The definitions and rules of interpretation in this clause apply in these Terms.
| App | the mobile application to be used as part of the Pilot Scheme and the link to which can be found below |
| Business Day | a day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business. |
| Confidential Information | any information which is disclosed by one party to the other pursuant to, or in connection with these Terms, the Pilot Scheme, the System, the Products, the Property or the WIFI (whether orally or in writing and whether or not such information is expressly stated to be confidential), or which otherwise comes into your hands in relation to these Terms, the Pilot Scheme, the System, the Products, the Property or the WIFI, other than information which is already in the public domain (otherwise than as a result of a breach any obligation of confidentiality). |
| Delivery Date | the date the Hub will be delivered and installed at the Property as notified to you by Encom. |
| Hub | the System Hub to be installed at the Property and used for the Pilot Scheme. |
| Intellectual Property Rights | copyright, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature 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. |
| Pilot Eligibility | the eligibility criteria that you must satisfy in order to take part in the Pilot Scheme as set out in the Appendix. |
| Pilot Scheme | the scheme to be carried out by Encom that will trial and evaluate the System on a trial basis for a Trial Period. |
| Products | the Hub, App, smart plug and any associated cabling. |
| Property | the residential property owned by you to be used for the Pilot Scheme. |
| Trial | the provision of Products by Encom for the Trial Period as part of the Pilot Scheme. |
| Trial Period | a period of not less than 30 days or such longer period as the parties may agree. |
| WIFI | a wireless ethernet signal sufficient to connect the App to the internet, the hub to the internet via your broadband connection and confirm the EMS is operational. |
2.1 These Terms form the agreement between you and us in relation to the Pilot Scheme.
2.2 You are the person who has signed up to the Pilot Scheme.
2.3 We, us, our or Encom are Encom Energy Ltd, with company number NI676633 and whose registered office address is at BHSM LLP, 76 Baggot Street Lower, Dublin 2, Dublin, D02 EK81, Ireland
2.4 These Terms are specific to the Pilot Scheme.
3.1 Encom has created and developed an energy management system which monitors, controls and optimises home energy flows (the “System”). The focus is on energy generation, storage devices, energy meters and major energy consuming appliances to optimise energy usage, reduce energy bills and provide more self-reliance.
3.2 You wish to take part in the Pilot Scheme, which will trial and evaluate the System for a Trial Period, to ascertain whether it meets its requirements.
4.1 Subject to Pilot Eligibility as set out in the Appendix, you will take part in the Pilot Scheme beginning on the 20 March 2023 and after you have downloaded and installed the App.
4.2 Subject to the Terms, we grant you a non-exclusive, non-transferable, non-assignable right to use the Products provided hereunder solely for evaluating, trialling and/or testing the System in relation to your Property and only for the Trial Period. All rights not expressly granted to you are reserved by us and our licensors. You acknowledge and accept that this is a trial and as such, that we reserve the right to make changes, modifications and enhancements to the System and the Products from time to time.
4.3 During the Trial Period, you will provide us with reasonable access to the Products and access to any performance data held by you and relating to the Products, in each case to allow us to evaluate the performance of the System. We may access the Products both through the Hub and the App.
4.4 You may use, test, and evaluate the System and provide reports of problems, failures or defects arising in connection with same to Encom.
4.5 You may not release to any third party the results of any evaluation of the System without our prior written approval and for the avoidance of doubt we consider such results to be our Confidential Information.
4.6 For the avoidance of doubt, these Terms do not obligate either party or in our case, any of our affiliates to enter into any further agreement for the provision of the Products on an ongoing (non-trial) basis after the Pilot Scheme ends (a “Further Agreement”). These Terms relate only to the arrangements contemplated herein and no other contract exists, or will exist, between the parties in relation to the Products unless the parties have agreed all the terms of a Further Agreement and both parties have signed a Further Agreement.
5.1 Delivery and installation of the Hub shall be made by us or our appointed agent (the “Third Party”) on the Delivery Date.
5.2 We (or the Third Party) will contact you to arrange delivery and installation. You agree to allow us or the Third Party access to your Property to carry out a survey (if required) and to provide all facilities, power supply, WIFI and suitable working conditions to enable delivery and installation to be carried out safely and expeditiously.
