Terms & conditions for the supply of Services
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in these conditions:
1.2 Definitions:
“Audit Report”: has the meaning given in clause 3.4;
“Business Day”: a day other than a Saturday, Sunday or public holiday in the State of Delaware;
“Business Energy Report”: the report that we will provide to you as part of the Services;
“Commencement Date”: has the meaning given in clause 2.2;
“Commission”: has the meaning given in clause 5.1;
“Conditions”: these terms and conditions as amended from time to time in accordance with clause 11.5;
“Contract”: the contract between you and us for the Supply of Services in accordance with these Conditions;
“Customer”: the person or firm who purchases Services and any agreed Supplementary Services from us;
“Customer Default”: has the meaning given in clause 4.2;
“Data Protection Legislation”: all applicable USA State and Federal data protection and privacy legislation in force from time to time;
“Energy Supplier”: the energy supplier that you chose to enter into a New Energy Supply Contract with;
“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks 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;
“Letter of Authority”: has the meaning given in clause 2.1
“New Energy Supply Contract”: the contract entered into by you (or by us on your behalf) with the Energy Supplier as part of the Services and any extensions to this contract;
“Realisation Partner”: has the meaning given in clause 3.7;
“Services”: the services that we will provide to you including presenting you with details of a proposed energy supply contract(s) from one (or a number) of energy suppliers from our portfolio of energy suppliers for you to choose to accept and may include other energy consultancy services (if requested by you) including presenting you with details of energy efficiency options from our Realisation Partners for you to choose to accept (each as more particularly set out in the Business Energy Report or Audit Report);
“Supplementary Services”: any additional services such as account management, bureau services, single point of contact, access to online review portal, discounted access to energy management platforms that are agreed between the parties.
“Supplier” or “we” or “us”: The Energy Check Inc., registered in the State of Delaware whose registered office is at Suite X-101, 3500 South Dupont Highway, Dover, Delaware, 19901;
1.3 Interpretation
1.3.1 A reference to a statute or statutory provision is a reference to it as amended or reenacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.3.2 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.
2 BASIS OF CONTRACT
You agree that:
2.1 The Letter of Authority constitutes an offer by you, the Customer to receive Services and any agreed Supplementary Services in accordance with these Conditions.
2.2 The offer referred to at clause 2.1 shall only be deemed to be accepted when the Letter of Authority signed by you is received by us at which point this Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, illustrations, descriptive matter or advertising issued by us, are issued or published for the sole purpose of giving an approximate idea of the Services and any agreed Supplementary Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Energy Supplier, via us, shall not constitute an offer, and is only valid for the period specifically stated when the quotation is offered.
3 SUPPLY OF SERVICES
3.1 You agree that in return for us receiving the Commission, we shall supply the Services to you and you shall receive the Services in accordance with this Contract.
3.2 We agree to use all reasonable endeavours to meet any performance dates specified by us but any such dates shall be estimates only and time shall not be of the essence for performance of the Services or Supplementary Services.
3.3 We warrant to you that the Services or Supplementary Services will be provided using reasonable care and skill.
3.4 We are not a price comparison service. Although we work with many suppliers, we do not have access to every supplier and to every deal that could be available to you, the Customer. There is never any guarantee we will have access to the objectively cheapest deal on the market.
3.5 We take into account a number of factors when assessing which suppliers and which specific contracts are best suited to the business needs of the Customer. These include but are not limited to: the length of the contracts available, the price guarantee available, the quality of the services and services available from each Energy Supplier, and specific Customer needs (including your energy consumption pattern, budget, green credentials etc.).
3.6 Finding the best solution to fit your business is one of our main considerations when putting forward different suppliers / specific contracts. For the avoidance of doubt, these deals may not, at face value, be the cheapest on the market, but are the deals which we believe will give you the greatest overall benefit for your money spent, and we do not warrant to always offer the Customer the ‘cheapest deal’.
3.7 We can also present various energy efficiency solutions (such as LED, solar and energy monitoring) offered by certain third-party providers (“Realisation Partners”) for you to consider. If you require this Service, we will arrange a visit with you at your premises to undertake a visual survey of your energy equipment and obtain details of your current usage. We will then request quotations for various energy services from our Realisation Partners and present you with an energy audit report (“Audit Report”) detailing certain energy efficient solutions and quotations for you to choose to accept.
3.8 If we recommend one of our Realisation Partners to quote for the particular energy project. The contract agreement for the works is between the Realisation Partner and the Customer. The Customer shall apply their own review and acceptance criteria for any quote or tender presented by a Realisation Partner. We do not take any responsibility for the design or suitability of the system, any cost savings model justification, the installation and commissioning, acceptance of the system or ongoing service and maintenance. We do not have a role under the CDM Regulations.
3.9 We do have a broker relationship with the Realisation Partner and therefore may receive either a percentage of the sales value or a service referral fee.
