terms and conditions for the supply of services
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 6 (LIMITATION OF LIABILITY).
Definitions and Interpretation
The following definitions apply in these Conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.1.
Commission: includes without limitation all commission, remuneration, referral or introduction payments, fees and other similar sums, whenever payable and whether one-off payments or payable in instalments or on an ongoing basis and whether a specified sum or an amount calculated by reference to energy consumption by the Customer or the standing charge payable or on any other basis.
Conditions: these terms and conditions as amended from time to time in accordance with clause 9.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who engages the Supplier to provide Services.
Customer Default: has the meaning set out in clause 4.2.
Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company and each company in a Group is a member of its Group.
Letter of Authority: the Customer's signed letter of authority confirming the appointment of the Supplier as the agent of the Customer in connection with the Services and authorising utility providers and others whom it may concern to share information about the Customer and members of its Group with the Supplier in connection with the Customer’s energy requirements.
Lost Commission: has the meaning set out in clause 5.1.
Recipient: the Customer or any member of its Group which is a party to a Relevant Supply Contract under which the relevant utility provider agrees to supply electricity, gas or other energy or fuel to that party and/or any member or members of its Group pursuant to a Relevant Supply Contract.
Relevant Act: any act or omission, occurring at any time and whether before or after termination of the Contract and including without limitation any or all of the following:
(a) a renegotiation of a Relevant Supply Contract by the Recipient or any member of its Group (including without limitation any renegotiation of the price, rates, duration or the right to change the prices or rates);
(b) the termination of a Relevant Supply Contract where such termination is not a Utility Provider Event and termination is not automatic termination on expiry of a fixed contract period;
(c) the termination of a Relevant Supply Contract where such termination is not a Utility Provider Event and termination is not automatic termination on expiry of a fixed contract period and the entry into by the Recipient or any member of its Group of a contract with the same utility provider for the provision of services which include some or all of the services the subject of the Relevant Supply Contract but which is not itself a Relevant Supply Contract;
(d) the entry into by the Recipient or any member of its Group of a contract with another utility provider (being a utility provider which was not a party to the Relevant Supply Contract) for the provision of services which include some or all of the services the subject of the Relevant Supply Contract but which is not itself a Relevant Supply Contract;
(e) a failure by the Recipient, for whatever reason, to pay, in whole or in part, when due, the charges made by the utility provider to the Recipient under a Relevant Supply Contract;
(f) any disposal of a property which is or is to be supplied with gas or electricity pursuant to a Relevant Supply Contract; and
(g) any Utility Provider Event.
Relevant Supply Contract: a Supply Contract entered into at any time between the Recipient and a utility provider (whether the utility provider is the Customer’s or any member of its Group’s incumbent utility provider or not and whether entered into directly by the Recipient or by the Supplier as agent for the Customer) where the contract is one identified, negotiated, recommended, proposed, suggested or otherwise introduced to the Customer or any member of its Group by the Supplier.
Services: the services to be supplied by the Supplier to the Customer, being the identification of potential Supply Contracts to be entered into between the Customer or any member of its Group on the one hand and the relevant utility provider on the other.
Supplier: Energy Procurement Organisation Limited registered in England and Wales with company number 11646978.
Supply Contract: a contract between a customer and a utility provider for the supply by the utility provider to a customer of electricity, gas or other energy or fuel.
Utility Provider Event: whether occurring before or after the termination of the Contract, the termination of a Relevant Supply Contract or the cessation of supply under that Relevant Supply Contract:
(a) by the utility provider, including as a result of or in connection with the appointment of a supplier of last resort in place of the utility provider or as a result of or in connection with the utility provider becoming subject to the special administration regime or any replacement or equivalent regime or scheme; or
(b) at the instigation or direction or order of a regulator or governmental body with due authority to do so, including as a result of or in connection with the appointment of a supplier of last resort in place of the utility provider or as a result of or in connection with the utility provider becoming subject to the special administration regime or any replacement or equivalent regime or scheme; or
(c) automatically as a result of or in connection with the appointment of a supplier of last resort in place of the utility provider or as a result of or in connection with the utility provider becoming subject to the special administration regime or any replacement or equivalent regime or scheme.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted.
