HYDROGRID Insight: General Terms & Conditions

PREAMBLE

This document states HYDROGRID’s General Terms & Conditions, relating to the use of HYDROGRID Insight. These terms apply to any form of agreement (‘Individual Contract’) entered into between an individual Client and HYDROGRID (each a ‘Party’ and together ‘Parties’).

Terms deviating from or extending these General Terms & Conditions may be agreed between if mutually agreed and confirmed in writing by both Parties Individual Contract’). In such an event, any terms specified in such an Individual Contract shall supersede the referred points of these General Terms & Conditions.

Any Individual Contract(s) and these General Terms & Conditions together shall be referred to as the “Agreement” between the Parties.

1. CONTRACT VALIDITY

1.1. Any agreements between the Client and HYDROGRID, as well as any amendments to any such agreements must, in order to be valid, be in writing and signed by an authorized signatory of the respective Party.

2. VALIDITY OF THESE GENERAL TERMS & CONDITIONS

2.1. These “General Terms and Conditions” supersede previous versions and shall apply until replaced by a later version of General Terms & Conditions upon the conditions specified in clause 20.

3. DEFINITION OF CONFIDENTIAL INFORMATION

3.1. For the purposes of fulfilling their respective obligations, each Party (“the Disclosing Party”) may share over the course of their business relationship certain confidential information, as defined in Clause 2.3,  with the other Party (“the Receiving Party”).

3.2. The term “Confidential Information” shall be defined as

3.2.1. Any technical data relating to the Client’s power plants & IT systems or HYDROGRID and its IT systems which is provided by the Disclosing Party to the Receiving Party (e.g. plant’s technical specifications, plant’s topological data, plant’s historical telemetry data, specifications of data exchange interfaces (including documentation, visuals, example code), access credentials, description and documentation (including visuals) of applied methods) for the purpose of plant setup within HYDROGRID Insight.

3.2.2. Any technical data (including graphics and visuals, e.g. power plant data, access credentials, reports, charts, designs, …) provided by the Disclosing Party to the the Receiving Party’, which is being transferred continuously by means of automatic communication (e.g. API, FTP, E-Mail) or that is being displayed or available for download in HYDROGRID Insight.

3.2.3. Any documents or data provided by the Disclosing Party to the Receiving Party, which is marked as ‘Confidential’ by the Disclosing Party.

4. PROTECTION OF CONFIDENTIAL INFORMATION

4.1. The Parties shall not disclose any Confidential Information (as defined in Section 3) to any third party except to representatives of the Receiving Party (e.g. shareholders, legal representatives or other suppliers & contractors) who have a “need to know” with respect to the business relationship.

4.2. The Receiving Party agrees to make its representatives aware of the limitations on use and disclosure of confidential information as imposed by this Agreement and shall take all reasonable measures necessary to compel their compliance with this Agreement (including but not limited to entering into non-disclosure agreements of similar scope with said representatives). The Receiving Party shall be responsible for any breach of any of the terms of this Agreement by its representatives.

4.3. Under no circumstances shall disclosure of any Confidential Information constitute any transfer of intellectual property, licence or other rights regarding commercial use towards the Receiving Party. The Receiving Party shall not aim to trademark, copyright or in any other way seek to gain intellectual property rights related to any Confidential Information received.  

4.4. The Receiving Party shall not use, in whole or in part, any Confidential Information received for any purposes other than fulfilling its obligations under this or any other agreements with the Disclosing Party without the prior written consent of the Disclosing Party.

4.5. The Receiving Party shall not attempt decompose, disassemble, decompile or reverse engineer the Disclosing Party’s Confidential Information, or any part of it.

4.6. Each Party acknowledges that the other Party’s Confidential Information is valuable and unique, that disclosure of Confidential Information may cause irreparable injury to the Disclosing Party for which monetary compensation would not be sufficient, and that therefore any disclosure of Confidential Information that is in breach of this Agreement shall entitle the Disclosing Party to apply for and to obtain injunctive relief in addition to monetary compensation. The provisions of this paragraph are in addition to any other legal rights or remedies the Disclosing Party may have under applicable law or in equity.

5. EXCLUSIONS OF CONFIDENTIAL INFORMATION

5.1. The restrictions defined in Section 4 do not apply to Confidential Information which:

5.1.1. is transferred by HYDROGRID to any third parties on behalf of and at the specific request of the Client (e.g. transmission of power market nominations to the Client’s power market access agent as specified in Section 10, or transmission of data via HYDROGRID Insight user access as specified in Section 8),

5.1.2. is in possession of the Receiving Party without any confidential commitment prior to receipt from the other Party,

5.1.3. is publicly known, or becomes publicly known (other than through a breach of this Agreement),

5.1.4. can be proven to have been independently developed by the Receiving Party, provided that the person or persons developing the same have not had access to such Confidential Information from the Disclosing Party under this Agreement,

5.1.5. the Receiving Party is required to disclose by law or following valid legal process under its jurisdiction.

