SYMPOWER CUSTOMER TERMS
AND CONDITIONS

Version 2022-08

These Customer Terms and Conditions (“T&Cs”) apply to the Flexibility 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.

Activation” shall mean the period between receiving the notification from the Control System to start the activation of the Resources and the notification from the Control System to terminate the activation of the Resources.

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.

Accepted Capacity” shall mean the amount of capacity in MW that is accepted by the Network Company in the bidding process. 

Available Capacity” shall mean the capacity in MW of the Resources available in real-time to be activated.

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” shall mean the amount of MW of the Resources subject to the Agreement.

Control System” shall mean hardware, devices, equipment, and software integrations installed, owned or managed by Sympower and/or its Affiliates, cloud-based or residing at Customer’s facilities, and software controlling any of the aforementioned.

Customer Data” shall mean all the technical information, available historical and forecasted electricity consumption and/or production and/or storage data, and other data provided by Customer as required by Sympower in connection with the Agreement. 

Effective Date” shall mean the date on which the Agreement enters into force.

Flexible Capacity” shall mean the amount of MW of electricity consumption and/or production and/or storage of the Resources. 

FlexPortal” shall mean the web-based user interface of Sympower’s software.

Fine” shall mean a monetary sanction as a result of not complying with the requirements to participate in a Market Program.

Force Majeure” shall mean a circumstance that is beyond the control of the Party concerned and whose effects the said Party could not reasonably have prevented or overcome, 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. 

Hardware” shall mean the hardware components of the Control System.

Initial Term” shall mean the initial period the Agreement is entered for by the Parties as set forth in the Agreement.

Market Program” shall mean a specific electricity, congestion, or balancing market.

Network Company” shall mean the grid operator, for example the transmission system operator or the distribution system operator.   

Party” shall mean a party to the Agreement.

Planned Capacity” shall mean the amount of capacity in MW that the Customer plans to participate in the Market Programs for a specific period of time.

Resources” shall mean Customer’s electrical equipment subject to the Agreement.

Services” shall mean the tasks and operational work performed by Sympower described in Section 1 of the Agreement.  

2. RESOURCES AND FLEXIBLE CAPACITY 

If applicable, 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 to be able to participate in the Market Programs; (iii) offer the Planned Capacity to the Market Programs; (iv) access and retrieve measurement data from the Network Company’s official central metering point(s) at the Customer’s premises.

3. INSTALLATION OR CLOUD-TO-CLOUD INTEGRATION OF THE CONTROL SYSTEM 

3.1  If applicable under the Agreement, Sympower shall install the Control System at Customer’s premises, unless otherwise agreed between the Parties, provided that the installation must in any case be performed in accordance with Sympower’s written instructions. Sympower accepts no responsibility whatsoever if Customer deviates from Sympower’s written instructions.  

3.2 In case of cloud-to-cloud integration of the Control System with Customer’s systems, Customer shall be responsible for and shall ensure, at its own costs, the correct functioning of its end of the IT infrastructure.  

3.3  Customer shall provide Sympower and its subcontractors with accurate and up-to-date information for performing the installation/integration (including a valid circuit diagram).  

3.4  If necessary to perform the installation/integration of the Control System, Sympower and its subcontractors have the right to, with Customer’s prior consent, (i) switch off the Resources and the electricity on the premises, and/or (ii) change the connections of Customer’s electrical system, and/or (iii) install additional equipment. 

3.5 Customer is responsible for checking the installation/integration and the functioning of the Resources after installation/integration. If no complaints are raised within 2 (two) weeks from the date installation/integration was completed, the installation/integration shall be deemed accepted by Customer. If Customer fails to communicate issues with the installation/integration within the acceptance period, Sympower reserves the right to charge Customer with the costs incurred for implementing the necessary changes to the installation/integration.    

4. ACCESS TO CUSTOMER’S PREMISES 

Subject to Sympower’s written notice in advance, Customer shall grant Sympower and its sub-contractors access to Customer’s premises to perform the installation of the Control System, maintenance activities, and other operations required to manage the Control System, as applicable. Prior to Sympower’s (or Sympower’s sub-contractor) arrival at the facilities, Customer shall communicate to Sympower and its subcontractors all the applicable health and safety rules and specific requirements at Customer’s facilities.

5. CONTROL SYSTEM 

5.1  The Control System shall remain the property of Sympower and/or its Affiliates. 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, Customer shall take reasonable steps to insure the Hardware against destruction, damage, and theft while in Customer’s possession. 

