Clause 1. Definitions
1.1. As used in the Master Service Agreement and all related documents hereto, the following terms shall have the following meanings:
a) “Actual Occupancy” means the percent proportion calculated as the number of Occupants in the Connected Building on the Connection Date or the Initial Baseline(s) Agreement Date, as the case may be, divided by the maximum number of the Occupants in the last twelve (12) calendar months before the relevant date;
b) “Affiliates” means in relation to a Party any corporate entity controlled directly or indirectly by that Party, any corporate entity that controls, directly or indirectly that Party or any corporate entity under common control with that Party. For the purpose of this definition, “control” means the power to direct the management and policies of an entity whether through the ownership of voting capital, by contract or otherwise; and a holding or subsidiary company of any entity shall be deemed to be an Affiliate of that entity;
c) “Agreed Baselines” means the Agreed Coolant Baseline and the Agreed Energy Baseline;
d) “Agreed Coolant Baseline or ACB” means the unoptimised coolant consumption (across different coolant sources, if applicable) selected and approved by the Customer as a benchmark for future comparison and optimisation assessment under Phase 2 of the Master Service Agreement;
e) “Agreed Energy Baseline or AEB” means the unoptimised energy consumption (across different energy sources, if applicable) selected and approved by the Customer as a benchmark for future comparison and optimisation assessment under Phase 2 of the Master Service Agreement;
f) “Building Order Form” means the form accompanying the Master Service Agreement, signed by the Customer and accepted by Arloid in relation to the Connected Building;
g) “Billing Cycle” means the period between the Connected Building’s Billing Cycle Start Date and the Billing Cycle End Date;
h) “Business Day” means a day other than a Saturday, Sunday, or public holiday in any relevant country;
i) “Connected Building” means Customer’s building defined in the Building Order Form, being part of this Master Service Agreement;
j) “Data” means data collected on the operation of the HVAC infrastructure in the Connected Building. Such data includes, but is not limited, to HVAC devices settings, schedules, set points;
k) “Occupants” means any type of occupants excluding visitors occupying any part of the Connected Building;
l) “Factual Coolant Baseline or FCB” means the actual coolant consumption for the Connected Building according to the actual coolant bills for the last twelve (12) calendar months submitted by the Customer. FCB could be selected as a benchmark for future comparison and optimisation assessment if its coolant consumption is lower than SCB;
m) “Factual Energy Baseline or FEB” means the actual energy consumption for the Connected Building according to the actual energy bills for the last twelve (12) calendar months submitted by the Customer. FEB could be selected as a benchmark for future comparison and optimisation assessment if its energy consumption is lower than SEB;
n) “HVAC” means the equipment responsible for heating, ventilation, and air conditioning in the Connected Building and maintaining the Connected Building’s temperature (at a comfortable level), humidity and/or indoor air quality;
o) “Master Service Agreement” means the written agreement entered into between the Customer and Arloid, to which these terms and conditions are applicable;
p) “New Equipment” means any equipment consuming electricity and/or coolant (including, but not limited to elevators, escalators, any HVAC components, water heaters, servers, machine tools, ovens, conveyors) installed in the Connected Building during the Term;
q) “Power Rating Value” means the highest energy and/or coolant consumption (kWh) generated from the particular New Equipment;
r) “Predicted Optimisation of Coolant Consumption or POCC” means the predicted coolant consumption and optimisation values obtained by calculation during Phase 1;
s) “Predicted Optimisation of Energy Consumption or POEC” means the predicted energy consumption and optimisation values obtained by calculation during Phase 1;
t) “Saved Expenses” means the amount equal to the difference between the Agreed Baselines and the actual expenses incurred by the Connected Building for any one (1) Billing Cycle;
u) “Simulator” means the simulator, created by Arloid using its proprietary cloud-based Software, developed and designated for, but not limited to, (i) creating a virtual model of a Connected Building based on the information either collected solely by Arloid or collected by Arloid and provided by the Customer; (ii) processing real data collected from the Connected Building taking into consideration environmental changes and the virtual model of the building; and (iii) calculating Simulated Energy Baseline (SEB), Simulated Coolant Baseline (SCB), if applicable, and Predicted Optimisation of Energy Consumption (POEC) and/or Predicted Optimisation of Coolant Consumption (POCC);
v) “Simulated Coolant Baseline or SCB” means a simulated and not optimised building coolant consumption (across different coolant sources, if applicable) calculated by the Simulator and based on the real data collected from the Connected Building. SCB could be selected as a benchmark for future comparison and optimisation assessment if its energy consumption is lower than FCB;
w) “Simulated Energy Baseline or SEB” means a simulated and not optimised building energy consumption (across different energy sources, if applicable) calculated by the Simulator and based on the real data collected from the Connected Building. SEB could be selected as a benchmark for future comparison and optimisation assessment if its energy consumption is lower than FEB;
x) “Software” means Arloid’s proprietary cloud-based artificial intelligence solution, designed to reduce energy and/or coolant consumption resulting in the Saved Expenses; and
y) “Thermal Data” means data including, but not limited, to the indoor and outdoor temperature, and humidity.