5.3 If we are unable to confirm whether you have a suitable location to install the Hub from a description or photographs you have sent to us, we may, at our discretion, and with your permission, send a Third Party to carry out a survey. Such survey shall be at our cost and expense.
6.1 The System uses software to function, including both on the Hub and the App.
6.2 Encom or its affiliates own (and will continue to own) the software and firmware and all intellectual property rights associated with the software and firmware.
6.3 We reserve the right to make changes, modifications and enhancements at any time to the App software and/or firmware running on the Hub. These changes, modifications and enhancements may be to: ensure the System functions correctly; fix any issues that may arise; improve the way the System works; add/remove data points that are reported by the device; add/remove further functionality; provide information or notifications, or for other reasons.
7.1 You agree and acknowledge that we are the sole and exclusive owner of all right, title and interest in and to:
7.2 the System, the Products and the App (and all Intellectual Property Rights in and to all of the foregoing);
7.2 all information, data, algorithms, software, results and other content that is derived from processing any data transmitted by or through the System and the Products (collectively the “Analytics Data”), including all Intellectual Property Rights therein and thereto; and
7.2 all other Intellectual Property Rights developed by us under these Terms.
7.2 To the extent that you have any rights in the System, Products, the App or Analytics Data, you irrevocably assign to us all of those rights for no additional consideration.
8.1 We shall provide the Products free of charge for the Trial Period or until we have, in our reasonable opinion, completed the Pilot Scheme.
8.2 Upon expiry of the Pilot Scheme, the parties may negotiate in good faith a Further Agreement with different terms and conditions.
You shall at all times during the Trial Period:
9.1 take such steps (including compliance with all safety and usage instructions provided with the Hub and (if applicable) by us) as may be necessary to ensure that the Hub is at all times safe when it is being set up or used by you or anyone else;
9.2 make no alteration to the Hub and not remove any existing component (or components) from the Hub without our prior written consent;
9.3 keep the Hub at all times at the Property and not move or attempt to move the Hub to any other location without our prior written consent; and
9.4 not adjust, repair, modify, replace or remove the Hub or any part of it, or allow any other person other than us or our representatives to adjust, repair, modify, replace or remove the Hub or any part of it, unless otherwise agreed by us.
9.5 You agree and acknowledge that we are the sole and exclusive owner of the Hub and at no time will ownership of the Hub pass to you or anyone else, unless otherwise agreed by us in writing.
If at any time you no longer wish to take part in the Pilot Scheme, please give us not less than 5 Business Days written notice of your wish to leave by writing. Please write to us at emspilot@encomenergy.co.uk
11.1 You may have your Hub removed at any time. To do so please arrange a Hub removal appointment with us.
11.2 Following expiry or termination of the Pilot Scheme, a removal of the Products shall be arranged. You can request a Hub removal appointment by contacting emspilot@encomenergy.co.uk
11.3 When we remove the Hub, we will remove the unit from the wall and any cabling put in place as part of the Hub installation.
As this is a Pilot Scheme, we may make changes to any component of the System, the Products and/or the App over the course of the Trial Period, including extension of the Trial Period. If any changes may be disadvantageous to you, we will give you 5 Business Days advance notice. Any changes we make will also be published on our App.
13.1 Either party may terminate these Terms with immediate effect by giving written notice to the other party if the other party commits a material breach of these Terms, and (if such breach is irremediable) the breach is not remedied within 5 Business Days of the other party being notified in writing.
13.2 Without limiting any of our other rights, we reserve the right to suspend the delivery or supply of our Products to you, change, reduce or terminate the Pilot Scheme at any time for any reason giving not less than 5 Business Days' written notice.
13.3 Upon suspension, termination or expiry of the Pilot Scheme you shall cease to use the Products and the App immediately, return the Products and (if so, requested by us) delete the App from any devices.
You shall indemnify and hold us, our licensors, agents and third parties harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) to the extent arising out of or in connection with a claim arising from the breach by you or your use of these Terms.