In the event of any legal action or proceeding or asserted requirement under applicable law or government regulations requesting or demanding disclosure of Confidential Information, the Receiving Party shall promptly notify the Disclosing Party in writing of such request or demand and the documents requested or demanded so that the Disclosing Party may seek an appropriate protective order or take other protective measures and/or waive the Receiving Party’s compliance with the provisions of this Agreement in writing.

6. RIGHT TO USE AND INTELLECTUAL PROPERTY RIGHTS

6.1. HYDROGRID grants the Client the time-limited right to use the described software and custom functionality subject to the commercial and technical terms stated in these General Terms as well as any Individual Agreement. For the avoidance of doubt, the full ownership, unlimited right to distribute and license and all intellectual property rights for the HYDROGRID Insight software (including but not limited to any bespoke feature development functionality) remain fully with HYDROGRID.

7. PROVISION OF DATA BY THE CLIENT

7.1. The Client is responsible for providing HYDROGRID with correct and complete technical data of the plant (static technical data of all turbines, gates, reservoirs, the plant’s topology, all operational constraint) as requested by HYDROGRID at the beginning of the plant setup process. Based on this provided data, HYDROGRID defines the plant’s digital model in HYDROGRID Insight and derives the Plant Setup Agreement (“Plant Setup Scope & Technical Specifications”) that is mutually agreed between the parties and must be confirmed in writing by the Client. The Plant Setup Agreement forms an integral part of the plant setup process and is required by HYDROGRID to proceed and complete the plant setup.

7.2. The Client is responsible for providing HYDROGRID with correct historical data of at least three (3) years of the power plant(s) components (turbine, gates, reservoir levels, throughputs). The historical data must be provided in HYDROGRID’s standard format as requested by HYDROGRID during the plant setup process, unless otherwise agreed in writing. In the event that the Client is not able to provide at least 3 years of data, the Client acknowledges that the prediction quality of the forecast models (in particular, the inflow forecast model) as well as the overall optimization performance will be reduced due to lack of historical data without prejudice to clause 12.2.

7.3. In the event that the Client provided a) incorrect data, b) incomplete data, or c) data deviating from the mutually agreed Plant Setup Agreement (“Plant Setup Scope & Technical Specifications”) HYDROGRID shall be entitled to invoice any additional work caused by the data issues on the Clients behalf at a rate as defined in Section 13.4. Any such additional work and its extent shall be communicated to the Client in advance.

7.4. If required for the chosen HYDROGRID Insight product, the Client is responsible for providing HYDROGRID with correct power plant telemetry on an ongoing basis, as defined in the Individual Contract(s), latest at completion of plant setup.

7.5. If ongoing plant telemetry is required for the chosen HYDROGRID Insight product, the Client must provide the plant’s telemetry (turbine generation, active gates, reservoir levels, throughput data) via HYDROGRID Insight RestAPI at a granularity as defined in the Individual Contract(s). Any other data exchange interface is defined as a custom feature and is individually billed, as defined in the Individual Contract(s).

8. HYDROGRID INSIGHT SYSTEM USERS

8.1. The Client shall appoint an ‘Administration User’ who, on behalf of the Client, shall be responsible for requesting and revoking user accounts (“Accounts”) to access HYDROGRID Insight (web portal, RestAPI). The Client shall have the right to create Accounts for individuals outside of the organisation that is subject to the Individual Contract (s). The Client shall ensure that each Account is used only by the authorized individual for whom it was created.

8.2. The Client shall ensure that each Account complies with the Individual Contract (s) and HYDROGRID’s General Terms and Conditions. The Client shall be fully responsible for any breach by each of its Accounts.

8.3. The Client agrees that each Account will have access to HYDROGRID Insight support, and that support services, as defined in Section 9, for each Account will be commercially assigned to the Clients account.

8.4. The Client shall ensure that individuals for whom an Account was created have given their consent for their personal data (i.e. name, e-mail address and telephone number) to be stored and processed for the purposes of accessing HYDROGRID Insight’s interfaces and that they consent to being contacted by HYDROGRID customer support by phone or e-mail. Any personal data processed by HYDROGRID on behalf of the Client shall be done in accordance with the applicable law and particularly the European Data Protection Regulation ((EU) 2016/679, GDPR).

