Monitoring Project Terms
Last Updated September 2024
These Terms and Conditions ("Agreement") govern the Energy Management as a Service Agreement ("Service") provided by Krem.Energy (Krem Energy, LLC) ("Provider") to the business or entity ("Client") that engages in the Service. The Client and Provider are sometimes collectively referred to herein as the “Parties” and individually as a “Party”. By agreeing to the Service, the Client agrees to be bound by these Terms and Conditions.
Background
The Provider provides and installs a range of energy monitoring and management solutions which include hardware, firmware and software platforms, in addition to providing a remote Virtual Energy Management (VEM) service comprising a team of energy and data analysts who report proactively on energy consumption and conservation strategies for client companies.
Prior to signing an initial ‘EMaaS’ Agreement, Krem.Energy has conducted an Energy Efficiency Gap Analysis Survey for the Client and prepared a Gap Analysis Report (GAR) for the facility to indicate causes and shortfalls in the current energy management strategy. This included a lack of effective monitoring and targeting, resulting in substantial energy leaks and inefficiencies that it would be valuable to address.
Service Description
1. The Client has requested that the Provider undertake the following services, as laid out in the Proposal document specifically referenced within the EMaaS agreement, as part of a phased project to assist them with making informed decisions around their energy management strategy:
Phase 1 - Survey & Solution Design
Triggered on signing of an EMaaS Agreement.
1. Engineer’s site visit, assessment, and validation of the Proposal.
2. Preparation of a SoW (Scope of Works) & solution design report.
Phase 2 - Installation & Commissioning
Triggered on signing of the lease documentation, issued separately to this Agreement by our finance partner.
[in all projects]
3. Installation and commissioning of Eniscope 8 IoT Hub(s) to accurately monitor all relevant energy parameters.
4. Installation of CTs to measure parameters outlined in the Proposal document.
[In most projects, subject to the Proposal in each case]
5. Installation & commissioning of Eniscope Air Sense (Batteries) unit(s)
6. Installation & commissioning of Eniscope Air Temp unit(s)
7. Provision of all necessary wiring, conduit, and connectors for the above
8. 24/7/365 fully manned technical support desk
9. Commissioning and on-boarding of key stakeholders
Phase 3 - Virtual Energy Management
Triggered on an active subscription to the VEM service.
10. Full access to Eniscope Analytics Platform 24/7/365 (“SaaS”). Term and Conditions for Virtual Energy Management (VEM) Service. Covered by the terms on this link.
11. Provision of the Virtual Energy Management (“VEM”) service. Term and Conditions for Virtual Energy Management (VEM) Service. Covered by the terms on this link.
1.1 The Provider shall use reasonable skill and care to ensure that all works and services provided under this Agreement are carried out to a good industry standard and in accordance with all relevant laws and regulations.
1.2 The Provider shall promptly remedy any defects or deficiencies in the Project brought their attention by the Client, provided that such defects or deficiencies are within the scope of the Service Description outlined in this Agreement.
Payment
2. A fee structure for the Project was laid out and agreed by the Parties in the EMaaS Agreement, signed before a site survey was conducted and Phase 1 of the Service Description undertaken.
2.1 Fees governing Phase 2 (Installation & Commissioning) of the project shall be payable via a third-party lease agreement. The value of the monthly fee payable against that lease agreement will be in line with the EMaaS Phase 2 fees stated, unless agreed otherwise in writing between the parties.
2.1.1 This relationship is between you, the Client, and the third-party lease finance provider directly. This enables us to provide a cost-effective and ‘cashflow friendly’ monthly fee solution, even for large projects. Please read carefully the lease documentation before entering into the agreement as any disputes or queries will be made directly with that provider.
2.2 Fees governing Phase 3 (Virtual Energy Management (VEM)) of the project will be as agreed in the EMaaS agreement, unless agreed otherwise in writing. Fees are payable monthly in advance.
2.2.1 The first monthly payment will fall due at the start of the calendar month following the completed installation and commissioning of the on-site equipment that is the subject of the Project. Payment must be made within seven days of the start of each month, to avoid disruption to the service. Krem.Energy withholds the right to deny access to the VEM service in the event of non-payment or late payment of fees. Please see the VEM terms at https://www.Krem.energy/vem-terms
Client Responsibilities
3. The Client agrees to cooperate with the Provider by providing access to the premises where the Project equipment is to be installed and maintained, as well as any pre-survey and pre-installation information that is reasonably requested from time-to-time by the Provider.
3.1 The Client shall ensure that all necessary permissions, consents, and approvals required for the installation and operation of the Project equipment are obtained.
3.2 The Client is responsible for ensuring that the information provided to the Provider is accurate and complete and shall comply with all reasonable information requests made by the Provider ahead of any survey or installation work.
Cancellation
4. At any time prior to the installation and commissioning of the Eniscope solution, either party will have the right to cancel the Agreement at their absolute discretion. If the Client elects not to proceed with the installation and any additional services after the Site Survey, SoW & Solution Design has been undertaken, then the Client will pay for the Site Survey, SoW & Solution Design fee as outlined and agreed in the EMaaS Agreement.
4.1 Should the Client wish to cancel the service provided under Phase 3 (ie. Virtual Energy Management), this can be requested in writing with a minimum of 28 days’ notice. After this time, the service will cease to be provided and no further charges will be made.
4.1.1 If the Client wishes to continue to have access to the software (Eniscope Analytics), a separate quotation for only this element can be requested from the Provider and will not be unreasonably withheld.
4.2 The Client understands and accepts that the provision of the equipment and installation part of this Project (Phase 2) is financed via a third-party. Any requests for cancellation of these payments must be made to that provider directly and is subject entirely to the terms of their lease agreement.
4.3 Obligations upon Cancellation/Termination. Termination of this Agreement for any reason shall not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Customer shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, the Customer shall promptly return to Provider any equipment, materials or other property of the Provider relating to the terminated Services which are in Customer’s possession or control.
Confidentiality & Intellectual Property
5.1. Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
5.2. Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall at all times remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
5.3. Exceptions. Confidential Information does not include information that: (a) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval.
5.4. Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
5.5. Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take any and all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
5.6. Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section will survive for two (2) years after the expiration or earlier termination of this Agreement.
Independent Contractor
6. Krem.Energy will not be construed as an employee of the Client, nor will this Agreement be interpreted as a joint venture or partnership between the two parties.
Limitation of Liability
7. To the extent permitted by law, the Provider’s liability for any losses of damages arising from the Agreement, including negligence, shall be limited to the total fees paid by the Client for the Project.
Indemnification:
8. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all third party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
SECTION 7. STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
Governing Law
9. These terms and conditions will be governed by and construed according to the laws of New Jersey.
Entire Agreement
10. This Agreement, the EMaaS agreement, the associated terms and conditions linked from that EMaaS agreement and the proposal document it references constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to the Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding the Agreement, except to the extent such representations are expressly set forth in the Agreement.
Amendments
11. Any amendments to the Agreement must be made in writing and signed by both parties.
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Signing the EMaaS Agreement, which directly references these terms and conditions, means that both parties acknowledge and accept these terms herein contained as part of that agreement.