These BESS Terms and Conditions (“BESS T&Cs”) apply to the BESS Optimisation Services Agreement (“Agreement”) entered into by the Sympower legal entity signatory to the Agreement (“Sympower”) and Customer.
1. DEFINITIONS
Words in the singular include the plural, and words in the plural include the singular, in each case as the context may require.
“Affiliate” shall mean an entity, which is a subsidiary or a parent company of or under common control with a Party, where control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, interest, or otherwise.
“Annual Unavailability” shall mean the average, for each hour of year N, of the following ratio: Number of MW's in Unavailability / Total Number of MW.
“Applicable Law” means all laws, regulations, standards or codes determined by any governmental or regulatory authority which apply to a person or which impact on the performance of the Agreement or the provision of the Optimisation Services from time to time.
“Asset Specific Conditions Precedent” means such conditions precedent that must be fulfilled by or on behalf of the Customer, as may be specified in this Agreement and, for the avoidance of doubt, in relation to each BESS Unit includes:
- construction and commissioning of the BESS Unit has been completed; and
- the Customer has obtained all relevant licences, permitting it to use the BESS Unit to generate and export electricity, or otherwise benefits from an exemption from all statutory requirements to hold a licence in respect of the same; and
- the Customer confirms that all meter points have been correctly registered and energised.
- the Customer has received grid compliance approvals to operate the BESS Unit from the Network Company (distribution system operator (DSO) and/or transmission system operator (TSO)).
“Available Capacity” means the total amount of power and energy storage capacity that is available for optimisation and market participation, excluding any capacity reserved for emergency backup, maintenance, or other non-market uses. Available Capacity is determined by the operational capabilities of the BESS Unit(s) and may vary based on operational conditions, regulatory requirements, and the technical specifications as detailed in Appendix 2.
“BESS” shall mean Battery Energy Storage System.
“BESS Unit(s)” or “Resources” means each and any of the Customer’s plug-and-play containers in which one or more batteries] are connected with power electronics equipment, air conditioning, fire protection system, Energy Management System ("EMS") and Delivery Substation ("PDL") as listed in Appendix 1 to this Agreement. Each BESS Unit must conform to the technical specifications set out in Appendix 2. The Power (MW) and capacity (MWh) of the BESS Unit are indicated in Appendix 1.
“Best Commercial Efforts” means applying that degree of skill and care, as would be expected from a skilled and experienced company within the relevant industry or business sector.
“Business Day” means any day excluding Saturday, Sunday, and any day which is a legal holiday in the country where Sympower is registered.
“Change in Law” means any change in the Applicable Law or in judicial or administrative interpretation of the Applicable Law, or of any rules relating to the Optimisation Services or any directive of any local, national or supranational agency, authority, department, inspectorate, minister, official, court, tribunal or public or statutory person, in each such case after the date of this Agreement, which affects or relates to the obligations of either Party.
“Confidential Information” shall mean any technical, commercial, or other information of a confidential nature disclosed by either Party or its Affiliates to the other Party or its Affiliates prior to or following the Effective Date of the Agreement, or matters arising out of the Agreement.
“Contracted Capacity” means the aggregate amount of power (in MW) and energy storage capacity (in MWh) that the Customer's BESS Unit(s) is/are committed to provide and make available for Optimisation Services under the terms of this Agreement, as detailed in Appendix 1. This capacity is subject to the technical specifications and operational capabilities of the BESS Unit(s) as outlined in Appendix 2, and represents the baseline upon which Sympower shall perform the Optimisation Services.
“Customer Data” shall mean all the technical information, data related to available historical and forecasted electricity consumption and/or production and/or storage data, and other data provided by the Customer as required by Sympower in connection with the Agreement and/or the provision of the Optimisation Services.
“Energy Management System (EMS)” means the component which manages the charging and discharging processes, monitors system performance of the BESS Unit and is responsible for overseeing and optimising the operation of the BESS Unit.
“Fines” means any fines, penalties, levies, charges, fees, or other financial sanctions imposed by any Regulatory Authority or other government body or entity, or any other third party, incurred due to a Party’s actions or omissions or breach of the terms of this Agreement.
