Terms and Conditions

Definitions

In this Agreement, unless the context otherwise requires, the following expression shall have the following meaning:

Contact Duration and Termination

2.1 Unless otherwise specified in the Service Offering or Proposal Document, this Agreement shall commence upon the approval and/or signature by the Company of the Agreement and will continue as detailed in the Service Offering.

2.2 This Agreement may be terminated forthwith by either Party if the other

2.2.1 Shall be in Material Breach of the terms of this Agreement which, in the case a breach capable of remedy, shall not be remedied by that Party within 30 days of giving ahead of a notice specifying the breach and requiring its remedy;

2.2.2 Shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors generally; or it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, administrator, receiver, administrative receiver or similar office is appointed in respect of all or any part of the business or assets of the other Party or ahead of it a petition is presented (otherwise than for the purpose of a solvent amalgamation or reconstruction); and/or

2.2.3 In the event an event Force majeure (as defined in Clause 20) which continues for a period of in excess of 28 days.

2.3 Save as outlined in Clause 2.2, termination for any other reason whatsoever will not affect the rights of the Company to recover all fees due as described in Clause 3 of these Terms and Conditions and as referenced in Service Offering and for the entire Contract Duration.

2.4 Save as outlined in Clause 2.2, termination for any other reason whatsoever will not affect any obligation on the Client or the Company that is required in order to ensure the Company is able to receive all fees and due remuneration.

Fees / Remuneration

3.1 Fees are payable for all the Company’s Services, but the type of fee and method of payment may differ.

3.2 All the Company’s fees are subject to VAT, which will be charged at the prevailing rate at the time the Service(s) is/are rendered.

3.3 The Client is liable for fees payable to the Company for any and all Service(s) carried out in relation to and in accordance with this Agreement.

3.3.1 However, the Company will seek, wherever practical, to recover relevant fee(s) directly from the Supplier(s) by including the fee(s) in the Client’s energy supply contract charges in the form of a standing charge and/or unit rate uplift, unless the Client elects to pay such fee(s) directly prior to commencement of any Service(s).

3.3.2 Where fees are agreed in advance with the Client then the fees will be specified in the Service Offering and subject to the provisions in Clause 3.11 of these Terms & Conditions.

3.3.3 In circumstances where fees will not be agreed in advance, such as:

a) When the Company is authorised only by a Letter of Authority (LOA) to provide the Service(s) to the Client.

Or

b) When no fee(s) have been specified in the Service Offering.

Or

c) When the Company has been authorised by the Client to provide additional Service(s) not included in the fee(s) already agreed. then the Company fee(s) will reflect the Client’s specific circumstances and the Service(s) provided by the Company.

3.3.4 In the circumstances outlined in Clause

3.3.3 an appropriate price uplift to the unit rate and/ or standing charge will be incorporated within the Client’s energy unit rates to reflect the service provided and thereby recovered by the Company directly from the Client’s appointed Supplier(s).

3.3.5 The Company may from time to time provide introductions to third parties for other products or services for our Clients. In such circumstances the Company will receive Referral Fees from those third parties. The Company undertakes that, unless otherwise stated, such Referral Fees will not exceed 5% of the total cost of the product or service provided.

3.3.6 Should the Client wish to request details of the Company fees as outlined in Clauses 3.3.3 to 3.3.5 above, then the Client should contact their appointed Account Manager.

3.4 Where the Client requests Service(s) or Service Deliverables to commence prior to any Supplier contract, or outside any Supplier involvement, the Client will pay the Company’s fees directly to the Company within 30 days of receipt of the Company’s invoice, unless otherwise specified in the Service Offering.

3.5 Where fees are based on a percentage of Refunds or Ongoing Savings, upon confirmation that the Client is in receipt of any agreed Refund in the form of either a direct payment or alternatively a credit against other energy charges or by any other identifiable means, the Company will issue an invoice for subsequent payment by the Client.

3.6 All Ongoing Savings will be subject to a share in the Ongoing Saving(s) and payable to the Company as outlined in the Service Offering. The share will continue for the Initial Duration of Share from the date when each individual saving commences and thereafter as defined in the Service Offering. The share in the Ongoing Saving(s) will not be affected by the termination or expiry of this Agreement.

