Terms and Conditions
 
1.	Definitions
Capitalised terms used in this Agreement have the meanings assigned to them in clause 21.
2.	Term
2.1	Term of the Agreement
This Agreement commences on the Effective Date and, unless terminated earlier in accordance with clause 16, continues:
2.1.1	in respect of an Academic Licence, until the Academic Licence Period expires; and
2.1.2	in any other situation, for a period of 3 years,
and, in either case, the applicable period is referred to as the “Initial Term”. 
2.2	Renewals
On expiry of the Initial Term and, unless terminated earlier in accordance with clause 16: 
2.2.1	in respect of an Academic Licence, this Agreement will renew for any further period (if any) as agreed in writing by the Parties; and
2.2.2	in any other situation, this Agreement will automatically renew on each anniversary of the Effective Date (Renewal Date) for an additional period of 12 months unless and until a Party provides the other Party with written notice to terminate this Agreement at least 30 days prior to the upcoming Renewal Date,
and, in either case, each applicable renewal period is referred to as a “Renewed Term”.
2.3	Together, the Initial Term and each Renewed Term (if any) are referred to as the “Term”.

3.	Software Licence
In respect of the Customer’s licence of the Software, these Terms and Conditions are supplemented by the terms contained in Annex 1 of this Agreement.

4.	Cloud Services
Where Cloud Services are specified in section 2 of an Order Form, these Terms and Conditions are supplemented by the terms contained in Annex 2 of this Agreement, in respect of that Order Form. 
5.	Professional Services
Where Professional Services are to be provided by Energy Exemplar pursuant to any Statement of Work, these Terms and Conditions are supplemented by the terms contained in such Statement of Work.

6.	Fees
6.1	The Customer agrees to pay Energy Exemplar the Fees in consideration for the Software and the Services specified in each Order Form and Statement of Work.
6.2	Energy Exemplar may change the Fees for any Renewed Term by giving the Customer at least 60 days’ notice in advance of the Renewed Term commencing under clause 2.2, and the change will take effect from the commencement of that renewal. 

7.	Payment
7.1	The Fees must be paid within 30 days of the date of issue of an invoice from Energy Exemplar.
7.2	Payment is to be made by way of electronic transfer to Energy Exemplar’s nominated bank account as specified in the Agreement Details or as otherwise notified to the Customer in writing by Energy Exemplar.
7.3	In the event that the Customer defaults or delays in payment, Energy Exemplar will be entitled to charge interest on all amounts not paid on a daily basis from the due date until Energy Exemplar receives payment in full at the lower of:
7.3.1	a rate of 6% per annum; and
7.3.2	the highest rate permitted by applicable law.
7.4	All legal costs and all charges, duties and other expenses incurred by Energy Exemplar as a result of the Customer failing to perform its obligations contained in this Agreement will be paid by the Customer on an indemnity basis to Energy Exemplar. 
7.5	The Customer must include in the Agreement Details or otherwise provide to Energy Exemplar all information that is required in relation to the issuing and payment of invoices, which may include proof of company registration, a tax declaration or a purchase order. Under no circumstances will Energy Exemplar’s omission to request such information, or any errors or omissions on the part of the Customer regarding such information, justify the Customer not making timely payment.

8.	Customer’s Obligations – General 
8.1	The Customer acknowledges and agrees that:
8.1.1	it is responsible for undertaking its own enquiries and making its own checks in relation to the suitability and applicability of the Software and the Services (if applicable) for their required purpose, including whether the Type of Licence and the Licensed Purpose are sufficient and appropriate for the Customer’s needs;
8.1.2	the Software and the Services (if applicable) are provided ‘as is’ and ‘as available’. Energy Exemplar does not represent, warrant or guarantee that the Software or the Services will be error or ‘bug’ free or available at any specific time required by the Customer;
8.1.3	the Customer must, at its own expense, provide and maintain all communications facilities required for the electronic delivery of the Software and accessing and using the Services (if applicable); and
8.1.4	the Customer is solely responsible for the accuracy of all Customer Data, and the contents of any datasets or reports provided through the Software, including under a Dataset Licence, will reflect the accuracy of such data, information and other materials.
9.	Warranties
9.1	Energy Exemplar’s Warranties
Energy Exemplar warrants that:
9.1.1	it has full power and authority to grant the licences granted under this Agreement; and
9.1.2	any Professional Services will be performed in a professional and workmanlike manner.
9.2	Customer’s Warranties
The Customer represents and warrants to Energy Exemplar that:
9.2.1	it owns all right, title and interest in and to the Customer Data or has the necessary licences, rights, consents and permissions to grant the rights to Energy Exemplar pursuant to clause 3.2.1 of Annex 2;
9.2.2	the provision of the Customer Data, and any use of the Customer Data by Energy Exemplar in connection with the Services, will not breach any applicable law;
9.2.3	the Customer Data will not infringe the Intellectual Property Rights or any other rights of any third party; and 
9.2.4	it will carry out all of its obligations and other activities related to this Agreement in accordance with all applicable laws.
9.3	Mutual Warranties
Each Party represents and warrants to the other that:
9.3.1	this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms;
9.3.2	no authorisation or approval from any third party is required in connection with such Party's execution, delivery, or performance of this Agreement; and
9.3.3	the execution, delivery, and performance of this Agreement does not violate the applicable laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

