1. GENERAL

Panoramic (a Centrica Company) makes the Data Services available in connection with Customer’s purchase of certain Products from Panoramic, any Centrica Company or an Authorised Reseller.  These Terms and Conditions govern the provision of Data Services relating to the Products on Panoramic’s energy management platform which is accessed remotely by Customer. These Terms and Conditions do not cover the supply or other terms relating to Products, which are provided under contracts entered into by the Customer. THESE TERMS AND CONDITIONS ARE AN ELECTRONIC AGREEMENT AND CONSTITUTE A LEGALLY BINDING CONTRACT. BY USING THE DATA SERVICES, YOU, ON BEHALF OF THE CUSTOMER, CONSENT TO ENTER INTO THIS AGREEMENT, ACCEPT AND AGREE THAT CUSTOMER IS BOUND BY ALL THE TERMS OF THIS AGREEMENT AND REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO CONSENT TO SUCH TERMS ON BEHALF OF THE CUSTOMER.

Customer may not access the Data Services if it is a direct competitor, except with Panoramic’s prior written consent. In addition, Customer may not access the Data Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

2. TERM

Subject to the terms and conditions herein, the Customer shall have access to the Data Services relevant to the Products for the applicable period set out in the contract (including any extensions thereof) for the purchase of such Products (the “Term”).

3. INTELLECTUAL PROPERTY OWNERSHIP

3.1 Use of Panoramic Technology

1. Except for the limited use rights expressly granted herein, these Terms and Conditions do not transfer from Panoramic to Customer any Panoramic Technology, and all right, title and interest in and to Panoramic Technology, will remain solely with Panoramic. Panoramic Technology, including, without limitation, its products and services, are protected by patents pending as well as, when applicable, copyrights.
2. Except to the extent allowed by applicable law, Customer may not directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets relating to Panoramic Technology. There are no implied licenses under these Terms and Conditions, and any rights not expressly granted to Customer hereunder are reserved by Panoramic.
3. Panoramic Power is a trademark of Panoramic. With the exception of Customer Marks, Marks are the sole and exclusive property of Panoramic. Customer will not at any time do or permit any act to be done which may in any way impair Panoramic's rights in the Marks. All other trademarks are the property of their respective owners.

3.2 Usage Data, Retention, Analytics

1. Usage Data
   Customer retains all rights, title and interest in and to the Usage Data. Usage Data will be used by Panoramic, Centrica Company, relevant Authorised Reseller (unless otherwise agreed by the Customer) and third party service providers to provide and to improve the Data Services. Panoramic may transfer Usage Data to entities in the same and other jurisdictions in connection with such efforts. The terms of Panoramic’s privacy policy from time to time (accessible at Panoramic Privacy Policy) shall apply for any personal data.
2. Retention 
   During the Term of this Agreement, Usage data shall be available from the date of their creation: 
   1. for a rolling period of six months at the maximum data resolution of 1 data point / 5 minutes;
   2. for a rolling period of one year at a maximum data resolution of 1 data point / 1 hour; and
   3. for a rolling period of five years at a maximum resolution of 1 data point / 12 hour.
      Usage data older than five years is archived offline. Offline data can be provided to Customer upon specific request for additional fee. 
      Following termination or expiry of this Agreement, within a period of two years, available offline data can be provided to the Customer to download but additional fees may apply.
3. Analytic Data
   Panoramic shall have the unrestricted right to generate averaged data, aggregated data, benchmarks, comparisons or recommendations using Usage Data, and to generate other calculations, derivatives, using, containing or referencing Usage Data, and aggregate Usage Data with or without data relating to third parties (all of the foregoing and the product of such activities referred to collectively herein as “Analytic Data”). All rights, title and interest in Analytic Data shall be held solely by Panoramic. Panoramic and each Centrica Company shall have the unrestricted right to use, exploit, transfer, lease, sell or otherwise commercialize Analytic Data for any and all purposes without notice or obligation to Customer, provided that Analytic Data does not indicate the identity of Customer. Customer shall have no right to consideration or any other right arising from the creation or exploitation of Analytic Data.

4. PANORAMIC DUTIES AND RESPONSIBILITIES

4.1 Panoramic Services

Subject to Customer's compliance with these Terms and Conditions and payment of all amounts due (where applicable) to Panoramic, Centrica Business Solutions Company or an Authorised Reseller in connection with Data Services, Panoramic agrees to use commercially reasonable efforts to provide the Data Services in accordance with these Terms and Conditions.

