Terms & Conditions

In this document you will find the detailed terms and conditions of service for Pulse Controls Ltd. These govern the legal relationship between you, our customer and ourselves and by instructing us to act on your behalf (whether signing a letter of authority or otherwise), you agree to be bound by these terms and conditions.

If you have any specific questions in relation to these terms and conditions, our customer service team will be more than happy to help. Likewise, if you feel that we did not handle you issue in the right way or there is a problem we might be able to fix, please get in touch. Your views are very important to us. If we have not delivered the standard of service you expected, or if we made a mistake, we would like to know. We will investigate the situation and set about putting it right as quickly as we can, if we possibly can. We don’t want to make the same mistake again, so your feedback is ver important to us.

The Pulse Controls customer service team can be reach on 0207 099 9480.

Terms and Conditions of Service

These Terms and Conditions govern the use by the Customer of any of the Services that Pulse Controls agrees to provide to the Customer from time to time, whether via the Site, the Call Centre or otherwise. Please read these Terms carefully before accepting these Terms and using the Services. By using the Services, you signify that you have read, understood and agree to be bound by these Terms as well as the terms and conditions set out in our Privacy Policy https://www.pulse-controls.com/privacy-policy/.

Pulse controls operates as an EMS consultancy which is designed to assist non-domestic consumers in the monitoring and consumption of utilities. We are not an agent for the purposes of common law. If you do not agree to these Terms and Conditions and the Privacy Policy, do not use the Services.

1. DEFINTIONS AND INTERPRETATION

1.1 Definitions:

Affiliate: includes, in relation to the Suppler, each and any subsidiary or holding company of the Supplier and each and any subsidiary of a holding company of the Supplier.

Agreement: The agreement between the Supplier and the Customer for the provision of the Services which is signed by both parties.

Business Day: a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 2 of the Agreement (Charges and Payment).

Monitoring Services: the energy consumption Monitoring Services provided by the Supplier to the Customer under the Contract via the Website which allows the Customer to view and organise the Customer’s energy consumption data including (but not limited) to that collected by the Hardware, as more particularly described in the Scope of Services.

Commencement Date: The date on which the Agreement is signed by both parties.

Conditions: these terms and conditions as amended from time to time in accordance with paragraph 7 of these Conditions.

Confidential Information: means the Software, details of the Services, the results of any performance tests of the Services and any other information that is proprietary or confidential to the Supplier and is clearly labelled as such.

Contract: shall have the meaning in clause 1.1 of the Agreement.

Contract Term: the period commencing on the Commencement Date and continuing until the end of the Subscription Term.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases Services from the Supplier as set out in the Order.

Customer Data: the data inputted by the Customer, or the Supplier on the Customer’s behalf for the purpose of using the Monitoring Services or facilitating the Customer’s use of the Monitoring Services.

Customer Personal Data: any Personal Data which the Supplier processes in connection with the Agreement, in the capacity of a processor on behalf of the Customer.

Data Protection Legislation:

(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data.

(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or Supplier is subject, which relates to the protection of Personal Data.

Embedded Software: the software embedded in the Hardware.

End User Licence Agreement (EULA): the terms on which the Monitoring Services Software is licensed to the Customer, a copy of which is at Schedule 3 of the Agreement.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

Extended Term: shall have the meaning set out in clause 9.1 of the Agreement.

Hardware: energy consumption monitoring equipment to be installed at the Customer’s Premises in accordance with the Proposal.

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to the Customer (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Initial Term: shall have the meaning set out in clause 9.1 of the Agreement. Installation Date: completion of the Installation Services.

Installation Fee: The amount required to be paid by the Customer as set out at clause 2 of the Agreement.

Installation Services: The installation of the Hardware into the Customer’s premises, as more particularly described in the Scope of Services.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Monitoring Services: the monitoring services outlined in the Proposal.

Monitoring Services Software: the online software applications provided by the Supplier as part of the Monitoring Services.

Premises: The site or sites at which the Hardware is to be installed, as set out in the Proposal.

Proposal: the document provided to the Customer by the Supplier containing the proposed Scope of Services.

Scope of Services: the description or specification of the Services to be provided by the Supplier to the Customer as set out at Schedule 2 of the Agreement.

Services: the services, including the Installation Services and the Monitoring Services, to be supplied by the Supplier to the Customer as set out in the Scope of Services.

