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Smart Energy

Summary of state of play and policy context

Smart energy has emerged as an important transition mechanism from a traditional centralised and carbon-heavy energy distribution system, to a greener, decentralised and less wasteful model. It comprises elements of reduced energy consumption, smaller energy generation technologies (including photovoltaic, wind and blue energy), efficient and smart grid management, smart buildings, effective storage and reuse (including through smart battery systems), and alignment with ancillary economic systems such as smart mobility (electrification and decarbonisation of vehicles) and smart cities (local and regional community grids as a complement to traditional systems). Data is an important enabling building block in this transition.

From a European policy perspective, smart energy  is one of the sectors targeted by the European data space strategy1 . The Commission’s February 2020 Communication on A European strategy for data2 stressed the need for a “A Common European energy data space, to promote a stronger availability and cross-sector sharing of data, in a customer-centric, secure and trustworthy manner, as this would facilitate innovative solutions and support the decarbonisation of the energy system.

Intervention in this policy area is not entirely new, since the Clean energy for all Europeans package of 2015 already established a cross cutting framework3. European legislation4 already ensures customer access to and portability of consumer meter and energy consumption data on a transparent, non-discriminatory basis, in compliance with data protection law. Specific governance frameworks are to be defined at the national level. Legislation also introduced data-sharing obligations for electricity network operators.

The European Data Strategy builds on these achievements, and stated the Commission’s intent to:

  • Adopt implementing act(s) setting out the interoperability requirements and non-discriminatory and transparent procedures for access to data, building on existing national practices on the basis of the Electricity Directive 2019/944 (2021/2022).
  • Consider actions for improving the interoperability in smart buildings and products, with a view to improve their energy efficiency, optimise local consumption and broaden the integration of renewable energy sources.

Thus, there is already a broad and fairly flexible policy framework that ensures the deployment of smart energy infrastructure, that standardises a baseline of available energy data, and that requires Member States to define specific data management requirements and procedures in order to unlock that data. The EU level framework is focused on electricity, but the general principles and governance structure could be applied at the national level to other energy sources as well, and the resulting data infrastructure as such can be built in a way that is agnostic of the energy source.

Furthermore, the EU’s Joint Research Centre (JRC) has an active branch of activity focusing on Smart Electricity Systems and Interoperability5, which monitors the development of this market and provides recommendations to improve the alignment of the market with the EU policy landscape.

At the industry level, the EU has a particularly rich and diverse tapestry of relevant service providers, comprising national grid operators, energy service providers, data service providers, infrastructure developers, and a large number of stakeholder associations such as CEER6, E.DSO7, GEODE8, CEDEC9, ESMIG10, Eurelectric11, Eurogas12, as well as energy mediators coming from EEMG13 and NEON14.

Generally, the smart energy sector’s specific characteristics and challenges in relation to data sharing relate to the need for interconnection – and therefore data exchange – of a large number of diverging energy systems, ranging from the microscale (such as individual houses, vehicles or devices) to the macroscale (including EU wide energy grids). Given the shared objectives of energy efficiency and decarbonisation, there is a need for data to be made available at the aggregate level to support effective decision making. At the same time, individual users need to be protected both in terms of data protection (protection against individual monitoring) and in terms of energy stability (pricing and availability of energy). This is likely to result in an increased need for data aggregation, anonymisation, and re-use of aggregate data to support network management.

 

Clauses per topic

Scoping of the data

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to a decentralised grid management system comprising a local battery and potentially a photovoltaic installation.

[x] can use the System, including energy stored in the battery, to help maintain the reliability of the electrical grid, to reduce the strain placed on the electrical grid during periods of high electricity demand, and for similar purposes. Collectively, these are “Grid Services.” Grid Services can be provided to your utility and other entities with similar obligations to maintain grid stability.  Grid Services can be provided under the terms of existing and future programs. 

The components of your System that may be used in support of Grid Services include, but are not limited to, the PV array; the inverter; the battery; and any smart thermostat, pool pump, or electric water heater installed by [x] or its agent. [x] may update these Terms from time to time with additional System components that used in support of Grid Services. 

Some Grid Services may result in the consumption of energy produced by your System or stored in the battery, including energy losses attributable to cycling the battery. [x] will reasonably compensate you for energy consumed in connection with Grid Services, to the extent that such energy is not consumed at your home or credited through a net metering program (the “Grid Services Reimbursement”). [x] will notify you in advance if it intends to make your System available for Grid Services, and the associated Grid Services Reimbursement.

You will have the right to opt out at that time, or any other time, as described in Section 4.

You agree that the Grid Services Reimbursement is solely a responsibility of [x], and you will not seek to recover it from any other entity. In addition, if you are purchasing your System through a loan, you acknowledge that you are responsible to pay your loan in full, even if [x] fails to make the Grid Services Reimbursement.

The System generates operational and technical data, including but not limited to solar energy generation, battery state of charge, energy consumption, voltage, temperature, serial number and mac address (“System Data”).  So long as you remain enrolled in [x]’s Grid Services program, you agree that [x] may collect, use and store the System Data for the purpose of providing the Grid Services described in these terms and in accordance with our Privacy Policy. You further agree that [x] may share System Data it collects with third parties, including utilities, for the purpose of providing Grid Services and that any System Data shared with third parties may be personally identifiable to you or the residence where you System is installed.

Advantages of this clause include:

Relatively clear and accessible language, and representative of the type of data that would be covered.

Disadvantages of this clause include:

Vague on the actual data sharing activities, since the phrasing is exemplative (‘may’, ‘includes’). This increases flexibility for the platform operator, but reduces certainty for the customer. Also, financial benefits appear to accrue with the service provider only.

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

These Terms and Conditions (the 'Terms') govern your use of the [x] Software available at [x], a remote web-based suite of software services which includes 1) the Monitoring Portal, a management service, which enables you to (i) view performance data of the [x] products and Third Party Products (as defined below), as applicable (jointly the "Products"); and (ii) access and manage the Products, where applicable, as well as 2) the Online Designer, a tool which enables the online design of a PV system (each of them or altogether the "Service(s)" ).

The terms "you" or "your" means the person or entity that has purchased, accessed, licensed or is using the Services and accepts these Terms, including owners of the Products ('Owner') and/or any individuals or entities who are authorized to access and manage an Owner's Products and Service on the Owner's behalf ('Authorized User/s') (the Owner and the Authorized Users shall each be referred to as the 'Customer').

Collection and Use of Information

Our Products and Services collect:

  • setup information you provide such as your home address, zip/postal code, size of the PV system you are installing and any Third Party Products connected to your account
  • environmental data from several sensors built in or connected to the Products or Third Party Products such
  • as temperature, configuration of home automation products and appliances
  • energy produced and energy stored (if a battery is connected to your system)
  • energy consumed (if you have a meter, your energy consumption is automatically added to the features displayed for your monitoring platform).
  • Technical information from the products such as software or firmware version, system alerts

By using our monitoring portal and clicking to accept the terms herein, you agree to the collection, display and processing of the data collected herein, including the your energy consumption data.

