These Agreement Terms and Conditions and the Application Form (collectively, the “Contract”) constitute an agreement between Hilo Services Inc. (“Hilo”) and the entity or person accepting the Contract (the “Customer”).
If one of the Customer’s Representatives accepts the Contract on behalf of the Customer, the Customer declares that: (i) the Representative has the full legal authority to bind the Customer under the Contract; (ii) the Representative has read and understands the Contract; and (iii) the Representative accepts the Contract on behalf of the Customer.
The Contract takes effect on the date on which the Customer signs the Application Form (the “Start Date”) and ends when the Agreement ends. The Contract governs the Customer’s access to and use of the Services.
Hilo is required to access the Data to assess and confirm the Building’s eligibility for the Services and to prepare the Customer’s participation in personalized Challenges, where applicable. The Customer must provide its authorization and consent for HQ to share its Data with Hilo for this purpose.
Subject to the above, the following are eligible to receive the Services:
Following its analysis, Hilo will advise the Customer in writing of its decision whether to accept its Agreement. A Customer’s fulfillment of the eligibility criteria listed above does not guarantee that the Services will be offered. Where applicable, Hilo’s refusal of an Agreement is final and without charge or compensation whatsoever to the Customer.
Subject to Section 10 (End of Agreement and cancellation), if Hilo accepts the Agreement request in accordance with Section 1 (Eligibility criteria), the Agreement will begin when the Customer receives the confirmation that the Services have been implemented in the Building (the “Agreement Start Date”) and will end when the Optional Period, where applicable, and five (5) complete, consecutive Winter Seasons have elapsed (together with the Optional Period, the “Initial Period”). A different Initial Period may be agreed upon by the Parties in the Form. At the end of the Initial Period, and in the absence of a notice of non-renewal in accordance with Section 10 (End of Agreement and cancellation), the Agreement will be renewed automatically at the same terms and conditions for consecutive periods of one (1) year unless otherwise cancelled in accordance with the Contract (the “Renewal Period”).
The Customer will receive a discount on the Connection Fees equal to a percentage (%) agreed to by the Parties in the Application Form. The discount on the Connection Fees will be applied automatically in reduction of consideration of the total amount of such fees, directly in the Application Form.
Subject to any other remedy available to Hilo, in the event that the Customer is in Default or cancels the Agreement without cause in accordance with the terms and conditions set out in Section 10 (End of Agreement and cancellation), the amount of the discount applied to the total Connection Fees will be refunded in full to Hilo by the Customer (the “Refund”). Where applicable, the amount of the Refund to be paid by the Customer is subject to specific tax rules and must therefore be grossed up to cover any taxes deemed to be included in such a payment under section 182(1) of the Excise Tax Act and section 318 of the Act respecting the Québec sales tax. The gross-up amount is roughly equal to the GST and QST.
During the Initial Period, the Customer will also receive a discount on the Fees corresponding to a percentage (%) agreed to by the Parties in the Application Form. The discount on the Fees will be applied automatically during the Initial Term in reduction of consideration of such Fees, directly in the Application Form.
Subject to any other remedy available to Hilo, in the event that the Customer is in Default or cancels the Agreement without cause in accordance with the terms and conditions set out in Section 10 (End of Agreement and cancellation), the Customer will not be entitled to any discount on the Fees or the Connection Fees.
The discount on the Fees expires at the end of the Initial Period. Therefore, for any Renewal Period, the Customer must pay the annual amounts for such fees as agreed by the Parties in the Application From in accordance with Section 5 (Service fees).
Calculation of Reward. During the Initial Period and any Renewal Period, Hilo will pay the Customer in consideration for the Customer’s participation in the Challenges. This is an annual payment equal to the Unit Amount multiplied by the measured Curtailment (kWh) (the “Reward”).
Reward before the first Winter Season. Notwithstanding any provision of the Contract, including Section 6 (Participation in Challenges) in particular, in cases where the Agreement Start Date occurs during a Winter Season that is currently underway, the period between the Agreement Start Date and the end of this first Winter Season will be considered an optional period for the Customer (the “Optional Period”). During any Optional Period, the Customer’s participation in the Challenges is optional, and the Customer will not be required to meet the minimum participation rate in the Challenges during the Optional Period. Any Reward earned by the Customer during the Optional Period will be paid.
Reward adjustment. If Hilo does not allow the Customer to participate in the maximum total Challenge hours agreed by the Parties in the Application Form during any given year and, as a result, the Reward calculated under this Section 4 is not sufficient to cover the Annual Balance (as this term is defined in Section 5 (Service fees)) and the Fees (the “Annual Fees”), the Reward will be increased such that the Annual Fees payable to Hilo will be zero dollars ($0) for that year. Subject to any other remedy available to Hilo, this upwards adjustment will be made only if the Customer is not in Default.