Clause 2. Confidentiality
2.1. The Parties acknowledge that as a result of entering into the Master Service Agreement, the Parties may disclose to each other confidential proprietary information and trade secrets and that Arloid may also create such information within the scope and in the course of performing the Phase 1 activities and/or Phase 2 services (hereinafter “Confidential Information”).
2.2. Confidential Information consists of, but not limited to, the following:
a) All intellectual property of the Parties and related to its materials, including, but not limited to, trademarks, logos, any trade secrets, and related registrations and applications for registration and rights in any patent, copyright, trademark, or design including that is created or developed under the Master Service Agreement;
b) The Parties’ business or marketing plans or strategies, customer lists, operating procedures, design formulas, know-how and processes, computer programs and inventories, discoveries, and improvements of any kind, sales projections, and pricing information;
c) information belonging to customers and suppliers of each Party;
d) the written, printed, graphic, or electronically recorded materials furnished by Parties to each other;
e) any written or tangible information stamped “confidential,” “proprietary,” or with a similar legend, or any information that Parties make reasonable efforts to maintain in secrecy;
f) data concerning business research and development discoveries made by each Party;
g) the Party’s manufacturing strategies and processes;
h) the Party’s sales and marketing plans;
i) the Party’s past, present, and future business plans;
j) the Party’s strategy for or status of regulatory approval; and
k) the Party’s forecasts of sales and sales data.
2.3. The Party receiving Confidential Information (the “Receiving Party“) hereby agrees that during the Term of the Master Service Agreement and for three (3) years thereafter:
a) shall not publicly divulge, disseminate, publish or otherwise disclose any Confidential Information without the Party disclosing Confidential Information (the “Disclosing Party“) prior written consent, which shall not be unreasonably withheld; and
b) The Receiving Party shall not use any such Confidential Information for any purposes other than those in relation to its obligations under the Master Service Agreement.
2.4. Notwithstanding the above, the Parties acknowledge and agree that the obligations set out in this clause 2 shall not apply to any portion of Confidential Information which:
a) was at the time of disclosure to the Receiving Party part of the public domain by publication or otherwise; or
b) became part of the public domain after disclosure to the Receiving Party by publication or otherwise, except by breach of the Master Service Agreement; or
c) was already properly and lawfully in the Receiving Party’s possession at the time it was received from the Receiving Party; or
d) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality with respect thereto; or
e) was or is independently developed by the Receiving Party without reference to Confidential Information; or
f) is required to be disclosed by law, regulation, or judicial or administrative process.
2.5. Within fifteen (15) calendar days upon termination of the Master Service Agreement all records, drawings, notebooks, and other documents pertaining to any Confidential Information, and any material, specimens, equipment, tools, or other devices transferred by the Disclosing Party to the Receiving Party, and all copies of any documents, shall be returned to the Disclosing Party or destroyed by the Receiving Party.