9. SUPPORT

9.1. For the duration of the Individual Contract(s) and subject to due payment of all invoices by the Client, HYDROGRID will provide support services for the plant, either further specified in the Individual Contract(s), or at the minimum specifications as follows.

9.1.1. HYDROGRID, in its commercially reasonable discretion, will provide the Client with on-going customer service of the plant – including but not limited to measures performed to mitigate incidents outside HYDROGRID's system boundaries to assure continuous service delivery, plant (re)setup, plant (re)configuration, plant (re)calibration and technical support, to the extent of the included support hours contingent as defined in the Individual Contract(s). Any additional support hours will be subject to additional fees (Section 9.3).

9.1.2. HYDROGRID will make all releases of the HYDROGRID Insight Solution available to its Clients for use under the Individual Contract(s).

9.1.3. HYDROGRID will provide on-line documentation for HYDROGRID Insight (Dashboard User Information, RestAPI Developer Specifications).

Support Procedure: HYDROGRID will provide the Client with dedicated Support Ticket tracking. The Client shall submit a technical support ticket (“Support Ticket”) to HYDROGRID for any request outside the scope and technical specifications as defined in the Plant Setup Agreement (“Plant Setup Scope & Technical Specifications”) by phone, email, or the support ticket function available for HYDROGRID Insight. HYDROGRID will inform the Client via a Support Ticket about incidents that are outside HYDROGRID's system boundaries and which have been observed during HYDROGRID’s continuous service delivery measures.

9.2. Client Assistance: The Client will provide all reasonably technical resources required to assist and cooperate with HYDROGRID in troubleshooting and seeking to resolve any Support Ticket. The Client shall provide for free any such resources as soon as reasonably possible.  The Parties acknowledge and agree that for HYDROGRID to troubleshoot a Support Ticket, HYDROGRID may require specific access to certain of the Clients records. This may include but is not limited to log files, source code, client’s internal interface and procedure documentation which are impacted by the Support Ticket.

9.3. Invoicing of additional support: Periodically, but at least on a quarterly basis, HYDROGRID will invoice the Client for each additionally tracked support hour above any “included support hours” defined in the Individual Contract(s) at the rate specified in Clause 13.4 of these General Terms & Conditions. .

9.4. Development of Client feature(s): Additional feature requests by the Client which are not defined and agreed on in the corresponding Plant Setup Agreement (“Plant Setup Scope & Technical Specifications”) or Individual Contract(s) are not subject to the support services rendered by HYDROGRID and require a separate quote and contract addition based on the information provided by the Client and an internal evaluation of the feasibility and scope of work for developing the requested additional feature(s).

10. AUTOMATED TRANSFER OF DATA & DATA TRANSFER SECURITY

10.1. Without prejudice to Section 3 and 4 of these General Terms & Conditions, all data transferred by means of an electronic and/or hard copy, between the Client and HYDROGRID, whether or not it is part of the Agreement or necessary for either party to fulfil its obligations as part of the Agreement, must be transferred securely ensuring integrity and confidentiality of the data is not compromised. The most appropriate method of transfer must be agreed by both parties depending on the sensitivity and nature of the data.

10.2. Unless otherwise specified by the Client, transfer of information via e-mail and phone shall be agreed as an appropriate means of communication for the transfer of data, whereby both Parties acknowledge and accept the possibilities of inception inherent in these forms of communication in view of practical operational requirements to use these communication tools.

10.3. In the event that either party suspects a loss or leak of data during the data transfer process, such party must immediately notify the other party, in a timely manner and set up an alternative channel of communication.

10.4. Any data or information transferred by HYDROGRID to the Client (e.g. suggested optimal dispatch plans for any turbines or gates, forecasted prices or inflows), or transferred by HYDROGRID to a third party on the Clients behalf (e.g. power market nominations), whether transferred by manual means (e.g. in the form of an e-mail or by phone) or by means of automated data communication (e.g. by transfer via FTP, webservice or API) is provided as a suggestion only, and it is the Client’s responsibility to take or omit any actions related to the Clients business based on the Client’s own judgment and expertise.

10.5. For the avoidance of any doubt, according Clause 10.4, the Client is responsible for the acceptance or rejection of any data supplied by HYDROGRID to the Client or to any third party on the Client’s behalf and retains not only the right but also the obligation to deviate from any such suggestion at any time (“Client Override”) based on his/her own judgement.

Specifically, the Client is obligated to perform such a Client Override when following the suggestions transmitted by HYDROGRID would interfere with obligations towards third parties, including but not limited to health and safety regulation, environmental and other contractual commitments or if doing so could cause technical problems or an undesirable financial outcome for the Client.  