5.2  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 acts or omissions, in which case the costs will be deducted from the payments owed to Customer under the Agreement.  

5.3  Subject to Sympower’s written notice in advance, Sympower may run tests on the Control System and the Resources for the purpose of checking the correct functioning of the Control System. Customer acknowledges and agrees that it shall not be entitled to any additional compensation thereof.

6. SERVICES 

6.1 Sympower shall ensure that disturbances to the Customer’s right to use the Resources shall be kept to what is reasonably expected for the performance of the Services. Sympower is entitled to make changes to the Control System, the Services, or the method of providing such Services, provided that such changes may evidently not affect the performance of the Services or Customer’s right to use the Resources. 

6.2  It is understood and agreed between the Parties that if the Control System or the Resources do not work for any reason, the Services cannot be provided for the affected Resources and Customer shall not be entitled to any compensation in case of loss of revenues due to the malfunctioning of the Control System and/or the Resources. 

6.3 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.

7. FLEXPORTAL  

7.1 If Customer is granted access to the FlexPortal, Customer is responsible for maintaining the security and confidentiality of login credentials, security methods, and other information provided by Sympower for accessing the FlexPortal.  

7.2 If Customer has any reason to believe the security of Customer’s login credentials, or of any authorization the Customer has to access the FlexPortal has been compromised, Customer shall report such concerns to Sympower as soon as possible. Access to the FlexPortal will be revoked at Sympower’s discretion in the event of suspected misuse and/or attempted unauthorised access.  

8. PAYMENTS  

8.1 The calculation of the payments owed to Customer shall be based on the measurements collected by Sympower in accordance with the applicable official metering units and/or the installed Hardware and/or the cloud-to-cloud integration. Customer shall have the right to examine information pertaining to the activities under the Agreement to ascertain the basis for payment.  

8.2 Each Party is responsible for and bears its own taxes, including VAT if applicable, in connection with the performance of the Services. For the avoidance of doubt, it is understood that Customer shall remain fully responsible for the payment of its utility bills. 

8.3 If payments under the Agreement are made in a currency other than Euro, in case of fluctuations of the exchange rate between Euro and the foreign currency, Sympower reserves the right to annually calculate an adjustment to the prices set forth in the Agreement to take into account the changes in the exchange rate.  

9. WARRANTIES  

9.1 Each Party warrants and confirms that it is in possession of all permits, registration, approvals, and certificates needed and necessary for the performance of its obligations under the Agreement. Customer warrants that (i) has the right to have the Services be performed on the Resources, and (ii) the Resources are properly connected to the electrical grid, and (iii) the electrical connection of the Resources, the Resources, and Customer’s processes comply with applicable law and requirements, including safety requirements. Each Party agrees to indemnify and hold harmless the other Party (and, in case of Sympower, Sympower’s Affiliates) and its 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 the Party’s breach of the warranties made in this Section.  

9.2 Except as otherwise expressly provided, neither Party makes any warranty with respect to any know-how, rights, or other subject matter of the Agreement. For the avoidance of doubt, it is understood between the Parties that Sympower makes no warranties, either expressed or implied, as to the profitability of participating in the Market Programs and sales volume.

10. CONFIDENTIALITY 

10.1 During the term of the Agreement and for 3 (three) 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 Section by such third parties.   

10.2 The confidentiality and non-use obligations shall not be applicable to any information that, as can be demonstrated by competent evidence, (i) is publicly available when provided or thereafter becomes publicly available other than through a breach of the Party’s confidentiality obligations, or (ii) was already in the Party’s possession at the time of disclosure, or (iii) was received from a third party, unless the Party has actual knowledge that the third party is subject to a confidentiality agreement prohibiting disclosure of such information, or (iv) was or is independently developed by the Party without reliance upon the other Party’s Confidential Information, or (v) is required to be disclosed by judicial or administrative process or otherwise by applicable law. 

10.3 Without being in breach of this Section, 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.   

11. CUSTOMER DATA AND INTELLECTUAL PROPERTY RIGHTS 

11.1 Upon Sympower’s request, Customer shall provide to Sympower the Customer Data. Customer agrees that Sympower may also obtain Customer Data directly from the Network Company, approved metering companies, and other service providers, the Control System or any combination of the foregoing.  

11.2 Customer 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 Company, 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. 

11.3 All title, ownership, intellectual property rights, and interest in (i) the Control System, and (ii) the data generated through the Services, and (iii) any improvement to the Control System generated during the performance of the Services shall vest exclusively in Sympower and/or its Affiliates upon creation.  