Reward remittance. At the end of each Initial Period or Renewal Period, Hilo will advise the Customer of the amount of the Reward (adjusted, if applicable), and the Customer must, within thirty (30) days, submit an invoice to Hilo for this amount by email at the following email address: email@example.com. Hilo will pay the amount of the Reward that is due and that has been properly invoiced within sixty (60) days following receipt of said invoice using the payment method agreed to by the Parties in the Application Form. Hilo reserves the right to refuse an invoice not submitted by the Customer within the above time limit of thirty (30) days. Without prejudice, Hilo may offset any sum owed to it by the Customer under Section 5 (Service fees) against any Reward that Hilo may owe to the Customer.
The Application Form indicates the total Connection Fees agreed by the Parties, which is reduced, during the Initial Period only, by the agreed discount for the Connection Fees in accordance with Section 3 (Discount). The Connection Fees indicated in the Application Form, less the discount provided in Section 3 (Discount), plus the applicable GST and QST (the “Balance”), will be divided in equal shares over the Initial Period on an annual basis (the “Annual Balance”). At the end of each year of the Initial Period, Hilo will send the Customer an annual report of its Agreement reflecting the Annual Balance for the year just ended. The Annual Balance is due upon receipt of the annual report.
At the end of each year during the Initial Period and every Renewal Period, Hilo will issue an invoice to the Customer for the amounts agreed by the Parties in the Application Form concerning the Fees for the year just ended. During the Initial Period only, the amounts invoiced will reflect the discount provided for in Section 3 (Discount) where applicable.
The Customer agrees to pay any amount owing to Hilo within sixty (60) days of the invoice date. Late payments are subject to a charge of 2% per month. In addition, subject to any other remedy available to Hilo under the Contract, Hilo reserves the right to suspend the Agreement if the Customer does not pay the annual Fees it owes within ten (10) days following Hilo’s sending of a notice to the Customer advising it of its failure to make a payment.
The Customer may not, without Hilo’s prior authorization, offset any Reward owing by Hilo under Section 4 (Reward) against any annual Fees that the Customer may owe to Hilo.
Hilo may (but is not required to) request that the Building reduce its power demand until the maximum annual duration for the Challenges has been reached, as agreed by the Parties in the Application Form. Where applicable, the Customer undertakes to participate in Challenges in accordance with the terms and conditions of participation agreed to in the Application Form and in the Contract. In particular, the Customer must meet the minimum participation rate for the Challenges. Hilo will advise the Customer through the Energy Monitoring System that its participation is required no later than 5 p.m. on the day before the Challenge.
In order for Hilo to successfully install and implement the Services, the Customer must, on request, provide any required information, prepare the area of the Building where the Services will be installed and follow the other steps outlined in this Section 7. Any delay by the Customer in carrying out these preparatory steps may delay installation of the Services.
Hilo and the Customer will schedule a time for the installation of Services, which must be on a business day between 6 a.m. and 6 p.m. and comply with all collective agreements applicable to workers, and in particular any collective agreements concerning Québec’s construction industry, if applicable.
If the Devices are physically located in an area of the Building, the Customer must provide Hilo with secure and reasonable access to this area so that Hilo may install, maintain and test the Services and all Devices, equipment, components, software and communication connections that Hilo uses to provide its Services.
The Customer must:
a) Meet all requirements of the lessor, owner or manager of the Building or any other person Hilo requires to install and maintain the Services;
b) Obtain all rights and approvals and pay the fees required by any of the persons mentioned in the previous paragraph concerning installation or maintenance of the Services;
c) Provide Hilo with access to the location where the Controller will be installed and keep this area accessible, with reasonable prior notice, from the Start Date until the Agreement expires. If the Customer has requested that Hilo program the BMS control sequences, then access must also extend to this equipment;
d) Maintain the connection between the BMS and the Controller, in accordance with the Connectivity Policy;
e) Keep all information on the Energy Monitoring System up to date, including the email address of the person responsible for the Agreement, as well as any information provided to Hilo as part of the Services;
f) Ensure that any passwords for the Energy Monitoring System remain confidential, and maintain the security of access to the Devices, Controller, Hub and to the portion of the BMS providing access to the Data or other information collected by Hilo for the provision of the Services;
g) Ensure that its BMS remains functional, in accordance with established standards, including the BACnet/IP Protocol;
h) Advise Hilo of any modification or alteration to the BMS carried out after installation of the Devices, Hub, Controller and implementation of the Services;
i) Allow Hilo, during the Test Period, to test and verify that the Services are in good working order, withoutRewards.
j) Maintain the DM strategies implemented by Hilo for the entire period during which the Services are provided, despite any modification or alteration to the BMS following installation of the Devices, Hub and Controller or the implementation of the Services;
k) Maintain its electricity service with HQ, in accordance with the eligibility criteria for the Services and respect all applicable rates and service conditions.