10.	Indemnity
10.1	The Customer will indemnify and hold harmless Energy Exemplar against any and all claims, demands, suits, losses, costs, damages, and expenses (including legal expenses) sustained, incurred or suffered by Energy Exemplar as a result of: 
10.1.1	the Customer’s or its Named Users’:
(a)	use of the Software or the Services other than as permitted under this Agreement;
(b)	breach of this Agreement; 
(c)	tortious (including negligent and intentional) acts or omissions; or
(d)	violation of any law, rule or regulation;
10.1.2	any infringement claim or action against Energy Exemplar or a settlement thereof based on any alleged infringement of any Intellectual Property Rights in connection with the Customer Data; or
10.1.3	a third party claim related to the Customer’s use of the Services (including any use by a Named User).
10.2	Energy Exemplar will, for the Term, defend, indemnify, and hold harmless the Customer against any damages awarded in any third party infringement claim or action against the Customer or a settlement thereof based on any alleged infringement of any Intellectual Property Rights as a result of the use of the Software or the Cloud Services according to the terms and conditions of this Agreement, provided that:
10.2.1	the Customer gives Energy Exemplar prompt written notice of the claim;
10.2.2	Energy Exemplar has full and complete control over the defence and settlement of the claim;
10.2.3	the Customer provides such assistance in connection with the defence and settlement of the claim as Energy Exemplar may reasonably request;
10.2.4	the Customer complies with any settlement or court order made in connection with the claim, including in relation to the future use of any infringing material;
10.2.5	Energy Exemplar will have the right to settle any claims in its sole and absolute discretion; and
10.2.6	Energy Exemplar will have no obligation under this clause 10 for any infringement (and the Customer will reimburse Energy Exemplar for any costs or damages incurred in relation to such infringement) to the extent that it arises out of or is based upon:
(a)	any unauthorised combination, operation, or other use of the Software or the Services other than in accordance with this Agreement;
(b)	any additions, modifications or enhancements of the Software or the Services requested by Customer or not made by Energy Exemplar, if the alleged infringement would not have occurred but for such additions, modifications or enhancements; or
(c)	the Customer’s failure to comply with instructions, documentation or materials provided by Energy Exemplar, if the alleged infringement would not have occurred but for such failure. 
10.2.7	This clause 10 states Energy Exemplar’s sole and exclusive liability, and the Customer’s sole and exclusive remedy, for the actual or alleged infringement by Energy Exemplar of any third party Intellectual Property Right by the Software or the Services.
10.2.8	If any person makes a claim that is subject to the indemnity in clause 10.2 in respect of Software or Cloud Services, or in Energy Exemplar’s reasonable opinion such a claim is likely to be made, then Energy Exemplar may, at its option, either:
(a)	procure for the Customer the right to continue using, possessing or receiving the Software or the Cloud Services free from any such claim;
(b)	modify the Software or the Cloud Services so that the Customer’s use of the Software or the Cloud Services ceases to infringe the rights of the relevant third party; or
(c)	replace the Software or the Cloud Services with non-infringing goods or services,
or, if none of the above are reasonably practicable, terminate this Agreement with immediate effect by providing written notice to the Customer.