2.6. The Receiving Party agrees that disclosure of Confidential Information may give rise to an irreparable injury to the Disclosing Party inadequately compensable in damages. Accordingly, the Disclosing Party may seek (without the posting of any bond or other security) injunctive relief against the breach of the foregoing undertaking of confidentiality and nondisclosure, in addition to any other legal remedies which may be available.
Clause 3. Intellectual Property
3.1. The Customer acknowledges that Software (and the Simulator) itself, including, but not limited to, any results of the Phase 1 activities and/or the Phase 2 Services, ideas, know-how, techniques, methods, documentation, additions, variations, versions and/or changes to the Software (and the Simulator) and software scripts created by Arloid before, during or after the Term of the Master Service Agreement (collectively, the “IP”) belongs solely to and vested in Arloid. Arloid retains title and full ownership rights to all such IP under the copyright laws of the countries where the Phase 1 and or Phase 2 are performed, including, but not limited to England and Wales, the United Arab Emirates, the United States of America, the Russian Federation, Canada, the Republic of Singapore or any other jurisdiction or under any federal, state, or foreign laws.
3.2. The Customer shall not:
a) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the IP or any part thereof;
b) resell, sublicense or distribute the IP;
c) provide, make available to, or permit the use of the IP, in whole or in part, by any third party (except as expressly set forth herein);
d) use the IP to create or enhance a competitive offering or for any other purpose which is competitive to IP; and/or
e) perform or fail to perform any other act which would result in misappropriation or infringement of Arloid’s intellectual property rights in the IP.
3.3. Upon fulfilment of the Agreed Energy Baseline and/or Agreed Coolant Baseline, the Customer shall be granted a perpetual, irrevocable, royalty-free, non-exclusive, non-transferable, non-sublicensable license to use the IP for its internal business purposes.
3.4. Notwithstanding the foregoing, nothing contained in this clause shall grant Arloid any ownership rights to the Customer’s Confidential Information or intellectual property.
Clause 4. Limitation of Liability
Arloid, including, but not limited to, its Affiliates, agents, contractors, sub-contractors, is not liable to the Customer for any indirect or consequential losses, howsoever arising during the term of the Master Service Agreement.
Clause 5. Warranty
Arloid warrants that the activities and services under the Master Service Agreement shall be performed in a workmanlike, technically correct manner and with professional diligence and skill. As the Customer’s exclusive remedy and Arloid’s sole obligation for any and all breaches of the foregoing warranty, Arloid shall, at its option and expense and subject to receipt of notification from the Customer regarding the unsatisfactory performance of the Phase 2 services by Arloid, re-perform any of the Phase 2 services not performed as stated above in this clause within thirty (30) days of the relevant notification from the Customer. For the purposes of this clause, a “technically correct manner” means that the Phase 2 services have been performed accurately and, in a manner, which is consistent with the Master Service Agreement. For the purposes of this clause, any notification by the Customer in terms of the warranty provided must be reasonable taking into account the nature and the scope of the Phase 2 services provided under the Master Service Agreement.
Clause 6. Data Protection
6.1. The Customer acknowledges that, it may be exposed to the personal data of Arloid’s employees, workers, agents, contractors or sub-contractors, during the Term of the Master Service Agreement.
6.2. The Customer warrants in favour of Arloid that it will at all times strictly comply with all applicable data protection laws.
6.3. The Customer warrants that it will immediately inform Arloid in writing, if any data (whether personal or not) it has access to is compromised. The Customer undertakes to immediately inform Arloid in writing as to how it will manage such compromise and what steps will be taken, at the Customer’s cost, to rectify the situation to the satisfaction of Arloid.
6.4. If applicable, Arloid warrants that it will endeavour to ensure that all its systems and operations which it uses to undertake the Phase 1 activities or to perform the Phase 2 services, including any and all systems on which personal data is: copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise, will at all times be of a minimum standard required by law and be of a standard no less than the standards which are in compliance with the international best practice for the protection, control and use of data.