3.7 If any Ongoing Saving should stop, for whatever reason, the Company will first seek to remedy the situation. In such circumstances, the Client will cooperate fully to enable the Company to remedy the situation. If the Company is unable to remedy the situation and the Client has cooperated as required, then any share in the Ongoing Saving will cease at the point, where the Ongoing Saving was no longer enjoyed by the Client.

3.8 In the absence of the information required to calculate the Ongoing Saving(s), the Company reserves the right to issue estimated invoices based upon historic usage data and the Client agrees to pay such invoices

3.9 For the purpose of any Agreement between the Client and the Company and for the purpose of further clarification, the share in any Refund(S) will not be restricted to the Initial Duration of Share, but instead relate to the full value of any Refund obtained and the duration of share in any Ongoing Saving(s) will be unaffected by any share in Refunds obtained.

3.10 The Company reserves the right, specifically for Services where the Client is to pay for the Service directly, to apply the following charges in the event of the failure by the Client to make payment in accordance with the agreed payment terms. • £10.00 For each phone call made to the Client in order to chase late payment of any outstanding invoice • £25.00 For each Letter or Email sent to the Client in order to chase late payment of any outstanding invoice. Any other additional charges as may be specifically detailed within the Service Offering or Proposal Document.

3.10.1 All outstanding invoices of more than 90 Days will be automatically referred to a Debt Collection Agency for recovery unless prior agreement regarding a payment plan has been reached between the Company and the Client. Failure to adhere to any agreed payment plan will also result in immediate reference to a Debt Collection Agency. In such circumstances, the Company reserves the right to claim the full cost of debt recovery including any interest, agency fees and/or legal and court costs.

3.11 Should the Agreement roll for a period after the Initial Term then the Company reserves the right to increase the fee(s) up to the prevailing rate of RPI. This index may be applied to all further Agreement periods and is applicable on the relevant anniversary date.

3.12 Should the Agreement be terminated for any reason whatsoever, the Company will still be entitled to recover, and the Client will still be liable for, all the fees for Services carried out and loss of business to the Company up to the date when the Agreement officially comes to an end in line with the required notice having been served and both the Initial Term and, in the event of a contract rollover, any required notice period having been served and fully elapsed. For the avoidance of doubt, all remuneration which has been included within any supplier contract accepted by the Client via the Company, will still be recovered from the relevant energy Supplier(s) until such time as the relevant Supplier contract(s) have terminated/expired and will be unaffected by the termination of this Agreement for whatever reason.

3.13 When required data cannot be provided by the Client, the Company will endeavour to obtain such data free of charge from any previous or existing Supplier(s). Should the Supplier(s) charge a fee for the provision of any required data, then the Company reserves the right to pass on this fee to the Client and the Client agrees to pay such charges.

3.14 If a Purchase Order (PO) number is required by the Client for payment processing but is not provided to the Company prior to the time of invoicing, the payment shall still be considered due and payable according to the terms outlined in this agreement. The absence of a PO number shall not delay or negate the Client’s obligation to make timely payment. The Client agrees to furnish the PO number promptly upon contract agreement, and any delays or administrative issues related to the PO number not being provided within the billable timeframe shall not affect the payment due date.

Prompt Provision of Accurate Data

4.1 The Client shall use all reasonable endeavours to provide all information required to enable the Company to perform the Service(s) as set out in the Service Offering.

4.2 The Client shall use all reasonable endeavours to ensure that all such information is provided in a timely manner and is accurate.

4.3 The Company shall not be responsible for any delay or failure to perform the Service(s) as a direct result of the Client’s failure to provide or delay in providing information or the provision of inaccurate information at any time during the Agreement. The Company warrants, however, that all reasonable endeavours will be employed if accurate information is not provided.

Availability of Client Contacts

5.1 The Client agrees to make available appropriate contacts to enable the Company to undertake and perform the Service(s) detailed within this Agreement.

5.2 The Company will not be liable for any delay in performing or failure to perform the Service(s) as a result of the Client’s failure to provide appropriate contacts.

Liability

The following provisions set out the entire liability for both the Company and the Client.

6.1 The Company and the Client shall not be liable to the other in contract or tort for loss of profits, goodwill, anticipation of profits or turnover or any type of consequential loss arising from the provision of the Service(s), even if such loss was reasonably foreseeable or that Party had been advised of the possibility of incurring.

6.2 The Company and the Client have limited liability for any breach of its contractual obligations arising under this Agreement.

