1 Preamble
Beta tests have proven to be very helpful as a quality assurance measure and have repeatedly led to the discovery of hidden errors. The beta test participant (hereinafter Beta Test Participant) therefore agrees to carry out the following beta test (hereinafter Beta Test) under the conditions of this beta test agreement (hereinafter Beta Test Agreement).
2 Beta Test
The Beta Test Participant has agreed to participate in the Beta Test for “SMA Premium” with his/her Energy system (hereinafter Energy System).
The Beta Test for SMA Premium includes the following elements:
Fullfilment process: Subscription Process, transferring of subscription to internal systems of SMA, activation of the feature on the Beta Test Participant’s Energy System as well as termination processes
Digital Payment process (if applicable): Credit card authentication, monthly billing and payment collection, incident management related to billing processes (e.g. dunning process)
Feature testing: Testing of the combination of firmware to be installed on the Energy System of the Beta Test Participant locally (hereinafter Local Firmware) and the optimization algorithm (hereinafter Optimization Algorithm). Local Firmware and Optimization Algorithm are hereinafter together referred to as Test Software.
The Test Software is an extension to ennexOS, which is intended to become a paid subscription in the future. The Optimization Algorithm runs on a cloud and interacts with the Local Firmware installed on the respective superordinate device of the Energy System (System Manager). The primary function is the economic optimization of electricity costs. Available features may include forecast-based solar optimization, forecast-based tariff optimization, feed-in limitation during negative tariffs, support for fixed-price tariffs, support for time-variable tariffs, support for dynamic exchange tariffs (EPEX Spot GER, BE, NL). In a future development phase, optimization may also include various functionalities related to electric vehicle charging, HVAC systems or other controllable devices.
For the duration of the Beta Test, the Beta Test Participant is obliged to undergo the different elements of the Beta Test for SMA Premium as referred to in section (ii) (b) with his/her Energy System in accordance with the conditions of this Beta Test Agreement.
The different Elements of the Beta Test for SMA Premium as referred to in section (ii) (b) (hereinafter Elements of the Beta Test) and in particular the Test Software are currently in a pre-series status that may reveal anomalies during the Beta Test. This can lead to malfunctions in the Energy System of the Beta Test Participant including the software of the Energy System as well as connected devices and their software. Consequently, the Beta Test can lead to yield losses. In addition, the supply to loads or other connected appliances may stop and/or the battery, if included in the Energy System, may be charged or discharged. The Beta Test Participant expressly agrees that SMA accepts no responsibility for malfunctions, restrictions, costs, damages or expenses.
The SMA Limited Factory Warranty does not apply to any of the Elements of the Beta Test and in particular does not apply to the Test Software.
During the Beta Test, data loss or incorrect data may occur e.g. in the Energy System or connected devices and also in the data logger or the Sunny Portal. It is not possible for SMA to correct or restore the data. The Beta Test Participant cannot assert and waives any claims against SMA in order to have the data corrected or restored.
The Beta Test Participant authorizes SMA to test the different Elements of the Beta Test and, in particular, to operate the Test Software on the Energy System for test purposes. The Beta Test Participant is entitled to possibly generated tariff earnings. However, SMA is not obliged to reimburse the Beta Test Participant for tariff earnings not earned.
SMA is entitled to request the Beta Test Participant to take the Energy System out of operation at any time. Any possible earnings not earned due to the decommissioning of the Energy System will not be reimbursed by SMA.
SMA will not be liable for any possible yield losses, reduced yields or failures/malfunctions of the Energy System including the software of the Energy System as well as connected devices and their software. SMA will also not be liable for any malfunction of the different Elements of the Beta Test, in particular, of the Test Software.
3 Prerequisite Requirements for the Beta Test Participant
The Beta Test Participant expressly agrees that SMA is authorized to install and test the Local Firmware of the Test Software on the System Manager of the Energy System including updates on the Test Software via the connection of the Energy System to Sunny Portal and also to test the Optimization Algorithm of the Test Software. Therefore, the Beta Test Participant has to activate the function “Automatic Updates” and start the Beta Test in the Sunny Portal and keep the function “Automatic Updates” activated throughout the Beta Test, in order to have the Test Software and possible further updates automatically installed.