4.2 WARRANTY

1. Panoramic shall use reasonable commercial efforts consistent with prevailing industry standards to minimize errors and interruptions in the Data Services, provided that:
   1. Products are installed and Data Services and Products are used, each strictly in accordance with the applicable documentation and these Terms and Conditions (including, without limitation, use of Products in the unmodified form in which they are received);
   2. Timely payment of all amounts due (where applicable) in respect of Data Services or any part of it; and
   3. Customer is not in default of any provision of these Terms and Conditions or the terms of any other obligations relating to Data Services to which Customer is bound, and
   4. Data Services may be temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of causes beyond Panoramic's reasonable control. Panoramic will not be liable as a result of these temporary loss of Data Services. 

2. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE DATA SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER'S ACCESS AND USE OF THE DATA SERVICES IS AT ITS OWN RISK. PANORAMIC DOES NOT MAKE, AND HEREBY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED UNDER ENGLISH LAW ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PANORAMIC DOES NOT WARRANT THAT THE DATA SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. IN THE EVENT OF ANY BREACH OF THE WARRANTIES UNDER THIS SECTION 4, CUSTOMER’S SOLE REMEDY IS TERMINATION PURSUANT TO SECTION 8 OF THESE TERMS AND CONDITIONS.

4.3 Disclaimer

Under no circumstances shall Panoramic be liable, either in contract, tort, warranty, strict liability, negligence or under any statute, regulation or any other theory for: (i) unauthorized access, alteration, theft, corruption, loss, or destruction of or to Customer’s or its end user’s files, databases, or network; (ii) the content of the information sent to or received from the server providing the Data Services; or (iii) the downtime or lack of performance quality with respect to the ISP providing connectivity or any third party software used to provide remote access. Customer acknowledges that use of Data Services is at Customers' own risk, and that when using the Data Services, information will be transmitted over a medium which is beyond the control and jurisdiction of Panoramic. Panoramic shall have no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with Data Services. Panoramic makes no warranties, or representations as to the accuracy, reliability or otherwise with respect to such information, and assumes no liability or responsibility of any kind for omissions or errors. In no event shall Panoramic be liable for any damages (including, without limitation, incidental and consequential damages, loss of anticipated savings, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the Data Services, whether based on warranty, contract, tort, or any other legal theory, and whether or not Panoramic is advised of the possibility of such damages. In the event that Data Services are disrupted, Panoramic will make reasonable efforts to notify Customers at the e-mail address Panoramic maintains as its primary contact address. However, in the event of a natural or technological disaster, malfunction or other disruption of the Data Services, Panoramic may not have the ability to notify Customers of the outage or disruption.

5. CUSTOMER DUTIES AND RESPONSIBILITIES.

5.1 WARRANTIES OF CUSTOMER

1. Customer represents and warrants that the performance of its obligations and use of the Data Services (by Customer and its users) will not violate any applicable laws or regulations or cause a breach of any obligations with any third parties.
2. Customer may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Data Services, or in any way reproduce or circumvent the navigational structure or presentation of the content, to obtain or attempt to obtain any information through any means not purposely made available through the Data Services.
3. Customer may not attempt to gain unauthorized access to any portion or feature of the Data Services, or any other systems or networks connected to the Data Services, by hacking, password “mining” or any other illegitimate means.
4. Customer may not probe, scan or test the vulnerability of the Data Services or any network connected to the Data Services, nor breach the security or authentication measures on the Data Services or any network connected to the Data Services.
5. Customer agrees not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Data Services or any systems or networks connected to the Data Services. Customer agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Data Services.
6. The Data Services allow the Customer to appoint users of the Data Services who may log in to view data and/or receive alerts via the Data Services. By submitting user data, Customer warrants that Panoramic has the right to use the user data for these purposes. Customer shall ensure that all such users do not perform any act which would be a breach of these Terms and Conditions if carried out by Customer.

5.2 Breach of Warranties.

In the event of any breach of the foregoing warranty or any duties and responsibilities, in addition to any other remedies available at law or in equity, Panoramic will have the right, in its sole reasonable discretion, to suspend immediately any related Data Services if deemed reasonably necessary by Panoramic. Panoramic will provide notice and opportunity to cure if practicable depending on the nature of the breach. Once cured, Panoramic will promptly restore the Data Services.

5.3 Compliance with Law and Acceptable Use.

Customer agrees that it will use the Data Services only for lawful purposes and in accordance with these Terms and Conditions. Customer will comply at all times with all applicable laws and regulations. Customer will not and will not assist any third party to access data generated by Products other than by means of Data Services provided by Panoramic hereunder. As a condition for receiving Data Services, Customer shall comply with the terms of any agreement (including, without limitation, payment obligations) between Customer and the Centrica Company or any Authorised Reseller in respect of Products. Customer will not enable use of Data Services other than by its authorized users and will ensure that users keep their passwords secure.