When You use our Online Designer, the Service additionally collects and stores, among others:

closest weather station and electricity grid voltage and properties

customer (home owner) first and last name

setup information including address, location coordinates and satellite image captured from Google Maps.

design of the system including type and layout of PV modules

energy simulation results

site simulation information such as and including, roof height, facet tilt etc..

Advantages of this clause include:

Direct and understandable language. Clear distinction between the general portal and the customisable designer system.

Disadvantages of this clause include:

 

Real-life clause in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

Data use and sharing - We require the ability to use data that we receive from you or your photovoltaic ("PV") system. We may receive this data directly from you or your PV system, or indirectly through our or a third-party monitoring system, including related systems or services. The data may be displayed through our Digital Platforms, including our monitoring application and website. The data may include, for example, energy consumption and production information, energy use information, battery storage information, fault information, a precise geolocation or address, revenue information, and hardware and software information.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

Data is described purely by way of examples – no real limitations. 

 

Real-life clause in a contract without remuneration

Context: the clause relates to a smart thermostat in combination with a broader home management system (including smart HVAC components).

What information does the [x] Thermostat collect?

The [x] Thermostat collects:

Setup information you provide

  • Environmental data from the [x] Thermostat’s sensors
  • Direct adjustments to the device, including temperature or settings
  • Heating and cooling usage information
  • Technical information from the device

Setup information you provide: When you install the [x] Thermostat, you’ll be asked several questions in order to help us create an initial program of temperature settings that will keep you comfortable. For example, we’ll ask for information like whether your thermostat is located in a home or a business, or like your home address or postal/ZIP code. This information helps us to customize your experience by, for example, retrieving weather information for your neighborhood or by enabling Home/Away Assist to automatically switch the behavior of [x] products in your home when you leave and when you come back. In addition, the [x] Thermostat pulls information directly from your heating and cooling (HVAC) system to learn its capabilities – such as if it has heating and cooling or is a heating-only system. Answering these questions helps us to set up an initial program that will keep you comfortable.

Environmental data from the [x] Thermostat’s sensors: We collect data from several sensors built into the [x] Thermostat. These sensors collect data such as current temperature, humidity and ambient light in the room. They can also sense whether something in the room is moving. This helps your [x] Thermostat keep you comfortable when you are at home and save energy when you are away. For example, if the [x] Thermostat senses that you’ve entered the room after an extended period of time, it can adjust the setting to a preferred temperature, based on an assumption that you’ve just woken up or returned home. Similarly, if a light goes off or no one is moving in the room, the [x] Thermostat may turn the temperature down sometimes to help save energy.

Direct adjustments to the device: If you change settings like temperature on the [x] Thermostat, it records and feeds that information to the [x] algorithms to learn your desired comfort level in different situations.

Heating and cooling usage information: Every time your system turns on and off, [x] records the time and duration during which your system was on in order to offer you features such as usage history.

Technical information from the device: In order to improve your experience over time and help troubleshoot any problem you may encounter with the [x] Thermostat, we record your [x] Thermostat model and serial number, software version, and technical information such as battery charge level.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

/

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to a decentralised grid management system comprising a local battery and potentially a photovoltaic installation.

We may collect a variety of information from or about your [x] energy products or your home from you, via a certified installer when one of our energy advisers visits your home, from your electric utility, or from the installed products (directly or via paired equipment, such as an inverter), including:

Energy installation information: We may collect information about your home, such as the dimensions of your roof, the configuration of your electric system, the capacity of any existing solar system, your installation date, number of products installed, and serial number(s).

Energy product performance data: In order to provide and improve our energy products and services, we may collect data regarding where your product is installed and how it is configured, data related to the product’s use and performance (e.g., usable energy capacity, rated power, battery efficiency, and other energy logs), information regarding your home energy consumption, and other information relevant to diagnose issues.

Opting out of Data Sharing: If you no longer wish us to collect performance data or any other data from your [x] energy product, please contact us as indicated in the “How to contact us” section below. Please note that if you opt out from the collection of performance data from your [x] energy product, we will not be able to notify you of issues applicable to your energy product in real time. This may result in your energy product suffering from reduced functionality, serious damage, or inoperability, and it may also disable many features of your energy product including periodic software and firmware updates.

Advantages of this clause include:

Relatively clear and accessible language, and representative of the type of data that would be covered.

Disadvantages of this clause include:

Data collection is opt-out, not opt-in.

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an energy management platform that supports a multitude of smart IoT devices, including from third parties.

3.2 [x] Energy System

We may process data that are part of  the — central and decentral — [x] Energy Services and [x] Energy Systems.  That refers to data that is being collected and processed by, for example:

  • systems and servers that make up the [x] cloud systems
  • Apps (iOS, Android)
  • websites and web dashboards that provide access to the [x] services, such as my.[x].net and pro.smapppee.net
  • [x] Smart Devices (such as the [x] Energy, [x] Pro, [x] Gas & Water, etc.)
  • interfaces to Third-Party IoT Service
  • all underlying IT infrastructure
  • all communication and communication protocols between the listed components
  • operational systems used for Research & Development and Testing of our services

This data includes, for example:

  • measurements from the [x] distributed devices, including data that is derived from those measurements
  • internal states and configurations of the [x] distributed devices
  • data that you enter in the [x]  Apps or the Web Dashboards
  • account data and user credentials
  • network control data

4. What are the General Categories of Data

In this section we explain the general categories of personal data that we process.

4.1 Account Data

We process account data, which refers to data that identifies you and allows us to get in contact with you.  This includes, for example: your name, address, email, telephone number, general payment data, gender, birthdate, hobbies and interest, relationship status and others.

4.2 Technical Data

We process technical data, which refers to all data that we need to provide good and secure services.

This includes, for example, the serial numbers of your devices, the configuration details internal states of your devices and services, the software version of the system components and others.  This also includes access credentials needed to process the data of the various [x] systems.

4.3 Usage Data

We process usage data, which refers to all data that are collected from the [x] Monitors, other distributed devices, apps, and websites, as well as data resulting from actions and activity of the users.

We may combine this data with other data categories of this privacy policy, and process data that is derived from this data.

This incudes, for example, electrical measurements, geo-location data, detected appliances, events, messages, alerts, internal states of the [x] Monitors or other distributed devices, and data that is manually entered in the [x] apps or Websites.

4.4 Interaction Data

We process interaction data, which refers to all data that result from user interaction with our systems, devices, apps, or websites.

This includes, for example, the use of the websites and apps. This also includes browser cookies, for which the [x] Cookie policy is applicable.

4.5 Network Data

We process network data, which refers to data resulting from network traffic.

This includes, for example, IP address and MAC address.

4.6 Support, Inquiry, Correspondence

We process data for support, inquiry and correspondence, which refers to all data resulting from interaction with our staff, in particular with the Support Team, Reception, Sales Team.

This includes, for example, data that is provided as part of your correspondence, communication logs (telephony, network).

4.7 Survey Data

We may process data gathered as part of surveys, polls and studies.