10.6. The Client is required to take all necessary steps (both technical and/or procedural) within its organisation in order to be able to carry out a Client Override whenever it is necessary according to this clause.

11. THIRD PARTY RIGHTS AND OBLIGATIONS

11.1. At all times, legal and financial ownership of the Power Plant, any electricity produced and any revenues generated therefrom, as well as all rights and obligations the Client may have towards third parties, including but not limited to those related to the Power Plant ownership, management, maintenance, operation, compliance and commercial obligations shall always remain with the Client.

11.2. For the avoidance of doubt, HYDROGRID is not responsible for any damages,  losses, indemnities and/or costs whatsoever resulting from the Client’s use, modification, adaptation, lack of use of Hydrogrid’s suggestions resulting from the Client’s breach of the obligation to carry out a Client Override according to Section 10.  

11.3. The Client shall indemnify and hold HYDROGRID harmless against any claims third parties may raise against the Client or HYDROGRID arising out of or in connection with any breach of the Client's obligation to carry out a Client Override.

12. WARRANTY & LIABILITY

12.1. HYDROGRID guarantees an average annual availability rate of 97.5% for the delivery of any contracted services.  

12.2. Given that HYDROGRID’s services are based on factors (such as the weather) which cannot be predicted with certainty, all services are provided by HYDROGRID “as is” without any warranty or guarantee for the accuracy or completeness of any information / service provided.

12.3. Neither party shall be liable to the other party for any indirect or consequential loss or damages, including loss of profits or income, loss of business or business opportunities or business interruption.

12.4. Any liability for any reason (including in the case of gross negligence) by either Party shall be limited in amount to the annual value of the underlying contract for the contract year in which the underlying event occurred.

13. INVOICING & PAYMENT CONDITIONS

13.1. Unless otherwise specified, all prices are net prices and are denoted in EUR (€).

13.2. Unless otherwise specified, one-time payments and setup fees (“One-Time Fee”) will be invoiced on the date of signature of the Agreement.

13.3. Unless otherwise specified, any recurring fees (“Fixed Fees”) will be invoiced on a quarterly basis in advance (with respect to services provided in the following quarter). The billing of Fixed Fee(s) starts with the License Start Date, as defined in the Individual Contract(s).

13.4. Unless otherwise specified, HYDROGRID will invoice additional work beyond the scope of the Individual Contracts(s) for tasks such as but not limited to plant setup, customer service, technical support or bespoke feature development at a rate of €240 per hour.

13.5. In the event of severe technical issues preventing the meaningful use of the HYDROGRID Insight service by the Client for a specific plant for an extended period of time, defined as more than a full calendar month, any invoicing of recurring fees for such time period (e.g. during a scheduled three month downtime of a power plant for refurbishment) shall be paused at the written request of the client. For the avoidance of doubt, natural fluctuations of hydrological conditions throughout the year shall not trigger such a pause.

13.6. All invoices are payable without deductions within thirty (30) days of invoice submission to HYDROGRID’s account as specified on the invoice.

13.7. Late payments are subject to a late payment fee of 8% per annum applied to the amount that was paid late.

14. PRICE ADJUSTMENTS

14.1. Any recurring fees (“Fixed Fees”) are subject to an annual inflation price adjustment that is based on the Harmonised Indices of Consumer Prices (HICP) - issued by European Commission https://ec.europa.eu/eurostat/web/hicp - to be applied from January of each year.

14.2. Any change in recurring fees (“Fixed Fees”) beyond the inflation adjustment shall only be permissible at the earliest after eighteen (18) months of service.  HYDROGRID is obliged to inform the Client of the intended price adjustment with a notice period of at least three (3) months before the effective date of the price adjustment. In this event, the Client has a special right to terminate the Individual Contract with a notice period of three (3) months prior to the effective date of the price adjustment.

15. APPLICABLE TAXES

15.1. For tax purposes, the place of fulfilment for all services provided by HYDROGRID shall be the registered office of HYDROGRID located in Vienna, Austria.

15.2. Unless otherwise specified, all prices/fees are net amounts, and may be subject to various taxes (e.g. Value-Added-Tax (VAT)), depending on factors such as the country or jurisdiction of the Client.

15.3. All payments to be made under this Agreement shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law.

15.4. If the Client is compelled to make any such deduction, it will pay to HYDROGRID such additional amounts as are necessary to ensure receipt by HYDROGRID of the full amount that would have been received but for the deduction.