If eligible, the Beta Test Participiant has to start the Beta Test through the Sunny Portal (including the acceptance of this Beta Test Agreement). If needed, SMA installs within 48h the latest Local Firmware of the Test Software via an update as referred to in section 4.a. Then, the Beta Test Participant has to configure the optimization goals in the Sunny Portal in order to achieve the best economical outcome using the Optimization Algorithm. The Beta Test Participant agrees to inform himself/herself and comply with the information made available under the following link: https://sma.atlassian.net/wiki/external/ZjI1ZGNkNzBkNDBjNDQwZTk4NGM4ZmU4YWU4Zjc3NTg
The Beta Test Participant is required to monitor the Energy System (including Sunny Portal) and Test Software at least every 7 calendar days. SMA may regularly ask about and the Beta Test Participant may provide feedback to SMA as soon as problems with the different Elements of the Beta Test for SMA Premium (including the Test Software) occur as well as inform SMA in case of problems in the Energy System. In such cases, the Beta Test Participant should contact following E-mail-address: energy.management@sma.de
The Beta Test Participant may make his/her Energy System available for further (beta) tests or investigations if required - insofar as this is reasonable. The Beta Test Participant may agree also to participate in beta tests for other new SMA devices or software/firmware, if necessary, in order to test interaction with the Test Software.
The Beta Test Participant agrees that employees of SMA or third parties authorized by SMA shall, after prior consultation, be granted access to the property and premises where the Energy System is located within a reasonable period of time in order to carry out service, inspection or replacement work deemed necessary by SMA at short notice.
The Beta Test Participant allows SMA to access the Energy System and the Test Software at any time via telecommunication using any installed communication devices. The Beta Test Participant must connect the Energy System/System Manager of the Energy System to the Internet, ensure that the Energy System / System Manager of the Energy System is continuously connected to the Internet, register the Energy System (including System Manager) in Sunny Portal within one week of commissioning (if such Energy System is not already registered in the Sunny Portal) and immediately inform SMA of the portal name of the Energy System. Occurring costs shall be borne by the Beta Test Participant.
The Beta Test Participant agrees that SMA may use the data in Sunny Portal for reference purposes of any kind after prior consultation with the Beta Test Participant and after anonymization of the Energy System data.
The Beta Test Participant shall inform SMA immediately of any changes to Energy System data or data of the Beta Test Participant (in particular e-mail address) that the Beta Test Participant has provided to SMA during the Beta Test or that are relevant for the proper execution of the Beta Test.
During the Beta Test and for a period of (5) years after the end of the Beta Test, the Beta Test Participant shall maintain confidentiality towards third parties about the issues occurring in the different Elements of the Beta Test for SMA Premium referred to in section 2.(ii) and the behavior of the Test Software and the service actions performed and shall also ensure that no third party can obtain information about the function and internal structure of the Elements of the Beta Test for SMA Premium referred to in section 2.(ii) including the Test Software. These confidentiality obligations do not apply to information that has demonstrably already become public knowledge by other means. If the installation and commissioning of the Energy System and/or Test Software is carried out by a qualified electrician commissioned by the Beta Test Participant, the Beta Test Participant shall ensure that confidentiality in accordance with the requirements of this section is agreed with the qualified electrician.
4 SMA services
SMA installs the Local Firmware of Test Software via an update on the System Manager of the Energy system of the Beta Test Participant provided that the function “Automatic Updates” on the Sunny Portal is activated and the Beta Test Participant started the Beta Test through the Sunny Portal. In addition, SMA provides the Beta Test Participant with necessary service for the testing of the different Elements of the Beta Test, in particular the Test Software, free of charge (or, if applicable, in accordance with section 2.(ii) (b) for a symbolic monthly fee in accordance with section 6. (ii), 2nd sentence, which serves for testing of the digital payment processes) for the duration of the Beta Test.
SMA does not assume responsibility for any possible costs for lost tariff earnings, higher electricity consumption caused by the Elements of the Beta Test and the Test Software or the expenses incurred by the Beta Test Participant for the fulfillment of its above-mentioned obligations. For the avoidance of doubt, SMA does not assume any costs for the internet connection and increased data consumption.
SMA will endeavor to solve any problems that may arise as quickly as possible. The first solution attempt should be made within 48 hours.
5 Duration of the Beta Test
This Beta Test Agreement shall enter into force upon acceptance by the Beta Test Participant and activation of Beta Test through Sunny Portal and is valid for a period of 24 months.