11.	Disclaimer and Limitation of Liability
11.1	DISCLAIMER OF WARRANTY 
11.1.1	TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW BUT SUBJECT TO CLAUSES 11.2 AND 11.3: (A) ENERGY EXEMPLAR, ITS LICENSORS AND SUPPLIERS EXCLUDE ALL IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS OF ANY KIND WHATSOEVER (WHETHER IMPLIED BY COMMON LAW, STATUTE OR OTHERWISE) AND THE APPLICATION OR AVAILABILITY OF ANY STATUTORY RIGHTS (INCLUDING ANY IMPLIED REPRESENTATIONS, WARRANTIES, TERMS OR CONDITIONS OR ANY STATUTORY GUARANTEES THAT THE SOFTWARE OR SERVICES ARE OF SATISFACTORY QUALITY OR FIT FOR THEIR PURPOSE); (B) THE CUSTOMER BEARS ALL RISK RELATING TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND SERVICES AND TO THE ACCURACY AND USE OF THE INFORMATION RESULTING FROM THE USE OF THE SOFTWARE AND SERVICES; AND (C) WITHOUT LIMITING THE FOREGOING, NEITHER ENERGY EXEMPLAR, NOR ITS LICENSORS OR SUPPLIER WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OR USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR OR BUG-FREE.
11.1.2	The Customer acknowledges that the public internet is an inherently insecure environment and that Energy Exemplar has no control over the privacy of any communications or the security of any data outside of its internal systems.
11.1.3	The use of the public internet will be at the Customer’s sole risk and Energy Exemplar is not liable for any losses, costs, damages or expenses arising in connection with such use of the public internet including all liability for any disclosure of Confidential Information when transmitted over the public internet. 
11.2	LIMITATION OF LIABILITY 
IN NO EVENT WILL ENERGY EXEMPLAR, ITS LICENSORS, SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF OPPORTUNITY, GOODWILL, PROFITS, ANTICIPATED SAVINGS OR BUSINESS, LOSS OR CORRUPTION OF DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SOFTWARE OR SERVICES OR ANY INFORMATION RESULTING FROM THE USE OF THE SOFTWARE OR SERVICES, EVEN IF ENERGY EXEMPLAR, ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT CLAUSE 10.2.8(c) APPLIES, IN NO EVENT WILL ENERGY EXEMPLAR BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY SOFTWARE OR SERVICES OR ANY INFORMATION RESULTING FROM THE USE OF THE SOFTWARE OR SERVICES. THE CUSTOMER ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE OR SERVICES. UNDER NO CIRCUMSTANCES WILL ENERGY EXEMPLAR’S, ITS LICENSORS’ OR SUPPLIERS’ TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO ENERGY EXEMPLAR DURING THE IMMEDIATELY PRECEDING 6-MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE CUSTOMER MAY NOT MAKE ANY CLAIM AGAINST ANY OF ENERGY EXEMPLAR’S LICENSORS OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE EXCLUSION AND LIMITATION OF CONSEQUENTIAL AND INCIDENTAL DAMAGES IN THIS CLAUSE 11.2 WILL NOT APPLY TO THE EXTENT THEY ARE NOT PERMITTED BY THE APPLICABLE JURISDICTION’S LAWS.
11.3	REMEDIES
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE, RESTRICT OR MODIFY ANY CONSUMER RIGHTS OR ANY OTHER LEGISLATION WHICH MAY NOT BE EXCLUDED, RESTRICTED OR MODIFIED BY AGREEMENT. IF ANY OTHER LEGISLATION IMPLIES A CONDITION, WARRANTY OR TERM INTO THIS AGREEMENT OR PROVIDES STATUTORY GUARANTEES IN CONNECTION WITH THIS AGREEMENT, IN RESPECT OF GOODS AND SERVICES SUPPLIED (IF ANY), THE LIABILITY OF ENERGY EXEMPLAR OR ITS LICENSORS OR SUPPLIERS FOR BREACH OF SUCH A CONDITION, WARRANTY, OTHER TERM OR GUARANTEE IS LIMITED (AT ENERGY EXEMPLAR’S OR THE RELEVANT LICENSOR’S OR SUPPLIER’S ELECTION) TO THE EXTENT IT IS ABLE TO DO SO TO ENERGY EXEMPLAR OR SUCH LICENSOR OR SUPPLIER DOING ANY ONE OR MORE OF THE FOLLOWING: (A) IN THE CASE OF SUPPLY OF GOODS: (I) REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS; (II) REPAIRING THE GOODS; (III) PAYING THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; AND/OR (IV) PAYING THE COST OF HAVING THE GOODS REPAIRED; OR (B) IN THE CASE OF SUPPLY OF SERVICES: (I) SUPPLYING THE SERVICES AGAIN; AND/OR (II) PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. 