“Hardware” means the physical devices, including but not limited to servers, switches, routers, cables, and other telecommunications or computing devices, as well as any other equipment provided by Sympower or its Affiliates or subcontractors for the purpose of installing the Sympower Control System at the relevant BESS Unit and includes any updates, upgrades, replacements, or modifications to such equipment made by Sympower during the Term of this Agreement.
“Market” means the specific markets in which Sympower will operate, and the strategies employed to monetise the BESS Unit(s), as detailed in Appendix 1 to this Agreement.
“Network Operator” means the entity responsible for the operation, maintenance, and development of the distribution or transmission system in the relevant jurisdiction.
“Optimisation Services” means the services provided by Sympower in accordance with the Agreement as further detailed in Appendix 3 of this Agreement.
“Regulatory Authority” means any national or supranational agency, authority, department, inspectorate, minister, official, court, tribunal or public or statutory person responsible for the regulation of electricity markets and/or the operation of the electricity grid in the relevant jurisdiction.
"Sympower Control System" or "Control System": shall mean Hardware, devices, equipment, and software integrations owned and managed by Sympower and/or its Affiliates in order to send operational instructions to each of the Customer’s BESS Units.
“Target COD” means the date on which the BESS Unit is expected to be commissioned and ready to participate in the Market, as detailed in Appendix 1.
“Unplanned Unavailability” shall mean the Unavailability of the BESS Unit that has not been announced in advance at least D-1 14:00 in by the Customer to Sympower.
“Unavailability” shall mean either the inability of the BESS Unit to follow the instruction of the Control System, or the BESS Unit being offline or otherwise unable to function as required. The integration tests, and prequalification tests carried out as needed, shall not be considered to be Unavailability.
2. SERVICES PERFORMED BY AFFILIATE OR SUBCONTRACTORS
2.1. The Customer acknowledges that part of the Services may be performed by an Affiliate of Sympower. Sympower shall remain fully responsible for the correct performance of any part of its activities and the compliance of its obligations under the Agreement and shall remain liable for the breach of its contractual obligations and liabilities under this Agreement by its Affiliates.
2.2. The Customer acknowledges that part of the Services may be performed by a sub-contractor appointed by Sympower. Sympower shall require the sub-contractors to comply with all applicable terms and conditions of the Agreement, provided, however, that the sub-contractors shall be solely responsible for their own acts and/or omissions.
3. SYMPOWER CONTROL SYSTEM
3.1. Following Sympower’s confirmation that Asset Condition Precedents have been fulfilled, Sympower shall deliver the Control System to the Customer. The Control System will operate remotely with a cloud-to-cloud integration with Customer’s systems or through the installation of Hardware at the Customer’s premises. Wherever Hardware installation is required then Sympower shall deliver the same to the Customer, or (as the case may be) to a third-party contractor appointed by Customer, for the relevant BESS Unit(s) within 21 days from Sympower’s confirmation.
3.2. In any event, the Customer shall install, or (as the case may be) shall ensure that its contractor shall install the Sympower Control System in the relevant BESS Unit in accordance with Sympower’s requirements. Sympower accepts no responsibility whatsoever if the Customer or the contractor deviate from Sympower’s written instructions. This installation consists of connecting the Sympower Control System to Customer’s infrastructure, including its power supply, its connection to communication networks, high speed internet, the electrical interface connections (inputs/outputs) with the on site installation, and the electrical switchboards of the EMS of the BESS Unit. Sympower shall provide reasonable remote assistance with such installation.
3.3. Upon successful integration, Sympower shall remotely commission the Sympower Control System. Sympower shall be responsible for and shall provide data-connectivity, maintenance, upgrades, and operational support to optimise (“unlock”) the Available Capacity of each BESS Unit.
3.4. The Control System shall remain the property of Sympower and/or its Affiliates. The Customer is not entitled to (i) remove the Hardware from the approved location without Sympower’s prior written approval; or (ii) create any lien or otherwise encumber or transfer to any other party any rights to the Control System or parts thereof. Upon Sympower’s request, the Customer shall take reasonable steps to insure the Hardware against destruction, damage, and theft while in the Customer’s possession.
