Article 1 - General
1.1 iwell is a company that accelerates the energy transition and builds the energy provisions of tomorrow. More sustainable, cleaner and greener. iwell B.V. is located in Utrecht and registered at the Dutch Chamber of Commerce with number: 65957954 (hereinafter: General terms and conditions).
1.2 These General terms and conditions are applicable to all offers from, every agreement of, and to all legal relationships formed between iwell and a counterparty (hereinafter: Counterparty). Any deviations of these terms and conditions can only be agreed upon in writing.
Article 2 – Offers, assignments and agreements
2.1 iwell gives offers, accepts assignments and makes agreements based on recent and necessary information provided by the Counterparty. iwell assumes accuracy of the information provided by the Counterparty and will not be liable for faults based on wrongful information provided by Counterparty. Damages or extra costs as a result of wrongful information will be borne by Counterparty.
2.2 Offers, assignments and agreements are constituted when iwell has received an offer and/or agreement signed by Counterparty.
2.3 In case one of the clauses in these Terms and Conditions and/or in an agreement are null and void, the remaining clauses will remain valid. iwell and Counterparty will replace the null and void clauses with new clauses that match the original clauses as close as possible.
Article 3 – Execution
3.1 iwell only constitutes best efforts obligations and will always try to execute agreement with the appropriate care.
3.2 iwell is allowed to suspend her work in case Counterparty does not give iwell the appropriate and/or timely information reasonably necessary for the execution of the work. iwell assumes accuracy of the information provided by the Counterparty and will not be liable for faults based on wrongful information provided by Counterparty. Damages or extra costs as a result of wrongful information will be borne by Counterparty.
3.3 Counterparty is obliged to care for a safe working environment to the employees of iwell and/or third parties appointed by iwell. This contains at least (but this is not an exhaustive list) the possibility of switching off the entire installation using an isolation switch. In case Counterparty cannot provide a sufficiently safe work environment, she is required to report this to iwell. Any consequences and/or additional costs as a result thereof will be borne by Counterparty.
3.4 In case parties wish to have work carried out by third parties, they will agree upon this in writing, unless otherwise stipulated in these General terms and conditions.
Article 4 – Prices and invoicing
4.1 Unless otherwise agreed upon in writing, prices are including travel costs and excluding VAT. Payments must be done in EURO via bank transfer to a by iwell appointed bank account.
4.2 Iwell is allowed to charge additional costs for additional work. In case any additional work is required, iwell will inform the Counterparty as soon as possible including an estimation of the additional costs to the extent possible.
4.3 iwell remains the right to index the prices based on the CBS-DPI data (reference date first quarter of the current contract year) for inflation.
4.4 iwell will send an invoice based on the agreement. invoices must be paid within fourteen (14) days after the invoice date by Counterparty. From the fifteenth day statutory commercial interest rate will be due. Objections to the invoice must be made within the payment term by iwell and do not suspend payment.
4.5 Unless agreed upon in writing, iwell remains the right to invoice part of the work at the signing date of the agreement and the other part upon delivery of the agreed upon works. Percentages are agreed upon in the agreement.
In case parties agree upon a (partial) payment on the delivery of the works, the initially agreed upon delivery date in the contract is leading. Delays and/or rescheduling the delivery date does not constitute a right to delay and/or reschedule the payment.
4.6 Iwell is allowed to suspend work when an invoice is not paid within the payment term. Iwell is also allowed to require an advance to an invoice whenever she deems necessary and/or cancel an assigment when she reasonably foresees that payment will not be made.
4.7 In case of a multiparty agreement, all parties are severally liable for the obligations as set forth in this article, regardless to whom the invoice is directed. Only Counterparty can pay with liberating effect to iwell. Payments to her employee(s) and/or third parties in any shape or form are not allowed and do not discharge Counterparty from her payment obligation towards iwell. Counterparty may not settle any invoice.
Article 5 – BESS and alterations
5.1 The battery system of iwell, consisting of amongst other things the battery, the electronics, the systems, the security, the infrastructure and the integration on the net, is called the BESS.