This data includes, for example, data that identifies you and data that represents your responses.

4.8 Derived Data

We may process derived data, which refers to all data that is a result of combining and analysing data.  We may combine data of all of the data categories provided in this Security Policy and data that we received from Third Parties.

4.9 Data from Third Parties

We may process data that we received from Third Parties in order to improve the services and better adapt them to the needs of the users.

4.10 Data of non-customers and prospects

We may process data of persons that are not yet customers of [x] or [x] Partners, in order to offer them personal products and services.

Advantages of this clause include:

Comprehensive listing of data types.

Disadvantages of this clause include:

Description is generic and exemplative only (“for example”).

 

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an electricity brokering service, where the service provider is mandated to monitor energy consumption and automatically switch providers when this is beneficial to the customer.

Article 4: Power of attorney

4.1 The customer gives the service provider a power of attorney via the registration form to, in the name and on behalf of the customer:

  • regularly negotiate and conclude energy supply agreements with an energy supplier operating on the market and in the region of the customer's delivery address (switching);
  • to terminate the existing supply agreement concluded between the energy supplier and the customer by means of notice;
  • to request all information data necessary for its services from the energy supplier (s), the network operator (s) and the metering companies.

4.2 The power of attorney issued is valid until further notice. Contractual obligations entered into by the service provider on behalf of the customer prior to termination, however, remain in full force. By granting the power of attorney to the service provider, the customer declares that he has not granted power of attorney to any other party for the performance of the aforementioned services.

4.3 The customer ensures that all information that the service provider needs for the adequate execution of the assignment, or information regarding his specific wishes in the appropriate form, is received by the service provider in a timely manner. If the service provider decides in all reasonableness that the specific requirements of the customer cannot be fulfilled, the service provider will report this to the customer. The customer cannot hold the service provider liable for this.

4.4 The customer is responsible for the correctness of the information provided by him. The business customer guarantees and declares that his annual consumption is less than 50MWh electricity and less than 100MWh gas for the whole of the access points on the transmission, transport and / or distribution network. The business customer is solely responsible for the adverse consequences if it turns out that he has provided incorrect information to the service provider and his annual consumption is still higher than the aforementioned limits. The customer will inform the service provider immediately about circumstances that may reasonably be assumed to have a substantial effect on the gas or electricity consumption of the customer.

4.5 If changes take place in his data, the customer will immediately notify the service provider in writing of these changes.

[…]

12.1 By registering, the customer explicitly gives permission to the joint administrators of the platform to process his data in function of the performance of their assignment and in particular for customer management, statistical management, advice, mission representation, market research and analysis. By registering, the customer also gives permission to make the data available to energy suppliers to the extent that this can be considered strictly necessary for a correct execution of the service.

In the context of the implementation of the [x] agreement, personal data within the meaning of the General Data Protection Regulation (GDPR) will be processed. This concerns the following data: identification data, meter number, data from the current supplier, invoices, letters from the grid operator, history of previous suppliers, mandate from the grid operator, information regarding solar panels or a budget meter

Within the [x] platform, your personal data is collected on the basis of consent. You will be further informed about this via the privacy policy and cookie policy on the website, as well as by sending an activation email when entering the database. At the customer's first request, the privacy policy and cookie policy can also be sent electronically or otherwise free of charge. Your personal data will be used for the following purposes:

  • Concluding and managing contracts with the energy supplier;
  • Observation of energy consumption, analysis of profiles, advice and matching with the offer of the energy suppliers;
  • Management and access to the private part of the website (customer zone);
  • Statistical management;
  • Communication and marketing.

12.2 The processing of data also serves the management of past, future and current customers, which includes, among other things, the offering and promotion of products and services and the management and access to the part of the website reserved for customers, in accordance with the legislation on the protection of privacy and electronic commerce.

Advantages of this clause include:

Clear listing of data types and permitted uses.

Disadvantages of this clause include:

No identification of data monitoring rights of the service provider.

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an open data platform with aggregate (statistical) information provided by a national network operator

Data (s) : information to which [x] gives access on the site, in consultation, by downloading or through an API.

User : the natural or legal person respecting these T & Cs and wishing to reuse all or part of the [x] data accessible on the site.

API : programming interface allowing an application or a developer to access the data available on the site.

Application : an application, web or mobile, is a program or a set of programs which implements (automates) the principles specific to an activity, allowing the processing of said activity by a user.

Advantages of this clause include:

Clear and basic description. Open ended, and thus flexible.

Disadvantages of this clause include:

/

 

Model clause for scoping in a contract against remuneration

Context: the clause is intended for a decentralised energy management system involving IoT components. The objective is to clarify which categories of data are collected.

During the provision of services and the use of our products, we will collect and generate the following types of data, depending on the specific services and products, and on your use of them.

Account Data. This refers to data that identifies you and allows us to get in contact with you.  This includes your name, address, email, telephone number, and general payment data.

Technical Data. This refers to data that we need to provide effective and secure services. This includes the serial numbers and other metadata of your devices, the configuration details of your devices and services, energy network environment and its characteristics, and the software version of the system components. 

Usage Data. This refers to all data that are collected by us from the supported and connected devices, as well as data resulting from your actions and activities. This includes energy consumption, grid information, geo-location data, detected appliances, events and internal states of the devices, and data that is manually entered by you through the devices (including preferences, configurations and settings).

Interaction Data. This refers to all data that result from user interaction with our systems, devices, or services. This includes logs related to the use of the devices and services.

Network Data. This refers to all data describing network traffic. This includes IP address and MAC address, and message time, length, duration, frequency, and type.

Data from Third Parties. This refers to all data that we received from Third Parties in order to provide or improve the services and adapt them to the needs of the users.

Derived Data. This refers to all data that is a result of combining and analysing other types of data. 

 

Modalities of sharing

 

Real-life clause in a contract against remuneration

Context: the clause relates to a decentralised grid management system comprising a local battery and potentially a photovoltaic installation.

Over time, [x] may provide the opportunity for you to interface the System to one or more Third-Party Products and Services. You will decide whether and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface, and is revocable by you at any time. Once your consent is given for a particular Third-Party Product and Service, you agree that [x] may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface you have authorized. Once this information is shared with the particular Third-Party Product and Service, its use will be governed by the third party's privacy policy and not by [x]’s privacy documentation. You acknowledge and agree that [x] makes no representation or warranty about the safety of any Third-Party Products or Services. Accordingly, [x] is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the third party with any questions about their Third Party Products and Services.

Advantages of this clause include:

Focuses on customer control for interfacing and connecting with third parties.

Disadvantages of this clause include:

No single point of contact, since any responsibility in relation to data sharing is waived.  

 

Real-life clause in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

We may share this data with third parties in providing monitoring and reporting services to you. Third parties may include the system installer, dealers, operations and maintenance providers, governmental regulatory agencies, and utility companies. We may also provide or sell data in aggregated form (in a form where the source cannot be identified) to third parties who are not connected to the monitoring system, such as government agencies and research firms. For more information on our use of your data, please refer to our Privacy Policy.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

Extremely generic language and broad usage/sharing rights, including selling data in aggregate form.

