Terms and Conditions

Last Updated: 19 August 2024

Introduction

Who we are. We are Spruce Energy Limited incorporated and registered in England and Wales with company number 14742634 whose registered office is at 126 Mildmay Road, London, England, N1 4NE (we, us or Spruce).

Our Services. These Terms and Conditions apply to our business customers using app.spruce.eco, our installation management Software for the heat pump industry (you or Installer).

PART A – Commercial Terms

1. Your core Subscription

1.1 Licence. Subject to you purchasing the Subscription and the restrictions set out in this agreement, Spruce hereby grants to the Installer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services during the Subscription Term.

1.2 Subscription length. The Subscription and this agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be automatically renewed for successive periods equivalent to the Initial Subscription Term (each a Renewal Period).

1.3 Cancelling your Subscription. Either of us can cancel your Subscription by notifying the other of cancellation, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Subscription and this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period.

2. Product Add-ons

2.1 You may purchase Product Add-ons as agreed with us from time to time.

2.2 Subject to you paying the agreed Product Add-on Fees in accordance with this agreement, Spruce shall provide and grant you access to the Product Add-ons.

3. Fees and payment

3.1 Subscription Fees. You shall pay the Subscription Fees to Spruce for the Subscription.

3.2 Product Add-on Fees. You shall pay the Product Add-on Fees to Spruce for any applicable Product Add-ons that you choose to purchase.

3.3 Authorising payment. You shall on the Effective Date provide to Spruce valid, up-to-date and complete credit card details or direct debit information acceptable to Spruce and any other relevant valid, up-to-date and complete contact and billing details and, if you provide:

(a) your credit card details to Spruce, you hereby authorise Spruce to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term;
(ii) subject to 1.2:
(A) on each anniversary of the Effective Date (for annual plans); or
(B) each month on (or around) the same day of the month as the Effective Date (for monthly plans);
(C ) for the Subscription Fees payable in respect of the next Renewal Period; and
(iii) on any date, or in any cadence, communicated to you, or agreed between us, in
respect of the Product Add-on Fees.
(b) your approved direct debit information to Spruce, you hereby authorise Spruce to create a
direct debit and debit it:
(i) on (or around) the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to 1.2:
(A) on (or around) each anniversary of the Effective Date (for annual plans); or
(B) each month on (or around) the same day of the month as the Effective Date (for monthly plans); for the Subscription Fees payable in respect of the next Renewal Period; and
(iii) on any date, or in any cadence, communicated to you, or agreed between us, in
respect of the Product Add-on Fees.

3.4 Late payment. If Spruce has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Spruce:
(a) Spruce may without liability to you, disable your password, account and access to all or part of the Services and Spruce shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Spruce's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

3.5 Fees increases. Spruce shall be entitled to increase the Subscription Fees and/or the Product Add- on Fees at the start of each Renewal Period upon 30 days' prior notice to you. If you do not agree with the increase in the Fees you may terminate this agreement in accordance with 1.3.

3.6 Other payment terms. All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable; and
(c ) are exclusive of value added tax, which shall be added to Spruce's invoice(s) at the appropriate rate.

4. Your obligations

4.1 What you must do. You must:
(a) provide Spruce with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by Spruce; in order to provide the Services, including but not limited to Installer Data, security access information and configuration services;
(b) ensure that each Authorised User shall keep a secure password for their use of the Services and that each Authorised User shall keep their password confidential;
(c ) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Spruce;
(d) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(e) carry out all other Installer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Installer's provision of such assistance as agreed by the parties, Spruce may adjust any agreed timetable or delivery schedule as reasonably necessary;
(f) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(g) obtain and shall maintain all necessary licences, consents, and permissions necessary for Spruce, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(h) ensure that its network and systems comply with the relevant specifications provided by Spruce from time to time; and
(i) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Spruce's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Installer's network connections or telecommunications links or caused by the internet.

