THESE TERMS AND CONDITIONS MAY NOT BE IMMEDIATELY RELEVANT TO THE ACTIVITIES OR SERVICES ARLOID AGREES TO PROVIDE THE CUSTOMER UNDER A RELEVANT AGREEMENT. HOWEVER, THEY MAY BECOME RELEVANT AT A LATER DATE.
1.1. As used in the Relevant 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/or the Agreed Energy Baseline, as applicable to the relevant customer under the Relevant Agreement;
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 Relevant 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 Relevant Agreement;
f) “Baseline” means any of Agreed Baselines or Simulated Utilities Baselines;
g) “Building Order Form” means the form accompanying the Relevant Agreement, signed by the Customer and accepted by Arloid in relation to a Connected Building;
h) “Billing Cycle” means the period between a Connected Building’s Billing Cycle Start Date and the Billing Cycle End Date, as recorded on the relevant Building Order Form;
i) “Business Day” means a day other than a Saturday, Sunday, or public holiday in any relevant country;
j) “Connected Building” means Customer’s building defined in the Building Order Form, being part of the Relevant Agreement;
k) “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;
l) “Occupants” means any type of occupants excluding visitors occupying any part of the Connected Building;
m) “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;
n) “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;
o) “Factual Utilities Baseline or FUB” means the Factual Energy Baseline and/or the Factual Coolant Baseline, as applicable to the relevant customer under the Relevant Agreement;
p) “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;
q) “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;
r) “Power Rating Value” means the highest energy and/or coolant consumption (kWh) generated from the particular New Equipment;
s) “Predicted Optimisation of Coolant Consumption or POCC” means the predicted coolant consumption and optimisation values obtained by calculation during Phase 1;
t) “Predicted Optimisation of Energy Consumption or POEC” means the predicted energy consumption and optimisation values obtained by calculation during Phase 1;
u) “Predicted Optimisation of Utilities Consumption or POUC” means the Predicted Optimisation of Energy Consumption and/or Predicted Optimisation of Coolant Consumption as applicable to the relevant customer under the Relevant Agreement;
v) “Relevant Agreement” means a written agreement entered into between the Customer and Arloid, to which these terms and conditions are applicable, including, but not limited to, any and all agreements styled ‘Master Service Agreement’, ‘Software Services Agreement’ and/or ‘Research Agreement’;
w) “Saved Expenses” means the amount equal to the difference between the Agreed Baseline(s) and the actual expenses incurred by the Connected Building for any one (1) Billing Cycle;
x) “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 Utilities Baseline(s) (SUB) and Predicted Optimisation of Utilities Consumption (POUC);
y) “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;
z) “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;
aa) “Simulated Utilities Baseline(s) or SUB” means the Simulated Energy Baseline and/or the Simulated Coolant Baseline, as applicable to the relevant customer under the Relevant Agreement;
bb) “Software” means Arloid’s proprietary cloud-based artificial intelligence solution, designed to reduce Utilities Consumption resulting in the Saved Expenses;
cc) “Thermal Data” means data including, but not limited, to the indoor and outdoor temperature, and humidity;
dd) “User Content” means any information and content provided by the Customer or otherwise made available by or to the Customer on the User Interface, including the text and images in the Customer’s profile and any of the data or results available thereon;
ee) “User Interface” means the web portal provided to the relevant Customer and/or the Arloid mobile application, available on Android or iOS devices, and/or any other web or mobile application-based services which Arloid may provide from time to time; and
ff) “Utilities Consumption” means energy consumption and/or coolant consumption, as applicable to the relevant customer under the Relevant Agreement.
2.1. The Parties agree to consider the following events as reasons for significant Utilities Consumption change within the Connected Building leading to a review of the Agreed Baseline(s):
a) Actual Occupancy changes more than twenty percent (20%); and/or
b) the Customer installs New Equipment in the Connected Building; and/or
c) The outdoor average monthly temperature changes more than 5°C compared to the same month in the previous year.