 

Real-life clause in a contract without remuneration

Context: the clause relates to a smart meter for domestic use.

Collecting Data from Your Smart Meter

3.5 Your Smart Meter will record data about your energy usage and technical data from the meter and send the data to us. We will collect data automatically and you do not need to do anything unless you want to change the frequency of the data we collect. The collection of data may happen once a day or at different intervals. We will charge you for your energy using information about your usage collected from your Smart Meter(s). If we cannot access data from the Smart Meter(s), we may need to estimate your usage.

3.6 The Smart Meter records data half-hourly. We would like to use this data in order to ensure we minimise the costs of energy, but can only obtain it with your consent. By entering into this Contract you are opting in, and giving your consent to allow us to collect this half-hourly data. We will continue to collect this half-hourly data unless you tell us not to.

3.7 We do not need your consent to collect a monthly meter reading. We will collect daily meter data every day unless you contact us to ask us not to.

3.8 We will remind you at intervals what data collection frequency you have chosen and how you can change this if you want to. If you do not tell us to make a change, we will continue to use your existing choice.

3.9 If you do not have a Smart Meter or we cannot connect to your Smart Meter to collect data, you will need to continue to provide us with meter readings, in which case we make ask you for meter readings at intervals.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

/

 

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

Online Designer

By using the [x] Online Designer Service you may generate reports, drawings, documentation or other data files or energy yields (each of them or altogether the "Online Designer Output”). You acknowledge that You assume sole responsibility and liability for Online Designer Output and for the use or conclusions drawn from the use of the Online Designer Output as it results from varied parameters provided or selected by You and/or in combination with Third Party Products. The Online Designer Output provides estimates and recommendations only and [x] does not guarantee that these estimates will match actual measurements taken at a given site, nor does it guarantee the accuracy of any engineering designs or plan or proposals to your customers based on the results of the Online Designer Output produced by the Service.

Advantages of this clause include:

Clear description of functionality, including the estimate/recommendations.

Disadvantages of this clause include:

No guarantees behind estimates and recommendations.

 

Real-life clause in a contract against remuneration

Context: the clause relates to an open data platform with aggregate (statistical) information provided by a national network operator

1. Presentation of the [x] site

As part of its policy of opening up the public information it holds, [x] makes data available to the public on a site accessible at the address [x].

The [x] site allows:

  • [x] to publish reusable public information, in accordance with the legal and regulatory provisions relating to the protection of certain data and in particular personal data and commercially sensitive information,
  • to any user to consult and reuse the data, according to the license specified in article 2, via the following functionalities: consultation of data tables and analyzes, downloading of data, use of APIs.

Advantages of this clause include:

Clear and basic description. Open ended, and thus flexible.

Disadvantages of this clause include:

/

 

Restrictions on use

 

Real-life clause in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

Data use and sharing - We require the ability to use data that we receive from you or your photovoltaic ("PV") system. We may receive this data directly from you or your PV system, or indirectly through our or a third-party monitoring system, including related systems or services. The data may be displayed through our Digital Platforms, including our monitoring application and website. The data may include, for example, energy consumption and production information, energy use information, battery storage information, fault information, a precise geolocation or address, revenue information, and hardware and software information. We may share this data with third parties in providing monitoring and reporting services to you. Third parties may include the system installer, dealers, operations and maintenance providers, governmental regulatory agencies, and utility companies. We may also provide or sell data in aggregated form (in a form where the source cannot be identified) to third parties who are not connected to the monitoring system, such as government agencies and research firms. For more information on our use of your data, please refer to our Privacy Policy.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

Extremely generic language and broad usage/sharing rights, including selling data in aggregate form.

 

 

Real-life clause in a contract without remuneration

Context: the clause relates to a smart thermostat in combination with a broader home management system (including smart HVAC components).

How does [x] use the information it collects?

We use this information to provide, develop and improve [x] Products and services, including to make assessments and recommendations about products, safety, or energy use. We may use your contact details to send you this information, or to ask you to participate in surveys about your [x] use, and to send you other communications from [x].

We may also use this information in a non-identified form for research purposes and to help us make sales, marketing, and business decisions. For example, we use aggregated user information about the number of active thermostat users in a particular state to help us decide what energy companies might be good partners, and aggregated smoke and CO alarm data to study emergency alarm rates across our customers.

We may use service providers to perform some of these functions. Those service providers are restricted from sharing your information for any other purpose.

[…]

We may share non-personal information (for example, aggregated or anonymized customer data) publicly and with our partners. For example, we may publish trends about energy use or elevated carbon monoxide levels in the home. This information may also be shared with other users to help them better understand their energy usage compared to others in the [x] community, raise awareness about safety issues, or help us generally improve our system. We may also share non-personal information with our partners, for example, if they are interested in providing demand-response services or other incentive programs. We take steps to keep this non-personal information from being associated with you and we require our partners to do the same.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

Data will be used in a pseudonymised or aggregate form for research purposes and to make sales, marketing, and business decisions, which is generic.

 

Real-life clause in a contract against remuneration

Context: the clause relates to an open data platform with aggregate (statistical) information provided by a national network operator

2. Data usage rights

The use of the Data is subject to the conditions of the open license V2.0 (Etalab) described at the address https://www.etalab.gouv.fr/wp-content/uploads/2014/05/Licence_Ouverte.pdf , allowing them to be reproduced, disseminated, adapted, and used, including for commercial purposes, subject to mentioning the authorship of the data: their source (at least [x]) and the date of the last update.

Advantages of this clause include:

Open data licence, allowing near-unlimited usage of the data.

Disadvantages of this clause include:

National licence, which may not be instantly recognisable internationally.

 

Model clause in a contract against remuneration

Context: the clause is intended for a decentralised energy management system involving IoT components. The objective is to clarify that data can be used to ensure the correct functioning of the products and services, and to improve these. It also allows the creation of personalised knowledge by default, although this can be disabled. The creation of aggregate statistical data is permitted as well. There is a general anti-abuse clause that forbids the use of the data (including statistical data) in a way that is directly detrimental to the interests of the customer, including speculation and providing benefits to other customers that are not available to the data provider.

The model clause assumes that the concepts of Account Data, Usage Data and Derived Data are defined; this can be done through the model clause on scoping.

Your Account Data and Usage Data will be used by us to provide the services and products, to ensure their proper and safe functioning, to administer your account, and to defend our legal interests. Your Account Data and Usage Data will also be used to maintain and improve the services and products, including by examining usage patterns.

Your Account Data and Usage Data will furthermore be used to provide you with predictive maintenance and usage recommendations, unless you choose not to receive such information through the interfaces built into our products and services.

We will not use your Account Data and Usage Data, or any statistical data inferred on the basis of your Account Data and Usage Data, in a manner that is directly detrimental to your legitimate interests (except when necessary to enforce this Agreement), or cause such use to happen. This includes use of your data by engaging in market speculation or by providing other customers with benefits on the basis of your Account Data and Usage Data that are not available to you.

