Master SaaS Terms for Electric Vehicle Fleet Management Platform Services
These current Master SaaS Terms were published on 10th June 2021.
1 Definitions and interpretation
1 In this Agreement:
Affiliate means, in respect of any entity, any entity that directly or indirectly controls, is controlled by or is under common control with that entity within the meaning set out in section 1124 of the Corporation Tax Act 2010;
Authorised Affiliates means, in respect of the Subscribed Services, the Affiliates of the Customer (if any) identified in the Order Form as Authorised Affiliates in respect of that Subscribed Service;
Authorised Users means, in respect of the Subscribed Services, the users authorised by the Customer to use the Subscribed Services in accordance with the terms of this Agreement;
Business Day means a day other than a Saturday, Sunday or bank or public holiday in England;
EV Charge Point Installation Agreement means the latest version of the document available at [insert URL], as may be updated from time to time;
Confidential Information has the meaning as defined at Clause 13.1;
Customer has the meaning ascribed to 'Customer' or 'Fleet Manager' given in the relevant Order Form;
Customer Data means all data (in any form) that is provided to Octopus or uploaded or hosted on any part of the Subscribed Services by the Customer or by any Authorised User;
Customer Systems means all software and systems used by or on behalf of the Customer, the Customer’s Affiliates, any of its or their direct or indirect sub-contractors, or any Authorised User in connection with the provision or receipt any of the Services or that the Services otherwise, link, inter-operate or interface with or utilise (in each case whether directly or indirectly);
Data Protection Legislation means the European Union's General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including where applicable the mandatory guidance and codes of practice issued by the United Kingdom's Information Commissioner;
(a) the description of the relevant Subscribed Service (as Updated from time to time), which as at Order Acceptance is the latest version available as detailed in the Order Form (if any) (the Description);
(b) in respect of the Subscribed Service, the relevant instructions as to how to use that part of the Services made available by Octopus as detailed in the Order Form (if any) (as Updated from time to time) (the User Manual);
Fees means the Subscription Fees together with any other amounts payable to Octopus under this Agreement;
Fleet Manager EJN Terms means the terms and conditions for businesses using the electric juice network provided by Octopus for fleet operators as detailed in the Order Form;
Fleet Manager Referral Agreement means the latest version of the document available at https://octopus.energy/policies/electric-fleet-referal-agreement/, as may be updated from time to time;
Force Majeure means an event or sequence of events beyond a Party’s reasonable control preventing or delaying it from performing its obligations under this Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;
Free or Trial Service means any Subscribed Services identified as being provided on a trial basis or provided without charge (for the duration of the period during which it is provided on such basis);
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:
(a) whether registered or not;
(b) including any applications to protect or register such rights;
(c) including all renewals and extensions of such rights or applications;
(d) whether vested, contingent or future; and
(e) wherever existing;
IP Claim has the meaning given to the term at Clause 11.1;
Master SaaS Terms means this Agreement, as Updated from time to time;
Materials means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of Octopus in connection with the Services, but excluding all Customer Data;
Octopus means Octopus Energy Limited, a company incorporated and registered in Englandand Wales with company number 09263424 whose registered office is at 6th Floor, 33 Holborn, London, EC1H 2HT;
Open Source Software means any software subject to a version of the General Public Licence, together with any other ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of this Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of this Agreement;
Order Acceptance means the effective date of the relevant Order Form;
Order Form means the electric or physical form (including its schedules, annexes and appendices (if any)) ordering the Subscribed Services entered into by or on behalf of the Customer and Supplier, incorporating these Master SaaS Terms (and as varied by the Parties by agreement in writing from time to time);
Permitted Downtime means:
(a) scheduled maintenance;
(b) emergency maintenance; or
(c) downtime caused in whole or in part by Force Majeure.