4.2 What you must not do. You must not:
(a) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity;
(iii) depicts sexually explicit images;
(iv) promotes unlawful violence;
(v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(vi) is otherwise illegal or causes damage or injury to any person or property; and Spruce reserves the right, without liability or prejudice to its other rights to the Installer, to disable the Installer's access to any material that breaches the provisions of this clause.
(b) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services;
(c ) access all or any part of the Services in order to build a product or service which competes with the Services;
(d) subject to 22.1, license, sell, rent, lease, transfer or assign the Services; or
(e) introduce or permit the introduction of, any Virus or Vulnerability into the Services or Spruce's network and information systems.

4.3 Installer Data. You shall own all right, title and interest in and to all of the Installer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Installer Data, but you acknowledge that Spruce may acquire database rights in the Installer Data as part of providing the Services

5. Spruce's obligations

5.1 Providing the Services. Spruce shall, during the Subscription Term, provide the Services on and subject to the terms of this agreement and with reasonable skill and care.

5.2 Support. Spruce will, as part of the Services provide the Installer with Spruce's standard customer support services during Normal Business Hours.

5.3 Spruce:
(a) does not warrant that:
(i) the Installer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services and/or the information obtained by the Installer through the Services will meet the Installer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Installer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.4 This agreement shall not prevent Spruce from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.

5.5 Spruce warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.

5.6 Spruce's obligations at 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Spruce's instructions, or modification or alteration of the Services by any party other than Spruce or Spruce's duly authorised contractors or agents. If the Services do not conform with the terms of clause 5.1, Spruce will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Installer's sole and exclusive remedy for any breach of the undertaking set out in 5.1.

5.7 In the event of any loss or damage to Installer Data, the Installer's sole and exclusive remedy against Spruce shall be for Spruce to use reasonable commercial endeavours to restore the lost or damaged Installer Data from the latest back-up of such Installer Data maintained by Spruce. Spruce shall not be responsible for any loss, destruction, alteration or disclosure of Installer Data caused by any third party (except those third parties sub-contracted by Spruce to perform services related to Installer Data maintenance and back-up for which it shall remain fully liable.

PART B – Legal Terms

6. Data protection

Spruce and Installer will comply with the DPA.

7. Third party providers

The Installer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Spruce makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Installer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Installer and the relevant third party, and not Spruce. Spruce recommends that the Installer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Spruce does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

8. Proprietary rights

8.1 The Installer acknowledges and agrees that Spruce and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Installer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.
8.2 Spruce confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

9. Indemnities

9.1 The Installer shall defend, indemnify and hold harmless Spruce against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Installer's use of the Services, provided that:

(a) the Installer is given prompt notice of any such claim;
(b) Spruce provides reasonable co-operation to the Installer in the defence and settlement of such claim, at the Installer's expense; and
(c ) the Installer is given sole authority to defend or settle the claim.

9.2 Spruce shall defend the Installer, its officers, directors and employees against any claim that the Installer's use of the Services in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Installer for any amounts awarded against the Installer in judgment or settlement of such claims, provided that:
(a) Spruce is given prompt notice of any such claim;
(b) the Installer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Spruce in the defence and settlement of such claim, at Spruce's expense; and
(c ) Spruce is given sole authority to defend or settle the claim.

9.3 In the defence or settlement of any claim, Spruce may procure the right for the Installer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Installer without any additional liability or obligation to pay liquidated damages or other additional costs to the Installer.

9.4 In no event shall Spruce, its employees, agents and sub-contractors be liable to the Installer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Spruce; or
(b) the Installer's use of the Services in a manner contrary to the instructions given to the Installer by Spruce; or
(c ) the Installer's use of the Services after notice of the alleged or actual infringement from Spruce or any appropriate authority; or
(d) the Installer's breach of this agreement.

9.5 The foregoing and 10.3(b) state the Installer's sole and exclusive rights and remedies, and Spruce's (including Spruce's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

10. Limitation of liability

10.1 Except as expressly and specifically provided in this agreement:
(a) the Installer assumes sole responsibility for results obtained from the use of the Services by the Installer, and for conclusions drawn from such use. Spruce shall have no liability for any damage caused by errors or omissions in any Installer Data, information, instructions or scripts provided to Spruce by the Installer in connection with the Services, or any actions taken by Spruce at the Installer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c ) the Services are provided to the Installer on an "as is" basis.