6.3 The Company shall not be liable for any misrepresentation, statement or tortious act or omission including negligence arising under in connection with this Agreement.

6.4 The liability of The Company to the Client for the death or injury resulting from its negligence shall not be limited.

6.5 Notwithstanding anything else in this Agreement, the entire liability of the Company or the Client shall be limited to damages of an amount equal to £1,000,000 in the case of damage to the tangible property resulting from the negligence of the Company or its employees.

6.6 In any other case 100% of the annual value of the fees for the provision of the Services to which the claim relates.

6.7 Unless otherwise stated, the Company shall maintain public liability insurance of no less than £5,000,000, employer’s liability insurance of no less than £10,000,000 and professional indemnity of no less than £1,000,000.

Health and Safety

7.1 In the event that the Company operatives are required to undertake work at the Client’s sites, then the Company will take all reasonable steps to ensure that all its employees will comply with such rules, regulation and requirements as may be in force for the time being for the safe conduct and Health and Safety of the Company personnel on those premises. In such circumstances, the Client accepts responsibility for notifying the Company’s employees of the Health and Safety requirements, whilst on site.

Confidentiality

8.1 During the term of this Agreement it is inevitable that the Client and the Company will acquire knowledge and information concerning each other’s operations which is of a confidential and/or commercially sensitive nature. Both Parties agree that such information shall be maintained as confidential and shall be disclosed only to those employees for whom such knowledge is essential.

8.2 In respect of carrying out their responsibilities under this Agreement, that such persons shall be made aware of their responsibilities under this Clause, and that such information shall not be used under any circumstances for any purpose other than the performance of this Agreement.

8.3 From time to time the Company may utilise the Client’s name and recognised logo within its marketing literature and/or web presence subject to agreement between the Parties.

Intellectual Property Rights

9.1 All Intellectual Property Rights in the content of any creative work produced for the purposes of the provision of the Services, including all materials and all documentation prepared and or produced by the Company in connection with the provision of the Services, shall be owned absolutely by the Company. For the avoidance of doubt all data relating to the Service is the Client’s and the Company shall provide the data in an acceptable format whenever asked by the Client.

Impartiality & Best Intentions

10.1 The Company fees may be included within the Client’s energy unit rates and/or standing charges (as detailed in Clause 3 above). These fees are the same, regardless of the recommended Supplier(s) and therefore there is no commercial incentive for the Company to recommend one Supplier vs another.

10.2 The Company may not receive offers on behalf of the Client from every available Supplier. However, the Company will always seek to use market expertise and intelligence in order to identify suitable Supplier(s) to meet the requirements of the Client.

10.3 The Company may, from time to time recommend the adoption of a longer-term contract with the Supplier(s). In such circumstances, the Company warrants that whilst it may be in its financial own interests to secure Longer-term contracts on behalf of the Client that any such recommendation will only ever be made with the best of intentions and in circumstances where market intelligence and the Company’s expertise would suggest this to be in the interest of the Customer. The final decision regarding the term of any Supplier contract will always rest with the Client.

Cost Analysis

11.1 Unless a separate Agreement exists between the Client and the Company for the provision of Cost Analysis Service(s) and the terms detailed in a Service Offering, then this Clause 11 will apply.

11.2 The Client authorises the Company to undertake routine Cost Analysis from time to time in order to determine whether any Ongoing Saving or Refund opportunity exists.

11.3 If the Company identifies any Ongoing Saving or Refund opportunities, then these will be communicated to the Client in writing and subsequently implemented following approval by the Client, always providing that such approval will not be unreasonably withheld.

11.4 The Initial Duration of Share for any Ongoing Saving opportunity identified will be 36 Months and the share payable to the Company will be 50% of any Refund and/or Ongoing Saving.

Service Specification and Variations

12.1 The Agreement including any Service Offering contains the Deliverables to be provided, and no other Agreements have been made, in writing or verbally, express or implied, with respect to the Service(s) by the Company, other than as set out in the Agreement.

12.2 Any additional Services or Deliverables or variations to the Service Offering must be specifically set out in writing and agreed by both Parties to be valid and the Company reserves the right to amend the charges for any variations or alterations to the Service Specification. Nothing in this Clause is intended to nullify other Agreements that may exist between the Company and the Client and any established arrangements shall continue separately unless specifically agreed otherwise.