Permitted Purpose means use solely for the Customer’s internal business operations and, in respect of the Subscribed Services, also for the internal business of operations of the Authorised Affiliates identified in respect of the Subscribed Services on the Order Form, in each case in accordance with the applicable Documentation and this Agreement;
Pricing Terms means the details of pricing and fees in respect of each part of the Services, as initially provided under the Order Form and updated from time to time in accordance with Clause 7.1;
Renewal Date has the meaning given in Clause 16.1;
Service Hours means 24 hours a day, seven days a week excluding Permitted Downtime;
Service Period means the period beginning on Order Acceptance and ending with the last date of the Subscribed Service Period;
Services means the Subscribed Services and the Support Services;
Subscribed Service Period means (subject to Clauses 15 and 16) in respect of the Subscribed Service, the duration during which such services are to be provided as initially set out in the Order Form and as varied in accordance with this Agreement;
Subscribed Services means the cloud service platform to which the Customer has subscribed as set out in the Order Form;
Subscription Fee means, in respect of the Subscribed Services, the fees payable by the Customer in consideration of the Subscribed Services as set out in the Pricing Terms;
Support Services means, in respect of the Subscribed Service, the support services provided by Octopus to the Customer and as further detailed in the Order Form;
Term has the meaning given in Clause 17.1;
Update has the meaning given in Clause 7.2, and Updated shall be construed accordingly;
VAT means United Kingdom value added tax, any other tax imposed in substitution for it.
In this Agreement, unless otherwise stated:
1.1 the table of contents, background section and the Clause, paragraph, schedule or other headings in this Agreement are included for convenience only and shall have no effect on interpretation;
1.2 Octopus and the Customer are together the Parties and each a Party, and a reference to a Party includes that Party’s successors and permitted assigns;
1.3 words in the singular include the plural and vice versa;
1.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
1.6 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
1.7 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
1.8 In the event of any conflict in respect of the provisions of this Agreement and/or the documents referred to in it the following order of priority shall prevail (in descending order of priority):
(i) the Order Form;
(ii) the Master SaaS Terms;
(iii) the Pricing Terms;
(iv) the Business EJN Terms; and
(v) the Documentation.
(b) subject to the order of priority between documents in Clause 1.8, later versions of documents shall prevail over earlier ones if there is any conflict or inconsistency between them.
2 Rights of use
2.1 Upon Order Acceptance and subject to the terms of this Agreement, Octopus grants the Customer a non-exclusive, non-transferable, personal right to:
(a) use the Subscribed Services during Service Hours; and
(b) copy and use the Documentation as strictly necessary for its use by Authorised Users of the Subscribed Services,
during the Subscribed Service Period for the Permitted Purpose.
2.2 The Customer acknowledges that the Services do not include:
(a) any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services); or
(b) dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data).
3 Authorised Users
3.1 The Customer shall ensure that only Authorised Users use the Subscribed Services and that such use is at all times in accordance with this Agreement. The Customer shall ensure that Authorised Users are, at all times while they have access to the Subscribed Services, the employees or contractors of the Customer or the Authorised Affiliates.
3.2 The Customer shall:
(a) be liable for the acts and omissions of the Authorised Users and the Authorised Affiliates as if they were its own;
(b) only provide Authorised Users with access to the Services provided by Octopus and shall not provide access to (or permit access by) anyone other than an Authorised User; and
(c) procure that each Authorised User (and each Authorised Affiliate) is aware of, and complies with, the obligations and restrictions imposed on the Customer under this Agreement, including all obligations and restrictions relating to Octopus's Confidential Information.
3.3 The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators) shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer and its Authorised Affiliate’s organisation as necessary for use of the Service) their password or access details for the Subscribed Services.
4 Customer’s responsibilities
4.1 The Customer shall (and shall ensure all Authorised Affiliates and Authorised Users shall) at all times:
(a) comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications;
(b) comply with all the terms of the Fleet Manager EJN Terms;
(c) co-operate with Octopus in all matters relating to the Services;
(d) provide, for Octopus, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by Octopus or any of them; and
(e) provide, in a timely manner, such information as Octopus may reasonably require, and ensure that it is accurate and complete in all material respects.
4.2 If Octopus’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Octopus shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; and
(b) be entitled to payment of the Fees despite any such prevention or delay.