Software: the Monitoring Services Software and the Embedded Software.

Subscription: the subscription purchased by the Customer pursuant to clause 2 of the Agreement which entitles the Customer to access and use the Monitoring Services and the Monitoring Services Website in accordance with the Contract.

Subscription Fee: the subscription fee payable by the Customer to the Supplier for the Subscription, as set out at clause 2 of the Agreement.

Subscription Term: the period commencing on the Installation Date and continuing until the end of the Initial Term and any Extended Term unless terminated as provided for in the Contract.

Supplier: Pulse Controls Limited registered in England and Wales with company number 14202792.

Supplier Materials: has the meaning set out in clause 5.1(h) of the Agreement.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

Virus: anything or device (including any software, code, file or programme) which may: 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, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

Website: the document made available to the Customer by the Supplier online.

1.2 Interpretation:

(a) Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:

(i) is a reference to it as amended, extended, or re-enacted from time to time; and

(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. PROPRIETARY RIGHT

2.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Monitoring Services, the Software, and the Website. Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Monitoring Services, the Software, or the Website.

2.2 The Supplier confirms that it and/or its licensors have all the rights in relation to the Monitoring Services, Software and the Website that are necessary to grant all the rights they purport to grant under, and in accordance with, the terms of the Contract and the EULA.

2.3 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials (including Customer Data) provided by the Customer to the Supplier from the Commencement Date until the end of the Subscription Term for the purpose of providing the Services to the Customer.

2.4 Ownership of the Hardware and Supplier Materials shall at all times remain with the Supplier and/or its licensors and nothing in the Contract shall constitute transfer of title in the same to the Customer or any other party.

2.5 The Customer acknowledges that it must agree to the terms of the End User License Agreement in order to access and use the Monitoring Services Software.

3. CONFIDENTIALITY

3.1 The Customer may be given access to Confidential Information from the Supplier in order to perform its obligations under the Contract. The Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the Customer.

(b) was in the Customer’s lawful possession before the disclosure.

(d) is independently developed by the Customer, which independent development can be shown by written evidence.

3.2 The Customer shall hold the Confidential Information in confidence and use its best endeavors to preserve and protect the confidentiality of the Confidential Information at all times (including taking all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of the Contract), both during the Subscription Term and for a period of at least 3 years afterwards, provided, however, that any source code relating to the Software shall be held in confidence in perpetuity.

3.3 The Customer shall not disclose, disseminate, or otherwise publish or communicate the Confidential Information to any person, firm, corporation or other third party without the prior written consent of the Supplier.

3.4 The Customer shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract.

3.5 The Customer shall notify the Supplier in writing immediately upon discovery of any unauthorised use or disclosure of Confidential Information and will cooperate with the Supplier in every reasonable way to regain possession of Confidential Information and prevent any further unauthorised use.

3.6 The Customer may disclose Confidential Information only to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the Supplier as much notice of such disclosure as possible including but not limited to:

(a) notifying the Supplier prior to such disclosure to allow the Supplier an opportunity to contest the disclosure,

(b) asserting the privileged and confidential nature of the Confidential Information, and

(c) cooperating fully with the Supplier in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.

4. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

5. ASSIGNMENT AND OTHER DEALINGS

5.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

5.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

6. ENTIRE AGREEMENT

6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.

6.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

6.4 Nothing in this paragraph 6 shall limit or exclude any liability for fraud.

7. VARIATION

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives)

8. WAIVER

A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

9. SEVERANCE

If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of this Contract is deleted under this paragraph 9, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

10. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

11. RIGHTS AND REMEDIES

11.1 Except as expressly provided in the Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

11.2 Use of the Monitoring Services or Website contrary to the Contract, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Monitoring Services, may cause irreparable injury to the Customer and/or its Affiliates, suppliers, employees, agents, consultants and sub-contractors such that damages alone would not be an adequate remedy for any breach of the Contract, and under such circumstances the Supplier, its Affiliates, suppliers, employees, agents, consultants and sub-contractors will be entitled to equitable relief, including, but not limited to, preliminary and permanent injunctive relief.

12. THIRD PARTY RIGHTS

12.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

12.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

13. GOVERNING LAW

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

14. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

101224 v.1 Pulse Terms and Conditions of Business