LCP Delta Technology Product Terms and Conditions

Terms of Use (Terms)

These Terms apply to Enact®, FLEXtrack®, STOREtrack®, STOREcast®, CHARGEtrack® and any other additional services specified in the order form prepared by us and signed by the Company (Order Form), together with the content of all such services (Services). The Services are accessed via the links provided in the Order Form. Please read these Terms and on first log-in click “Accept” to confirm your acceptance. If you do not agree to these Terms, you must not use the Services. These Terms may be amended by us from time to time. Your continued use of the Services amounts to acceptance of such amendments. References to “we, “us” or “our” are to Lane Clark & Peacock LLP (LCP) and references to “you” or “your” are to, the individual named user authorised by us to use the Services (Authorised User) and/or, as the context requires, the Company named in the Order Form (Company).

1. Licence to use the Services

A. LCP grants you a non-exclusive, non-transferable licence to use the Services and any accompanying online documentation (Documentation) for internal business purposes only in accordance with Fair Usage, these Terms and the Order Form (Licence). Fair Usage means use of the Services in a manner which does not have a negative impact on their functionality or availability. We will notify you promptly if we consider that your use of the Services falls outside Fair Usage.

B. The Licence is restricted to Authorised Users with a username and password. You must ensure all login details are kept confidential and are not shared with any third party. If you know or suspect that an unauthorised person has obtained login details, then you must promptly inform us at enact.helpdesk@lcp.uk.com.

C. You are solely responsible for procuring, maintaining and securing your network connections and telecommunications links and for any related problems, delays, delivery failures or other loss or damage.

2. Term and Termination

A. Subject to receipt of the Fees, the Licence shall remain in force for the Subscription Period stated in the Order Form and renews automatically for successive Subscription Periods unless cancelled in writing by either party on not less than the notice period specified in the Order Form (such notice not to expire before the end of the current Subscription Period).

B. We may terminate the Licence with immediate effect if: (i) you commit a material breach of these Terms; or (ii) we are no longer able to provide the Services for any reason; or (iii) there is a material change to the Services which inhibits their continued delivery in their current form; (iv) in the case of Authorised Users with trial access only, at any time in our absolute discretion; or (v) CHARGEtrack only: your licence agreement with Eco-Movement B.V., is either not properly executed, suspended or terminated for any reason.

C. Save for termination by us under 2B. (ii), (iii) or (v) CHARGEtrack only: where your licence agreement with Eco-Movement B.V. is not properly executed: (i) the Company shall remain fully liable for the Fees until the end of the relevant Subscription Period; and (ii) there shall be no pro-rata refund of any pre-paid fees.

D. The Licence shall cease immediately upon termination. Sections 4, 5, 8C and 9 to 11 of these Terms shall survive termination. Termination of the Licence shall be without prejudice to any rights, remedies, obligations or liabilities of either party that have accrued up to the date of termination.

3. Fees

The Company shall pay a subscription fee in advance for each Subscription Period as set out in the Order Form (Fees). The Fees for the next Subscription Period may be modified by us at any time upon at least 30 days’ prior notice in writing. If we do not receive payment within 30 days of invoice, your access to the Services may be suspended or terminated. All Fees are exclusive of VAT and other sales taxes which shall be payable by the Company at the prevailing rate.

4. Intellectual Property Rights

A. We are the owner or licensee of all intellectual property rights in the Services. Unless permitted by applicable law which cannot be excluded by agreement between the parties, you shall not: (i) reproduce, modify, duplicate, frame, mirror, download, display, publish, transmit, participate in the transfer or sale of or create derivative works from, the Services; (ii) reverse-engineer, decompile, reverse compile, disassemble or otherwise reduce to human-perceivable form any software contained in the Services; (iii) disable or otherwise limit the effectiveness of, or in any way exploit, the Services; or (iv) use the Services or any of their content to create any product, service or software which competes with the Services; or (v) for a period of eighteen months following termination of the Licence, create, market or distribute any product, service or software similar to all or any part of the Services.

B. Where a download function exists in the Services, you may download content in accordance with these Terms only and you acknowledge that you do not acquire any ownership rights by downloading content and that any downloaded content is subject to the confidentiality obligations in Section 10. It is not anticipated by either party that you will upload any content to the Services. If you upload content to the Services, you do so at your own risk and you grant us an irrevocable, royalty-free, perpetual licence to copy, reproduce, publish, transmit, exploit, modify or otherwise use such content in our analytics tools and/or within our business and services generally.

C. If any intellectual property or other rights in the Services arise by operation of law in your favour through your use of the Services (including any feedback given to us), you shall, for yourself as an Authorised User and for the Company: (i) expressly disclaim and waive, to the extent permitted by law, such intellectual property rights; and (ii) assign such rights to LCP or, where such assignment is not possible, hold such rights on trust indefinitely for the exclusive benefit of LCP; and (iii) prior to an assignment under (ii) taking place, grant LCP an exclusive, perpetual, irrevocable, royalty-free licence to use and exploit such intellectual property rights.

D. The Balancing Mechanism Reporting System (BMRS) data on Enact is reproduced with the permission of the rights holder, ELEXON Limited. The BMRS data is indicative only and may only be used with the permission of ELEXON Limited. Details on how to obtain permission to use BMRS data are available at http://www.bmreports.com/.

E. We may use other third-party data sources in the Services from time to time and you will comply with any reasonable third-party licence terms that apply to such data sources provided we notify you of such terms.

