THOMSERVE BUSINESS ANALYSIS SOLUTIONS LTD
SUBSCRIBER TERMS OF SERVICE ("Agreement")
This Agreement is made between Thomserve Business Analysis Solutions Ltd ("we", "us", "our") and the entity or individual subscribing to the Service ("you", "the Subscriber"). By registering for, accessing, or using the Service, you agree to be bound by this Agreement.
1. Definitions
1.1"Service" means the remote access portal, web and API interfaces, and related software provided by us, which allows you to monitor and send commands (including register writes) to Devices.
1.2"Device" means any inverter, battery management system, or related hardware which you connect to, or permit to be connected to, the Service.
1.3"End Customer" means any person or organisation, other than you, on whose behalf or for whose benefit you use the Service, including any customer of yours who owns or operates a Device that you access, monitor, or write to via the Service.
1.4"Command" means any instruction, register write, configuration change, or similar action transmitted via the Service to a Device.
2. Nature of the Service
2.1The Service transmits Commands to Devices over the internet and other third-party networks, including local networks, internet service provider infrastructure, and other intermediary systems which are outside our control (together, the "Network Path").
2.2We do not guarantee that any Command will be:
(a)delivered to the Device;
(b)delivered without corruption, delay, or duplication;
(c)delivered or executed in the order in which it was sent; or
(d)executed by the Device within any particular time, or at all.
2.3You acknowledge that the Network Path may result in Commands being delayed, dropped, duplicated, or executed out of sequence, and that these risks are inherent to the Service and cannot be eliminated by us.
2.4You are responsible for verifying the outcome of any Command by reference to the Device's own reported state before relying on that Command having taken effect, and for ensuring that neither you nor any End Customer takes any action on the assumption that a Command has succeeded without such verification.
3. No Relationship With, or Duty to, End Customers
3.1This Agreement is between us and you only. Any Device accessed, monitored, or written to via the Service that is owned or operated by an End Customer is your responsibility, not ours.
3.2We have no contractual relationship with, and owe no duty of care (whether in contract, tort, or otherwise) to, any End Customer, regardless of whether we are aware that a particular Device belongs to, or is operated for the benefit of, an End Customer rather than you directly.
3.3Nothing in this Agreement, and nothing arising from the use of the Service, is intended to confer any benefit or right on any End Customer, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. No End Customer may enforce any term of this Agreement.
4. Your Obligations to Your Own End Customers
4.1You are solely responsible for your contractual and legal relationship with your End Customers, including any representations you make to them about the reliability, availability, or guaranteed execution of Commands sent via the Service.
4.2You must ensure that your own terms of business with End Customers:
(a)exclude or limit your liability to the End Customer for loss arising from the delayed, failed, corrupted, or out-of-sequence transmission or execution of a Command, to an extent no less protective of you than the limitations set out in this Agreement are of us; and
(b)do not represent to any End Customer that we owe them any duty, warranty, or guarantee of any kind.
4.3You must ensure that any Device connected to the Service by or on behalf of an End Customer has been installed, configured, and maintained in accordance with the relevant manufacturer's instructions and any Documentation we provide, before any Command is sent to it.
5. Indemnity
5.1You agree to indemnify us in full, and keep us indemnified, against any claim, liability, loss, damage, or cost (including reasonable legal fees) arising from or in connection with:
(a)any claim brought against us by an End Customer or any other third party in connection with your use of the Service, including in relation to damage to a Device;
(b)your provision of services to End Customers using data, access, or functionality obtained via the Service; or
(c)your breach of Section 4 (Your Obligations to Your Own End Customers).
6. Limitation of Liability
6.1We are not liable for any loss, damage, or malfunction arising from:
(a)a Command being transmitted, not transmitted, delayed, duplicated, or corrupted in transit;
(b)a Device entering an unexpected state as a result of a Command being applied, partially applied, or applied out of sequence;
(c)any incompatibility between a Command and the specific Device's firmware, configuration, or hardware revision; or
(d)any action taken by you, your personnel, or any End Customer based on an assumption that a Command had been successfully applied, where this has not been confirmed by the Device's own reported state.
6.2We will only be liable for damage to a Device caused by a defect in the Service where the Device has been installed, configured, and maintained in accordance with the manufacturer's instructions and our Documentation. We are not liable for damage caused by incorrect installation, failure to apply an update we have made available, or use of the Service outside its intended operating parameters.
6.3Subject to clause 6.5, our total liability to you under this Agreement, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total fees paid by you in the 12 months preceding the event giving rise to the claim.