2.2. In the event of a significant Utilities Consumption change as reflected in clause 2.1.a), the following will be applicable
a) if the Connected Building’s Actual Occupancy increases by twenty percent (20%) or more, the Customer will immediately notify Arloid, in writing, of such change and will, additionally, provide Arloid with documentary proof of such increase;
b) the Customer will provide Arloid with the actual Utilities Consumption bills for the Connected Building for the period consisting of the ninety (90) calendar days immediately prior to the date of transmission of the notice stipulated in clause a), above;
c) upon receipt of the actual Utilities Consumption bills by Arloid, the Parties will agree on updated Baseline(s), which will take effect on the date on which the notice, stipulated in clause a), above, was transmitted to Arloid; and
d) the Customer undertakes to diligently monitor the occupancy rate of the Connected Building in order to ensure that Baseline(s) remain equitable based on actual consumption of the relevant utilities in the Connected Building.
2.3. In the event of a significant Utilities Consumption change as reflected in clause 2.1.b), the following will be applicable:
a) if the Customer installs New Equipment in the Connected Building, the Customer will immediately inform Arloid of such installation and will, additionally, provide Arloid with any and all technical documentation relating to the New Equipment, including, but not limited to, information in respect of the New Equipment’s Power Rating Value;
b) in the event that the New Equipment’s highest Power Rating Value is equal to five percent (5%) or more of the relevant Baseline(s) in terms of the relevant measurement metric, the Parties agree to revise the Baseline(s); and
c) in the event of a revision of the relevant Agreed Baseline(s), in terms of clause b), above, the Parties agree that seventy five percent (75%) of the Power Rating Value will be added to the relevant baseline which, at the time of such change, is being utilised under the Agreement. [Example: Agreed Energy Baseline = 100,000KWh; Power Rating Value = 10,000KWh; the updated Agreed Energy Baseline = [(75% of 10,000KWh) + 100,000KWh] 107,500KWh]
2.4. In the event of a significant Utilities Consumption change as reflected in clause 2.1.c), the following will be applicable:
a) in the event that the outdoor average monthly temperature in the city or location at which the Connected Building is located changes by 5°C or more in a particular calendar month compared to that same month in the previous calendar year, and subject to receipt of written confirmation of such temperature changes from the relevant environmental or meteorological authority (the “Confirmation”), the Parties agree to revise the Baseline(s); and
b) the Parties agree to circulate the Confirmation with one another as soon as reasonably practical do so after receipt of such Confirmation by the relevant Party, but by no later than the next succeeding Business Day.
2.5. In the event of any other changes in the Connected Building that may affect Utilities Consumption in the Connected Building including, but not limited to:
i. changes to applicable devices, including HVAC devices;
ii. shutting down of devices, including HVAC devices; and/or
iii. connectivity changes including replacement or recalibration of building management systems or changes relation to the Customer’s internet service provider,
the Customer undertakes to notify Arloid, in writing, within one (1) Business Day of such changes.
2.6. It is agreed that in the event of the Parties being required to agree to amend or revise the Baseline(s) in terms of the provisions of this Clause 2, that such amendment or revision will be agreed to within five (5) Business Days of receipt of the documentation by the relevant Party, as stipulated in clauses 2.2, 2.3 and 2.4, respectively. The revised or amended Agreed Baseline(s) will be reduced to writing and signed by the Parties.
2.7. Notwithstanding the foregoing, the Parties agree to review and, if necessary, update the Baseline(s) every six (6) Billing Cycles after the Initial Baseline(s) Agreement Date to ensure that the Baseline(s) remain an accurate benchmark for future comparisons and optimisation assessments.
3.1. The Parties acknowledge that as a result of entering into the Relevant 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 relevant obligations (hereinafter “Confidential Information”).
3.2. 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 Relevant 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.
3.3. The Party receiving Confidential Information (the “Receiving Party“) hereby agrees that during the Term of the Relevant 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 Relevant Agreement.
3.4. Notwithstanding the above, the Parties acknowledge and agree that the obligations set out in this clause 3 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 Relevant 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.
3.5. Within fifteen (15) calendar days upon termination of the Relevant 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.
3.6. 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.
4.1. The Customer acknowledges that Software (and the Simulator) itself, including, but not limited to, any results of the activities and/or 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 Relevant 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.
4.2. 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.