A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to a person includes a natural person, a company or other corporate body or an unincorporated body (whether or not having separate legal personality).
A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
A reference to writing or written includes faxes and emails.
Basis of contract; agency
The Letter of Authority, when returned to the Supplier by the Customer, signed by the Customer, or, if given earlier, the Customer’s oral instruction to the Supplier to provide the Services, shall constitute an offer by the Customer to receive the Services in accordance with these Conditions and to appoint the Supplier as the Customer’s agent for the purpose of dealing with utility providers and others on behalf of the Customer and members of its Group, with authority to discuss the Customer’s account with utility providers and those of members of its Group, review information and contracts relating to the Customer’s energy supply and those of members of its Group, and, on behalf of the Customer only, cancel, vary, renew or terminate any Supply Contract (including a Relevant Supply Contract), and negotiate and enter into Supply Contracts, until the termination of the Contract. Without limiting the scope or application of the authority granted under this clause, where there has been a Utility Provider Event, such authority shall apply to and permit the negotiation and entry into by the Supplier on behalf of the Customer of a new Relevant Supply Contract with a new or incumbent utility provider in place of a previous Relevant Supply Contract or in place of any Supply Contract (including one arising as a result of any renewal or extension or roll-over of a Relevant Supply Contract) which is not a Relevant Supply Contract [which is charged at the relevant utility provider’s out of contract rates] and which arose as a result of the Utility Provider Event.
The offer in clause 2.1 shall only be deemed to be accepted when the Supplier issues to the Customer written acceptance of:
the Letter of Authority; or
if given earlier, the oral instruction
at which point and on which date the Contract shall come into existence (Commencement Date).
Any descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's website, emails, or other materials, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Supply of Services
From the Commencement Date until the Contract expires or terminates, the Supplier shall supply the Services to the Customer, subject to these Conditions.
The Supplier reserves the right to change the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
The Customer acknowledges the Supplier gives no warranty, representation or other assurance of any kind that any Supply Contract identified, negotiated, recommended, proposed, suggested or otherwise introduced to the Customer by the Supplier is one which offers the lowest rates or charges or the longest fixed price period or is otherwise most favourable for the Customer compared to all or any other Supply Contracts which may be available to the Customer at any time.
The Customer shall:
co-operate with the Supplier in all matters relating to the Services;
provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate; and
comply with all applicable laws, including without limitation the Data Protection Act 1998 and the Bribery Act 2010.
If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation in the Contract (Customer Default):
without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 4.2; and
the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
If, in respect of a Relevant Supply Contract, there is a Relevant Act which results in the loss to the Supplier, in whole or in part, of its entitlement to receive Commission which, but for the Relevant Act, would have been payable to the Supplier by the relevant utility provider in respect of the Relevant Supply Contract and/or results in the Supplier having to repay Commission already paid in respect of the Relevant Supply Contract (the amount of Commission so lost and/or required to be repaid and any amounts due under clauses 5.10 and/or 5.11 together being Lost Commission), the Customer shall pay to the Supplier, immediately on written demand by the Supplier made at any time after the Relevant Act, the Lost Commission in full together with any other sums which may then be due under this clause 5 provided only that where the Relevant Act is a Utility Provider Event, the amount of Lost Commission which, but for this provision, would be due to the Supplier under this clause shall be reduced by the amount of Commission to which the Supplier is entitled under any new Relevant Supply Agreement entered into after the Utility Provider Event, whether with a supplier of last resort or with any other utility provider.
If, in respect of a Relevant Supply Contract, further sums (including Lost Commission) are due or become due under clause 5.1 which were not the subject of a previous demand made in accordance with clause 5.1, the Supplier may make a demand for payment of the further sums in accordance with clause 5.1 and the Customer shall immediately on such demand pay to the Supplier those further sums.