5.2 Installation and commissioning the BESS and related components provided by iwell to the electrical installation of the client is executed by iwell or a third party appointed by iwell. The demarcation point for plugging in the BESS by iwell is agreed upon in the offer. The operations that must be performed before the demarcation point in order to install and commission the BESS must be performed by Counterparty prior to the battery delivery. Iwell can perform these services at additional cost if parties agree to this in writing. Iwell determines whether the adjustments are sufficiently done by Counterparty in order to install and commission the battery system safely.
5.3 Delay and/or extra costs due to insufficient installation before the demarcation point and/or the location of the BESS not being ready for its placement are at the account and risk of Counterparty. The quality of the BESS might decrease whenever the BESS is in storage for more than three months. Possible repair and/or extra costs for a BESS that has been in storage for more than three months are at the account and risk of Counterparty.
5.4 At delivery of the BESS iwell will transfer all responsibility of the BESS to Counterparty, unless otherwise explicitly agreed upon in writing.
5.5 Counterparty acknowledges that it is Counterparties responsibility to investigate if and when new (significant) power users or power generators can be added to the existing connector. Iwell is not responsible and/or liable for any consequences, additional costs and/or potential damages as a consequence of new power users and/or generators.
5.6 iwell makes estimations of possible savings and the potential for revenue of Counterpart based of measurements and/or analysis of the energy profile and information provided by Counterparty. If the true energy profile after installation of the battery deviates from the estimation, for example an increase or decrease of the load or other user patterns from major users or generators in the electrical installation, then potential savings and/or revenues may vary. Counterparty may not derive any rights from an estimation made by iwell.
5.7 Alterations made by the Counterparty to the BESS, will relieve iwell from any form of liability regarding the BESS, unless iwell explicitly granted permission for these changes in writing.
5.8 Counterparty manages the BESS in accordance with current standards. Counterparty declares by signing the agreement that he is familiar with current standards and able to comply with these standards.
5.9 Counterparty is responsible for cleaning the space and surroundings of the BESS to increase life expectancy of the BESS and decrease the risk of incidents.
5.10 Counterparty ensures that all technical and constructional fire protection requirements are met and provides the necessary fire protection installation which might include (but not limited to), detection-, notification-, eviction- and extinguish installation of the space and surroundings of the battery system in accordance with iwells advice and/or current rules and regulations if these are more stringent than iwells advice. This includes (but is not limited to) the periodic inspections and check-ups of technical, constructional and fire protection installations.
5.11 Counterparty is the installation responsible party (IV’er) for the entire electrotechnical and fire protection installation. Counterparty is fully responsible and liable for inspections and check-ups of the entire installation as described by current rules and regulations, including the part of the installation that iwell (or an appointed third party through iwell) installs. This is including (but not limited to) dimensioning the installation sufficiently large to meet all electricity by current rules and regulations, meeting the terms as described in the net code and limiting the inequality phase of the load.
5.12 During the entire period in which the BESS is installed at Counterparty, Counterparty ensures that the space and surroundings of the BESS meet the installation technical and constructional demands as prescribed by iwell and current rules and regulations. Adjustments needed to meet these requirements, for example when rules and regulations change, are at the account and risk of Counterparty and must be executed in coordination with iwell.
5.13 In case iwell and Counterparty agree that iwell uses the local cabled internet connection, Counterparty makes this connection available for the entire term of the agreement. In case there are any changes to the internet connection and/or point of entry, Counterparty informs iwell at least two months in advance. When iwell is not informed in a timely manner, all costs for this change will be at the account and risk of Counterparty.
5.14 the BESS of iwell has a high uptime. Iwell cannot guarantee 100% uptime of any the BESS. Iwell cannot be held accountable for any damages of a non-functional BESS (e.g. production processes, revenues of energy trade). Iwell works with an obligation of effort to ensure the BESS is up and running as soon as possible. Costs for restoring the BESS are at the account of Counterparty unless explicitly otherwise agreed upon.
