "Data Services" means the online functionality of the Company’s Services as accessed through the hosted servers by the means of the service user interface or designated application programmable interface (API).

2.3 "Company Technology" means the Company’s proprietary technology, including the Software, Data Services, software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property or proprietary rights throughout the world (whether owned by the Company or licensed to the Company from a third party) and also including any derivatives, improvements, enhancements or extensions of the Company Technology conceived, reduced to practice, or developed during the term of these Service Terms.

2.4 "Documentation" means any information or document provided by the Company to the Customer relating to the installation and use of the Products and Services.

2.5 "Products" means hardware, software and firmware in the Company’s PANORAMIC POWER® energy management system.

2.6 "Data Services Software" means the software used by the Company to provide Data Services.

2.7 "Usage Data" means, collectively, raw data relating exclusively to the Customer’s electric power consumption on a circuit level as measured by means of the Products.

3. Access to the Data Services

3.1 Access to the Data Services is only via the Products supplied by the Company as set out in the Commercial Offer.

3.2 Subject to the Customer meeting its payment obligations under the Commercial Offer and associated terms and conditions, the Data Services will commence on the date the Product sensors are activated at the Customer’s Designated Site(s) and will continue for the Term as set out in the Commercial Offer.

3.3 The Company does not guarantee that access to the Data Services or the content provided via the Data Services will always be available or uninterrupted or fit for the Customer’s particular purpose and the Customer’s right to access the Data Services is temporary only.

3.4 The Company is entitled to change the Data Services’ functionality at any time.

4. Restrictions on use

4.1 The Customer will only use the Data Services for lawful purposes and in accordance with these Service Terms. The Customer will comply at all times with all applicable laws and regulations. The Customer will not and will not assist any third party to access data generated by Products other than by means of Data Services provided by the Company. Where the Customer has set up user accounts with password access, the Customer will keep such passwords confidential and secure and only disclose passwords to personnel authorised by the Customer to use the Data Services.  The Customer will not enable the use of any Data Services other than by its authorised personnel.

4.2 The Customer shall be responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking equipment, web servers, and long distance and local telephone service, but excluding the software (collectively "Equipment"). The Customer shall be responsible for ensuring that the Equipment is compatible with the Data Services and the software and complies with the Documentation. The Customer shall be responsible for the security and use of Equipment, including ensuring that appropriate anti-virus is installed on the Equipment.

4.3 The Customer may not use any "deep-link", "page-scrape", "robot", "spider", "trojan horse", "worm", "logic bomb", "time bomb", key stroke logger, spyware, malware  or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process (whether malicious or harmful) to access, acquire, copy or monitor any portion of the Data Services, or in any way reproduce or circumvent the navigational structure or presentation of the content, to obtain or attempt to obtain any information through any means not purposely made available through the Data Services.

4.4 The Customer may not attempt to gain unauthorised access to any portion or feature of the Data Services, or any other systems or networks connected to the Data Services, by hacking, password "mining" or any other illegitimate means.

4.5 The Customer may not probe, scan or test the vulnerability of the Data Services or any network connected to the Data Services, nor breach the security or authentication measures on the Data Services or any network connected to the Data Services.

4.6 The Customer agrees not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Data Services or any systems or networks connected to the Data Services. The Customer agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Data Services.

4.7 The Customer should immediately inform the Company if it becomes aware of any breach of these Service Terms and the Company reserves the right to immediately suspend any related Data Services if the Company suspects, or is notified of, such a breach.

5. Intellectual Property Ownership

5.1 Except for the limited use rights expressly granted herein, these Service Terms do not transfer from the Company to the Customer any Company Technology. All Company Technology in the Data Services is either owned by the Company or its licensors.

5.2 The Customer may not directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets relating to the Company Technology. There are no implied licenses under these Service Terms, and any rights not expressly granted to Customer hereunder are reserved by the Company.

6. Usage Data, Analytics

6.1  The Customer retains all right, title and interest in and to the Usage Data. The Company will use Usage Data itself or through third party service providers to perform under these Service Terms and to improve the Data Services, and the Company may transfer Usage Data to entities in the same and other jurisdictions in connection with such efforts. The then-current terms of the Company’s Privacy Policy shall apply.
 