6.4We shall not be liable for any indirect or consequential loss, or for any loss of profit, revenue, business, business opportunity, or data, in each case whether direct or indirect, and whether or not such loss was foreseeable.
6.5Nothing in this Agreement excludes or limits our liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability which cannot be excluded or limited under applicable law.
7. Term and Termination
7.1This Agreement takes effect on the date you first register for or access the Service and continues until terminated in accordance with this clause 7.
7.2The Service is billed either monthly or annually, as selected by you at sign-up or as subsequently varied (the "Billing Period").
7.3All monthly and annual Billing Periods run from the 1st day of a calendar month to the 1st day of the next corresponding calendar month ("1st-to-1st"), regardless of the date on which you sign up. Where you sign up on a date other than the 1st, your first invoice will cover the partial period from your sign-up date to the next 1st, calculated on a pro-rata basis, and each subsequent Billing Period will run 1st-to-1st thereafter.
7.4If you are billed monthly, you may terminate this Agreement for convenience at any time by cancelling your subscription through the Service's subscriber portal or through our nominated payment processor (currently Stripe). No separate written notice is required. Cancellation will take effect at the end of the then-current monthly Billing Period, and you will retain access to the Service until that date.
7.5If you are billed annually, this Agreement renews automatically for successive 12-month terms unless you cancel your subscription through the Service's subscriber portal or through our nominated payment processor before the end of the then-current annual term. No separate written notice is required. You may also cancel for convenience during an annual term using the same method, but no refund will be given for the unexpired portion of that term save as set out in clause 7.10(b).
7.6The date and time recorded by the subscriber portal or our nominated payment processor as the date of cancellation shall be conclusive evidence of the date on which you gave notice to terminate for the purposes of clauses 7.4 and 7.5.
7.7We may terminate this Agreement for convenience by giving you at least 60 days' written notice.
7.8Either party may terminate this Agreement with immediate effect by written notice if the other party:
(a)commits a material breach of this Agreement which is not remedied within 14 days of being notified of the breach in writing; or
(b)becomes insolvent, enters administration or liquidation, or has an equivalent process commenced against it in any jurisdiction.
7.9We may also suspend or terminate the Service, or any part of it, with immediate effect and without liability to you, if we reasonably believe that continued provision of the Service could result in damage to a Device, to us, or to any third party, including where a Command pattern suggests a fault, misuse, or security risk. We will use reasonable endeavours to notify you before doing so, or as soon as reasonably practicable afterwards.
7.10On termination for any reason: (a) your right to access the Service ends immediately; (b) any fees paid in advance are non-refundable except where this Agreement expressly provides otherwise, or where required by law; and (c) any fees accrued but unpaid as at termination become immediately due.
7.11Termination of this Agreement does not affect any rights or liabilities that have accrued before termination, and clauses 3, 4, 5, 6, 7.10, and 9 survive termination.
8. Fees and Pricing
8.1The fees payable for the Service are as set out in the order, pricing page, or other written confirmation provided to you at the time you subscribe (the "Fees").
8.2We may vary the Fees from time to time by giving you at least 30 days' written notice. Where you are billed monthly, any variation will take effect from the start of the first Billing Period beginning after that notice period expires. Where you are billed annually, any variation will not take effect until the start of your next annual renewal, and will not affect the Fees payable for the then-current annual term.
8.3We may, at our sole discretion, offer you a discount against the Fees. Where we do so, the discount will be subject to the terms on which it is offered, including any expiry date notified to you at the time the discount is given. On expiry of a discount, the Fees revert automatically to the standard rate then in effect for the Service, without further notice, from the start of the next Billing Period following expiry.
8.4No discount granted under clause 8.3 creates any expectation or entitlement that the same or any other discount will be offered, extended, or renewed on any future occasion, whether at renewal or otherwise, and each discount is offered entirely at our discretion on a case-by-case basis.
8.5All Fees are quoted exclusive of Value Added Tax and any other applicable sales, use, or similar taxes, duties, or levies, which shall be added at the rate applicable at the relevant tax point and paid by you in addition to the Fees.
9. General
9.1If any provision of this Agreement is found by a court or other competent authority to be invalid, unlawful, or unenforceable, that provision will be deemed deleted, and the remaining provisions will continue in full force and effect.
9.2This Agreement is governed by the laws of England and Wales, and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising from it.
9.3We may amend this Agreement from time to time by giving you 30 days' prior written notice. If you object to a change, you may terminate this Agreement in accordance with clause 7.4 or 7.5, as applicable.