5 Supply of Services
5.1 In supplying the Services, Octopus shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Order Form;
(c) comply with laws, statutes and regulations applicable to the Services provided which are from time to time in force, provided that Octopus shall not be held liable under this Agreement if, as a result of such compliance, it is in breach of any of its obligations under this Agreement;
(d) observe all reasonable health and safety and security requirements that apply at any of the Customer's premises and which have been communicated to Octopus, provided that Octopus shall not be held liable under this Agreement if, as a result of such observation, it is in breach of any of its obligations under this Agreement; and
(e) take reasonable care of all Customer Data in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that Octopus may destroy the Customer Data if the Customer fails to collect the Customer Materials within a reasonable period after termination of this Agreement.
5.2 The Customer acknowledges that no liability or obligation is accepted by Octopus (howsoever arising whether under contract, tort, in negligence or otherwise) in connection to or related to:
(a) the Subscribed Services meeting the Customer’s individual needs, whether or not such needs have been communicated to Octopus;
(b) the quality or accuracy of the data or information displayed and provided by Octopus as part of the Subscribed Services;
(c) the operation of the Subscribed Services not being subject to minor errors or defects; or
(d) the Subscribed Services being compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the User Manual or Description.
5.3 The Customer acknowledges that the Subscribed Services are subject to data and information made available from third party service providers and that as a result relevant data flows from a third party service provider may not be made available to Octopus in real-time which may result in an impairment to the quality and accuracy of the Subscribed Services provided by Octopus under this Agreement.
6.1 Support Services shall be available for the Subscribed Services to the Customer for the duration of the Subscribed Service Period.
6.2 Octopus shall use reasonable endeavours to notify the Customer in advance of scheduled maintenance but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance.
7 Changes to services and terms
7.1 Octopus may at its absolute discretion make, and notify the Customer of, updated versions of the documents referred to in Clause 1.8(a) or other documents referred to in any part of this Agreement (excluding in each case the Order Form) from time to time by notifying the Customer of such update by e-mail (together with a copy of the update or a link to a copy of the update) or by any other reasonable means which Octopus elects (Update Notification).
7.2 The document(s) subject to such Update Notification shall replace the preceding version of the same document(s) for the purposes of this Agreement from the date 7 Business Days’ after an Update Notification of such revised document(s) (the Update) (or at such later date as Octopus may specify).
7.3 The Customer acknowledges that Octopus shall be entitled to modify the features and functionality of the Services. Octopus shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the Subscribed Services by Octopus’s customers generally. Octopus may, without limitation to the generality of this Clause 7.3, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Service, remove or restrict application programming interfaces or make alterations to data retention periods, provided such changes are introduced by Update to the relevant impacted contractual documents.
8.1 The Subscription Fee and any other charges (including expenses) expressly agreed between the Parties in writing shall be paid by the Customer at the rates and in the manner described in the Pricing Terms.
8.2 Octopus shall invoice the Customer:
(a) monthly in arrears for all Subscription Fees; and
(b) monthly for all other Fees,
due under this Agreement, and the invoices shall be paid within 30 calendar days of the date on the invoice.
8.3 The Fees are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.
8.4 Fees payable to Octopus under this Agreement shall be paid into Octopus’s bank account by BACS unless otherwise notified by Octopus to the Customer in writing in accordance with this Agreement.
8.5 Octopus shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of HSBC Bank PLC, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
8.6 To the extent this Agreement terminates or expires (other than due to termination by the Customer under Clause 17.3) the Customer shall not be entitled to any refund or discount of Fees paid for any parts of any month during which the Services cease to be provided.
9.1 The Customer shall indemnify, keep indemnified and hold harmless Octopus (on Octopus’s own behalf and on behalf of each of Octopus’s Affiliates) from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it (or any of its Affiliates) as a result of the Customer’s breach of this Agreement.