6.5. The Customer’s obligations under this clause 6 will survive the termination of the Master Service Agreement.
Clause 7. Cession and Assignment
7.1. The Customer acknowledges and agrees that Arloid will be entitled to cede, assign, transfer or make over the Master Service Agreement to any of its subsidiaries or any entity that controls, is controlled by, or is under common control of Arloid or its subsidiaries.
7.2. Except as provided for in clause 7.1 above, no part of the Master Service Agreement may be ceded, assigned, transferred or made over by either Party without having secured the prior written consent of the other Party.
Clause 8. Payments and Interest
8.1. In the event of late payment by the Customer of any fees or remuneration under the Master Service Agreement, then interest on the outstanding amount due will be payable, calculated at ten percent (10%) per month compounded daily, until the default has been remedied in full by the Customer.
8.2. The Customer must notify Arloid in writing of any disputed fees within three (3) calendar days from the date on which the invoice is received. If the Customer fails to do that, the Customer hereby agrees to be liable for such fees as set out in the invoice. In such event, the Parties shall attempt to settle the dispute, in good faith, within ten (10) calendar days of Arloid receiving the aforementioned notice, failing which the disputed fees will be settled by mediation. The mediator shall be an agreed third-party auditing firm, whose appointment shall be agreed upon within two (2) calendar days, and such determination will be final and binding on the Parties.
8.3. Any fees under the Master Service Agreement are exclusive of all Taxes other than VAT. If and when services to be provided under in the Master Service Agreement become chargeable to VAT, then subject to Arloid issuing a VAT Invoice, or such other document as required by the relevant VAT law, VAT shall be paid in addition to that amount. “Taxes” means all taxes, levies, rates, charges, imposts of any kind whatsoever, including withholding tax.
Clause 9. Sub-Contracting
Arloid will be entitled to appoint sub-contractors to perform all or part of its obligations under the Master Service Agreement, without prior written consent from or notification to the Customer, including for purposes of connecting to a Connected Building’s infrastructure, as may be required from time to time.
Clause 10. Non-Solicitation
Except as otherwise agreed in writing, neither Party will directly solicit, offer work to, employ or contract with, whether as a partner, employee or independent contractor, any of the other Party’s personnel who are directly and currently involved in the Phase 1 activities or the Phase 2 services, or for a period of 6 (six) months thereafter. If either Party solicits the other Party’s personnel in contravention of this clause, the soliciting Party will pay to the other Party an amount equal to 30% (thirty percent) of the employee’s current annual cost to company as a penalty. This clause will not apply if a Party’s personnel actively seeks employment with the other Party by applying for employment directly.
Clause 11. Disputes
11.1. Either Party may notify the other in writing of a dispute in connection with or relating to the Master Service Agreement, specifying in detail the dispute and its claim.
11.2. Within fourteen (14) calendar days of receipt of such notice, senior representatives of the Parties must meet and negotiate in good faith to attempt to resolve the dispute.
11.3. If the dispute is not resolved within fourteen (14) calendar days of the notice being received by the other Party, either Party may refer the dispute to arbitration, to be held in London, England under the London Court of International Arbitration Rules.
Clause 12. Costs
Each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of this Agreement.
Clause 13. Changes to the T&Cs
13.1. These terms and conditions may be amended from time to time by Arloid. Arloid is not obliged to notify the Customer about any changes or amendments to these T&Cs.
13.2. The Customer is obliged to ensure that it regularly familiarises itself with these terms and conditions in order to ensure that the Customer is compliant with its obligations under the Master Service Agreement, read together with these terms and conditions. Notwithstanding the foregoing, Arloid will, at its own discretion, advise the Customer of any material changes to these terms and conditions.
Clause 14. Miscellaneous
Arloid shall be entitled, subject to the prior written consent of the Customer, to take photographs at a Connected Building and publish, alone or in conjunction with any other person, any such photographs, images or other illustrations as well as any information (not confidential in nature) relating to Phase 1 and/or Phase 2 in any publication, website, journal, newspaper, radio or television program. Notwithstanding the foregoing, the Customer hereby consents to Arloid that it may use the Customer’s trademark, logo and/or name on Arloid’s website as Arloid’s customer.