3.5. During the Term, Sympower is responsible for (i) maintenance of the Control System, including the provision of spare parts and the replacement of end-of-life Hardware, if applicable; (ii) repair or replacement, at Sympower’s discretion, of faulty Hardware, unless the damage has been caused by Customer’s breach, acts or omissions, in which case the costs will be invoiced directly to the to Customer.
3.6. In the event that a Sympower Control System malfunctions, Sympower shall correct it as soon as possible, by an on-site support if the malfunction found cannot be resolved remotely. Accordingly, Sympower may request access to the relevant Sympower Control System with a BESS Unit and the Customer shall provide Sympower with all necessary information and to allow Sympower and/or its service providers to access the relevant site(s). Sympower undertakes to comply with the site health and safety plan applicable on the site in question and any relevant access protocol notified to Sympower.
3.7. Sympower may from time to time run tests on the Control System and the BESS Unit(s) for the purpose of checking the correct functioning of the Control System. The Customer acknowledges and agrees that it shall not be entitled to any additional compensation in respect of such tests.
4. RESPONSIBILITIES OF CUSTOMER
4.1. Required Permits and Consents:
4.1.1. The Customer shall be solely responsible for obtaining all necessary permissions, consents, licenses, and approvals required for the installation, operation, and maintenance of the BESS Units (whether or not included in the list of Asset Specific Conditions Precedent). This includes, but is not limited to, environmental permissions, grid connection approvals, and any other regulatory approvals required by applicable law. The Customer shall ensure that all such permissions, consents, licenses, and approvals are obtained in a timely manner and are maintained throughout the term of this Agreement. The Customer shall continue to manage and maintain the electricity supply contract(s) necessary for the operation of the BESS Unit (“Electricity Contract”). The Customer shall be solely responsible for receiving and settling all invoices for the import of the electricity to the BESS Unit and all invoices for the export of the electricity from the BESS Unit
4.1.2. The Customer shall promptly provide Sympower with copies of all such permissions, consents, licenses, and approvals upon Sympower’s request. Failure to obtain or maintain any of the required permissions, consents, licenses, or approvals may constitute a material breach of this Agreement.
4.2. Metering and Maintenance:
4.2.1. The Customer undertakes to put in place an electricity meter (for both injection and extraction from the grid) and a frequency measuring device (or “transducer”), which comply with Sympower’s requirements and all Applicable Laws. The Customer shall ensure the same is maintained in good working order and is ready for participation in the Optimisation Services for the duration of the Term. The Customer grants to Sympower the right to: (i) meter the Available Capacity; (ii) control, adjust, and switch on/off in real time the Available Capacity by the Control System for the purposes of the Optimisation Services; and (iiv) access and retrieve measurement data from the Network Operator’s official central metering point(s) at the Customer’s premises.
4.2.2. The Customer shall provide all information and historic data relating to the BESS Unit(s) (including all information relating to metering arrangements) as Sympower may reasonably request from time to time and shall continuously provide all available (including where appropriate historic) metering data to Sympower, in each case as may be reasonably required for the purposes of performing Sympower’s obligations under this Agreement.
4.2.3. Throughout the Term of the Agreement the Customer undertakes:
a) to operate and maintain the BESS Unit in accordance with the applicable technical and safety requirements and undertakes in particular to set up a fire safety system and to maintain it in operational condition; and
b) to allow Sympower to conduct performance tests, integration tests and prequalification tests.
5. INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA
5.1. Ownership:
5.1.1. All title, ownership, intellectual property rights, and interest in (i) the Sympower Control System, and (ii) any improvement to the Sympower Control System generated during the Agreement shall vest exclusively in Sympower and/or its Affiliates upon creation.
5.1.2. All computer programs and processes used and owned by Sympower when performing the Optimisation Services shall remain the exclusive property of Sympower and/or its Affiliates.