9.2 This Clause 9 shall survive termination or expiry of this Agreement.
10 Intellectual property
10.1 All Intellectual Property Rights in and to the Services (including in all Documentation) belong to and shall remain vested in Octopus or the relevant third party owner. To the extent that the Customer, any of its Affiliates or any person acting on its or their behalf acquires any Intellectual Property Rights in the Documentation or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Octopus or such third party as Octopus may elect. The Customer shall execute all such documents and do such things as Octopus may consider necessary to give effect to this Clause 10.1.
10.2 The Customer and Authorised Users may be able to store or transmit Customer Data and the Subscribed Services may interact with Customer Systems. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Octopus (and each of its direct and indirect sub-contractors) to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform Octopus’s rights, remedies and obligations under this Agreement.
10.3 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Octopus under this Agreement.
10.4 Except for the rights expressly granted in this Agreement, the Customer, any Authorised User, any Customer Affiliate and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services (or any part including the Documentation) and no Intellectual Property Rights of either Party are transferred or licensed as a result of this Agreement.
10.5 This Clause 10 shall survive the termination or expiry of this Agreement.
11 Defence against infringement claims
11.1 Subject to Clauses 11.2 and 11.5, Octopus shall:
(a) defend at its own expense any claim brought against the Customer by any third party alleging that the Customer’s use of the Services infringes any copyright, database right or registered trade mark, registered design right or registered patent (an IP Claim); and
(b) pay, subject to Clause 11.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.
11.2 The provisions of Clause 11.1 shall not apply unless the Customer:
(a) promptly (and in any event within 7 Business Days) notifies Octopus upon becoming aware of any actual or threatened IP Claim and provides full written particulars;
(b) makes no comment or admission and takes no action that may adversely affect Octopus’s ability to defend or settle the IP Claim;
(c) provides all assistance reasonably required by Octopus subject to Octopus paying the Customer’s reasonable costs; and
(d) gives Octopus sole authority to defend or settle the IP Claim as Octopus considers appropriate.
11.3 The provisions of Clause 13 shall apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under Clause 11.1.
11.4 In the event of any IP Claim Octopus may elect to terminate this Agreement immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This Clause 11.4 is without prejudice to the Customer’s rights and remedies under Clauses 11.1.
11.5 Octopus shall have no liability or obligation under this Clause 11 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from:
(a) any modification of the Services (or any part) without Octopus’s express written approval;
(b) any Customer Data;
(c) any Open Source Software;
(d) any breach of this Agreement by the Customer;
(e) installation or use of the Services (or any part) otherwise than in accordance with this Agreement and the User Manual; or
(f) installation or use of the Services (or any part) in combination with any software, hardware or data that has not been supplied or expressly authorised by Octopus.
11.6 Subject to Clause 14.6, the provisions of this Clause 11 set out the Customer’s sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim.
12 Data Protection
12.1 Controller, Data Subject, Personal Data and Processor shall each have the meanings given in the applicable Data Protection Legislation.
12.2 The Customer warrants to Octopus on a continuing basis throughout the Term that it has made the appropriate notifications and has complied with the notification provisions under the Data Protection Legislation in respect of its obligations under this Agreement and that performance of its obligations under this Agreement shall not breach or contravene such notification, nor cause Octopus to breach its requirements under the Data Protection Legislation.
12.3 The Customer warrants to Octopus on a continuing basis throughout the Term that, where it collects any personal data, which it subsequently transfers to Octopus, that:
(a) it has collected such data fairly and lawfully;
(b) the disclosure of such data to Octopus for use by Octopus in accordance with its legitimate business purposes is fair and lawful; and
(c) that Customer's use of such personal data for the purposes of carrying out its obligations under this Agreement shall not breach the Data Protection Legislation.
12.4 Although the Parties acknowledge that the Data Protection Legislation shall ultimately determine status, they are of the view that they are separate Data Controllers as defined by and for the purposes of the Data Protection Legislation. Each Party agrees that it shall comply with all applicable Data Protection Legislation, including as set out in this Agreement.