12.	Confidentiality
12.1	Subject to the provisions of clauses 12.2 and 12.3, each Party must:
12.1.1	treat as strictly confidential and only use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement; and
12.1.2	not, without the prior written consent of the Party from whom the Confidential Information was obtained (which may be withheld in that Party’s absolute discretion), publish, use or otherwise disclose to any person the other Party’s Confidential Information except for the purposes contemplated by this Agreement.
12.2	Each Party may disclose Confidential Information which would otherwise be subject to clause 12.1 if, but only to the extent, it can demonstrate that:
12.2.1	such disclosure is required by applicable law;
12.2.2	the Confidential Information was lawfully in its possession before its disclosure by the other Party and had not been obtained from the other Party; or
12.2.3	the Confidential Information was in, at the time of disclosure, or has come into the public domain other as a result of a breach of this Agreement or any other obligation of confidence,
provided that any such disclosure must not be made without prior consultation with the Party from whom the Confidential Information was obtained (to the extent such consultation is not prohibited by applicable law) and in the case of disclosures under clause 12.2.1, must be made so as to minimise any such disclosure.
12.3	Each Party may for the purposes contemplated by this Agreement disclose the other Party’s Confidential Information to any of the following persons, provided that such persons have first been directed (Direction) by the disclosing Party to keep it confidential: its officers and employees; and its professional advisers, auditors, bankers and insurers, acting as such. The disclosing Party must enforce each Direction at its own cost.  
13.	Intellectual Property
13.1	All Intellectual Property Rights subsisting in, relating to or arising out of the Software or Services are (as between the Parties) owned by and vest in Energy Exemplar, including all Software Updates, Updates, modifications, developments or enhancements made by or on behalf of either Party to such Intellectual Property Rights.
13.2	Nothing in this Agreement transfers any right, title or interest in Energy Exemplar’s Intellectual Property Rights in the Software or Services (including all Software Updates, Updates, modifications, developments or enhancements made by or on behalf of either Party to such Intellectual Property Rights) to the Customer or any other person, except as expressly granted in this Agreement.
13.3	The Customer must promptly give notice in writing to Energy Exemplar if it becomes aware of any unauthorised or suspected unauthorised disclosure to any third party of any of Energy Exemplar’s Confidential Information or of any infringement or suspected infringement by any third party of any of Energy Exemplar’s Intellectual Property Rights (including Energy Exemplar’s trade marks), and provide Energy Exemplar with all information and assistance reasonably required by Energy Exemplar in respect of such unauthorised disclosure or infringement. 
13.4	Where Energy Exemplar extends the functionality of the Software under clause 5.2.1 of Annex 1 or otherwise modifies or alters the Software (including, for the avoidance of doubt, any Datasets), including as a result of any suggestions or recommendations of the Customer or being engaged to perform Services for the Customer (each being Modifications), the Customer acknowledges and agrees:
13.4.1	that all of the Intellectual Property Rights in the Modifications will be assigned to Energy Exemplar;
13.4.2	to procure that the Intellectual Property Rights in the Modifications (including any source code) vest in Energy Exemplar upon creation; and
13.4.3	to hereby absolutely assign and transfer (and to procure that any of its employees, contractors or personnel promptly assign and transfer) to Energy Exemplar with full title guarantee all existing and future Intellectual Property Rights throughout the entire world in the Modifications, including all statutory and common law rights attaching thereto. 
13.5	Subject to clause 13.6, where Energy Exemplar requires any information or datasets produced by the Customer’s use of the Software or Services, including under an Academic Licence, the Customer agrees to grant, or procure a grant from its students, employees, contractors or personnel, to Energy Exemplar a non-exclusive, worldwide, irrevocable, royalty-free, perpetual licence to use the information or datasets in connection with the Software or Services, including as datasets under future Dataset Licences.  
13.6	If the Customer provides any information or datasets to Energy Exemplar solely to allow Energy Exemplar to provide support services (including troubleshooting and optimisation) to the Customer with respect to such information or datasets, Energy Exemplar will only use such information or datasets to provide such support services.  
13.7	If and to the extent that the Customer provides Energy Exemplar with feedback or recommendations on any features or functions of the Software or the Services, Energy Exemplar may use any such feedback or recommendations. 
13.8	The Customer hereby unconditionally and irrevocably assigns and transfers absolutely to Energy Exemplar with full title guarantee and free from all encumbrances all rights, title and interest it (or its personnel) may have or obtain in the Intellectual Property Rights and other rights in the Software and the Services, including all Software Updates, Updates and modifications, feedback, recommendations, developments and enhancements given or made by or on behalf of the Customer to such Intellectual Property Rights.
13.9	The Customer must: 
13.9.1	do or procure to be done all such further acts and things, and execute or procure the execution of all such other documents, forms and authorisations as Energy Exemplar may from time to time reasonably require in order to give Energy Exemplar the full benefit of this clause 13, whether in connection with any registration of title or other similar right or otherwise; and
13.9.2	undertake to provide to Energy exemplar (at its request) all reasonable assistance with any proceedings which may be brought by or against Energy Exemplar against or by any third party relating to the rights assigned by this clause 13.