This Beta Test Agreement runs until the end of the aforementioned 24 months, unless this Beta Test Agreement is terminated earlier in writing. Either Party may terminate this Beta Test Agreement at any time by giving the other Party a 2 weeks termination notice in writing or in textform (E-mail). The right of each Party to extraordinary notice of termination for important cause shall remain unaffected.
6 Right of use and sale of the PV system, Invoicing
The Elements of the Beta Test and in particular the Test Software were developed by SMA and are protected by intellectual property rights and copyright laws. SMA possesses and retains all use and distribution rights and only grants the Beta Test Participant a non-exclusive limited right in accordance with this Beta Test Agreement. The right of use can neither be transferred nor sublicensed. The Beta Test Participant shall use the Test Software only in accordance with this Beta Test Agreement for testing purposes privately and shall in no case use the Test Software to create any tradable financial product listed on an exchange or any index (i.e. any numerical representation of the value or volatility of a market or market sector calculated from time to time on a standard basis, in order to reflect movements in the underlying constituents) to be used as reference price underlying such tradable financial products nor any other Index as defined by the Benchmark Regulation EU 2016/1011.
SMA and the Beta Test Participant agree, that with acceptance of this Beta Test Agreement the Beta Test Participant is granted a right of use of the Test Software in accordance with aforegoing section 6. (i). If, applicable, SMA invoices the Beta Test Participant after signature/acceptance of this Beta Test Agreement on a monthly basis with an amount of 1€ including statutory sales tax/VAT.
The Beta Test Participant is prohibited from selling its’ Energy System for the duration of the Beta Test.
If the Beta Test Participant sells its Energy System after the end of the Beta Test, the Beta Test Participant must provide the contact details (name, address, e-mail) of the purchaser of the Energy System and, in the event of further sales of the Energy System, also the contact details (name, address, e-mail) of the subsequent purchasers in the purchase chain, so that SMA is able to locate the Energy System at any time by contacting the Beta Test Participant, even after the end of the Beta Test. The Beta Test Participant must obtain the necessary approvals on its own.
7 Liability of SMA
SMA shall not be liable for any direct or indirect, immediate or mediate damages and/or losses arising out of or in connection with this Beta Test Agreement.
The aforementioned restrictions/ exclusions do not apply:
For damages resulting from injury to life, body or health due to a negligent breach of duty by SMA or an intentional or negligent breach of duty by a legal representative or vicarious agent of SMA,
for other damage caused by an intentional or grossly negligent breach of duty by SMA or by an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of SMA, and
for claims for damages under the German Product Liability Act (“Produkthaftungsgesetz”).
8 Applicable Law and Place of Jurisdiction
All claims arising from or in connection with this Beta Test Agreement are subject to German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, if the Beta Test Participant is a consumer as defined in Art. 6 of Regulation (EC) No 593/2008 and SMA has (i) either pursued our commercial or professional activities in the country where the Beta Test Participant has his habitual residence, or (ii) by any means, directed such activities to that country or to several countries including that country, and (iii) this Beta Test Agreement falls within the scope of such activities, then the choice of German law as stated in this paragraph does not have the result of depriving the Beta Test Participant of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the Beta Test Participant has his habitual residence.
Kassel, Germany, is the exclusive place of jurisdiction for all disputes arising from or in connection with this Beta Test Agreement provided that the Beta Test Participant is a Merchant, a legal entity under public law or special assets under public law.
In the event the Beta Test Participant is a consumer, whose residence or habitual residence is in the European Union or in Countries which are contracting parties to the Agreement on the European Economic Area, the following shall apply: SMA is in favor to attend a dispute settlement procedure at the General Consumer Conciliation Body of the Centre for Conciliation in Germany: Allgemeine Verbraucherschlichtungsstelle des Zentrums für Schlichtung e.V., Straßburger Str. 8, 77694 Kehl.
9 Final Provisions
No collateral agreements to this Beta Test Agreement have been made.
Amendments or additions to this Beta Test Agreement must be made in writing. This also applies to an amendment to this written form requirement.
If a provision of this Beta Test Agreement is or becomes ineffective, or if this Beta Test Agreement contains any loopholes, the other provisions of this Beta Test Agreement shall not be affected thereby. Rather, the ineffective provision shall be replaced with one that is legally valid and has an economic intent that most closely matches the meaning and purpose of the original; the same applies to any loopholes.