12.5 If one Party receives a subject access request in relation to Personal Data held by the other, the other Party holding such Personal Data shall do all things as are reasonably necessary to assist the Party in receipt of the subject access request to perform such compliance obligations.
12.6 Each Party shall ensure that it puts in place appropriate technical and organisational controls to ensure that Personal Data is protected against unauthorised or unlawful processing and against accidental loss or destruction or damage.
12.7 Both Parties agree to maintain a notification with the United Kingdom's Information Commissioner to the extent required.
12.8 The Customer shall fully indemnify and keep indemnified Octopus on demand from and against all costs (including the costs of enforcement), expenses, liabilities, losses damages, claims, demands, proceedings or reasonable legal costs and judgements which Octopus incurs or suffers in respect of any claim or action brought against it by any third party during or after the termination of this Agreement howsoever and whenever arising by the actions or omissions of the Customer, its officers or employees arising from, or incurred by, reason of any loss, damage or distress suffered by any person as a result of the loss, destruction or unauthorised disclosure of, or unauthorised access to, Personal Data by the Customer or its officers or employees as a result of any failure to comply with the provisions of this Clause 12.
13.1 Each Party undertakes that it shall keep any information that is confidential in nature concerning the other Party and its Affiliates including, any details of its business, affairs, customers, clients, Octopus, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other Party’s Confidential Information to any person, except as permitted by Clause 13.2.
13.2 A Party may:
(a) disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such Party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this Clause 13 as if it were a Party;
(b) disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
(c) use Confidential Information only to perform any obligations under this Agreement.
13.3 Each Party recognises that any breach or threatened breach of this Clause 13 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the Parties agree that the non-defaulting Party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
13.4 This Clause 13 shall bind the Parties during the Term and for a period of two (2) years following termination of this Agreement.
14 Limitation of liability
14.1 The extent of Octopus’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this Clause 14.
14.2 Subject to Clauses 14.3 and 14.6, Octopus’s aggregate liability in respect of each individual Free or Trial Service (and all Support Services provided in connection with the same) (howsoever arising under or in connection with this Agreement) shall not exceed £0 (Zero Pounds).
14.3 Subject to Clause 14.6, Octopus’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed an amount equal to the Fees for all Services paid to Octopus in the 12-month period immediately preceding the first incident giving rise to any claim under this Agreement.
14.4 Subject to Clause 14.6, Octopus shall not be liable for consequential, indirect or special losses.
14.5 Subject to Clause 14.6, Octopus shall not be liable for any of the following (whether direct or indirect):
(a) loss of profit;
(b) destruction, loss of use or corruption of data;
(c) loss or corruption of software or systems;
(d) loss or damage to equipment;
(e) loss of use;
(f) loss of production;
(g) loss of contract;
(h) loss of opportunity;
(i) loss of savings, discount or rebate (whether actual or anticipated); and/or
(j) harm to reputation or loss of goodwill.
14.6 Notwithstanding any other provision of this Agreement, Octopus’s liability shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
14.7 This Clause 14 shall survive the termination or expiry of this Agreement.
15.1 Octopus may suspend access to the Services (or any part) to all or some of the Authorised Users if:
(a) Octopus suspects that there has been any misuse of the Services or breach of this Agreement;
(b) the Customer fails to pay any sums due to Octopus by the due date for payment; or
(c) required by law, by court or governmental or regulatory order.
15.2 Where the reason for the suspension is suspected misuse of the Services or breach of this Agreement, without prejudice to its rights under Clause 17, Octopus will take steps to investigate the issue and may restore or continue to suspend access at its discretion.
15.3 In relation to suspensions under Clause 15.1 (b), access to the Services will be restored promptly after Octopus receives payment in full and cleared funds.
15.4 Fees shall remain payable during any period of suspension notwithstanding that the Customer, Authorised Affiliates or some or all of the Authorised Users may not have access to the Services.