14.	Audit
14.1	During the Term, and for a period of 6 years after expiry or termination of this Agreement, Energy Exemplar may, with reasonable notice to the Customer, audit and inspect all records, procedures and systems of the Customer which relate to the use of the Software or the Services (if applicable) to verify the Customer’s compliance with this Agreement.
14.2	In relation to any audit or inspection conducted pursuant to clause 14.1:
14.2.1	the Customer must fully co-operate with Energy Exemplar; and
14.2.2	Energy Exemplar will conduct such audit or inspection in accordance with the reasonable security guidelines which may be applicable to the Customer’s premises and systems and use reasonable measures to ensure that it does not disrupt the Software or the Services and business practices of the Customer.
14.3	Each Party is liable for its own costs of any audit or inspection conducted pursuant to clause 14.1, except where Customer is found to have:
14.3.1	breached any obligation under or in connection with this Agreement relating to the calculation or invoicing of Fees; or
14.3.2	materially breached any other obligations under or in connection with this Agreement,
in which case the Customer must, within 20 Business Days of a request by Energy Exemplar, reimburse Energy Exemplar for its costs (including the costs of engaging any third party auditor) in connection with such audit or inspection.
14.4	If the results of any audit or inspection reveal any unlicensed use of the Software then promptly, and in any event within 14 days of the results of such audit, the Customer must:
14.4.1	pay to Energy Exemplar the applicable additional fees in respect of the Customer’s unlicensed use of the Software (which will be calculated with reference to the applicable Fees set out in the applicable Order Form); and
14.4.2	order sufficient licences for the applicable Software (which will be charged consistent with the applicable Fees set out in the applicable Order Form).

15.	Third Party Products or Services
15.1	The Software and/or the Services (if applicable) may use or include, or Energy Exemplar may from time to time make available to the Customer, third party products or services, including solvers, add-ons and plug-ins as well as implementation, customisation, training and other consulting services (Third Party Products). Such Third Party Products may be essential in order for the Customer to receive full functionality, modelling or other benefits in using the Software and/or the Services. 
15.2	Any Third Party Products are provided together with the Services under this Agreement, and no different or additional terms apply to any such Third Party Products, unless either:
15.2.1	an Order Form specifies different terms and conditions in respect of a Third Party Product; or
15.2.2	Energy Exemplar proposes during the Term that a Third Party Product be provided together with or as part of the Services, specifying in writing the applicable terms and conditions which will apply to the Customer’s use of such Third Party Product and the Customer agrees in writing to the use of such Third Party Product,
in which case:
15.2.3	the Customer’s use of that Third Party Product will be governed by the specified terms and conditions, which will apply between the Customer and the relevant third party (or otherwise stated in the Order Form);
15.2.4	Energy Exemplar will itself have no liability in relation to such Third Party Product; and
15.2.5	without limiting clause 15.2.4, will not be responsible for any disclosure, modification or deletion of Customer Data in connection with any access by the relevant third party vendor to Customer Data. 
15.3	In respect of Third Party Products or any other third party products or services which the Customer installs or enables for use with the Software and/or Services, the Customer acknowledges that Energy Exemplar: 
15.3.1	may allow the third party vendors of those products or their affiliates to have access to the Customer Data as required for the interoperation and support of such Third Party Products or other third party products or services with the Software and/or the Services; and
15.3.2	does not warrant the use or performance of such Third Party Products or other third party products or services, nor does it provide any support for such Third Party Products or other third party products, irrespective of whether or not they are designated by Energy Exemplar as “verified”, “approved” or similar.
16.	Termination 
16.1	Energy Exemplar may terminate all or part of this Agreement immediately on written notice if:
16.1.1	the Customer fails to comply with any provision of this Agreement; or
16.1.2	the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.
16.2	The Customer may terminate this Agreement immediately on written notice to Energy Exemplar if:
16.2.1	Energy Exemplar is in material breach of this Agreement and has failed to remedy the breach within 30 days of receipt of a written notice from the Customer to do so; or
16.2.2	Energy Exemplar becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration.