4.3. Upon fulfilment of the Agreed Energy Baseline and/or the 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.
4.4. Notwithstanding the foregoing, nothing contained in this clause shall grant Arloid any ownership rights to the Customer’s Confidential Information or intellectual property.
Arloid, including, but not limited to, its Affiliates, agents, contractors, sub-contractors, are not liable to the Customer for any indirect or consequential losses, howsoever arising during the term of the Relevant Agreement.
Arloid warrants that the activities and services under the Relevant 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 services by Arloid, re-perform any of the 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 services have been performed accurately and, in a manner, which is consistent with the Relevant 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 services provided under the Relevant Agreement.
7.1. 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 Relevant Agreement.
7.2. The Customer warrants in favour of Arloid that it will at all times strictly comply with all applicable data protection laws.
7.3. 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.
7.4. If applicable, Arloid warrants that it will endeavour to ensure that all its systems and operations which it uses to undertake the activities or to perform the 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.
7.5. The Customer’s obligations under this clause 6 will survive the termination of the Relevant Agreement.
7.6. In the course of providing services to the Customer, Arloid may disclose personal data to other firms in our group, a regulatory body or a third party or a buyer of Arloid’s business. As part of Arloid’s operational service, personal data supplied to us may be transferred between us and the European Economic Area, the United Kingdom, the United Arab Emirates, Russia and/or the Republic of Singapore where necessary. We will ensure that where any such data transfer takes place, it is covered by an appropriate safeguard.
8.1. The Customer acknowledges and agrees that Arloid will be entitled to cede, assign, transfer or make over the Relevant Agreement to any of its subsidiaries or any entity that controls, is controlled by, or is under common control of Arloid or its subsidiaries.
8.2. Except as provided for in clause 8.1 above, no part of the Relevant Agreement may be ceded, assigned, transferred or made over by either Party without having secured the prior written consent of the other Party.
9.1. In the event of late payment by the Customer of any fees or remuneration under the Relevant 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.
9.2. 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.
9.3. Any fees under the Relevant Agreement are exclusive of all Taxes other than VAT. If and when services to be provided under in the Relevant 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.
Arloid will be entitled to appoint sub-contractors to perform all or part of its obligations under the Relevant 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.
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 activities or the services under a Relevant Agreement, 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.
12.1. Either Party may notify the other in writing of a dispute in connection with or relating to the Relevant Agreement, specifying in detail the dispute and its claim.
12.2. 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.
12.3. 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.
13.1. By using the User Interface, the Customer (i) represents and warrants that it and/or its duly authorised representatives have all the appropriate rights and permission to access the User Interface and provide and/or receive User Content, and (ii) grants Arloid a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any such User Content in connection with the provision or potential provision of the services to the Customer and any other customers or potential customers, for marketing, business, commercial and research purposes.
13.2. The Customer also represents and warrants that neither its User Content, nor its use and provision of its User Content will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
13.3. Subject to the Customer’s compliance with the Relevant Agreement, Arloid grants to the Customer a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that the Customer owns or controls and to run such copy of the App solely for the Customer’s own purposes. Except as expressly permitted in the Relevant Agreement (if applicable), the Customer may not: (i) copy, modify or create derivative works based on the User Interface; (ii) distribute, transfer, sublicense, lease, lend or rent the User Interface to any third party; (iii) reverse engineer, decompile or disassemble the User Interface; or (iv) make the functionality of the User Interface available to multiple users through any means. Arloid reserves all rights in and to the User Interface which are not expressly granted to the Customer hereunder.
13.4. Subject to the Customer’s compliance with the Relevant Agreement, Arloid grants to the Customer a limited, non-exclusive, non-transferable license, with no right to sublicense, to download, view, and display the content made available on the User Interface solely in connection with the Customer’s permitted use under the Relevant Agreement.
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.
15.1. These terms and conditions may be amended from time to time by Arloid. Arloid will endeavour to notify the Customer about any changes or amendments to these terms and conditions, if applicable.
15.2. 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 Relevant 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.
16.1. 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 the activities and/or services 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.
16.2. The English language version of these terms and conditions, any notice and/or other document relating to these terms and conditions, including the Relevant Agreement, shall prevail if there is a conflict.