The Customer must have a Hilo account on the Energy Monitoring System to use the Services. The Customer is responsible for the information provided when creating an account, the security of its account passwords and any use of its account.
The Customer must:
a) Ensure that its use of the Services, or use of the Services by its end users, respects the Contract;
b) Use commercially reasonable efforts to prevent any unauthorized access to or use of the Services;
c) Inform Hilo as soon as possible upon becoming aware that the Services, its Energy Monitoring System account or its account password were accessed without authorization or were used in an abusive manner;
d) Allow the Data to be shared with Hilo throughout the entire period during which the Services are provided;
e) Share financial and quantitative data with Hilo in connection with all other sources of energy consumption in the Building;
f) Advise Hilo of any change in the end users or mandataries benefitting from the Services;
g) Maintain access to the Building for Hilo Representatives so they can conduct tests and improve the Devices, Hub, Controller or Services;
h) Maintain physical and computer access to the Meters covered by the Services for Hilo Representatives throughout the entire duration of the Agreement in accordance with the Connectivity Policy;
i) Inform Hilo of any modification that could significantly impact energy consumption including, but without limitation, any renovation, move or modification to the commercial or industrial facilities within the Building;
j) Advise Hilo of any problem with or malfunction of the Devices, Hub or Controller that has been brought to its attention;
k) Guarantee compliance with respect to the powers, mandates, rights and authorizations in connection with the Contract, as well as the permits and licences required to perform the Contract in accordance with standards in effect in the province of Québec;
l) Maintain the annual participation rate in Challenges for the Building as stipulated in the Application Form.
The Services were created for professional use by the Customer and that of the Building’s occupants, and the Customer may not, either directly or indirectly, sell, resell, license, transfer, lease, invoice fees for or distribute the Services without Hilo’s written consent.
Furthermore, the Customer must not:
i. Make any false statements in order to benefit from the Services;
ii. Use the Services is such a way as to avoid payment of Fees;
iii. Use the Services in such a way as to compromise or alter fair calculation of the Reward;
iv. Modify or interfere with the Services, Devices, Hub or Controller;
v. Perform installations or activities in the immediate area of the Devices, Hub or Controller used to provide the Services, in a way that could damage or alter the integrity of the Devices, Hub or Controller;
vi. Use the Services in an illegal or abusive manner.
The Customer agrees that Hilo may take the necessary measures to ensure compliance with paragraphs i to vi of this Section 8. These measures may include, without limitation, performing audits and diagnostics on the Building’s control systems that were implemented for the purposes of the Services. Furthermore, Hilo reserves the right to interpret the Curtailment results in order to ensure that they respect the intended objectives, and in particular the Curtailment curve agreed upon as part of the Services solution.
Furthermore, throughout the Agreement, Hilo undertakes to provide the Customer with reasonable advance notice of any visit requiring access to the Building. This advance notice may be shortened, however, to maintain continuity of the Services or in emergencies, or waived entirely by an agreement to this effect by Parties.
For the purposes of the Contract, Hilo undertakes to establish specific measures concerning the good working order the Devices, Hub and Controller, as well as to supply the Devices, Hub and Controller and install them in the Building based on its diagnostic analysis to support the implementation of the Services.
In addition, Hilo must:
a) Carry out a diagnostic analysis of the Building to enable implementation of the Services;
b) Supply the Devices, Controller and Hub under the Contract;
c) Program the Devices, Controller and Hub during their installation or, if necessary, before their installation in the Building.
d) If required, carry out the electrical installation of the Controller and Hub in the Building;
e) If required, carry out the electrical installation of the telecommunication outlet for the Controller in accordance with the Connectivity Policy;
f) If required, program the Building’s BMS to enable implementation of the Services in the Building. Such programming may include supervision of the BMS, backing up the programming and programming of the BMS itself, depending on the Customer’s needs;
g) At the initial installation, update the BMS graphs in connection with the Data collected as part of the Challenges;
h) Establish the Services as defined in the Contract and ensure that the necessary verifications are made for the purposes of the Contract;
i) Make the Energy Monitoring System accessible to the Customer for monitoring of the Services, including tracking the Challenges among other things;
j) Offer Customer Service for follow-ups concerning optimization of the Services implemented and their use by the Customer;
k) Replace, at no charge, any defective Device, Hub or Controller installed in the Building and that interferes with the Services received by the Customer, on condition that this defect does not result from the Customer’s fault or negligence and that Hilo is advised of the defect within a reasonable amount of time.