6.2  Except as expressly set out in the Service Terms, the Company will not sell, rent, share, or disclose Usage Data to third parties in a form that indicates the identity of the Customer without Customer’s prior consent. Subject to the foregoing, the Company shall have the unrestricted right to use Usage Data solely for internal business purposes (without limitation, for improving the Products and Data Services) without notice or other obligation to the Customer.

6.3  The Company shall use reasonable commercial efforts,  but is under no obligation, to meet the following data retention targets during the Data Services Term of the Commercial Offer:

(i) Usage Data availability: accessible for a period of six (6) months following generation of such Usage Data at the maximum data resolution of 1 data point / 5 minutes;
(ii) For one (1) year: data saved at a resolution of 1 data point / 1 hour;
(iii) For five (5) years: data saved at a resolution of 1 data point / 12 hour;
(iv) For Usage Data older than five (5) years: data is archived offline. Offline data can be provided to the Customer upon specific request and for payment of an additional fee; and
(v) In case of service discontinuity, offline data available for download by the Customer for a period of two (2) years after the Data Service is stopped, additional fees may apply.

6.4 The Company shall have the unrestricted right to generate averaged data, aggregated data, benchmarks, comparisons or recommendations using Usage Data, and to generate other calculations, derivatives, using, containing or referencing Usage Data, and aggregate Usage Data with or without data relating to third parties (all of the foregoing and the product of such activities referred to collectively herein as "Analytic Data"). All right, title and interest in Analytic Data shall be held solely by the Company. The Company shall have the unrestricted right to use, exploit, transfer, lease, sell or otherwise commercialise Analytic Data for any and all purposes without notice or obligation to the Customer, provided that Analytic Data does not indicate the identity of the Customer. The Customer shall not have a right to consideration or any other right arising from the creation or exploitation of Analytic Data.

7. Warranty

7.1   The Data Services are provided on an "as is" basis, and the Customer's use of the Data Services is at its own risk. Subject to exhibit a (warranty policy) the company does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, correctness of content, accuracy, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. The company does not warrant that the data services will be uninterrupted, error-free, bug free or completely secure. The Customer is responsible for ensuring that any device you use to access the Data Services from has suitable anti-virus software in place.

8. Limitations of liability

8.1   Under no circumstances shall the Company be liable, either in contract, tort (including negligence), warranty, or under any statute or regulation for:

(i) unauthorised access, alteration, theft, corruption, loss, or destruction of or to the Customer’s, databases, or network;
(ii) the content of the information sent to or received from the server serving the Data Services; or
(iii) the downtime or lack of performance quality with respect to the internet service provider providing connectivity or any third party software used to provide remote access.

8.2   The Customer acknowledges that use of Data Services is at the Customers' own risk and that when using the Data Services, information will be transmitted over a medium which is beyond the control and jurisdiction of the Company.

8.3   The Company shall have no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with Data Services.

8.4   The Company makes no warranties, or representations as to the accuracy, correctness, reliability or otherwise with respect to such information, and assumes no liability or responsibility of any kind for omissions or errors.

8.5   Subject to clause 8.6, in no event shall the Company be liable for any damages (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the Data Services, whether based on warranty, contract or tort (including negligence).

8.6 The Nothing in these Service Terms will operate to exclude or restrict the Company or the Customer’s liability for:

(i) death or personal injury resulting from its negligence;
(ii) its fraud or fraudulent misrepresentation; or
(iii) any matter which it is not permitted by law to exclude or limit.

9. Governing Law

These Service Terms (and any non-contractual obligations arising out of or in connection with them) are governed by the laws of England and Wales and the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with them (including without limitation in relation to any non-contractual obligations).

Appendix B: Product Warranty ("Warranty Policy")

1. Limited Product Warranty.  Subject to the terms of this Warranty Policy the Company warrants that commencing from the earlier of:

(i)  the date of installation of the respective item at Customer's Designated Site; or
(b) a date that is three (3) months from its Delivery to Customer; (the "Warranty Commencement Date") and until the earlier of:
(a) the expiration of the Term of the Commercial Offer; or
(b) one (1) year from the Warranty Commencement Date; (the "Warranty Period"),

the Product will be free from defects in material and workmanship under normal use, provided that the Product is installed and used in accordance with the Documentation. This Warranty Policy extends only to the Customer.