17.	Effects of Termination
17.1	On termination of this Agreement: 
17.1.1	the licence granted under clause 1 of Annex 1 automatically ceases;
17.1.2	the rights granted to the Customer under clause 2.1 of Annex 2, if applicable, automatically cease;  
17.1.3	any other right granted to Customer, if applicable, under this Agreement automatically ceases;
17.1.4	Energy Exemplar will be entitled to:
(a)	invoice the Customer for the Fees for any Services which have been performed but are yet to be invoiced (with the Fees for any Services payable on a milestone or fixed fee basis being pro-rated); and
(b)	retain Fees paid by the Customer, including Fees paid in respect of any period after the date of termination; 
17.1.5	the Customer must pay any Fees invoiced under clause 17.1.4(a) or otherwise owing or outstanding under this Agreement;
17.1.6	the Customer must promptly return to Energy Exemplar (or at Energy Exemplar’s option and instruction, destroy or otherwise dispose of) all of the Software (including any copies thereof) within the Customer’s possession or control;
17.1.7	the Customer must promptly cease using the Services, if applicable;
17.1.8	the obligations of confidentiality (but not the rights to use or disclose Confidential Information) under clause 12 will continue to apply to the Parties; and
17.1.9	clauses 3, 7.4, 9, 10, 11, 13, 14, 17, 18 (as supplemented by the relevant Regional Addendum), 19, 20 and 21 will continue to apply to the Parties.
17.2	Termination of this Agreement for whatever reason does not affect the rights and obligations of the Parties which have accrued before the date of termination, including the right to claim damages as a result of a breach of this Agreement.

18.	Dispute Resolution
18.1	A Party claiming that a dispute (Dispute) has arisen under or in connection with this Agreement must notify the other Party in writing giving details of the dispute. 
18.2	During the ten (10) Business Day period after a notice is given under clause 18.1 (or any longer period agreed in writing between the Parties) (the Initial DR Period) the Parties must work in good faith to resolve the Dispute.
18.3	If the Dispute is not resolved by the Parties within the Initial DR Period, the Dispute must be referred to the Customer’s chief information officer (or equivalent) and Energy Exemplar’s chief information officer (or equivalent) and such representatives of the Parties must work together in good faith to resolve the Dispute within a period of ten (10) Business Days (or any longer period agreed in writing between the Parties).
18.4	While the procedure set forth in this clause 18 is being followed, both Parties must continue to fulfil their obligations under this Agreement.
18.5	The procedure set out in this clause 18 does not limit or exclude a Party’s rights under this Agreement or at common law or equity (including the right to make applications for interim relief, including injunctions).