16. ANTI-BRIBERY & MODERN SLAVERY POLICY

16.1. Both parties shall comply with applicable anti-bribery and anti-corruption legislation (“Anti-Bribery Laws”), in their respective legal jurisdictions, as may be amended from time to time.

16.2. Throughout the term of the Agreement, both parties shall maintain and enforce their own policies and procedures relating to anti-bribery and anti-corruption to ensure compliance with all Anti-Bribery Laws. Each party shall make such policies and procedures available upon request of the other party.

16.3. Each party shall procure that all persons associated with that party (as defined by the applicable Anti-Bribery Laws) comply with the provisions of this clause.

16.4. Each party warrants that they have procured and, for the term of the Agreement, shall procure that no slavery or "human trafficking" takes place or has taken place within any parts of its own business.    

16.5. Each party complies with the relevant requirements of the respective modern slavery laws applicable to their locale and provides access, to the other party, its policies, procedures and adopted approaches to ensure that slavery and "human trafficking" is prevented within its own business.  

16.6. Any breach of this clause shall be deemed a serious breach, by the breaching party, to comply with their obligations under the Agreement.

17. USE OF ADVISORS & SUB-SUPPLIERS

17.1. Each Party shall bear its own costs and expenses (e.g. for advisors and legal counsel) incurred in connection with the preparation, execution and implementation of this Agreement and any interactions contemplated thereby.

17.2. At its own cost, either Party may enlist the services of other service or data providers to fulfil its obligations under this Agreement (e.g. use of weather data suppliers, use of IT sub-suppliers).

17.3. In the event that either Party enlists the services of sub-suppliers or service providers which could potentially gain access to Confidential Information as defined in section 3, it is that Party’s responsibility to ensure compliance of such sub-suppliers with confidentiality requirements as per this Agreement and such Party shall be responsible for any breach of confidentiality by its sub-suppliers.

18. DURATION OF AGREEMENTS

18.1. Unless otherwise specified, all agreements between the Parties shall remain in force until terminated by either Party (subject to agreed notice periods) or unless an automatic termination at a given date has been agreed between the Parties at the time of signature.

18.2. Unless otherwise specified, all agreements between the Parties may be terminated by either party, for any reason and at any time, by giving six (6) months’ notice. Any such termination shall be given in writing and shall then take effect six months (6) after the end of the month in which notice was given.

18.3. Both Parties shall also have the right to an ‘Immediate Termination for Cause’. Such termination shall be given in writing and shall then take effect at the date of the letter of termination. The right to an ‘Immediate Termination for Cause’ can be exercised in the event that the other Party

18.3.1. Is in serious breach of its obligations under the Agreement,

18.3.2. Has been notified of such breach in writing and,

18.3.3. Has not remedied such breach within forty-five (45) days of notification.

19. TERMINATION OF AGREEMENTS

19.1. Termination of any Agreement shall not affect settlement and payment with respect to services, costs, or fees up to and including the Agreement termination date.

19.2. The mutual confidentiality obligations of the Parties as defined in Sections 3, 4 and 5 shall survive the termination of the Agreement and shall remain in effect for two (2) years following the termination of the Agreement.

19.3. Upon termination of the Agreement, either Party has the right to request in writing the full deletion of any physical and digital copies of Confidential information remaining with the other Party to the extent practically achievable (but for the avoidance of doubt excluding automatically created data backups).

19.4. Both Parties waive their right to raise any legal claims against the other Party any later than six (6) months following the termination of the underlying Agreement, except for any claims by either Party relating to confidentiality (as provided for in clause 19.2) or any claims by HYDROGRID relating to third party indemnification as provided in Section 11.

19.5. Section 20 shall survive the termination of the Agreement.

20. CHANGES TO THESE GENERAL TERMS AND CONDITIONS

20.1. HYDROGRID reserves the right, at its sole discretion, to change, modify, add, or remove portions of these General Terms and Conditions at any time and to publish such updated General Terms and Conditions under a new version.

20.2. In the event of such an update to HYDROGRID’s General Terms and Conditions, HYDROGRID is obliged to inform the Client of the intended update with a notice via e-mail to the Client’s billing e-mail address with a notice period of at least three (3) months before the effective date of the General Terms & Conditions update. Such updated General Terms & Conditions shall then become binding for both Parties unless the Client objects in writing to the updated General Terms and Conditions at the latest four (4) weeks before their effective date.

20.3. In the event that the Client objects to the updated General Terms & Conditions, HYDROGRID shall be obliged to perform its services for a minimum of 6 months after the notification of objection subject to the terms of the previously valid General Terms & Conditions and the Client has a special right to terminate the Individual Contract at any time with a notice period of three (3) months.

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