5.1.3. All title, ownership, intellectual property rights, and interest in (i) the BESS Unit, and (ii) the data generated by the monetising of the BESS Unit during the performance of the Agreement, and (iii) any improvement to the BESS Unit generated during the Agreement shall vest exclusively in the Customer upon creation.
5.2. Customer data:
5.2.1. Upon Sympower’s request, the Customer shall provide the Customer Data to Sympower. The Customer agrees that Sympower may also obtain Customer Data directly from the Network Operator, approved metering companies, and other service providers, the Control System or any combination of the foregoing.
5.2.2. The Customer hereby grants Sympower and its Affiliates a perpetual, irrevocable, non-exclusive, free-of-charge, worldwide licence to (i) use, copy, store, modify, and display Customer Data for the purposes of fulfilling Sympower's obligations under the Agreement, and (ii) share metered and historical consumption and/or production data with the Network Operator, where applicable, and (iii) use Customer Data for the purposes of improving Sympower’s services or developing new services, analysing demand and response trends, preparing and publishing reports, summaries or databases with respect to electricity demand and response trends, and for other purposes connected to Sympower's business. For the avoidance of doubt, save as expressly stated in this Agreement and without prejudice to the foregoing licence, no intellectual property rights of any kind are transferred between the Parties.
6. MARKET PARTICIPATION
6.1. This Agreement outlines the terms under which Sympower will operate and manage the BESS Unit(s) installed by the Customer for the purpose of participating in the Markets. The primary focus of market participation will include, but not be limited to, balancing markets, energy markets, and ancillary service markets.
6.2. Sympower will utilise its proprietary Control System to optimise the performance of the BESS Unit(s)
6.3. Sympower will be responsible for all aspects of Market access, including registration, compliance with market rules, and ongoing operational requirements provided always that it is understood that market conditions and regulations are subject to change and in which case Sympower commits to adapting its strategies and operations to reflect current market opportunities and regulatory requirements.
6.4. Where applicable, the Customer grants Sympower the right to represent the BESS Units in the Markets and to make decisions regarding the dispatch and operation of the BESS Units, within the parameters defined in this Agreement and any subsequent amendments agreed upon by both Parties.
6.5. Customer acknowledges and agrees that Sympower is free to choose markets and trading strategies and to aggregate the BESS Units with other parts of the Sympower portfolio for the purpose of market participation.
7. EXPIRY AND TERMINATION
7.1. Expiry:
This Agreement shall commence on the Effective Date and shall continue in force for the Term unless earlier terminated in accordance with the provisions of the Agreement.
7.2. Termination
Sympower reserves the right to terminate the Agreement if (part of) the BESS Units do not or no longer meet (i) the requirements for participating in the Market Program or (ii) Sympower’s standard requirements, including product requirements, technical specifications as per this Agreement and Appendix 2, and contracted storage capacity. A notice term of 90 (ninety) days shall apply.
7.3. Termination for Default:
Notwithstanding the foregoing, this Agreement may be terminated immediately by either Party upon the occurrence of any of the following events:
a) A party commits a material breach of this Agreement that is not remedied within 30 days after receiving written notice of such breach from the other party.
b) A party becomes insolvent, declares bankruptcy, or undergoes any similar or equivalent process.
7.4. Process on Termination:
7.4.1. Upon termination of this Agreement for any reason: (a) each Party shall return to the other Party all Confidential Information in its possession or control and shall cease all use of the other Party's trademarks, service marks, and trade names; (b) Customer shall return any Sympower property in its possession; (c) Sympower shall return any Customer property in its possession; and (d) all outstanding payments due from either Party shall be settled within 30 days of the termination date.
7.4.2. Upon termination or expiry of this Agreement, Sympower shall deactivate the Control System and, if applicable, remove the Hardware from Customer’s premises. Unless the Agreement is terminated by Customer due to Sympower’s default then the costs for deinstallation shall be borne by the Customer and may be recovered by either invoiced directly to the Customer or way of set-off or deduction from the payments owed to Customer under the Agreement.