Only Hilo Representatives may handle the delivery, replacement or modification of the Devices, Hub or Controller, unless otherwise agreed by the Parties.
Furthermore, throughout the Agreement, Hilo undertakes to provide the Customer with reasonable advance notice of any visit requiring access to the Building. This advance notice may be shortened, however, to maintain continuity of the Services or in emergencies, or waived entirely by an agreement to this effect by Parties.
Non-renewal A Party may end the Agreement by providing written notice to this effect thirty (30) days before expiry of the Initial Period or of any Renewal Period, where applicable.
Cancellation for cause by Hilo Subject to any other remedy available to Hilo, if the Customer is in Default, Hilo may, in the absence of a correction of the Default to Hilo’s satisfaction, cancel the Agreement. The Agreement will be deemed to have been cancelled on the date indicated in the notice of cancellation. In such a case, the remaining Balance, as well as the Refund, will become immediately due and payable as payment of the value of work performed. The Customer will also pay the Refund to Hilo. These amounts may be subject to specific tax rules and may therefore be grossed up to cover any taxes deemed to be included in such payment under section 182(1) of the Excise Tax Act and section 318 of the Act respecting the Québec sales tax. This gross-up is roughly equal to the GST and QST. Lastly, the Customer must pay Hilo the Fees, without the discount provided for in Section 3 (Discount), prorated based on the number of months that have elapsed as of the effective date of cancellation.
Cancellation for cause by the Customer. If Hilo breaches four (4) or more of its material obligations, which need not be identical, during the twelve (12) previous months concerning which a written notice has been provided by the Customer, such conduct constitutes grounds for cancelling the Contract without further notice or opportunity for Hilo to remedy the situation. For the purposes of this paragraph, a breach of one of the following elements of these terms and conditions by Hilo is a breach of a material obligation: 4 (Reward), 9 (Service inclusions and exclusions) and 13 (Privacy) or, subject to the terms and conditions of the Contract, the special conditions agreed to by the Parties in the Application Form.
Unilateral cancellation by Hilo. Hilo reserves the right to cancel all or part of the Agreement at its sole discretion at any time during the Contract. Such unilateral cancellation of the Agreement will be possible following ten (10) working days after a notice has been sent to the Customer specifying the terms and conditions of the cancellation. Such decision may result from, but is not limited to, any obligation or decision resulting from the applicable regulatory framework determined by the Régie de l’énergie.
Adjustment. In the event of a cancellation for cause by the Customer or a unilateral cancellation by Hilo (as provided above), the remaining Balance will be reduced to zero dollars ($0), and no Fees will be payable to Hilo for the current year. However, these amounts are subject to specific rules and may therefore be grossed up to cover any taxes deemed to be included in such amounts that were the subject of a waiver in favor of the Customer under section 182(1) of the Excise Tax Act and section 318 of the Act respecting the Québec sales tax. This gross-up is roughly equal to the GST and QST. No other fee or compensation may be required from Hilo and, where applicable, the Customer waives its rights under articles 2126 and 2129 of the Civil Code of Québec.
Unilateral cancellation by the Customer. The Customer may cancel its Agreement at any time during the Contract, at its entire discretion. Such unilateral cancellation is possible only after a written notice to this effect has been sent to Hilo at least thirty (30) days before the anticipated cancellation date. The Agreement will be deemed cancelled as of the date indicated in the cancellation notice. The Customer hereby otherwise waives its right under article 2125 of the Civil Code of Québec. In the event of a unilateral cancellation by the Customer, whatever Balance remains, as well as the Refund, become immediately due and payable as payment of the value of the work performed. These amounts may be subject to specific tax rules and may therefore be grossed up to cover any taxes deemed to be included in such payment under section 182(1) of the Excise Tax Act and section 318 of the Act respecting the Québec sales tax. This gross-up is roughly equal to the GST and QST. Lastly, the Customer must pay Hilo the Fees, without the discount provided for in Section 3 (Discount), prorated based on the number of months that have elapsed as of the effective date of cancellation.
Hub and Controller. The Hub and Controller installed in the Building, including their components, are rented to the Customer for the Initial Period and any Renewal Period at no additional cost. The Hub and Controller remain the property of Hilo at all times. In no case will it be possible for the Customer to obtain ownership of the Hub and Controller, whether by integration to an immovable or acquisitive prescription, without the written consent of Hilo. Once the Agreement ends or is cancelled, and unless the Customer provides a written request, Hilo may, but is under no obligation to, remove the Hub or Controller installed in the Building, at Hilo’s expense. Where applicable, only Hilo Representatives may remove the Hub and Controller, unless the Parties have agreed otherwise in writing.