5.4 Equipment

Customer shall be responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Data Services, including, without limitation, modems, hardware, servers, software, operating systems, networking equipment, web servers, and long distance and local telephone service, but excluding the Data Services Software (collectively "Equipment"). Customer shall be responsible for ensuring that the Equipment is compatible with the Data Services and the Data Services Software and complies with the Panoramic documentation. Customer shall also be responsible for the security and use of Equipment. Customer may connect and activate third party products with the Data Services Software (under agreement with Panoramic and in consideration for the payment of agreed fees) provided they are compatible with the Data Services Software. Panoramic does not warrant or guarantee availability of Data Services for third party products and disclaims all responsibility and liability for third party products and their access to the Data Services Software. 

6. LIMITATIONS OF LIABILITY

6.1 Limitation of Damages

For any claim arising under or related to the Data Services or these Terms and Conditions, whether arising under contract, tort (including negligence), strict liability or otherwise, Customer’s damages or recovery, if any, shall be limited to direct damages, subject to the following limitations:

1. Panoramic shall not be liable under any circumstances for any indirect, incidental, reliance, special, consequential damages or for lost revenue, loss of anticipated savings, lost profits, replacement goods or services, business interruption, lost data or corruption of data, interruption of Data Services, lost opportunities, damage to goodwill or diminished stock price, even if Panoramic has been advised of the possibility of such damages; without limitation of the foregoing, Panoramic shall have no liability arising from or relating to Customer's use of user data or reliance on customer data to make business decisions; and.
2. Panoramic’s maximum aggregate liability in connection with these Terms and Conditions for Data Services shall in no event exceed an amount greater than £1000. 

6.2 Liability which is Neither Limited nor Excluded

Nothing in these Terms and Conditions shall operate to limit or exclude Panoramic’s liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation and any other matter liability for which may not be lawfully excluded or limited.

6.3 Basis of the Bargain; Failure of Essential Purpose.

The parties acknowledge that Panoramic has set its prices and entered into these Terms and Conditions in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Terms and Conditions will survive and apply even if found to have failed of their essential purpose.

7. INDEMNIFICATION

Customer will indemnify, defend and hold Panoramic harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) resulting from any claim, suit, action, or proceeding brought by any third party against Panoramic or a Centrica Company (i) alleging any breach of the Customer obligations, representations and warranties under these Terms and Conditions; or (ii) arising from the Usage Data; and/or (iii) arising from Panoramic's use of Customer Marks.

8. TERMINATION

8.1 Termination for Cause

Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of these Terms and Conditions and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees (where applicable), which must be cured within five (5) days after receipt of written notice via email from Panoramic; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

8.2 No Liability for Termination

Panoramic will have no liability for any termination or expiration of any Data Services or these Terms and Conditions.

8.3 Effect of Termination

Upon the effective date of termination of these Terms and Conditions:

1. Panoramic will immediately cease providing the Data Services and Customer’s access to the Data Services will be immediately suspended;
2. any and all payment obligations (where applicable) of Customer under these Terms and Conditions for Data Services provided through to the date of termination will immediately become due and payable;
3. provided the Customer is not in breach of its obligations, Customer may request and receive from Panoramic a text file copy of all Usage Data (not including Software) in an “as is and with all faults” condition for a period of up to 2 years prior to termination subject to Section 4 above.

8.4 Survival

The following provisions will survive any expiration or termination of these Terms and Conditions: Sections 3, 4.2(2), 4.3, and 5 through 9. Termination of these Terms and Conditions shall not affect any agreement for the provision of Products except to the extent that the terms of such agreement require the Data Services to be made available to Customer.

9. MISCELLANEOUS PROVISIONS

9.1 Force Majeure

Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under these Terms and Conditions due to any cause beyond its reasonable control or for acts of war, acts of God, epidemic or pandemic, earthquake, flood, riot, sabotage, labour shortage or dispute, failure of the internet, governmental act, any trade restriction (which shall mean any law, regulation, decree, ordinance or legally binding order, rule or requirement of the United Nations or under the laws of the European Union, any EU Member State, the United States or the United Kingdom, relating to economic or trade sanctions, trade embargoes and other foreign trade controls, export controls, non-proliferation, anti-terrorism and similar laws), provided that the delayed party, to the extent practicable: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Panoramic is unable to provide Data Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, either party may terminate the Data Services.

9.2 Marketing

Customer agrees that during the term of these Terms and Conditions Panoramic may publicly refer to Customer, orally and in writing, as a Customer of Panoramic. 