5.15 iwell is allowed to deploy the BESS in the energy trading markets, unless explicitly otherwise agreed upon.
5.16 Counterparty is liable for execution and costs of adjusting the installation- and transport agreement with the grid operator.
Article 6 – Data
6.1 Counterparty grants iwell permission to read out and use all data of the BESS and energy meters placed and/or read out to ensure the systems function correctly and safely.
6.2 iwell uses data of the BESS exclusively for commercial and technical purposes such as monitoring and improving the services and the product, unless explicitly otherwise agreed upon. In case and in so far a data processing agreement is necessary for the processing of data, the Counterparty will cooperate with this. If this data processing agreement is not concluded due to the (lack of) actions of Counterparty and iwell is therefor unable to execute the Agreement, this will be at the account and risk of Counterparty.
Article 7 – Access
7.1 Access to the BESS is limited to iwell and to by iwell appointed third parties. The space and/or surroundings of the BESS is accessible to iwell, by iwell appointed third parties and appointed authorized persons of Counterparty.
7.2 Counterparty grants access to the BESS to iwell at all times, unless otherwise agreed upon, and provide iwell with the necessary keys and/or other means of access by signing the contract, amongst other things (but not limited to) a right of way. Without access iwell cannot and is not held to fulfill her maintenance- and monitoring agreements. In case iwell cannot meet her obligations due to limited access, Counterparty is still obliged to fulfill her obligations. Counterparty cannot suspend her obligations due to actions of iwell as a consequence of limited access.
Article 8 – Termination
8.1 In case Counterparty terminates the offer, agreement and/or assignment early partially and/or fully, he will indemnify and hold harmless iwell for all costs and/or damages (direct and indirect) and/or loss of profit as if the agreement was executed in full.
8.2 On request of Counterparty iwell organizes the removal and recycling of the BESS in accordance with the best available techniques. Potential costs for removal and recycling of the BESS are for the account of Counterparty.
Article 9 – Guarantees and services
9.1 The guarantee period in years on a BESS is agreed upon in the offer or agreed upon in a separate service level agreement with iwell. The guarantee period starts at the day of delivery of the BESS components and/or systems by an iwell supplier to iwell (e.g. date bill of load, shipment letter).
9.2 Iwell will always transfer the product guarantee of a supplier to Counterparty. Iwell never gives more guarantees than the product guarantee of the producer.
9.3 Counterparty agrees upon a service and monitoring contract (O&M) with iwell for the extend of the guarantee period to maintain guarantees. In case Counterparty does not fulfill the obligations of the remote monitoring contract, all claims to any guarantee expire.
9.4 During the guarantee period faulty components will be replaced without costs, as long as the fault is not a result of article 10.1. Necessary labor to replace the faulty component is not part of the guarantee and will be charged subsequently.
9.5. Counterparty lets iwell perform preventive and corrective maintenance in order to maintain her guarantee. Invoicing for this maintenance will be charged subsequently by iwell. Iwell charges an hourly rate of € 100 on working days, €150 in evening/night/weekends, € 200 on Sundays and holidays (excluding VAT). In case Counterparty does not let iwell perform the maintenance and/or makes any unauthorized changes to the BESS, all claims to any guarantee expire.
9.6 Counterparty has the right to insure the BESS at her own account and responsibility.
Article 10 – Exceptions guarantees and services
10.1 Failure that is not included in the services and/or guarantee and therefor will be charged in full, including labor and material are:
- Failure due to no, or no proper electrical voltage;
- Failure to the installation components that are caused by lightning strike, freezing, fire or any other external causes;
- Failure due to improper operation of the BESS and switches and fuses by persons who are not appointed by iwell;
- Failure due to a defect room thermostat and/ or heat regulator;
- Failure due to changes of the BESS that effect the proper functioning of the installation negatively and are not made by iwell;
- Failure due to not executing the necessary repairs and/or maintenance advised by iwell.