During the Initial Period and any Renewal Period, the Customer must maintain the integrity of the Hub and Controller, failing which their replacement, if damaged, will be at the Customer’s expense, including applicable installation fees.
Intellectual Property. Hilo owns all intellectual property rights in the Services, whether as owner or authorized licensee. No trade secret, technical information, knowhow, patent, copyright, trademark or other exclusive right or intellectual property right is provided under license, granted or otherwise transferred directly or implicitly, by preclusion or otherwise, by Hilo to the Customer.
The Customer undertakes at all times to refrain from doing the following, or authorizing anyone to do the following, without Hilo’s prior written consent: (a) copy, modify the Services or create a work derived from the Services; (b) reverse-engineer, decompile, translate, disassemble or attempt to extract the Services in any other manner.
Any advertising project by or for the Parties with respect to the Contract must be submitted for written approval by the other Party. This applies to all advertising media, such as signs, billboards or other media, as well as any written or electronic media. However, the Data may be used for promotional purposes by Hilo, on condition that they have been anonymized and do not allow their source to be identified.
The Customer undertakes never to use the information collected under the Contract to perform comparative analysis tests on the Services, or to have them performed, for itself or for a provider of services that are similar to the Services. The Customer may transmit, at its discretion, comments or suggestions to Hilo concerning the Services (the “Comments”). Interpretation and use of such Comments by Hilo will be at its entire discretion and does not create an obligation toward the Customer.
During the Initial Period and any Renewal Period, the Customer agrees to receive communications from Hilo concerning its offers, products and Services. Such consent remains valid for three (3) years following the end or cancellation of the Agreement, unless the Customer withdraws its consent by contacting Hilo’s CS.
Obligations of confidentiality. Confidential Information must be kept confidential and used only for the purposes of the Services. It must not, without the prior written consent of the Disclosing Party, be disclosed or used by the Receiving Party or its Representatives in any manner whatsoever, in whole or in part, in a way that does not comply with the requirements of this Section 13.
Disclosure to Representatives. The Receiving Party is allowed to provide or disclose Confidential Information only to those of its Representatives who need to know the Confidential Information for the sole purpose of providing the Services and who have been informed by the Receiving Party of the confidential nature of the Confidential Information. Such Representatives must agree to be bound by obligations of confidentiality that are as restrictive as those provided in this Section 13, and the Receiving Party must instruct them not to provide or reveal any Confidential Information to any other person. The Receiving Party must take all reasonable measures (legal measures in particular) against its Representatives to prevent the prohibited or unauthorized disclosure or use of Confidential Information.
Liability and injunction. The Receiving Party is liable for any breach of this Section 13 by any of its Representatives. The Receiving Party understands and acknowledges that the Disclosing Party may sustain immediate and irreparable harm not compensated by monetary damages in the event of a breach of this Section 13 by the Receiving Party or its Representatives. As a result, the Receiving Party agrees that in addition to any other remedy that the Disclosing Party may claim, the Disclosing Party has the right to request one or more injunctions (without the need to provide suretyship or evidence of actual damage) in order to prevent an actual or imminent breach of this Section 13.
Legal communication request. If the Receiving Party or its Representatives are requested or required to disclose Confidential Information (by deposition, examination, request for documents, request for information under applicable access-to-information legislation, subpoena to a witness, civil investigation, exercise by a regulatory authority or another government body having jurisdiction over the concerned Party, the object in question or other similar enforcement measures), the Receiving Party must immediately advise the Disclosing Party in writing of such requests or requirements, to the extent permitted by law, and must collaborate with the Disclosing Party so that the latter may, at its expense, apply for an appropriate protective order or institute any other appropriate remedy. In the absence of a protective order or the exercise of another remedy, the Receiving Party may disclose this Confidential Information if, in the opinion of its legal advisors, the Confidential Information is presented in response to a request for communication or a request under legal or administrative procedures; however, the Receiving Party or its Representatives must use reasonable efforts to obtain assurances that the Confidential Information will be handled with the utmost confidentiality.
Ownership of Confidential Information. The Disclosing Party maintains ownership of the Confidential Information provided or disclosed to the Receiving Party at all times.
Sharing of Data with HQ. For the purposes of the Contract, the Customer authorizes Hilo to share the Data with HQ in real time, with the exception of the Building’s telemetry data, and to obtain from HQ any information the latter holds concerning energy consumption in real time, as well as any historical data concerning the Customer’s electricity account. Such sharing of information also extends to all technical and technological information concerning the Customer’s electricity contract with HQ for the Building.
Use of Data after the Agreement ends. After the Agreement ends, Hilo may store the Data unless the Customer makes a written request for Hilo to destroy it. Data stored by Hilo will be anonymized and may be used in order to improve its Services, whether for statistical purposes or for analysis of its technologies. Furthermore, after the end of the Agreement, Hilo undertakes not to allow access to the Data except by the Representatives who require it.