16.1 Unless the Order Form specifies there shall be no automatic renewals and subject to Clause 16.2, on expiry of the Subscribed Service Period indicated in the Order Form for the Subscribed Service the Subscribed Service Period shall continue and automatically renew for a further period of twelve months (first Renewal Date) and thereafter renew for a further period of twelve months on each anniversary of the first Renewal Date (each of the first Renewal Date and each such anniversary being a Renewal Date).
16.2 If the Customer wishes for the Subscribed Service Period to expire on the next Renewal Date, it may cause the Subscribed Service to expire on that Renewal Date by notice provided such notice is served at least 45 days prior to that Renewal Date. If notice is not served within the timeframes set out in this Clause 16.2, the Subscribed Service shall renew at the next Renewal Date in accordance with Clause 16.1.
17 Term and termination
17.1 This Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the duration of the Service Period after which it shall automatically expire (Term).
17.2 Octopus may terminate this Agreement at any time by giving a minimum of three (3) months' notice in writing to the Customer, such notice not to expire prior to the date of termination as stated in a notice to terminate under this Clause 17.2.
17.3 Either Party may terminate this Agreement immediately at any time by giving notice in writing to the other Party if:
(a) the other Party commits a material breach of this Agreement and such breach is not remediable;
(b) the other Party commits a material breach of this Agreement which is not remedied within 20 Business Days of receiving written notice of such breach; or
(c) the other Party has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid within 20 Business Days after the other Party has received notification that the payment is overdue.
17.4 Octopus may terminate or suspend the provision of Free or Trial Services (and all related Support Services) at any time with or without notice.
18 Consequences of termination
18.1 Immediately on termination or expiry of this Agreement (for any reason), the rights granted by Octopus under this Agreement shall terminate and the Customer shall (and shall procure that each Authorised User and Authorised Affiliate shall):
(a) stop using the Services; and
(b) destroy and delete or, if requested by Octopus, return any copies of the Documentation in its possession or control (or in the possession or control of any person acting on behalf of any of them).
18.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either Party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.
19 Entire agreement
19.1 This Agreement, together with the EV Charge Point Installation Agreement, the Fleet Manager EJN Terms, the Fleet Manager Referral Agreement and the Order Form and any other incorporated terms (the “Agreements”) constitute the entire agreement between the Parties and supersede all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. To the extent that there is any conflict between this Agreement and the provisions of the Agreements, the terms of this Agreement shall apply.
19.2 Each Party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
19.3 Nothing in this Agreement shall limit or exclude any liability for fraud.
20.1 Any demand, notice or other communication given in connection with or required by this Agreement shall be made in writing (entirely in the English language) and shall be delivered to, or sent by recorded post to, the recipient at its registered office or its address stated in this Agreement (or such other address as may be notified in writing from time to time) or sent by email transmission to the recipient, as detailed in the Order Form.
20.2 In proving that a notice has been given it shall be conclusive evidence to prove that delivery was made, or that the envelope containing the notice was properly addressed and posted (as the case may be).
21.1 No variation of this Agreement shall be valid or effective unless it is:
(a) an Update made in accordance with this Agreement; or
(b) made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each Party.
22 Assignment and subcontracting
22.1 Octopus may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement.
22.2 The Customer shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without Octopus’s prior written consent.
23 Set off
23.1 Each Party shall pay all sums that it owes to the other Party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
24 No partnership or agency
24.1 The Parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither Party shall have, nor shall represent that it has, any authority to make any commitments on the other Party’s behalf.
25.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
26.1 Any waiver by either Party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision hereof.
27 Costs and expenses
Each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
28 Third Party rights
28.1 Except as expressly provided for in Clause 28.2, a person who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
28.2 The Affiliates of Octopus shall have the right to enforce the provisions of this Agreement.
Each Party represents and warrants to the other that it has the right, power and authority to enter into this Agreement and grant to the other the rights (if any) contemplated in this Agreement and to perform its obligations under this Agreement.
30 Governing law and Jurisdiction
30.1 This Agreement and any documents entered into pursuant to it, and any and all matters (including without limitation, any contractual or non-contractual obligation) arising out of or in connection therewith, shall be governed by and construed in accordance with English law and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the English courts.
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