In the event that, during Warranty Period, the Customer discovers any defect or non-conformity in the Product (subject to the restrictions and exclusions set forth herein) and seeks to activate the warranty, the Customer shall, promptly after such discovery, report the defect or non-conformity to the Company by completing a Return Material Authorisation ("RMA") form available on the following website www.panpwr.com and sending it by email to support@panpwr.com. If the Company determines that the reported non-conformity is not eligible for coverage under the warranty (such as, for instance, where a restriction or exclusion to the warranty applies), the Company will notify the Customer accordingly and will explain the reason why such coverage is not available.

If the Company determines that the reported defect or non-conformity is indeed eligible for coverage under the warranty, the Company will notify the Customer accordingly and the Customer's sole and exclusive remedy and the entire liability of the Company and its suppliers under this limited warranty will be, at the Company’s or its service centre's option, the repair or replacement of the Product or parts thereof, provided that the Product is returned to the party that supplied it to the Customer, freight and insurance prepaid (if applicable). Any replacement parts used in Product repair or replacement may be new or equivalent to new.

The Company reserves the right to provide replacement Products, or parts thereof, of similar form and function, as long as the functionality is equal to or better than the Customer’s original Product. Under no circumstances shall the Company's liability under this limited warranty exceed the actual cash value of the Product at the time the Customer returns the Product for repair or replacement, as determined by the price paid originally for the Product by the Customer.

2. RMA Procedure.  Where the RMA Procedure is invoked by the Company, the following terms will apply:

(i) the Company will instruct the Customer how to package and ship the Product or part(s) thereof to the designated location.  The Customer will bear the cost of such shipment; and

(ii) Upon receipt of the Product, the Company will diagnose the defective Product and determine the cause and what corrective action should be taken. The Company will, at its expense, either repair or replace the Product. Thereafter, the Company will deliver the repaired or replaced Product or part(s) thereof to the Customer at the Customer’s Designated Site. The Company will bear the cost of such shipment. The Customer is responsible for any Delivery charges in relation to such shipment. The Customer acknowledges and agrees that (a) the foregoing arrangements are subject to change from time to time, and (b) failure to comply with the RMA procedures and the Company’s directions shall void the warranty set out herein.

THE WARRANTIES SET OUT HEREIN ARE IN LIEU OF ANY OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS PURCHASED BY THE CUSTOMER FROM THE COMPANY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), ALL OF WHICH ARE EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

3. Restrictions & Exclusions.  This warranty does not apply and shall be of no force and effect if the Product:

(i) has been altered or disassembled by any individual except by an authorised Company agent;

(ii) has not been installed, operated, repaired or maintained in accordance with the Documentation supplied by the Company and/or by a Company certified installer;

(iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, or the Product has not been maintained in accordance with the requirements specified in the Documentation;

(iv) has been damaged as a result of service, testing, adjustments, installations, modifications, alterations or attachments which were not pre-authorised in writing by the Company or which were forbidden as specified in the Documentation;

(v) has been used in combination with equipment, items, software or materials not permitted by the Documentation or not authorised in advance in writing by the Company;

(vi) has been damaged or rendered non-functional as a result of power failure or power surges, lightning, fire, flood, pest damage, accident, action of third parties, or other events beyond the Company’s reasonable control or not arising from normal operating conditions;

(vii) is provided for beta evaluation, trial, pilot testing or demonstration purposes; or

(viii) has been damaged during or in connection with shipping or transport to or from the Customer where the Customer arranges such shipping or transport.

This Warranty Policy provides no coverage for any of the following:

(i) plastics – including defects in appearance, cosmetics, decorative or structural items including flaming and non-operative parts;
(ii) sensor calibration;
(iii) expenses related to removing or reinstalling the Product;
(iv) firmware upgrades or updates;
(v) software performance; and
(vi) misuse, water damage, or abuse.

4. General.  Notwithstanding anything to the contrary herein and except where the Company expressly waives the following terms in writing, the warranty granted under this Warranty Policy shall not become active and the Customer may not assert any claim under the warranty until such time as the Customer has made all payments to the Company in accordance with the Commercial Offer. This Warranty Policy may be updated from time to time by the Company, in which case the Company will provide notice thereof to the Customer.

5. Extended Warranty. The Warranty Period may be extended for additional one (1) year periods expiring on the earlier of:

(i) the expiration of the Term; or

(ii) the expiration of the applicable one (1) year extension period; or

(iii) a date that is three (3) years from the Warranty Commencement Date; in consideration for the payment by the Customer of the annual fee set out in the Commercial Offer.