Hilo does not warrant that its Services will be free of error or interruption. Hilo provides no express, implicit, statutory or legal warranty concerning the Services, including Curtailment, Potential Curtailment and any Reward, other than what is specifically set out in the Contract. The Contract expressly disclaims and excludes all implied warranties of merchantability and fitness of the Services for a particular purpose.
Hilo is not liable to the Customer for any loss of profit, business opportunities or any failure of or problem with the Services. This limitation applies even if Hilo is aware (or should be aware) that such losses are possible. Therefore, Hilo cannot be held liable for any indirect, special, incidental, consequential or punitive damage, regardless of the nature of the proceedings instituted and whether on a contractual or extracontractual basis.
Limitations and exclusions under this Section 14 apply to any claims whatsoever made against Hilo and its affiliates.
Before performing the Services, Hilo will purchase and maintain in force, at its expense for the duration of the Services stipulated in the Agreement and for the twelve (12) months that follow: a) liability insurance against financial consequences for which it may be liable as the result of personal injury, material damage or the loss of use of tangible property, in the amount of two million dollars ($2,000,000) covering damage to property and to persons that may be caused during performance of the Services; b) tenant’s liability insurance to cover material damage or loss of use caused to the Customer’s Building in the amount of one million dollars ($1,000,000); and c) equipment breakdown insurance covering equipment provided as part of its Services, the amount of which is determined based on the replacement cost of the insured equipment.
Hilo may delegate its obligations relating to the Services, in whole or in part, to a subcontractor without the prior written consent of the Customer and will advise the Customer to this effect.
The Agreement may not be assigned by either Party without the prior consent of the other Party, which may not be unreasonably withheld or delayed. Notwithstanding the above, Hilo may assign the Agreement, in whole or in part, without the Customer’s prior consent, as part of a merger, sale of shares, restructuring, consolidation or other similar business operation, or as part of the full or partial sale of its assets to a third party.
Hilo has the right to modify the Contract including any related documents. Notwithstanding the above, unless otherwise indicated by Hilo, modifications to the special conditions provided in the Application Form, to the Initial Period, to the Penalty or to the Contract that would increase the Customer’s obligations or reduce Hilo’s obligations take effect thirty (30) days after the Customer has been notified, except for modifications required by court order or applicable legislation, which will be effective immediately. Hilo will send the Customer a written notice in the form of an email to the email address of the person who is responsible for the Customer’s Agreement. It is the Customer’s responsibility to keep its contact information up to date.
If the Customer does not agree to the modification to the special conditions provided in the Application Form concerning the Initial Period, the Penalty or the Contract that would increase the Customer’s obligations or decrease Hilo’s obligations, the Customer may end the Agreement by sending a written notice to Hilo within thirty (30) days following the effective date of the modification. In such a case, cancellation of the Agreement by the Customer will be considered a Cancellation for cause by the Customer as provided in Section 10 (End of Agreement and cancellation). If the Customer continues to use the Services after thirty (30) days following the effective date indicated in the notification, the modification will take effect.
Notwithstanding the above, any modification made to the BACnet/IP Protocol and other documents related to the Contract but not originating from Hilo may be made unilaterally by their respective creators. The Customer will be notified of this modification, if it is substantial, within a reasonable period of time once this modification has been brought to Hilo’s attention.
At the end of the Agreement or in the event of cancellation, the Customer’s account will be deactivated. If the Customer is not in Default under the original Agreement, the Customer’s authorized Representative may reactivate the Agreement for the Building by contacting Hilo Customer Services. Where applicable, such reactivation will be deemed to be a Renewal Period for the purposes of the Contract. The reactivation of the Agreement will be subject to the special conditions provided in the original Application Form (unless Hilo determines that circumstances related to the Building require that it be re-examined), as well as to the terms and conditions of the Contract in effect at such time, with the appropriate adaptations.
Hilo’s obligations concerning compensation. Subject to Section 14 (Warranty disclaimer and limitation of liability), Hilo undertakes to defend the Customer and its affiliates and to compensate them in the event that a claim or legal action is instituted by a third party based on an allegation that the Customer’s or its affiliates’ use of the Services infringes the intellectual property rights of the third party in question.
Customer’s obligations concerning compensation. The Customer undertakes to defend Hilo and its affiliates and to compensate them in the event that a claim or legal action is instituted by a third party based on the use of the Services by the Customer, its affiliates or end users in breach of the Contract.