7.4.3. Expiry or termination of this Agreement shall not affect confirmed orders (including activated balancing energy bids) nor relieve either Party of any obligation, including payment obligations, nor prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
8. LIABILITY
8.1. Damage:
8.1.1. Each Party shall be responsible for damage caused to the other Party as a result of (i) its negligent or intentional acts and/or omissions in the performance of its obligations under the Agreement, and (ii) breach of contract.
8.1.2. The Customer remains ultimately responsible for the functioning of the BESS Units. If at any time during the Term the Customer becomes aware that the actions of the Control System are causing or can reasonably be expected to cause damage to the BESS Units, and/or to Customer’s processes and/or property and/or personnel (as the case may be), it shall promptly act to prevent and/or mitigate the damage and immediately notify Sympower of any actions taken by the Customer. Sympower disclaims any liability and responsibility whatsoever for any losses, expenses, and damages sustained by the Customer in connection with the actions of the Control System to the extent that the Customer’s acts and/or omissions and/or breach of this Agreement have contributed to the damage. The Customer shall indemnify and hold harmless Sympower and Sympower’s Affiliates and their respective directors, employees, consultants and agents from any claims, liabilities, costs (including reasonable legal fees and costs), expenses, damages or losses arising out of, incident to or resulting from Customer’s acts and/or omissions in preventing or mitigating damage.
8.2. Limitation
8.2.1. Except as may be expressly provided otherwise in this Agreement, neither party shall be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to lost profits or lost revenue, even if the party has been advised of the possibility of such damages, and regardless of whether such damage was foreseeable and whether either Party has been advised of the possibility of such damages. For the avoidance of doubt, neither Party shall have any liability for lost, altered, or destroyed data in providing or receiving any service or for any interruption of any service relating to computer or telecommunications services.
8.2.2. Nothing in this clause shall limit or exclude the liability for death or personal injury resulting from negligence, fraud, or fraudulent misrepresentation.
9. CONFIDENTIALITY
9.1. During the Term of the Agreement and for 3 years thereafter, the Confidential Information shall be treated as strictly confidential. The Parties shall use the Confidential Information solely for the purposes of the Agreement and shall not, without the prior written consent of the other Party, which may be withheld for any reason, pass it on to any person except to those of the Party’s Affiliates, employees, consultants, or subcontractors, as the case may be, who have a legitimate “need to know” and who are bound by confidentiality obligations at least as restrictive as those set forth herein. Each Party shall be responsible for any violation of the terms of this Clause by such third parties.
9.2. Confidential information does not include information that:
a) is or becomes publicly known through no fault of the receiving party;
b) is received from a third party without breach of any confidentiality obligation;
c) was independently developed by the receiving party without use of the disclosing party's confidential information;
d) or is required to be disclosed by law, provided that the disclosing party is given reasonable prior notice of such requirement.
9.3. Notwithstanding the foregoing each Party shall be entitled, following written approval from the other Party, to make announcements related to the cooperation under the Agreement in its advertising and other publications.
10. FORCE MAJEURE
10.1. For the purposes of this Agreement a “Force Majeure Event” means any event or circumstance beyond the reasonable control of a Party, which by its nature could not have been foreseen or (as the case may be) could not reasonably have been prevented or overcome by such Party, or if it could have been foreseen, was unavoidable, and in each case which prevents a Party from performing its obligations under this Agreement, including but not limited to war, requisition or sequestration for public needs, trade embargo, industrial dispute, thunderstorm, pandemic, storm, fire, mobile network outage, cable or other damage caused by a third party, flood or water damage, incoming overvoltage, and interruptions in supplies of energy or other essential raw materials.
10.2. On the occurrence of a Force Majeure Event the Party affected (the “Affected Party”) must notify the other Party within 7 days of becoming aware of the Force Majeure Event (the “Non-Affected Party”) of its effect and shall be excused from performing the affected obligations, and shall not be deemed to be in breach of this Agreement for so long as the Force Majeure Event continues.
10.3. The Affected Party shall use all reasonable endeavours to continue to perform its obligations and minimise the adverse effects. The Affected Party shall update the Non-Affected Party on the status of the Force Majeure Event and steps it is taking to minimise its effects.