Without prejudice to the Supplier’s right to determine Commission on any other appropriate basis or by reference to any other appropriate evidence and at the Supplier’s sole discretion, where Commission or any part of it under a Relevant Supply Contract is to be determined by reference to the Recipient’s energy consumption (actual or estimated) or a periodic standing charge or a combination of the two, the amount of such energy consumption or periodic standing charge and any related rates by which Commission is to be determined under the Relevant Supply Contract shall be as set out in or derived from the Relevant Supply Contract or any written notification of those items to the Supplier by the relevant utility provider.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable in respect of the sum payable.
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 7, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law) save that the Supplier may set off from any sums it owes the Customer under the Contract or otherwise any Lost Commission or other amounts due to the Supplier under clause 5.1 or otherwise.
The Customer shall immediately notify the Supplier in writing:
if the Customer or any member of its Group enters into a Relevant Supply Contract; and
if any Relevant Act occurs (other than one listed in the definition of Relevant Act) which results in or will or may result in Lost Commission and/or if any act listed in the definition of Relevant Act occurs;
and, in each case, immediately provide to the Supplier full, complete and accurate details thereof together with full, complete and accurate copies of all relevant emails, correspondence, contracts and other relevant documents.
If requested to do so by the Supplier, the Customer shall immediately provide to the Supplier full, complete and accurate:
records of the Recipient’s energy consumption and/or those records for each member of its Group;
details of any projected energy consumption; and
copies of all invoices for the supply of energy and evidence of payment of the same;
in each case under any Relevant Supply Contract and under any other Supply Contract the entry into of which constitutes a Relevant Act in respect of the Relevant Supply Contract.
In the event of any dispute as to the amount of Lost Commission, a certificate as to the amount of Lost Commission and any other sums due under clause 5.1, prepared and issued by the Supplier, shall be conclusive and finally binding on the parties, in the absence of manifest error.
Where the Customer has not given notice of termination of the Contract under clause 7.4, the Supplier may in the six month period before or at any time after the expiry or termination of a Relevant Supply Contract (Original Relevant Supply Contract) (subject to clause 5.13 and without any liability for failing to do so) enter into a new Relevant Supply Contract on behalf of the Customer, whether with the same utility provider or a different utility provider (a Renewed Relevant Supply Contract) and a Renewed Relevant Supply Contract which goes live shall be a Relevant Supply Contract for the purposes of the Contract. If for any reason a Renewed Relevant Supply Contract has not been entered into within 3 months of the expiry or termination of the Original Relevant Supply Contract, the Customer shall pay to the Supplier on demand an amount equal to 10% of the total spend on energy under the Original Relevant Supply Contract, which 10% sum shall be Lost Commission for the purposes of the Contract.
If a Renewed Relevant Supply Contract never goes live for any reason, the Customer shall pay to the Supplier on demand an amount equal to the higher of the following (and whichever applies, it shall be Lost Commission for the purposes of the Contract):
the commission which would have been due to the Supplier under the Renewed Relevant Supply Contract had it gone live and continued for its fixed term or a period of three years, whichever is shorter (Renewed Relevant Supply Contract Duration) based on (at the Supplier’s election) actual or estimated consumption over that period; and
10% of the Total Prior Spend (where the Total Prior Spend is the average monthly spend under the Original Relevant Supply Contract multiplied by the number of calendar months in the Renewed Relevant Supply Contract Duration, and for this purpose a part month at the end or beginning of the Renewed Relevant Supply Contract Duration shall be treated as a whole calendar month).