10.2 Nothing in this agreement excludes the liability of Spruce:
(a) for death or personal injury caused by Spruce's negligence; or
(b) for fraud or fraudulent misrepresentation.

10.3 Subject to 10.1 and 10.2:
(a) Spruce shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and
(b) Spruce's total aggregate liability to the Installer (including in respect of the indemnity at 9.2), in respect of all breaches of duty occurring within any contract year shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, Spruce’s total liability for those claims shall not exceed the single highest annual cap for those contract years.
(c ) In clause 10.3(b):
(i) cap. The cap is one hundred per cent (100%) of the total Fees paid in the contract
year in which the breaches occurred;
(ii) contract year. A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.

10.4 References to liability in this clause 10 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.5 Nothing in this agreement excludes the liability of the Installer for any breach, infringement or
misappropriation of Spruce’s Intellectual Property Rights.

11. Termination

11.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c ) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(d) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

11.2 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Installer shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other party; and

(c ) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

12. Confidentiality

12.1 Each party undertakes that it shall not at any time during this agreement, and for a period of two years after termination or expiry of this agreement, disclose to any person any Confidential Information of the other party, except as permitted by Clause 12.2.

12.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this Clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

13. Force majeure.

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days' written notice to the affected party.

14. Variation

14.1 We may change the terms of this agreement (including any policies referred to in them) at any time. We will seek to provide you with reasonable notice of changes unless we need to make a change with immediate effect.

14.2 Your continued use of the Services after having been notified of changes will be deemed your agreement to those changes and they will take effect immediately.

15. Waiver

15.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

15.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

16. Rights and remedies.

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

17. Severance

17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

17.2 If any provision or part-provision of this agreement is deemed deleted under 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

18. Entire agreement

18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

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

18.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

19. Assignment

19.1 The Installer shall not, without the prior written consent of Spruce, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
19.2 Spruce may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.

20. No partnership or agency.

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

21. Third party rights.

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

22. Notices

22.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to the following addresses (or an address substituted in writing by the party to be served):
(i) Spruce: legal@spruce.eco
(ii) Installer: the email address used by the Installer upon signing up to the Services.

22.2 Any notice shall be deemed to have been received at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

22.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. Governing law.

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

24. Jurisdiction.

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

25. Definitions and interpretation

25.1 The definitions and rules of interpretation in this clause apply in this agreement.

Authorised Users: those employees, agents and independent contractors of the Installer who are authorised by the Installer to use the Services.

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

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, assets, affairs, customers, clients, suppliers, or plans of the disclosing party; and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party.

Installer Data: the data inputted by the Installer, Authorised Users, Homeowners or Spruce on the Installer's behalf for the purpose of using the Services or facilitating the Installer's use of the Services.

DPA: means the Data Processing Agreement at www.spruce.eco/dpa.

Effective Date: means the date the Installer first pays the Subscription Fees.

Fees: the Subscription Fees and the Product Add-on Fees.

Homeowner: means the Installer’s customer who will provide data to the Installer in order for the Installer to utilise the Services.

Initial Subscription Term: the initial term of this agreement meaning:

Monthly plans: 1 month
Annual plans: 12 months
(as applicable)

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.

Product Add-on: means additional products or services that may be provided by Spruce to the Installer as part of its Subscription.

Product Add-on Fees: the fees payable by the Installer to Spruce for the Product Add-ons, as communicated by Spruce to the Installer in writing.

Services: the services provided by Spruce to the Installer under this agreement via app.spruce.eco or any other website notified to the Installer by Spruce from time to time including the Software and the Product Add-ons.

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

Subscription Fees: the subscription fees payable by the Installer to Spruce for the Subscription, as communicated by Spruce to the Installer in writing.

Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.

Subscription: the subscription purchased by the Installer which entitles Authorised Users to access and use the Services in accordance with this agreement.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

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

25.2 Clause and paragraph headings shall not affect the interpretation of this agreement.

25.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

25.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

25.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

25.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

25.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

25.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

25.9 A reference to writing or written excludes fax but not email.

25.10 References to clauses are to the clauses of this agreement.