10.4. The obligations of the Non-Affected Party to pay money accrued prior to the Force Majeure Event shall not be excused due to the Force Majeure Event.
10.5. Both Parties shall each make all reasonable efforts to prevent and reduce the effect of any non-performance of the Agreement caused by a Force Majeure Event. If a Force Majeure Event persists for 30 days or more, the Parties shall negotiate in good faith amendments to the Agreement to address the impact of the Force Majeure Event.
10.6. Where the Affected Party is prevented from performing its obligations under this Agreement due to a Force Majeure Event for a period of not less than 180 days (“Extended Force Majeure Event”), either Party may terminate this Agreement without liability on either Party in respect of such termination.
11. CHANGE IN LAW
11.1 Where applicable, if a Change in Law makes performance of all or part of this Agreement or any Optimisation Service illegal or unenforceable or materially adversely affects the ability of either Party to comply with any of its obligations:
a) either Party must give written notice within 14 days of becoming aware of the Change in Law to the other to suspend performance of the affected obligations;
b) the Parties shall meet no later than 14 days following receipt of such notice to agree the occurrence and effect of the Change in Law; and
c) if the Parties agree the occurrence and effect of the Change in Law, they shall, in good faith, seek to agree such amendments as may be required so that (i) the overall balance of their benefits, rights, liabilities, obligations and risk is in substantially the same position as prior to the Change in Law; and (ii) performance of this Agreement or the Optimisation Services is legal and enforceable; or
d) if the Parties cannot agree on the occurrence or effect of the Change in Law or upon the required amendments then the Parties may refer the issue(s) to an independent expert (the “Expert”) for determination. The Expert’s determination shall be final and binding on the Parties, absent manifest error. Costs of the Expert shall be shared equally.
11.2. Where an Optimisation Service is affected by a Change in Law, only the part of this Agreement that relates to that Optimisation Service will be amended, unless such part is integral to other parts of the Agreement as reasonably determined by the Parties. The remaining provisions will remain unchanged and in full force and effect.
11.3. Amendments made to this Agreement in accordance with this Clause shall be binding on both Parties from the effective date of the relevant variation.
11.4. In the event that it is mutually agreed, or determined by the Expert, that it is not possible for this Agreement to be amended in order to achieve the outcomes described in this Clause, either Party may terminate this Agreement by giving the other Party not less than 7 days’ written notice without liability on either Party in respect of such termination.
12. MISCELLANEOUS
12.1. The Parties shall ensure that the processing of personal data is in accordance with applicable data protection legislation in force from time to time. Where needed, the Parties shall enter into a separate agreement concerning the processing of personal data.
12.2. If any provision contained in the BESS T&Cs, the Agreement, or any appendix hereto is deemed invalid, illegal, or unenforceable in any respect, the remaining provisions shall not in any way be affected or impaired. The Parties hereby agree to make all reasonable efforts to replace such provision by valid provisions which reflect, as far as possible, the purpose of the provision so replaced.
12.3. The Agreement shall not be interpreted or construed to create an association, joint venture, agency relationship, or partnership between the Parties. No Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as or be an agent or representative of, or to otherwise bind, the other Party.
12.4. Except as expressly provided, neither Party may transfer or assign, in whole or in part, its rights or obligations under the Agreement without the prior written consent of the other Party.
12.5. No failure to exercise, or delay in exercising, any right or remedy provided under the Agreement constitutes a waiver of such right or remedy or shall prevent any future exercise in whole or in part thereof.
12.6. The English language version of the BESS T&Cs and the Agreement shall prevail in case of any inconsistencies with translated versions if any.
12.7. Sympower reserves the right to amend these BESS T&Cs from time to time. Changes to the BESS T&Cs shall be communicated to Customer in writing. Customer shall have the right to terminate the Agreement by notifying Sympower within 15 (fifteen) days from Customer’s receipt of the new BESS T&Cs if the changes to the BESS T&Cs have a substantial adverse effect on Customer’s obligations and responsibilities under the Agreement. A notice term of 30 (thirty) days shall apply.