5. Data Protection and Online Privacy

The Services do not contain any personal data. Certain personal data about you as an Authorised User may be processed by us as a data controller in connection with your use of the Services. Click here to access our privacy policy, which explains how we will use your personal data.

6. Security

You must not misuse the Services by introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful (Viruses). We do not guarantee that the Services or the underlying software will be free from Viruses and you are responsible for ensuring that appropriate technology, security and encryption software is in place. We do not accept liability for any damage or loss caused (whether in contract, tort (including negligence or breach of statutory duty), or otherwise) by: (i) any Viruses; or (ii) any breach of security or unauthorised use of the Services arising from “hacking” or otherwise.

7. Third Party Links

Where the Services contain links to other websites and resources provided by third parties, these links are provided for your information only. We do not endorse these websites or accept liability for their contents.

8. Warranties

A. We warrant that the Services will function substantially in accordance with the Documentation. The Services are under constant development, and we may modify them or the Documentation at any time. This warranty shall not apply to the extent any breach is caused by your use of the Services contrary to our instructions, or any modification or alteration of the Services by you or any third party.

B. If there is a breach of the warranty in Section 8A, we will, at our expense, use reasonable endeavours to correct such breach within a reasonable period of time. Such correction constitutes your exclusive remedy for any breach of the warranty set out in Section 8A.

C. To the extent permitted by law, we exclude from these Terms: (i) all conditions, warranties, and any other terms implied by statute, common law, a course of dealing or otherwise; and (ii) all representations (whether innocent or negligent) not expressly set out in these Terms.

9. Liability and Reliance

A. The Services are provided on an “as is” non-reliance basis and may not be accurate, error free or up to date. Your use of the Services is at your own risk and LCP makes no warranty, express or implied, or representation as to their fitness for a particular purpose. The Services do not constitute professional advice and should not be relied upon or treated as a substitute for such.

B. LCP accepts no liability for any loss and/or damage (whether in contract, tort (including negligence), breach of statutory duty, or otherwise), arising under or in connection with: (i) the use of, or inability to use, the Services; or (ii) any action, decision and/or use of or reliance upon the Services; or (iv) CHARGEtrack only: the accuracy, suitability, completeness, legality, or content of the data provided by Eco-Movement B.V., which is subject to the terms of your licence agreement with Eco-Movement B.V..

C. Without prejudice to the foregoing exclusions:

(i) for Authorised Users with trial access, LCP shall have no liability (whether in contract, tort (including negligence and breach of statutory duty), misrepresentation (unless fraudulent) or otherwise) to the Authorised User or the Company in relation to the trial usage; and

(ii) for all other Authorised Users, our aggregate liability to the Authorised User and the Company (jointly) (whether in contract, tort (including negligence and breach of statutory duty), misrepresentation (unless fraudulent) or otherwise) arising under or in connection with the Licence shall not exceed an amount equal to one hundred and twenty five percent (125%) of the aggregate of the Licence fees paid for that Authorised User’s or the Company’s Licence to use the Services in the 12 months preceding the notification of the first claim to LCP.

D. If the first claim is notified to LCP after the termination of the Licence then the sum referred to in C (ii) above shall be calculated by reference to the Licence fees paid in respect of the final 12 months of the Licence.

E. Nothing in these Terms excludes or limits our liability for any matter that cannot lawfully be limited or excluded. We shall not be liable for any act, omission or delay which arises due to factors beyond our reasonable control.

10. Confidentiality

We do not require any confidential information from you in our provision of the Services. Other than content which we have placed in the public domain, all content (including downloaded content and results) in or generated by the Services and information relating to the design, development and use of the Services constitutes confidential and proprietary information of LCP (Confidential Information). You shall keep Confidential Information secure and confidential and shall not use (other than as necessary to access the Services), copy and/or disclose to any third party any Confidential Information without our prior written consent.

11. Other Matters and Governing Law

A. These Terms apply to Authorised Users with trial access (other than Section 3 (Fees)).

B. We will comply with all applicable anti-bribery and anti-corruption laws, including the Bribery Act 2010.

C. All notices must be in writing (including email and other forms of electronic communication) to the relevant addresses provided by each party to the other from time to time. All notices to LCP should be copied to enact.helpdesk@lcp.uk.com.

D. These Terms together with the Order Form contain the entire agreement and understanding relating to the Services and supersede all prior agreements, representations (whether negligent or innocent) or arrangements (oral or written). Neither party has relied upon any representation made by the other or any arrangement, understanding or agreement (whether negligent, innocent, written or oral) with the other that is not expressly set out or referred to in these Terms. Nothing in the Licence is intended to exclude either party’s liability for fraudulent misrepresentation.

E. In the event of any conflict between these Terms and the Order Form, or any other document referred to in these Terms then these Terms shall take precedence.

F. If any of these Terms is held to be void, voidable, illegal or otherwise unenforceable the remaining Terms shall remain in full force and effect.

G. Except where expressly permitted by these Terms, no variation of these Terms shall be effective unless it is agreed in writing and signed by an authorised representative of each party. Any waiver of these Terms must be given in writing and applies only to the specific circumstances for which it is given. Any temporary or permanent waiver of any of the Terms shall not affect a party’s right to subsequently enforce the Terms.

H. No third party shall have any right to enforce or rely on any of these Terms whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

I. These Terms shall be governed by and construed in accordance with English law, and we and you each submit to the exclusive jurisdiction of the English Court.