19.	Regional Addendum
The Regional Addendum applies to this Agreement in addition to these Terms and Conditions. 

20.	General
20.1	Assignment and Subcontracting
20.2	The Customer must not assign, novate, transfer, sub-contract or otherwise dispose of any or all of its rights and/or obligations under this Agreement without Energy Exemplar’s prior written consent. 
20.3	Energy Exemplar may enter into any sub-contract with any third party for the performance of its obligations under this Agreement without the prior written consent of the Customer. Any such sub-contract does not excuse Energy Exemplar from performing its obligations under this Agreement.
20.4	Variations
No variation of this Agreement will be effective unless agreed in writing and signed by authorised representatives of each of the Parties.
20.5	Entire Agreement
This Agreement constitutes the whole agreement between the Parties relating to its subject matter and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties and arrangements of any nature, whether in writing or oral, relating to such subject matter. 
20.6	Rights etc Cumulative and Other Matters
The rights, powers, privileges and remedies provided under any provision of this Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of this Agreement or by applicable law or otherwise. No failure to exercise nor any delay in exercising by any Party of any right, power, privilege or remedy under this Agreement will impair or operate as a waiver thereof in whole or in part.
20.7	Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
20.8	Taxes
20.8.1	Unless expressly stated to the contrary, all prices, fees and other charges specified in this Agreement are exclusive of any and all sales and value added taxes, withholding taxes, duties and other charges (Taxes) imposed or levied in connection with the licence of the Software and the provision of the Services or any goods under this Agreement.
20.8.2	Despite any other provision of this Agreement, Energy Exemplar may pass on as an addition to the prices, fees and charges the amount of any Taxes. 
20.8.3	Without in any way limiting clause 20.8.2, to the extent that any supply made under or in connection with this Agreement is a taxable supply, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which Tax is imposed in respect of that supply (except to the extent that the consideration is expressed to be inclusive of Tax) and is payable at the same time and in the same manner as the consideration to which it relates.
20.9	Force Majeure 
Except with respect of payment of Fees, a Party will have no liability to the other Party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of the Party, which will include acts of God, perils of the sea, air, fire, flood and drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; epidemic, pandemic or public health emergency and any resulting governmental action including work stoppages, mandatory business, service or workplace closures, full or partial lockdowns or affected areas, quarantines, border closures and travel restrictions; breakdown of equipment and labour disputes (Force Majeure Event).
20.10	Costs
Subject to any express provision in this Agreement to the contrary, each Party must pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of this Agreement. 
20.11	Governing Law and Jurisdiction
This Agreement is governed by, and must be construed in accordance with the laws specified in the relevant Regional Addendum.
20.12	Notices
Any notice or other communication required to be given under this Agreement (Notice) must be in writing (including email), in the English language and must be sent to each Party in accordance with the details set out in the Agreement Details. 