 

Restrictions on onward dissemination of data

 

Real-life clause for continuous data sharing in a contract against remuneration

Context: the clause relates to a decentralised grid management system comprising a local battery and potentially a photovoltaic installation.

The System generates operational and technical data, including but not limited to solar energy generation, battery state of charge, energy consumption, voltage, temperature, serial number and mac address (“System Data”).  So long as you remain enrolled in [x]’s Grid Services program, you agree that [x] may collect, use and store the System Data for the purpose of providing the Grid Services described in these terms and in accordance with our Privacy Policy. You further agree that [x] may share System Data it collects with third parties, including utilities, for the purpose of providing Grid Services and that any System Data shared with third parties may be personally identifiable to you or the residence where you System is installed.

Advantages of this clause include:

Clear phrasing, with data sharing limited to the purposes of providing the services inherent to the system.

Disadvantages of this clause include:

No clear identification or description of relevant third parties (other than that they can include “utilities”. 

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

[x] may provide access to information, including certain personally-identifiable information ("Personal Information”) within the Service, to [x]'s third party partners whose add-on products (such as a battery or home automation products) interface with [x] products ("Third Party Partners"). Such Third Party Partners shall be obligated to confidentiality in a manner that is consistent with applicable privacy laws and may disclose such information in their discretion to other third parties, without the consent of [x] or any other person. You acknowledge and agree that you expressly authorize [x] to provide your Personal Information to Third Party Partners. [x] makes no representation or warranty about the safety of any third-party products or services ('Third Party Products'). Accordingly, [x] is not responsible for your use of any Third Party Product, results or Online Designer Output or any personal injury, death, property damage (including, without limitation, to your home or your customer's home), or other harm or losses arising from or relating to your use of any Third Party Products or the Online Designer Output. You should contact the Third Party Partners with any questions about their Third Party Products.

[…]

Report to Third Parties

The Service may include a feature that enables the reporting of data collected from the Products to be transmitted directly to third party governmental entities or to such other recipients to whom users may have an interest in reporting such data (the "Report"). This feature may be available to users only in certain designated locations, You are authorized to use the Service to report such data in such manner, if this feature is enabled. This feature is offered to you as a convenience, and, without limiting the effect of the terms set forth in the Limitation of Liability - No Warranties section below, [x] disclaims all responsibility for any inaccuracy in the data or any failure of this feature of the Service to report accurate data (or any data). [x] will in no event be liable to you, any customer or any third party in connection with information conveyed or not conveyed to government entities or the list of recipients you have chosen to share information from the Products or through the Service, and you agree to indemnify and hold [x] harmless from the same or any loss, claim, damage, or liability arising out of the same. The use of the report of data collected is limited to your personal, business or marketing use. Except for such use expressly permitted in this paragraph, you may not modify, alter download, the Report. You may not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Report.

Advantages of this clause include:

Clear description of sharing, and decisions to share data largely remain with the customer.

Disadvantages of this clause include:

No guarantees behind third party tools (fully open ecosystem). No clarity on which “third party governmental entities” or to “other recipients to whom users may have an interest in reporting” may receive data.

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an energy management platform that supports a multitude of smart IoT devices, including from third parties.

16.3 By purchasing [x] Products the Buyer can expressly derive NO rights to obtain the data of the end user. [x] shall only grant the Buyer access to this data if that has been agreed in writing between [x] and the Buyer.

16.4 Without prejudice to that provided in article 16.3, [x] shall make the end users’ data available to the Buyer only if the end user gives [x] express permission to make the data accessible to the Buyer, and for so long as the end user does not withdraw this permission.

Advantages of this clause include:

Clear split between the interests of the Buyer of the platform (the company using it) and the individual persons being monitored (end users). Clear statement of the principle that buying a platform does not convey any usage right.

Disadvantages of this clause include:

/

 

Model clause in a contract against remuneration

Context: the clause is intended for a decentralised energy management system involving IoT components. The objective is to ensure that Usage Data can be shared with third parties only for the purposes of providing services in relation to the system (i.e. subcontractors or other service providers to the principal), or with the permission of the customer; this includes voluntary data sharing to third parties via APIs, as is explicitly supported by the model clause.

The model clause assumes that the concept of Usage Data is defined; this can be done through the model clause on scoping.

Your Usage Data will not be sold to third parties, nor will it be made available to third parties except as set out herein.

We may make your Usage Data available to third parties for the sole purpose of providing you with services as envisaged by this Agreement. Such third parties will be bound to us by contractual terms which ensure that your Usage Data will not be used in a manner contrary to this Agreement.

In addition, we will make your Usage Data available to third parties with your permission, including through APIs, web services, or other interfaces that we choose to support. Your permission can be granted through the interfaces built into the vehicle and its services. You may use the same interfaces to terminate third party access to that Usage Data. Note that use of your data by such third parties will be subject to their own terms and conditions, which may not be under our control, and which will not be subject exclusively to the terms of this Agreement.

 

Remuneration and consideration

 

Real-life clause in a contract without remuneration

Context: the clause relates to a smart meter for domestic use.

Using and paying for services

You agree to pay us for the Services that you use. This section explains how we charge for our Services, how you can pay us and how we deal with payment difficulties.

Prepayment Services

4.1 Where you choose to use prepayment, you can top up your meter using the top-up card that we supply to you via a range of options which are described in more detail in our Code of Practice on Paying for your Energy at [x].

Payment after receiving a Bill

4.2 If you chose to receive a bill for payment, you must pay by the date set out on the bill. We will usually issue bills monthly or quarterly. Details of how to pay a bill are set out in our Code of Practice on Paying for Your Energy at [x].

Using our Apps to monitor your balance and Pay for your Services

4.3 You may use our Apps to review your account information and pay your bill and any outstanding charges. Before using our Apps you will be asked to accept additional terms and conditions. You can only use these Apps if you consent to your data (including but not limited to data about your account, your meter and meter readings) being transferred to us. You will also need to consent to us collecting and using half hourly data from your Smart Meter for us to be able to provide these optional Services.

What to do if you are struggling to Pay for our Services

4.4 If you have any difficulty in making payments for our Services or believe that you will have difficulty, you should contact us as soon as possible to explain your position so we can work with you to try and help you. If you are living with a vulnerable person it is even more important that you contact us as soon as you get into payment difficulties.

4.5 You can find more information on how we deal with payment difficulties in our Customers in Difficulty Code of Practice which you can find at [x].

Advantages of this clause include:

Direct and understandable language. Multiple payment modalities and assistance in case of payment difficulties.

Disadvantages of this clause include:

/

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

Service Fees

General access to the Service is currently provided to you at no cost, certain premium features within the Service may be provided at a fee. You acknowledge that [x] reserves the right to charge for providing access to the Site and the Services, under its sole discretion. Fees payable for the Site and the Services (including any premium features), and the terms and conditions applicable thereto, shall be set forth in a separate agreement to be negotiated between [x] and a specific Customer. The terms of such agreements may differ substantially between different Customers.