15.1 The restrictions in liability in this clause apply to every liability arising under or in connection with the Terms including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 In consideration of this being a trial and you not being required to pay any fees to us in order to participate, you acknowledge and agree that we shall not be liable for any costs, loss or damage you suffer:
15.2.1 as a result of events outside our reasonable control. Matters outside our reasonable control include but are not limited to: severe weather conditions; epidemics; civil disorder; terrorist activity; war; acts or omissions of electricity network operators, and government action; hacking, tampering or other unauthorised access or use of the System, the App, the Products, the Hub, smart plug, inverter or battery;
15.2.2 that could not have reasonably been expected, and could not reasonably have been foreseen by us from anything you said or disclosed to us before the Pilot Scheme began;
15.2.3 as a result of not using the System, the App and/or the Products in line with our instructions and these Terms;
15.2.4 as a result of your broadband internet connection or WIFI being insufficient in quality, capacity or speed to support the Pilot Scheme and/or your use of the System or App results in you exceeding the permitted data limit on your broadband;
15.2.5 that could have been avoided by taking reasonable action, including following our reasonable instructions for use;
15.2.6 (including any consequential loss) caused by us, any third party or agents to the extent such loss or damage results from any breach by you of these Terms;
15.2.7 in relation to the loss of or any use made of any data generated from use of the Products and the App; or
15.2.8 any actual or alleged indirect loss or consequential loss howsoever arising.
15.3 Subject to clause 15.4, our total liability to you shall not exceed £10,000.
15.4 Nothing in these Terms will limit or exclude our liability for death or personal injury as a result of our negligence, fraud or fraudulent misrepresentation.
16.1 How we use any personal data you give us is set out in our Privacy Policies which are incorporated into these Terms and linked below:
16.1.1 Website Privacy Policy
16.1.2 Customer Privacy Policy
16.1.3 App Privacy Policy
16.2 How we use your cookies and similar tools is set out in our Cookie Policy which is incorporated into these Terms - Cookie Policy.
17.1 You may submit a complaint in person, in writing or over the phone by:
17.1.1 calling us on +44 (0)28 9538 0910;
17.1.2 emailing us at sales@encomenergy.ie; or
17.1.3 writing to us or visiting us at BHSM LLP, 76 Baggot Street Lower, Dublin 2, Dublin, D02 EK81, Ireland.
17.2 We'll aim to respond to your complaint within 24 hours of receiving it. If you're not happy with our response, you may request your complaint be escalated to the Compliance Director of Encom.
18.1 Each party agrees to keep the other party's Confidential Information confidential secret and will not use or disclose or make the Confidential Information available, directly or indirectly, to any person other than those who need to know the Confidential Information to enable the party to perform its obligations under these Terms, or as otherwise agreed with the other party in writing and provided that such persons are also obliged to keep such Confidential Information confidential and secret. The foregoing obligations shall not apply to any information acquired by the party which was already in the public domain or at a later date comes into the public domain through no fault of the party.
18.2 Each party will not use the other party's Confidential Information for any other than carrying out its obligations as in accordance with these Terms.
18.3 The confidentiality obligations with respect to the Confidential Information shall remain in effect for the Trial Period and for a period of 2 years after the termination or expiry of the Terms.
19.1 You acknowledge and accept that this is a Trial and that as such, Encom and its licensors makes no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Products, Apps and/or System. We and our licensors do not represent or warrant that:
19.1.1 the use of the Products and the App will be secure, timely, uninterrupted or error free;
19.1.2 the Products and the App will meet its requirements or expectations;
19.1.3 any data generated from use of the Products and the App will be accurate or reliable; and
19.1.4 the quality of any products, information or other material obtained through the Products and Apps will meet requirements or expectations.
19.2 Our Products and Services may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. We are not responsible for delays, delivery failures or other damage resulting from same.
20.1 - Entire Agreement. These Terms, the Appendix, and any other documents referred to in it constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
20.2 - Assignment. We may assign or transfer our rights and obligations under these Terms to another entity by giving reasonable notice to you in writing.
20.3 - Variation. Any variation of the Agreement only has effect if it is in writing and signed by you or us.
20.4 - Severance. Each paragraph of these Terms operates separately. It any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
20.5 - No Partnership. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or your use of our Products and Services.
20.6 - Third Party Rights. These Terms is between you and us. No other person has any rights to enforce any of its terms.
20.7 - Governing Law and jurisdiction. These Terms is governed by the laws of Northern Ireland and we each irrevocably agree to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the Northern Irish courts.
In entering into these Terms and agreeing to participate in the Pilot Scheme, you are acknowledge and confirm that:
You will only pass the Pre-Installation Eligibility Criteria if we will be able to successfully complete a connection test within the App to the Hub and inverter prior to the pilot commencing.