Terms and Conditions
1.1 The Consultant is an independent energy consultancy which provides services to Customers which are designed to permit such Customers to benefit from cost savings in respect of their purchases of energy supplies directly from Energy Suppliers.
1.2 The Consultant proposes to assess and analyse the Customer’s existing energy supply arrangements and to introduce the Customer to Energy Supplier’s which the Consultant considers are able to offer energy supplies directly to the Customer on a more cost-effective basis than that which the Customer currently enjoys.
2.1 In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 6and 1.
Commencement Date: has the meaning set out in clause 3.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Consultant: Utility Bidder Limited (registered in England and Wales with company number 06954978).
Contract: the contract between the Consultant and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Consultant.
Energy Saving Fee: has the meaning set out in clause 6.3.
Energy Supplier: an energy supplier or suppliers which the Consultant introduces to the Customer and which may complete an energy supply contract directly with the Customer.
Energy Supply Contract: an energy supply contract between the Customer and an Energy Supplier which takes effect within the 12 month period immediately following the date of the Contract.
Force Majeure Event: has the meaning set out in clause 11.1.
Order: the Customer’s order for Services as evidenced by the Customer’s written acceptance of these Conditions.
Services: the services supplied by the Consultant to the Customer as set out in 1.
2.2 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted;
(c) a reference to writing or written includes e-mails where such e-mail has been expressly acknowledged by the recipient.
3. Basis of contract
3.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3.2 The Order shall only be deemed to be accepted when the Consultant issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Consultant which is not set out in the Contract.
3.4 Any descriptive matter or advertising issued by the Consultant, and any descriptions or illustrations contained in the Consultant’s catalogues, brochures or website, 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.
3.5 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.
4. Supply of services
4.1 1specifies the nature and scope of the Services and the Consultant shall supply the Services to the Customer from the Commencement Date in accordance with 1in all material respects. The Consultant shall use its reasonable endeavours to meet any performance dates specified in 1, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.2 The Consultant warrants to the Customer that the Services will be provided using reasonable care and skill.
4.3 The Consultant gives no warranty that any Energy Supplier introduced to the Customer or that the terms of any proposed Energy Supply Contract will result in a cost saving or will be suitable to meet the energy supply and/or the commercial requirements of the Customer. The Customer expressly acknowledges its responsibility to make such enquiries of any such proposed Energy Supplier as the Customer in its sole discretion deems necessary to satisfy itself regarding the suitability of such Energy Supplier and such Energy Supply Contract.
5. Customer’s obligations
5.1 The Customer:
(a) shall co-operate with the Consultant in all matters relating to the Services;
(b) shall provide the Consultant with such information and materials as the Consultant may reasonably require in order to supply the Services and ensure that such information is accurate in all material respects. Information required to be supplied by the Customer pursuant to this clause 5.1(b)shall include without limitation complete and accurate details of the Customer’s existing energy supply arrangements; and
(c) shall not complete any Energy Supply Contract in circumstances which would or may, directly or indirectly, result in the Customer being relieved from or otherwise able to avoid any of its obligations owed to the Consultant under the Contract, including circumstances which would or may result in the Consultant being prevented from receiving the Charges and/or the Energy Saving Fee as contemplated by these Conditions.
5.2 The Customer shall fully and effectually indemnify the Consultant against all costs, losses and damages suffered by the Consultant in consequence of any failure by the Customer to comply with the provisions of clause 5.1(c).
5.3 The provisions of clause 5.1(c)and clause 5.2shall survive termination of the Contract.
6. Charges and payment
6.1 The Customer’s obligation to pay the Charges shall arise on the completion of an Energy Supply Contract and the amount of the Charges shall be notified by the Consultant to the Customer in accordance with the terms of 1.
6.2 In the event that the Consultant is unable to recover the Charges directly from the Energy Supplier, the applicable provisions of 1shall apply.
6.3 In addition to the Charges the Consultant may charge the Customer a further fee calculated by reference to the reduction in the Customer’s quarterly VAT-exclusive energy costs realised in consequence of the Supply Contract (Energy Saving Fee).
6.4 The Energy Saving Fee shall be calculated in arrears by the Consultant on a quarterly basis and shall be calculated, invoiced and payable in accordance with the provisions of 1. For the purposes of calculating the amount of the Energy Saving Fee the Customer shall make available to the Consultant such information as is reasonably required (including copy invoices rendered by the Energy Supplier) regarding the Customer’s energy costs incurred pursuant to the Supply Contract to permit the Consultant to determine the Energy Saving Fee.
6.5 The Customer shall pay each invoice submitted by the Consultant:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Consultant, and
time for payment shall be of the essence of the Contract.
6.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Consultant to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Consultant, pay to the Consultant such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
6.7 If the Customer fails to make any payment due to the Consultant under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above the base rate of Barclays Bank from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Consultant may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Consultant to the Customer.
6.9 The provisions of this clause 6shall survive termination of the Contract.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. The provisions of this clause 7shall survive termination of the Contract.