Where the Customer has given notice of termination of the Contract under clause 7.4 and a new Supply Contract has been or will be entered into by the Customer with the same utility provider (including by automatic renewal or roll-over of the Original Relevant Supply Agreement on its termination or expiry) at that utility provider’s out of contract rate, the Supplier may (subject to clause 5.13 and without any liability for failing to do so) enter into a Relevant Supply Contract on behalf of the Customer with the incumbent utility provider or a new utility provider (in the six month period before the expiry of the Customer’s notice of termination [or [within 3 months][at any time] after the expiry or termination of the Original Relevant Supply Contract]) in order to avoid the Customer switching to or incurring or continuing to incur the incumbent utility provider’s out of contract rate (a Protective Relevant Supply Contract). A Protective Relevant Supply Contract which goes live shall be a Relevant Supply Contract for the purposes of the Contract. Where for any reason a Protective Relevant Supply Contract does not go live, including where the Customer (itself or through another agent) enters into another Supply Contract which does go live, the Supplier shall not be entitled to any Lost Commission that may, but for this provision, have fallen due under the Contract in relation to the Protective Relevant Supply Contract.
In relation to any Renewed Relevant Supply Contract or Protective Relevant Supply Contract, the Supplier shall:
not agree a fixed term of more than 3 years;
not agree a commission rate greater than £0.03 per Kwh; and
endeavour to enter into the Renewed Relevant Supply Contract or Protective Relevant Supply Contract with the incumbent utility company rather than with a different utility provider (but the parties acknowledge that using the same utility provider may not be best for the Customer so renewal may not always be with the incumbent utility provider).
This clause 5 shall survive the termination of the Contract.
Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
Nothing in the Contract shall limit or exclude the Supplier's liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation; or
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
Subject to clause 6.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
loss of profits;
loss of goodwill;
loss of business;
loss of anticipated savings; or
any special, indirect or consequential loss.
Subject to clause 6.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to:
£100 (one hundred pounds sterling); or
if a Relevant Supply Contract is entered into before termination of the Contract, the aggregate Commission received by the Supplier under that Relevant Supply Contract in respect of the first year of the Relevant Supply Contract.
The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
This clause 6 shall survive termination of the Contract.
Duration and Termination
The Contract will commence on the Commencement Date and continue until terminated in accordance with its terms.
Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership);
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
the other party (being an individual) is the subject of a bankruptcy petition, application or order or dies or becomes incapable of managing his affairs by reason of physical or mental illness or becomes a patient under any mental health legislation; or
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
Without affecting any other right or remedy available to it, the Supplier may without cause terminate the Contract with immediate effect at any time by giving written notice of termination to the Customer.
Without affecting any other right or remedy available to it, where a Relevant Supply Contract is in force, the Customer may terminate the Contract by giving written notice of termination to the Supplier at least 6 months’ prior to the renewal date of a Relevant Supply Contract in force at that time. Where such notice has been given by the Customer in accordance with this clause, the Contract will terminate on that renewal date. Notice of termination under this clause must be sent by email to email@example.com (or such other email address as the Supplier may notify to the Customer for such purposes in writing) for it to be effective and validly served.
Consequences of termination
Termination of the Contract shall not affect 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 Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect after termination.
Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Assignment and other dealings.
The Supplier 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 the Contract.
The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 9.3(b).
Each party may disclose the other party's confidential information:
to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 9.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
Nothing in these Conditions shall limit or exclude any liability for fraud.
Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the email address of a party, being that email address agreed in writing by the parties to be the one for such use prior to their entry into the Contract.
Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 10.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 10.00 am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
Notwithstanding the other provisions of this clause 9.8, any notice of termination under clause 7.4 must be served in accordance with that clause.
Third party rights. A person who is not a party to the Contract shall not have any rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999 but this clause shall not affect the rights of any person which may arise otherwise than under that Act.
Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
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 the Contract or its subject matter or formation.
27.04 if notice of termination is given would you ever be entering into a PRSC after termination or expiry of the original RSC? At that point, where this clause applies (contrast with 5.10 where no termination notice has been given) this Contract would have ended and the Customer would know that, having given notice to terminate, and could prepare. And if you could enter into a PRSC after the original RSC ended, how long would that right last? So, query whether the entry into of a PRSC should actually be limited to the period prior to the Customer/EPO contract ending?
27.04 Deleted – this suggested there was an obligation where an OOC rate applied. There is not.