Advantages of this clause include:

Clear principle – no cost unless specific agreements are concluded.

Disadvantages of this clause include:

Dependence on external agreements – no clear statement of which features are paid.

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for calculation the possible yield (in terms of energy and money) of solar panel installations

Purchases

If you wish to purchase any data made available through the Service ("Purchase"), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.

You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.

The service may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

Advantages of this clause include:

Clear statement that the data itself is the object of the payment (not the underlying service), which is relatively rare.

Disadvantages of this clause include:

No indication of cost (or even the pricing model).

 

 

Real-life clause in a contract against remuneration

Context: the clause relates to an electricity brokering service, where the service provider is mandated to monitor energy consumption and automatically switch providers when this is beneficial to the customer.

Article 6: Price of [x]'s services and method of payment

6.1 The customer does not pay any compensation directly to the service provider for the services it provides. This does not mean that [x]'s services are free. After all, the service provider's fee (a fixed amount per meter number per month) is charged to the energy supplier with whom the service provider negotiates and concludes an energy agreement in the name and at the expense of the customer. The starting point for the compensation is the moment of the first supplier change for the customer via the services of the service provider. This fee - which is the same for all suppliers so that the service provider's independence is guaranteed - will possibly be passed on to the customer by the energy supplier concerned as part of the energy price (commodity price) on the gas and electricity bill.

6.2 The customer pays the price for the supply of energy directly to the energy supplier concerned. The energy prices (consisting of a fixed subscription cost and the cost for energy consumed) are increased by the energy suppliers with:

  • the VAT.
  • all taxes, levies, charges, fees, contributions, surcharges and charges imposed by a competent authority on the energy supplier concerned and which they must or may pass on to the customer.
  • the network costs determined by the distribution and transmission network operators and approved by the CREG.

 

Advantages of this clause include:

Clear identification of business model. Shared financial benefit for service provider and customer

Disadvantages of this clause include:

/

 

Liability

 

Real-life clause on liability in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

13. Warranties and Limitation of Liability

Contributions, information and other materials made available on the Digital Platforms, whether by [x] or other users of the Digital Platforms, are not intended to amount to advice on which reliance should be placed. WE THEREFORE DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY ANY USER OF OR VISITOR TO THE DIGITAL PLATFORMS, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.

By operating the Digital Platforms, we do not represent or imply that we endorse any Contributions or any other materials available on or linked to by the Digital Platforms, including without limitation, content hosted on Third Party Sites, or that we believe such Contributions or any other materials are complete, accurate, useful or non-harmful. We do not promise any specific results from the use of the Digital Platforms. No advice or information, whether oral or written, obtained by you from us or the Digital Platforms shall create any warranty not expressly stated in this Agreement.

ALL DIGITAL PLATFORMS, INCLUDING THE CONTENT, INFORMATION OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH THE DIGITAL PLATFORMS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND (TO THE FULLEST EXTENT PERMITTED BY LAW) WITHOUT WARRANTY (EXPRESS OR IMPLIED) OR CONDITIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THE DIGITAL PLATFORMS AND YOUR USE OF IT DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.

WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT ON THE DIGITAL PLATFORMS, THE CONTENT OF ANY SITE LINKED TO THE DIGITAL PLATFORMS, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE DIGITAL PLATFORMS. WE DO NOT GUARANTEE THAT: (I) THE DIGITAL PLATFORMS WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL MATERIALS; (III) ANY DEFECTS OR ERRORS WILL BE CORRECTED; AND/OR (IV) THE RESULTS OF USING THE DIGITAL PLATFORMS WILL MEET YOUR EXPECTATIONS. YOU USE THE DIGITAL PLATFORMS SOLELY AT YOUR OWN RISK. DATA GENERATED OR REFLECTED IN THE DIGITAL PLATFORMS RELATING TO THE POWER OUTPUT OR PERFORMANCE OF YOUR SOLAR SYSTEM IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CREATE ANY RIGHT, CLAIM, WARRANTY OR CAUSE OF ACTION FOR YOU OR YOUR BENEFIT. SOLAR SYSTEM INFORMATION REFLECTED IN THE DIGITAL PLATFORMS IS NOT A GUARANTY OF PERFORMANCE OR PRODUCTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU TO THE EXTENT THEY ARE INCONSISTENT WITH APPLICABLE LAW.

WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE DIGITAL PLATFORMS, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE DIGITAL PLATFORMS BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE DIGITAL PLATFORMS.

IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE OR ANY OTHER LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION ANY DIRECT OR INDIRECT LOSS OF REVENUE OR PROFIT, BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM YOUR USE OF THE DIGITAL PLATFORMS AND ANY CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT AVAILABLE ON THE DIGITAL PLATFORMS OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY. IN NO EVENT SHALL [X]'S AGGREGATE LIABILITY FOR ANY DAMAGES EXCEED THE GREATER OF ONE HUNDRED US DOLLARS ($100) OR THE AMOUNT YOU PAID [X] FOR THE DIGITAL PLATFORMS IN THE LAST TWELVE (12) MONTHS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Advantages of this clause include:

Comprehensive.

Disadvantages of this clause include:

Focused on excluding liability to a very broad extent, and under a relatively strict liability cap.

 

Real-life clause in a contract without remuneration

Context: the clause relates to a smart thermostat in combination with a broader home management system (including smart HVAC components).

(a) Intended Use of [x] Services. The Services are intended to be accessed and used for non-time-critical information and control of [x] Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond [x]’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that [x] is not responsible for any damages allegedly caused by the failure or delay of the Services.

(b) No Life Safety or Critical Uses of the Products and Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with Third-Party Products or Services, are not certified for emergency response, unless expressly approved and certified by [x] as enabled for central station monitoring through a professional central station monitoring facility (“Pro Monitoring Enabled [x] Products”). [x] makes no warranty or representation that use of the Products (including, without limitation, any Pro Monitoring Enabled [x] Product) or Services with any Third-Party Product or Service will affect or increase any level of safety. YOU UNDERSTAND THAT, EXCEPT FOR PRO MONITORING ENABLED [X] PRODUCTS, THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL [X] DISPATCH EMERGENCY SERVICES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.

[…]

(i) Energy Savings and Other Benefits. Unless explicitly promising a “guarantee”, [x] does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Products or Services or any feature thereof. Actual energy savings and monetary benefits vary depending on factors beyond [x]’s control or knowledge. From time to time, [x] may use the Services to provide you with information that is unique to you and your energy usage and suggest an opportunity to save money on energy bills if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you and your household. You acknowledge that these promotions are not a guarantee of actual savings and you agree not to seek monetary or other remedies from [x] if your savings differ.

Advantages of this clause include:

Clear constraints on fitness for purpose and expected functionality.

Disadvantages of this clause include:

Not (intended to be) appropriate for business critical purposes or situations requiring commitments to result.