Staff Competency/Change of Staff

13.1 The Company will allocate staff, as appropriate, to the work to be undertaken and all staff will have appropriate skills and competence, relevant to each task to be performed for the provision of the Service(s).

13.2 The Company reserves the right to change such staff as needed to meet the operational requirements, always providing that the replacement shall be of an equivalent standard in terms of skill and competence.

Solicitation of Staff

14.1 Each Party agrees that throughout the duration of the Agreement, and for a period of six months after the expiry or termination of the Agreement that it will not, either directly or indirectly, seek to employ any staff of the other Party involved in the provision of the Services unless that Party provides prior written consent.

Dispute Resolution

15.1 In the event of a dispute, or disagreement between the Parties, either Party may call a dispute resolution meeting of the Parties by service of not less than 10 days’ written notice and each Party agrees to procure that a senior member of its staff shall attend all dispute resolution meetings in accordance with this Clause.

15.2 Those attending a dispute resolution meeting shall use their best endeavours to resolve disputes arising out of this Agreement. If any dispute referred to a meeting is not resolved at that meeting then either Party, by notice in writing to the other, may refer the dispute to the Managing Directors of the Parties who shall co-operate in good faith to resolve the dispute as amicably as possible within 14 days of service of such notice.

15.3 No Party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute provided that the right to issue proceedings is not prejudiced by a delay. Further, in the event of a Material Breach of the Agreement the dispute resolution shall not apply and instead Clause 2.2.1 of these Terms and Conditions will take precedence.

Applicable Law

16.1 This Agreement shall be construed and enforced in accordance with the laws of England and Wales. The English Courts shall have exclusive jurisdiction to deal with any dispute that arises out of or in connection with this Agreement and the Services carried out under this Agreement.

16.2 The Parties will comply with all applicable laws and relevant legislation in force at the time of this Agreement, subject to the provisions in Clause 18.

Assignment

17.1 Neither Party shall transfer or assign its right or obligations under this Agreement without the prior written approval of the other Party, which approval shall not be unreasonable withheld.

Waiver

18.1 Any delay or forbearance on the part of either Party in enforcing any term or condition right or remedy in respect of this Agreement shall not be deemed to be a waiver or any right or remedy whatsoever by that Party.

Notice

19.1 Any notice required to be delivered under this Agreement shall be deemed given if left or sent in writing by recorded delivery post to the agreed addresses, or such other addresses as shall subsequently be notified in writing, and in the case of notification by post shall be deemed to have been received two days after posting. For the avoidance of doubt notices may also be sent by electronic means.

Change in Law/Tax

20.1 In the event that this Agreement becomes unworkable as a result of any change in Law and or tax regime the Client and the Company agree to meet and use all reasonable endeavours to find a practical way forward which is of mutual benefit.

Data Protection & GDPR

21.1 The Company confirms that it will comply with the requirements of the Data Protection Act 2018 and relevant updates as may be necessary during the performance of the Agreement between the Parties.

21.2 The Company confirms that it will comply with the requirements of the General Data Protection Requirements (GDPR) as may be necessary during the performance of the Agreement between the Parties.

Force Majeure

22.1 Neither the Client nor the Company shall be liable for any expense, loss or damage resulting from delay or prevention of performance of the contract that is caused by fires, flood, Acts of God, riots, thefts, power supply failures, strikes, accidents or any other cause whatsoever beyond their reasonable control.

Entire Agreement

23.1 These Terms and Conditions and any associated Service Offering contain all the general terms agreed by the Parties relating to the subject matter of the Agreement and supersedes any and all prior unwritten understandings or arrangements or Agreements between them, but does not affect any continuing written Agreement entered into between the Parties, which written Agreements shall unless expressly terminated or varied in writing, continue in accordance with their terms.

23.2 Save in the case of fraud, no presentation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the Parties prior to this Agreement except as set out in this Agreement.

23.3 Additional contractual arrangements are only applicable where made in writing and incorporated into a legally binding Agreement signed by both Parties

General

 24.1 All headings in this Agreement are for ease of construction and understanding only and shall have no bearing on the Agreement.

24.2 Where the context admits or requires references in the Agreement to the singular shall include the plural and vice versa.

24.3 If any part of the Agreement is found to be unenforceable in law, then this shall not preclude the enforcement of other parts of the Agreement as required.

24.4 Unless expressly stated otherwise then all reference to any Clause shall refer specifically to the Clause within the document concerned.