8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude the Consultant’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1:
(a) the Consultant shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, loss of savings, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Consultant’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, loss of savings, or otherwise, shall in no circumstances exceed the amount actually paid by the Customer to the Consultant in respect of the Consultant’s supply of the Services.
8.3 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.
8.4 The Consultant and Customer acknowledge and agree that the limitation of liability provisions set out in this clause 8are fair and reasonable given the nature and price payable for the Services.
8.5 The provisions of this clause 8shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, the Consultant may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of the Customer being notified in writing to do so;
(b) the Customer 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 Insolvency Act 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 Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) 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 Customer (being a company); or
(d) any event occurs or proceeding is taken with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.1(b)and clause 9.1(c).
10. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Consultant all of the Consultant’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultant shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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;
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
11. Force majeure
11.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Consultant including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Consultant or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
11.2 The Consultant shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
12.1 Assignment and other dealings
(a) The Consultant may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Consultant, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
12.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the extent necessary to make it valid, legal and enforceable. Any modification of a provision or part-provision of the Contract shall not affect the validity and enforceability of the other provisions of the Contract.
12.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Consultant.
12.8 Governing law. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.9 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).
1. Scope of services
1.1 In co-operation with the Customer, the Consultant shall use its reasonable endeavours in a timely manner to:
(a) assess and analyse the Customer’s energy supply arrangements which are applicable as at the date of the Contract;
(b) assess and analyse the Customer’s future anticipated energy supply requirements;
(c) research the prevailing energy supply marketplace applicable to the Customer and use its reasonable endeavours to identify Energy Suppliers which are able to offer alternative energy supplies on more cost-effective terms than those to which the Customer was subject prior to the date of the Contract;
(d) advise the Customer in writing of any Energy Supplier’s identified pursuant to paragraph 1.1(c)of this 1including full details of the principal terms of any alternative proposed supply arrangement;
(e) following the Customer’s selection of a preferred Energy Supplier identified pursuant to paragraph 1.1(d)of this 1, facilitate the introduction of the Customer to such Energy Supplier with the intention of completing an Energy Supply Contract; and
(f) provide the Customer with such advice and support as is reasonably necessary to facilitate the completion of an Energy Supply Contract with the Customer’s preferred Energy Supplier.
2.1 Subject to paragraph 2.2of this 1, in advance of the completion of an Energy Supply Contract the Consultant shall notify the Customer in writing of the applicable amount of the Charges and following such notification, on completion of such Energy Supply Contract, the Customer shall be bound to pay the Charges pursuant to these Conditions.
2.2 The Consultant shall use its reasonable endeavours to recover the Charges directly from the applicable Energy Supplier by way of commission and the Customer shall not be liable for the proportion of the Charges (if any) which the Consultant is able to recover. For the avoidance of doubt, the Customer shall remain liable to pay the amount of any Charges which the Consultant is not able to recover from the applicable Energy Supplier.
2.3 The Consultant shall invoice the Customer in arrears on a monthly basis for the proportion of the Charges that the Customer is liable to pay (if any) pursuant to paragraph 2.2of this 1.
3. Energy saving fee
The Energy Saving Fee shall be an amount equal to 0% of the quarterly reduction in the Customer’s VAT-exclusive energy supply costs realised in consequence of the Energy Supply Contract based on a comparison between the applicable quarter of the current year of the Energy Supply Contract and the equivalent quarter of the year immediately prior to the date of commencement of the Energy Supply Contract. The Consultant shall invoice the Customer in arrears on a quarterly basis for the Energy Saving Fee.
4. Cancellation of an energy supply contract
4.1 Subject to paragraph 4.2of this 1, in the event that an Energy Supply Contract is terminated for any reason either by the Customer or by the Energy Supplier prior to the expiry of the contractual term:
(a) the Customer shall remain liable to pay the proportion of the Charges which, but for such cancellation, it would have been liable to pay pursuant to paragraph 2of this 1; and
(b) the Customer shall remain liable to pay the Energy Saving Fee which, but for such cancellation, it would have been liable to pay pursuant to paragraph 3of this 1,
in each case on the assumption that the Customer’s quarterly energy consumption would remain at the level prevailing during the quarter immediately prior to such cancellation for the remainder of the contractual term.
4.2 In the event that the Customer intends to vacate the premises to which the Energy Supply Contract relates, the Customer shall give the Consultant not less than 3 months’ notice in writing of any such intention. If such notification is given, the provisions of paragraph 4.1of this 1shall not apply. In default of such notification, the provisions of paragraph 4.1of this 1shall continue to apply.
4.3 The Customer and the Consultant each acknowledge and agree that:
(a) the Consultant will invest significant time and resources in performing the Services and that it would be inequitable for the Consultant not to be remunerated pursuant to the provisions of this 1by reason of the early termination of an Energy Supply Contract otherwise than through an act or omission of the Consultant;
(b) the provisions of paragraph 4of this 1are just and equitable in all of the circumstances of the Contract; and
(c) the charges payable pursuant to paragraph 4of this 1represent a genuine pre-estimate of the losses that the Consultant would otherwise suffer in consequence of such early termination.