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

Limitation of Liability - No Warranties

EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR WHERE THE LAW REQUIRES A DIFFERENT STANDARD, [X] SHALL NOT BE RESPONSIBLE FOR ANY LOSS, DAMAGE, INJURY, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) LOST PROFITS OR LOSS OF ENERGY ARISING FROM OR RELATED TO THE USE OR INABILITY TO USE THE PRODUCTS OR THE SERVICE OR ANY MALFUNCTIONS, THEREOF, ACTIONS OR OMISSIONS BY THIRD PARTY PARTNERS INCLUDING WITHOUT LIMITATION THE THIRD PARTY CONTENT, ACCESS TO OR USE OF THE SERVICE, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, BUGS, ERRORS, VIRUSES, TROJAN HORSES, CONFIGURATION PROBLEMS OR INCOMPATIBILITY OF COMPUTER HARDWARE OR SOFTWARE, FAILURE OR UNAVAILABILITY OF INTERNET ACCESS, PROBLEMS WITH INTERNET SERVICE PROVIDERS, PROBLEMS OR DELAYS WITH INTERMEDIATE COMPUTER OR COMMUNICATIONS NETWORKS OR FACILITIES, PROBLEMS WITH DATA TRANSMISSION FACILITIES OR ANY OTHER PROBLEMS YOU EXPERIENCE DUE TO CAUSES BEYOND OUR CONTROL. [X] SHALL NOT BE LIABLE FOR ERRORS IN THE SITE OR THE SERVICES, INCLUDING THE INACCURATE OR MISSING MEASUREMENT OF DATA BY THE SERVICES, OR IN THE EVENT THE SERVICES FAIL TO DETECT, OR DETECT INCORRECTLY, ANY FAULT IN THE PRODUCTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY APPLICABLE AGREEMENT, YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, OUTPUT, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITES, ARE PROVIDED ON AN AS IS, WHERE-IS AND WHERE AVAILABLE BASIS. YOU ACKNOWLEDGE THAT WE MAKE NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE UNLESS OTHERWISE STATED ON THE SITE OR IN ANY APPLICABLE AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SERVICE AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, PRODUCTS AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITES. NO LICENSE TO YOU IS IMPLIED IN THESE DISCLAIMERS.

Advantages of this clause include:

Comprehensive.

Disadvantages of this clause include:

Focused on excluding liability to the maximum possible extent.

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for calculation the possible yield (in terms of energy and money) of solar panel installations. The platform provides an overview of local and federal tax incentives, and available financing options, including contact information.

All data is sold "as is," "where is," and "with all faults," and, client shall have no right to request a refund. The Service will allow for a credit to your [x] account of up to 10% of the cost for data you have purchased that is proven to be a disconnected phone number or a phone number that is not in service.

Availability, Errors and Inaccuracies

We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.

We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

Advantages of this clause include:

Understandable language.

Disadvantages of this clause include:

Service provider accepts no responsibility/liability for the data it sells.

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an energy management platform that supports a multitude of smart IoT devices, including from third parties.

17. Liability.

17.1 [x] can never be held liable if the Products it provides are used in another manner than for which they were developed or intended, nor if its Products provided to the Buyer, the end user, or third parties have been changed or supplemented in any way.

17.2 [x] can only be held liable for direct damage and never for indirect damage suffered by the Buyer and insofar as this damage and the error by [x] or the fault in the Product has been proven. The damages are furthermore limited to the value of the agreement with a maximum of EUR 10,000.

17.3 [x] cannot be held liable for decisions taken or actions that are or are not carried out by people or automated systems based on the information, events, changes, or signals provided – or unexpectedly not provided – by a [x] Product or the [x] system.

17.4 [x] cannot be held liable for damage in the event that the central services (cloud services), a Product or other part of the [x] systems is unavailable or does not function as expected.

17.5 The Buyer commits to refute any liability obligations of [x] to its customers and the end users.

Advantages of this clause include:

Clear statement, and credible liability cap.

Disadvantages of this clause include:

No liability for unavailability of service, and no indirect damage, which is a significant carve-out.

 

 

Real-life clause in a contract against remuneration

Context: the clause relates to an open data platform with aggregate (statistical) information provided by a national network operator

[x] relies on the services of [x], publisher and operator of the [x] site on behalf of [x] and host of the datasets published by [x].

The responsibilities and guarantees of [x] to Users on access to the site, its quality and its maintenance are available at the address https://www.[x].fr/mentions-legales/ .

[x] does not guarantee that the site will operate uninterrupted or that it is free from errors. [x] cannot be held responsible in the event of difficulty in using the [x] site.

The User acknowledges that the development and maintenance interventions carried out by [x] and necessary for the proper functioning of the site are likely to alter or prevent the operation of the User's application and to require additional developments. in order to maintain compatibility with APIs. [x] cannot be held responsible for any damage which may result from this for the User.

The data is made available to users without any particular guarantee, express or implied, as to the accuracy, completeness and updating of this data, other than those which would be expressly mentioned in the metadata or specific appendices.

The User undertakes not to use the site, its APIs or its data for any use contrary to these T & Cs or contravening in any way whatsoever the laws in force, in particular by encouraging defamatory or deceptive activities, whether against [x] or third parties, including [x].

Advantages of this clause include:

Reuses a standardised platform, easily scalable.

Disadvantages of this clause include:

No liability accepted for accuracy of the data.

 

Model clause in a contract against remuneration

Context: the clause is intended for situations where a separate general liability clause exists, including a liability cap (a maximum aggregate amount of liability, e.g. “Except in the event of gross negligence or wilful misconduct, our liability in the event of failure to comply with the obligations provided for in this Agreement, whatever the cause, shall be capped at the sum corresponding to the total amount of subscription fees paid during the 12-month period preceding the event giving rise to the damage”.). This clause only regulates liability linked to (use of) the damage.

The clauses assumes that Customer Data and Business Insights have been defined; the model clause on scoping can be used for this purpose. The clause accepts liability (up to the liability cap) for errors in data collection by the service provider (data corruption), but not for damages linked to use of Business Insights.

Our sum and total liability for any damages caused exclusively by demonstrated corruption of Customer Data during or after transfer to our services is limited to the general liability cap as set out in this Agreement. We cannot be held liable in any way, under any legal theory, for damages linked to the Customer Data. Specifically, it is your sole and exclusive responsibility to ensure that Customer Data is factually correct, complete and up to date before transferring it to us.

Furthermore, you accept that we cannot be held liable in any way, under any legal theory, for damages resulting from any decisions you make as a result of Business Insights that we provide to you. The accuracy, completeness, relevance or utility of Business Insights is not guaranteed in any way.

Any liability action that may be brought by you is time-barred within two (2) years from the event giving rise to the action.

 

Termination conditions

 

Real-life clause for continuous data sharing in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

This Agreement, as updated or amended from time to time, shall remain in full force and effect while you use the Digital Platforms.

We may terminate or suspend your account (and any related accounts) and your access to any Digital Platforms at any time, for any reason, and without advanced notice. If we do so, you do not have a contractual or legal right to continue to use the Digital Platforms.