9.3 Governing Law

These Terms and Conditions are made under and will be governed by and construed in accordance with the laws of England and the application of United Nations Convention on the International Sale of Goods is specifically excluded. The English courts shall have exclusive jurisdiction over any dispute arising out of these Terms and Conditions or the Data Services (including, without limitation, non-contractual disputes and claims); provided, however, that any claim by Panoramic for preliminary or injunctive relief, other pre-judgment remedies, and claims for Customer’s failure to pay for Data Services in accordance with these Terms and Conditions may be brought in any court of competent jurisdiction in any country or state where Customer has assets.

9.4 Severability, Waiver

In the event any provision of these Terms and Conditions is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of these Terms and Conditions will remain in full force and effect. The waiver of any breach or default of these Terms and Conditions will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

9.5 Assignment

Customer may not assign its rights or delegate its duties under these Terms and Conditions either in whole or in part without the prior written consent of Panoramic, and any attempted assignment or delegation without such consent will be void. Panoramic may assign these Terms and Conditions in whole or part. Panoramic may also delegate the performance of certain Data Services to any Centrica Company or third parties, provided Panoramic remains responsible to Customer under these Terms and Conditions. Subject to the foregoing, these Terms and Conditions will bind and inure to the benefit of each party's successors and permitted assigns.

9.6 Change in Data Services

Panoramic has the right to change, modify and otherwise convert the technology used to provide the Data Services and terms under which the Data Services are offered, provided that the basic functionality and quality of the Data Services will not thereby be reduced.

9.7 Changes to these Terms and Conditions

Panoramic may make changes to these Terms and Conditions from time to time. These changes will be notified to Customer either to the e-mail address given when registering to use the Data Services or by a notification when Customer or one of its users log into the Data Services. Customer’s or any of its user’s use of the Data Services following any such notification shall constitute acceptance of any changes to these Terms and Conditions.

9.8 Confidentiality

1. Each party shall keep confidential all Confidential Information of the other party which comes into its possession or control and, except as permitted by this Section 9.8(1), shall not copy or disclose the Confidential Information (in whole or in part) to any third party, nor permit access to it by any third party, in each case without the prior written consent of the other party. Each party shall be permitted to divulge the Confidential Information of the other party: (i) as permitted by these Terms and Conditions; (ii) to personnel, agents, contractors and representatives who need to know it for the purpose of providing or receiving the Data Services or otherwise performing the recipient party's obligations or enforcing the recipient party's rights under this Agreement, provided that the recipient party ensures that the individual or entity is obliged to keep the Confidential Information confidential on terms no less onerous than those set out in this Section 9.8(1).  Neither party shall be in breach of this Section 9.8(1) by reason only of disclosing Confidential Information which is in the public domain (other than by its breach of this Section 9.8(1)) or if the party is required to disclose it by law or by a stock exchange or by any regulatory authority.
2. Customer agrees that the passwords associated with its account with Panoramic are confidential information and Customer will maintain them in confidence and not share them with anyone else. Customer is solely responsible for use of the data Service and all activity on its account.
3. North American users of the Data Services may receive PRT 5CP alerts via the Data Services.  These alerts are confidential and the alerts and any information in them shall not be extracted from the Data Services or used outside the Customer’s organisation.

9.9 Notice

Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier or mailed by registered or certified mail, return receipt requested, postage prepaid, to Panoramic at the following address: 15 Atir Yeda St. Kfar Saba, Israel; and to Customer, at the email address provided during registration. Such notice will be deemed to have been given as of the date it is delivered and in the case of email when it is sent without any error notification in return.

9.10 Relationship of Parties

Panoramic and Customer are independent contractors and these Terms and Conditions will not establish any relationship of partnership, joint venture, employment, franchise or agency between Panoramic and Customer. Neither Panoramic nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

9.11 Entire Agreement

1. These Terms and Conditions, including all documents incorporated herein by reference, constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and documents, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by Panoramic without need of further notice of objection, and shall be of no effect or in any way binding upon Panoramic.
2. Except for the Term of the Data Services, the terms of agreements entered into by the Customer for the purchase of Products are expressly excluded from these Terms and Conditions. Customer acknowledges that where Customer has purchased Products any claims relating to the Products shall be solely governed by the terms of such agreements. Panoramic's sole obligations to Customers in connection with Data Services are as expressly set forth in these Terms and Conditions. 

9.12 Third Party Rights

Save as expressly set out herein, a person who is not a party to these Terms and Conditions shall not have any right to enforce any term of these Terms and Conditions under the applicable law.