Terms and Conditions Applicable to the Contract
1. Definitions and interpretation
1.1 The following definitions shall apply in the Conditions:
“Charges” the charges payable by the Customer for the supply of the Services by the Supplier, as set out in the Contract Details.
“Conditions” these terms and conditions set out in clause 1 (Definitions and interpretation) to clause 9 (General) (inclusive) which are attached to the Contract Details.
“Contract” the contract between the Customer and the Supplier for the supply of the Services in accordance with the Contract Details and the Conditions.
“Contract Details” means the contract details sheet containing the relevant details that are specific to and which relate to and/ or vary the terms of these Conditions and which is attached to these Conditions.
“Customer Materials” all materials, equipment, drawings, specifications and data supplied by the Customer to the Supplier.
“Deliverables” all documents and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Mandatory Policies” the Supplier’s business policies and codes which are available on the Supplier’s website and which the Customer can request a copy of at any time.
“RPI” the Retail Prices Index or any official index replacing it.
“Services” the services, including without limitation any Deliverables, to be provided by the Supplier pursuant to the Contract as set out in the Contract Details.
“Services Start Date” the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
“Supplier IPRs” all Intellectual Property Rights subsisting in the Deliverables excluding any Customer Materials incorporated in them.
1.2 A reference in the Conditions to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.
1.3 Any words in the Conditions 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.
1.4 A reference in the Conditions to writing or written includes fax and email.
2. Commencement and Term
The Contract shall commence with effect from the Services Start Date and shall continue (unless terminated earlier in accordance with clause 8) for the period shown in the Contract Details as the Initial Term and shall automatically continue thereafter for further successive periods of 12 months (each successive 12 months period being referred to as an “Extended Term”) unless, not less than three months before the end of the Initial Term (or any Extended Term) either party serves notice in writing upon the other to terminate the Initial Term or any Extended Term. The terms prevailing immediately prior to the expiration of the Initial Term or any Extended Term (as the case may be) shall continue unless and until otherwise agreed in writing by the Supplier and the Customer.
3. Supply of Services
3.1 The Supplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
3.2 In supplying the Services, the Supplier shall: (a) perform the Services with reasonable care and skill; and (b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Contract Details.
4. Customer’s Obligations
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as required by the Supplier or any of them;
(c) provide, in a timely manner, such information as the Supplier may require, and ensure that it is accurate and complete in all material respects; and
(d) in the case of utility procurement Contracts:
(i) agree to and shall appoint the Supplier as an independent broker, to act on the Customer’s behalf with the sole and exclusive authority in the purchase negotiations of utilities;
(ii) agree to and shall refer any direct approaches from potential suppliers to the Supplier;
(iii) authorise the Supplier to obtain details regarding connection, supply number, usage and pattern of consumption directly from distribution companies, suppliers, meter operators or any accredited data collection agency;
(iv) authorise the Supplier to negotiate with utility suppliers with regards to queries relating to agreement and termination of contracts; and
4.2 authorise the Supplier to access information including bills, amendments, payment details/method, debt information, adjustments and re-bills. In the case of Contracts relating to utility bill validation, should the utility provider fail to send copies of invoices to the Supplier it shall be the responsibility of the Customer to provide copies directly to the Supplier as soon as reasonably practicable following a request to that effect from the Supplier to the Customer. Charges in respect of the Contracts relating to the utility bill validation (or services dependent upon them) will continue to accrue and will remain payable by the Customer to the Supplier notwithstanding the failure of the Customer to provide the Supplier with all information and data required by the Supplier.
4.3 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
5. Intellectual property
5.1 The Supplier and its licensors shall retain ownership of all Supplier IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
5.2 The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.
5.3 The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising out of, or in connection with, any claim brought against the Supplier for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Supplier.
6. Charges and payment
6.1 DIRECT FEE: In consideration for the provision of the Services, the Customer shall pay the Supplier the Charges in accordance with clauses 6.2 to 6.6 (inclusive).
6.2 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 The Supplier shall submit invoices for the Charges plus VAT if applicable to the Customer at the intervals specified in the Contract Details.
6.4 The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier.
6.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 8 (Termination):
(a) 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 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%.
(b) the Supplier may suspend all Services until payment has been made in full.
6.6 All amounts due under the Contract from the Customer to the Supplier shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.7 BROKERAGE: Payment will be made directly to the Supplier by the utility provider and there will therefore be no charges due from the Customer to the Supplier.
6.8 Unless stated otherwise in the Contract Details, Charges for the Services shall increase on each anniversary of the Contract in line with RPI.
7. Limitation of liability
7.1 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: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss of damage to goodwill; and (g) any indirect or consequential loss.
7.2 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 the lesser of 50% of annual revenue to the Supplier or £50,000.
7.3 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
8. Termination
8.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(b) 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; or
(c) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 On termination of the Contract for whatever reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied for both past and future periods but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
9. General
9.1 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.
9.2 Assignment and other dealings. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Supplier’s prior written consent.
9.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 9.3(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
(i) 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
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
9.4 Entire agreement.
(a) 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.
(b) 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.
9.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.6 Waiver.
(a) 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.
(b) 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.
9.7 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.
9.8 Notices.
(a) 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.
(b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second day after posting or at the time recorded by the delivery service; or, if sent by fax, on the next day after transmission.
(c) This clause shall not apply to the service of any proceedings or other documents in any legal action.
9.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
Governing law & Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) 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. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.