10.2 Call-out charges can be charged if iwell does not have proper access to a service address after making an appointment and Counterparty has not informed iwell about this in advance. These costs are € 250 (excluding VAT) per call-out.
Artikel 11 – Force Majeure
11.1 If on the account of force majeure iwell is unable to execute the agremeent timely or at all, iwell has the right to suspend the works and/or delay the works untill the force majeure situation is gone. Force majeure is amongst other things, but not limited to: fire, flood, epidemics (including but not limited to COVID-19 and comparable epidemics), work strike, riots, terrorism, threat of terrorism, war, threat of war, transport problems, weather conditions, nature disasters, nuclear disasters, governmental rules and regulations, import, export and transit problems, defaults of iwells (sub)suppliers that are not attributable to iwell, unavailable components, computer- and software malfunctions, electricity-, telephone-, utilities-, internet- and/or network outage, hacking, virus attacks, and all other circumstances under which iwell cannot reasonably be expected to (timely) fulfill her obligations under the Agreement.
11.2 If execution of the Agreement is permanently impossible due to force majeure, Counterparty and iwell will give their best efforts for twelve weeks to resolve the Force Majeure so the Agreement can still be fulfilled. If the execution of the agreement cannot be continued within these twelve weeks, both iwell and Counterparty have the right to terminate the Agreement by means of a written notification stating the reasons for termination.
11.3 In case of 11.2 iwell and Counterparty will cooperate in recording the actual condition of the work and the time of the termination and the consequences that the termination has for the mutual execution of the Agreement. A final settlement will be drawn up based on this record. If one of the parties has paid a higher amount in advance than the status of the work on the date of the recording, the Party will refund the excess amount within 14 days.
11.4 Under no circumstance iwell is liable for any direct and/or indirect damages resulting from Force Majeure.
11.5 iwell will take all necessary measures to prevent and limit (further) damage caused by Force Majeure. Counterparty will reimburse iwell for the associated costs upon iwells first request.
Artikel 12 – Liability
12.1 Liability of iwell is limited to the stipulations in this article.
12.2 iwell is not liable for any damaged to the BESS caused by vandalism and/or violence and/or fault or gross negligence of Counterparty.
12.3 In cause iwell is found liable of any damages of Counterparty, then this liability will always be limited to the maximum productvalue of the BESS.A series of related occurrences will be regarded as one occurrence. Iwell can only be held liable for direct damages. Indirect and/or consequential damages are excluded at any time.
12.4 In case iwell is found liable for any damages due to a faulty BESS, the liability is always limited to the maximum amount that iwells insurer acknowledges and pays out, which is a maximum of €5.000.000 (five million euro).
12.5 Potential claims for damages must be made within 14 days after existence of the damages. If a claim is not made within this period, the claim expires.
12.6 Parties will take any necessary measures that may reasonably be expected to limit and/or prevent any damages.
12.7 The stipulations to this article also apply to iwells staff and third parties that iwell included for the execution of this agreement.
Artikel 13 – Other
13.1 Parties grant each other the necessary cooperation with regard to using each others intellectual property in case this is necessary for the execution of this agreement. Counterparty acknowledges and respects all Intellectual Property rights of iwell. Allowed use of any intellectual property of iwell never means transfer of these rights. Intellectual Property of iwell remains intellectual property of iwell.
13.2 Counterparty is required to keep all confidential information of iwell confidential.
13.4 is allowed to unilaterally alter these terms and conditions. Iwell will notify Counterparty as such with one month notice. In case Counterparty is a natural person, not in the capacity of occupation and/or business, and an alteration results in a change of service that differentiates in the essence of the services, Counterparty has the right to terminate the agreement from the date that the altered conditions are applicable.
13.5 The English version of the General terms and conditions is a translation of the Dutch version. In case of conflict, the Dutch version is leading.
Artikel 14 – Applicable law and forum
14.1 Dutch law is applicable to all Agreements with iwell.
14.2 In case disputes cannot be resolved between Parties, Parties will turn to the competent Dutch Court of law in Utrecht.