In addition, if Hilo has reason to believe that the Services may infringe the intellectual property rights of a third party, it may, at its sole discretion and own expense, (i) authorize the Customer to continue using the Services; (ii) modify the Services so that they no longer constitute a breach, but without substantially limiting their functionality; (iii) replace the Services with an alternative equivalent functionality that does not breach such rights. If Hilo does not believe the above choices to be commercially reasonable, Hilo may suspend the Customer’s use of the affected Services or end the Services.
Without prejudice to the Parties’ rights to cancel the Agreement, this Section 20 (Compensation) defines the Parties’ only remedies under the Contract in cases involving an alleged breach to a third party’s intellectual property rights under this Section 20 (Compensation).
Currency. All amounts indicated herein are in Canadian dollars.
Independence of clauses. If a clause or any part of a clause in the Contract is found to be invalid, illegal or unenforceable by a competent court, such a decision will not impact the validity, legality or enforceability of the remaining clauses, and every clause or any part thereof is distinct, severable and independent.
Independence. The Contract does not create a relationship of representation, partnership, employment or joint venture and must not be interpreted as creating such a relationship. Hilo does not have the power to bind the Customer without its prior written consent.
Entire agreement. The Contract constitutes the entire agreement between the Customer and Hilo concerning its subject-matter. It replaces all promises and prior arrangements, whether verbal or written, and cannot be amended except by a written agreement duly signed by the Parties’ authorized Representatives.
Applicable law and jurisdiction. The Contract is governed by and must be interpreted in accordance with the laws of the province of Québec. The Parties irrevocably consent to the exclusive jurisdiction of the courts of the province of Québec in the legal district of Montréal in the event of any legal action concerning the Contract.
Survivability. Any Contract provision that must, given the applicable laws or due to its own nature, survive after the cancellation or expiry of the Contract will remain in effect despite such cancellation or expiry, and in particular Sections 11 (Ownership), 12 (Communications and advertising), 13 (Confidentiality), 14 (Warranty disclaimer and limitation of liability), 19 (Reactivation of the Agreement) and 20 (Compensation) of the Contract.
Taxes. All applicable taxes (GST and QST) are payable in addition to the amounts stipulated. Notwithstanding the above, if the GST, QST or any other tax system provides that taxes are included or deemed to be included in an amount payable to Hilo or in an amount that has been waived for the benefit of the Customer in connection with the Contract, and in particular in the event of the application of section 182(1) of the Excise Tax Act and section 318 of the Act respecting the Québec sales tax, the Parties agree that the amount payable to Hilo or waived for the Customer’s benefit will be grossed up to account for any tax deemed to be included in such amount.
Terms. The capitalized terms used here and not otherwise defined have the meaning attributed to them the Contract’s glossary.
“Actual consumption” means the consumption recorded by the Building’s Meter during a Challenge.
“Agreement” means the Customer’s Agreement for Services.
“Application Form” means the Agreement Form signed by the Customer.
“Average Temperature” means the average temperature calculated using weather data from the closest weather station to the Meter. The Customer is informed of this station once Hilo has accepted its Agreement.
“BACnet/IP Protocol” means all instructions and parameters applicable to the BMS concerning, among other things, the network topology and integration of technology into the Building, available here.
“BMS” or Building Management System, being the automated control system in place in the Building.
“Building” means the commercial, industrial or institutional building covered by the Agreement and identified in the Application Form. Where applicable, “Building” may refer to the part of the building covered by the Agreement, in which case only the premises identified in the Application Form will be subject to the Contract and eligible for the Services.
“Challenge” means the Customer’s participation in requests to reduce its power demand for the Building during the Reduction Phase, which is preceded by a Preheating Phase and followed by a Recovery Phase.
“Connection Fees” means the fees related to implementing the Services at the Customer’s premises.
“Confidential Information” means, for the purpose of the Contract, all information transmitted as part of the Agreement that the Customer or Hilo or one of their subsidiaries, affiliates or Representatives have exchanged or disclosed or are exchanging or disclosing to the other and/or their Representatives, whether in a tangible or intangible form and regardless of its form or medium (in particular, electronic and verbal communications), whether or not the confidential nature is expressly indicated. This term also includes the content of discussions concerning the Services, the fact that these discussions took place, as well as their status. It is understood that the expression “Confidential Information” does not include information (i) that is now or will become publicly accessible for reasons other than the actions or omissions of the Receiving Party or anyone to whom the Receiving Party has disclosed such Confidential Information, (ii) that the Receiving Party had in its possession on a non-confidential basis before the date on which it was provided or disclosed by the other Party and/or its Representatives, (iii) that a third party provides or discloses to the Receiving Party, and this third party is not, to the knowledge of the Receiving Party, prevented from disclosing this information by legal or fiduciary duty to the Disclosing Party, or (iv) that the Receiving Party or its Representatives have independently created without use of the Confidential Information.