11.4 No intellectual property rights of any kind are transferred between the Parties. All computer programs and processes used and owned by Sympower and/or its Affiliates when performing the Services shall remain the exclusive property of Sympower and/or its Affiliates.

12. LIABILITY 

12.1 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, within the limitations in this Section.  

12.2 Customer is aware that the operation of the Control System in accordance with the requirements for participating in Market Programs can cause (i) upward or downward variation in the electricity consumption and/or production and/or storage of the Resources, and (ii) disturbances to the Resources and changes in the operation-related processes of Customer, and (iii) normal wear and tear and changes in the electricity consumption and/or production and/or storage of the Resources. Customer acknowledges and agrees that payments received under the Agreement constitute fair and sufficient compensation for the above. Sympower disclaims any liability and responsibility whatsoever for any losses, expenses, and damages sustained by Customer in connection with the operation of the Control System in accordance with the requirements for participating in Market Programs and for potential damage and wear and tear that can reasonably be expected for the performance of the Services.  

12.3 Customer remains ultimately responsible for the functioning of the Resources and retains the full right to restrict and regulate the actions of the Control System for the prevention of damage. If Customer becomes aware that the actions of the Control System are causing or can cause damage to the Resources, and/or to Customer’s processes and/or property and/or personnel, it shall promptly act to prevent and/or mitigate the damage and notify Sympower without undue delay. Sympower disclaims any liability and responsibility whatsoever for any losses, expenses, and damages sustained by Customer in connection with the actions of the Control System to the extent that Customer’s acts and/or omissions have contributed to the damage. 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.  

12.4 To the extent permitted by law, in no event will either Party be liable under the Agreement to the other Party or any third party for any consequential (including, but not limited to, any loss of use, loss of data, business interruption, and loss of income, profits, or business opportunities), incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, 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.

13. FORCE MAJEURE 

13.1 Neither Party shall be liable for any failure or delay in the performance of its obligations under the Agreement arising out or caused, directly or indirectly, by Force Majeure for the duration of such event of Force Majeure.  

13.2 A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event, provide written notice to the other Party of the nature and extent of any such Force Majeure condition. 

13.3 Both Parties shall make all reasonable efforts to prevent and reduce the effect of any non-performance of the Agreement caused by an event of Force Majeure. In the event of a Force Majeure that persists for 30 (thirty) days or more, the Parties shall negotiate in good faith amendments to the Agreement to address the impact of Force Majeure.

14. TERMINATION 

14.1 After the Initial Term, the Agreement shall be renewed automatically for succeeding terms of 1 (one) year. Each Party shall have the right to terminate the Agreement by giving 3 (three) calendar months written notice to the other Party prior to any renewal date, without any obligation to pay compensation for any damage suffered by the other Party as a result of such termination. 

14.2 Sympower reserves the right to terminate the Agreement if (part of) the Resources do not or no longer meet (i) the requirements for participating in the Market Program or (ii) Sympower’s standard product requirements.  A notice term of 30 (thirty) days shall apply.  

14.3 Each Party shall have the right to terminate the Agreement if the other Party is in material breach of the Agreement and has failed to remedy such breach within 30 (thirty) days after the receipt of a written notice providing reasonable detail as to the nature of the breach. 

14.4 Each Party shall have the right to terminate the Agreement with immediate effect if the other Party is declared bankrupt, suspends its payments, makes a composition with its creditors or otherwise becomes insolvent. 

14.5 Upon termination of the Agreement, Sympower shall deactivate the Control System and, if applicable, remove the Hardware from Customer’s premises. Costs for deinstallation shall be borne by the Party requesting or causing the termination (in case of Customer, the costs will be deducted from the payments owed to Customer under the Agreement).  

14.6 Expiration or termination of the Agreement shall not affect confirmed orders (including activated balancing energy bids) nor relieve either Party of any obligation, including payment obligations, accruing prior to such expiration or termination.  

14.7 In the event of expiration or any termination of the Agreement, the provisions on confidentiality, Customer Data and intellectual property rights, limitation of liability, governing law, and dispute resolution in the T&Cs and in the Agreement shall remain in full force and effect.

15. MISCELLANEOUS 

15.1 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.  

15.2 If any provision contained in the 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.

15.3 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.

15.4 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. 

15.5 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. 

15.6 The English language version of the T&Cs and the Agreement shall prevail in case of any inconsistencies with translated versions if any.  

15.7 Sympower reserves the right to amend these T&Cs from time to time. Changes to the 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 T&Cs if the changes to the 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.