21.	Definitions and Interpretation
21.1	In this Agreement the following abbreviations, words and phrases have the following meanings, unless the context requires otherwise:
Academic Licence means the type of licence for the Software specified in clause 3.1 of Annex 1.
Academic Licence Period means, in respect of an Academic Licence, the period commencing on the ‘Licence start date’ and continuing for the ‘Academic Licence Period’ (each as specified in the applicable Order Form), as may be renewed under clause 2.2 or terminated early under clause 16. 
Agreement means this agreement, which comprises the parts specified in clause 21.3. 
Agreement Details means the section at the front of this Agreement headed “Agreement Details”.
Aurora Licence means a licence for the Aurora Software (if applicable, as specified in section 1 of any Order Form).
Business Day means any day which is not a Saturday, Sunday or public holiday in the place where the Software is being used by the Customer.
Business Hours means the period from 9am to 5pm on Business Days.
Cloud Fees means the Fees (if any) payable for the Cloud Services as specified in section 2 of any Order Form or otherwise agreed in writing between the Parties.
Cloud Services means the services (if any) (including any Third Party Products) specified in section 2 (Cloud Services) of any Order Form.
Confidential Information means, in relation to a Party, all information relating to that Party and its affiliates, including all information concerning the business, products, services, systems, procedures and records (in whatever form, including in electronic format) of that Party and its affiliates, and their relationships with their customers and suppliers. Confidential information of Energy Exemplar includes the Software and the Services, all information relating to the Software and the Services (including data and information contained in or made available through a Dataset Licence or an Aurora Licence) and all Intellectual Property Rights existing in the same, and the terms and conditions of this Agreement and any other information delivered by Energy Exemplar, which, under the circumstances, would reasonably understood to be confidential or proprietary.
Core means an independent processing unit in a CPU within the Customer’s system (whether physical or virtual). 
Cores Licence means the Type of Licence for the Software specified in clause 2.2 of Annex 1.
Customer Account means an account issued by Energy Exemplar to the Customer that will utilise unique log-in credentials to provide Named Users with access to use the Cloud Services in accordance with this Agreement.
Customer Data means any data, information and other materials which the Customer uploads, enters, accesses, inputs or otherwise receives through its use of the Software and/or the Services.
Dataset means the simulation ready dataset for the energy power market or other market specified in any applicable Order Form, including all updates, upgrades, enhancements or modifications to such dataset which are delivered by Energy Exemplar. 
Dataset Licence means the licence for the Dataset specified in clause 3.2 of Annex 1.
Effective Date means the date set out on the cover page of this Agreement. 
Error means any repeatable design or programming error in the Cloud Services which prevents the Cloud Services from substantially complying with the functionality in the documentation delivered or provided with the Cloud Services, which adversely affects the use, function or performance of the Cloud Services.
Fees means the licence fees for the Software, the Cloud Fees and the fees for the Professional Services, as specified in any Order Form, in any Statement of Work or otherwise agreed in writing between the Parties. 
Good Industry Practice means, in relation to any undertaking and any circumstances, the exercise of the skill, diligence, prudence, foresight and judgment which would be expected from a person engaged in the same type of undertaking under the same or similar circumstances, applying the standards currently generally applied in Energy Exemplar’s industry.
Intellectual Property Rights means patents, trade marks, service marks, rights (registered or unregistered) in any designs, applications for any of the foregoing, trade or business names, copyright (including rights in computer software) and topography rights; inventions, know-how, secret formulae and processes, lists of customers and suppliers and other proprietary knowledge and information; internet domain names; rights protecting goodwill and reputation; database rights; and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world.
Licensed Purpose means the purpose for which any Software is licensed under this Agreement and the subject matter for which the Software may be used by the Customer, each as specified in the applicable Order Form. 
Named User means an individual member of the Customer’s personnel who has a specific individual login configured to them that enables such individual to access and use the Software and/or Cloud Services (if applicable).
Named User Licence means the Type of Licence for the Software specified in clause 2.1 of Annex 1.
Order Form means the section at the front of this Agreement headed “Order Form”, comprised of section 1 (Software Products) and section 2 (Cloud Services) and any subsequent “Order Form” agreed in writing by the Parties from time to time. 
Professional Services means the professional services specified in any Statement of Work entered into by the Parties under this Agreement.
Regional Addendum means the specific addendum in Annex 4 which applies to this Agreement, as specified in Annex 4.
Service Credits means the service credits / rebates or price reductions (or similar) set out in the Service Level Agreement that are payable by Energy Exemplar if Energy Exemplar fails to meet the required levels of performance, including ensuring that the provision of Cloud Services meets any applicable Service Levels.
Service Level Agreement means the Service Level Agreement set out in Schedule 1 to Annex 2 of this Agreement.
Service Levels means the required levels of performance for the Cloud Services as set out or referred to in the Service Level Agreement.
Services means the Cloud Services and the Professional Services (as applicable).
Software means each of the Software products (including any Datasets and any Third Party Products) licensed to the Customer under this Agreement, as specified in section 1 of any Order Form. 
Software Updates means any enhancements, modifications, improvements, extensions in performance, updates or upgrades, new releases or new versions of the Software.
Statement of Work means any Statement of Work entered into by the Parties under this Agreement for the provision of Professional Services, such Statement of Work to be in a form substantially similar to the template Statement of Work set out in Annex 3.
System Infrastructure means the physical infrastructure, including equipment, cabling and systems together with related computer software used to provide the Cloud Services, which may be provided by Energy Exemplar or a third party.
Technical Support means the support services described in clause 5 of Annex 1. 
Term means the term of this Agreement as specified in clause 2.
Terms and Conditions means this section of this Agreement which is headed “Terms and Conditions” and comprises clauses 1 to 21. 
Third Party Products has the meaning given in clause 15.1.
Type of Licence means the type of licence for the Software as specified in the applicable Order Form.
Updates means an improvement, extension in performance, or update to the Cloud Services.
Virus means any thing or device (including any software, code, file, programme, worm, trojan horse, virus or other similar things or devices) which is designed or intended to: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or, adversely affect the user experience.
21.2	In this Agreement, unless the context requires otherwise: 
21.2.1	a reference to a ‘Party’ means a party to this Agreement;
21.2.2	any reference to a ‘person’ includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same include a reference to the others; 
21.2.3	a reference to '$' or currency is a reference to the Government-backed currency specified in the relevant Regional Addendum; 
21.2.4	reference to clause(s) are references to clause(s) of and to this Agreement;
21.2.5	any phrase introduced by the words ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression must be construed as illustrative only and must not be construed as limiting the generality of any preceding words; and
21.2.6	references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
21.3	The Agreement comprises the following parts:
21.3.1	the Annexes;
21.3.2	the Schedules;
21.3.3	the Agreement Details; 
21.3.4	the Order Form (and any subsequent Order Form agreed in writing by the Parties);
21.3.5	these Terms and Conditions; and
21.3.6	any other documents incorporated by reference into the Agreement.
21.4	To the extent that there is any conflict or inconsistency between any of the terms in those documents listed in clause 21.3, the terms in the document listed first will govern to the extent of the conflict or inconsistency.
21.5	No confirmation, shipment or delivery docket, invoice or other similar document issued by or on behalf of the Customer or Energy Exemplar (including the terms on any pre-printed purchase order form) will vary or form part of this Agreement.