“Controller” means the telemetry and telecommunications equipment installed by Hilo in the Building linking the BMS and the Energy Monitoring System, for the purposes of DM, as specified in the Connectivity Policy. This equipment remains the property of Hilo at all times.
“CS” means customer service.
“Curtailment” means a value, expressed in kWh, equal to the difference between the Reference Consumption and the Actual Consumption during the Customer’s participation in a Challenge. This value cannot be negative.
“Connectivity Policy” means all instructions and parameters enabling access to and the security of the telecommunications network, as defined in Hilo’s Connectivity Policy, available here: CONNECTIVITY POLICY.
“Curtailment Potential (kWh)” means the average estimated Curtailment for the Building as defined during the Building’s diagnostic on the basis of information supplied by the Customer. The Curtailment Potential is calculated for each of the Building’s Meters. If the Building has several Meters, the sum of the Potential Curtailment for all Meters is the Curtailment Potential for the Building. The targeted Curtailments are obtained by multiplying the Curtailment Potential by the number of Curtailment hours realized during a Challenge.
“Data” means the following information (including any updates): the Customer’s industry sector; all contact persons (for the Customer or for HQ); the rate applied to the Building; the Customer’s energy consumption in real time, consumption history and annual billing for the Building; the Building’s Meter model; the contract power and MPD, MBD, LF, PF; history of the Building’s consumption data and CO2 emissions, and telemetry data on the Building’s HVAC systems.
“Default” Each term and condition of the Contract will be considered an important element of the Contract. In the event that the Customer (i) makes false representations, or (ii) neglects or refuses to perform its obligations and undertakings under the Contract, or (iii) does not respect the terms and conditions of participation for Challenges agreed to by the Parties in the Application Form and (in the case of (ii) and (iii)) has received a thirty- (30-) day written notice from Hilo to remedy the default, then the Customer may be declared in default under the Contract.
“Devices” means all equipment installed or supplied to the Customer deliver the Services provided for in the Contract or for the application of the Connectivity Policy.
“Disclosing Party” means the Party disclosing Confidential Information.
“DM” means demand management.
“Energy Monitoring System” means the Web console(s) or application provided by Hilo to the Customer allowing the Customer to run, track or manage the Services, and the Challenges in particular.
“Fees” means all annual fees concerning maintenance and telecommunications services required for the Services.
“GST” means the goods and services tax.
“Hilo” means Hilo Services Inc., the provider of the Services.
“HQ” means Hydro-Québec, the legal person established in the public interest, created pursuant to the Hydro-Québec Act, CQLR c H-5.
“HVAC” means heating, ventilation and air conditioning.
“Hub” means the telecommunications equipment installed by Hilo allowing communication of Data between the Meter and the Energy Monitoring System, in accordance with the Connectivity Policy, for the purposes of DM. This equipment remains the property of Hilo at all times.
“Linear Regression” is calculated based on the Average Temperature recorded by the closest weather station. For each of the Building’s Meters, a separate for consumption and reference power may be established for the morning and afternoon periods, as well as according to the days of the week.
“Meter” means the energy measurement device supplied by HQ under an electricity contract, in accordance with HQ’s rates and conditions of services in effect.
“Optional Period” has the meaning set out in Section 4.
“Parties” means Hilo and the Customer
“Party” means Hilo or the Customer
“Peak” means an exceptionally high electricity demand for a given period.
“Preheating Phase” means the preparatory period for the Building’s systems (HVAC system in particular) prior to the start of the Reduction Phase.
“QST” means the Québec sales tax.
“Receiving Party” means the Party receiving Confidential Information.
“Recovery Phase” means the period during which the Building’s systems (HVAC system in particular) return to their normal state of operation following the Reduction Phase.
“Reduction Phase” means a period of time during a Peak when the Building’s power demand is reduced as part of a Challenge.
“Reference Consumption” means the reference consumption established based on the Linear Regression of average power during the current calendar year. Hilo may adjust the reference power if needed to better reflect the Customer’s normal energy consumption profile.
“Régie de l’énergie” means the administrative tribunal established by the Act respecting the Régie de l’énergie, CQLR c R-6.01.
“Representative” or “Representatives” means one or more directors, officers, sponsors, employees, agents, consultants or advisors of a Party, or one of their subsidiaries or affiliates.
“Services” means DM and energy-efficiency services, as well as automated control and regulation, including the Devices, software and Energy Monitoring System.
“Test Period” means the period of time Hilo requires to test the Services in the Building prior to the Winter Season.
“Unit Amount” means the amount in dollars determined based on the Application Form allowing calculation of the Reward when multiplied by the Curtailment for a Challenge.
“Winter Season” means the period beginning on December 1 of one year and ending on March 31 of the following year.