If you have an account you may terminate it at any time, for any reason, by contacting [x].

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

Extremely generic language and broad termination rights.

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations. In addition to a default platform (oriented to end users), customisable models of specific installations can be created by professionals.

Termination Availability

We may terminate or suspend these Terms, or terminate, suspend or limit your access privileges to the Services, in whole or part, at any time for any reason, with or without notice. Customers acknowledge that the Site and the Services may be suspended for reasons beyond the control of [x]. We will provide you with 90 days written notice prior to any termination of the Service, except where termination of the Site or the Services relates to your cessation of use of the Products, your failure to meet payment or other obligations relating to the Products, breach of these Terms or other terms made available to you by us, or the party from whom you purchased a Product (including any agreement regarding payment), in which case no notice will be provided. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes.

Advantages of this clause include:

Concise and flexible.

Disadvantages of this clause include:

No explicit statement on termination rights for the user. Can be read as contradictory, since termination by the service provider is allowed both at will without notice, and with a 90 day written notice. 

 

Real-life clause in a contract against remuneration

Context: the clause relates to a platform for calculation the possible yield (in terms of energy and money) of solar panel installations. The platform provides an overview of local and federal tax incentives, and available financing options, including contact information.

We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms. We may also exercise all other legal and equitable remedies that may be available.

If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnification and limitations of liability.

Advantages of this clause include:

Understandable language.

Disadvantages of this clause include:

Very flexible termination rights on both sides (which seems acceptable, since the platform is used for (a series of) ‘one-off’ data sales.

 

Model clause in a contract against remuneration

Context: this is a generic termination clause for a time based subscription service (e.g. for a monthly subscription fee).

You may terminate your use of our services at any time and for whatever reason, by giving written notice and/or by terminating your service through the interfaces supported by our products and services. This termination will enter into effect at the end of your current subscription period, and fees will continue to apply until the moment of termination. 

We retain the right to block your access to the service and/or terminate this Agreement, at any time and without prior notice, if we have reasonable grounds to indicate that you are in substantive breach of this Agreement and/or applicable laws. Furthermore, we may terminate your use of our services at any time and for whatever reason, by giving 3 months written notice. This termination will enter into effect at the end of the indicated notice period, and fees will continue to apply until the moment of termination. 

 

Termination consequences

 

Real-life clause on termination consequences in a contract without remuneration

Context: the clause relates to a platform for remote management of photovoltaic installations.

If your access to Digital Platforms is terminated, either by you or [x], you may lose any information associated with your account, including the ability to retrieve materials contained in the account.

Advantages of this clause include:

Direct and understandable language.

Disadvantages of this clause include:

No actual guarantee of deletion (“may” lose information) – more of a disclaimer than an assurance.

 

Real-life clause for scoping in a contract against remuneration

Context: the clause relates to an energy management platform that supports a multitude of smart IoT devices, including from third parties.

8. Retaining and deleting personal data

This Section sets out our data retention policies and procedure, which are designed to help ensure that we comply with our legal obligations in relation to the retention and deletion of personal data.

In case you wish to delete the personal data related to your [x] Energy Services, please use the function “Delete All My Data” in the [x] App. If you require assistance, please contact [x] Support.

Personal data that we process for any purpose or purposes shall not be kept for longer than is necessary or reasonable for that purpose or those purposes. We may retain personal data longer than this period if it is in our legitimate interest and not prohibited by law.

Notwithstanding the other provisions of this Section , we may retain your personal data where such retention is necessary for compliance with a legal obligation to which we are subject, or in order to protect your vital interests or the vital interests of another natural person.

[…]

After a licence has expired, [x] is not obliged to continue retaining the corresponding data (such as historic measurements) and it may permanently delete it.

Advantages of this clause include:

Phrasing based on data protection law (GDPR)

Disadvantages of this clause include:

No actual commitment in terms of deletion – “no longer than necessary or reasonable”, but no actual term limit – more of a disclaimer than an assurance.

 

Model clause in a contract against remuneration

Context: this clause aims to terminate any use of Customer Data after contract termination (other than as required by law or to safeguard the service provider’s legal rights), and ensures that Customer Data is deleted after termination. Aggregate insights may be retained and used in the same manner as during the Agreement, provided that these cannot be linked to the customer.

The clauses assumes that Customer Data and Business Insights have been defined; the model clause on scoping can be used for this purpose.

After the termination of the Agreement, we will only use your Customer Data insofar as required to defend our legal interests or as required under applicable law. Business Insights related to you, or any statistical data inferred on the basis of your Customer Data, may still be used by for the same purposes and to the same extent as during the Agreement.

Your data will be retained by us only as long as required by applicable law, including as may be required to defend our legal interests. After the expiration of this period, your data will be irrevocably deleted.

 

 

General observations and points of attention

By way of general conclusions, several trends and recurring elements can be observed. Firstly, a common factor is that most of the examined agreements only describe the collected data at a very high functional level, without entering into detail on data formats, standards, or even exact metrics. Frequently, contracts mentioned examples of the data that might be collection, but without committing or limiting the activities to such data types. In other words, the examined agreements are largely technologically neutral, or technology-agnostic. 

This is likely in part because of the fact that most of the examined contracts are targeted towards individual households or individual companies, or relate to open data repositories with statistical information. Infrastructural agreements (e.g. between transmission system operators (TSOs) and distribution system operators (DSOs)) might contain more exact details on e.g. technical requirements, information security, granularity and standards or certifications, but in the examined contracts these were noticeably absent.

As a second observation, virtually all examined agreements that related to personal data (due to the use of potentially individual energy consumption patterns) explicitly reserve the right to create aggregate and statistical (anonymous) information, thus ensuring that such information can be used to support further decision making in order to improve services or general network efficiency. This seems to be in line with data protection law and with general European smart energy policy objectives. Data retention and deletion obligations were however absent – there is no assurance that collected data would be deleted at some point. Likely this is more of a functional oversight, since energy data is principally useful in the immediate term to provide services, after which aggregate information generally provides any other functions needed; there is usually no need or benefit to retain identifiable energy data for an extended period of time. Still, data holders should consider covering their data retention and deletion obligations in the contracts.

Finally, it is also clear that the examined agreements generally build on the existing legal framework that stresses the importance of user control, especially when interconnecting energy systems or networks. This is particularly visible in smart meters, smart HVACs, building management systems and energy management platforms, where openness to third party devices and services is a critical factor. Here too, contracts are remarkably light on details, but do typically acknowledge that exchanges of data to/with third party components are usually subject to prior user approval. There is a tendency for responsibility and liability to be abdicated once data is made available to third parties – i.e. a user accepts the risk of deciding to transfer data. This is likely an inevitable part of working in an open ecosystem, where it would be difficult for a single party to assume responsibility for potential misbehaviour of third parties whose behaviour may not be controllable in practice.

Generally, the main focus points in agreements are therefore user control, openness of the ecosystem to third parties, and assurance that data is anonymised (including through effective aggregation) prior to sharing it whenever the goals of data sharing make this possible.


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