4 CUSTOMER’S OBLIGATIONS
General obligations
4.1 You agree
4.1.1 to co-operate with us in all matters relating to the Services and any agreed Supplemental Services;
4.1.2 to comply at all times with these Terms, as well as any applicable Terms & Conditions of any relevant supplier, relating to any energy supply contract;
4.1.3 on demand, to provide us with such information, data or documents as we may reasonably require in order to supply the Services;
4.1.4 to ensure that all information, data and documents provided to us by you are complete, up to date and accurate at all times;
4.1.5 to immediately inform us if there is any change in your circumstances and/or business which may affect the provision of the Services;
4.1.6 to provide such assistance as we may reasonably require from time to time in relation to the Services;
4.1.7 that we may supply any information, data or documents that we receive from you to such energy providers as we may determine;
4.1.8 to comply with the provisions of any State and Federal Anti-Bribery laws and any other applicable legislation.
4.1.9 not to enter into any other energy supply contract for the intended period of the New Energy Supply Contract for any reason including due to a change in tenancy or change in occupancy.
4.1.10 to provide authority for us to
4.1.10.1 obtain information from your current energy supplier(s) in relation to your current rates and energy consumption;
4.1.10.2 obtain information and/or enter into discussions and/or arrangements with such energy providers from our portfolio as we may determine and terminate your existing energy supply contract on your behalf; or
4.1.10.3 make proposals to extend your New Energy Supply Contract when the market indicates it is prudent to do so in order to protect you against potential negative price fluctuations and to execute any proposed extension after firstly providing you with a minimum of 72 hours’ notice to object;
4.2 If you fail to perform any relevant obligation and/or breach any warranty and/or we are prevented or delayed from performing any of our obligations under the Contract due to any act or omission by you or a failure by you to perform any relevant obligation (“Customer Default”):
4.2.1 without limiting or affecting any other right or remedy we may have, we have the right to suspend performance of the Services until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations in each case to the extent the Customer Default prevents or delays us from performing any of our obligations;
4.2.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from your failure or delay to perform any of your obligations as set out in this clause 4; and
4.2.3 you agree to reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default, the “Default Fee”. This includes any Commission which we would have received from the Energy Supplier, but we do not receive from the Energy Supplier due to the Customer Default. The amount of the Commission will vary and will depend on certain factors including the intended term of the New Energy Supply Contract, energy usage, tariffs and number of meters.
4.3 The Customer acknowledges that by entering into a New Energy Supply Contract with an Energy Supplier, the Customer is contracting directly with the Energy Supplier in this respect, and not with us. As such, the Customer agrees that we are not liable in relation to any transactions, dealings, or arrangements made between the Customer and the relevant Energy Supplier, and that any such transactions, dealings, or arrangements (including any payment obligations) are the Customer’s sole responsibility.
5 REMUNERATION
5.1 Notwithstanding any Default Fee detailed in Clause 4.2, there is no direct fee payable by you to us in connection with the Services.
5.2 You agree that we may receive a commission payment (including a retrospective commission payment) from the Energy Supplier as a result of you entering into a New Energy Supply Contract with the Energy Supplier which has been presented by us or us entering into a New Energy Supply Contract with the Energy Supplier on your behalf (“Commission”). The Commission will be included in the unit rates payable by you to the Energy Supplier.
5.3 Any Default Fee due to us is payable no later than 30 days from the date of invoice.
5.4 If the parties agree any additional fee for and any agreed Supplementary Services, it shall be paid by the Customer as agreed between the parties when they agree those Supplementary Services
6 INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
6.2 You grant us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to the Energy Supplier for the term of the Contract for the purpose of providing the Services.
7 DATA PROTECTION
7.1 We agree that we do not anticipate receiving any Personal Data (as defined in the Data Protection Legislation) from each other pursuant to this Contract, other than contact details of the relevant personnel who are responsible for dealing with the Contract, which each party shall process as a separate Controller (as defined in the Data Protection Legislation).
7.2 You agree that we may also share the contact details of your relevant personnel with the Energy Supplier.
8 LIMITATION OF LIABILITY
Your attention is particularly drawn to this clause.
8.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence; and fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1, our total liability to you shall not exceed the amount of the Commission. Our total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.3 Subject to clause 8.1, we shall have no liability to you under or in connection with this Contract in respect of:
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 or damage to goodwill.
g) Indirect or consequential loss.
8.4 Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.5 This clause 8 shall survive termination of the Contract.
9 TERM AND TERMINATION
9.1 Subject to clause 9.2:
9.1.1 if you do not sign a Letter of Authority, this Contract shall terminate on completion on the Services as set out in the Business Energy Report; or
9.1.2 if you do sign a Letter of Authority OR you sign a New Energy Supply Contract presented by us, this Contract shall terminate on the date that the New Energy Supply Contract terminates in accordance with its terms.
9.2 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:
9.2.1 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 fourteen (14) days of that party being notified in writing to do so;
9.2.2 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;
9.2.3 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
9.2.4 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.
10 CONSEQUENCES OF TERMINATION
10.1.1 Termination or expiry of the Contract shall not affect any 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.
10.1.2 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.
11 GENERAL
11.1.1 Force majeure. We shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control.
11.2 Assignment and other dealings.
11.2.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under the Contract.
11.2.2 You must not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of your rights and obligations under the Contract.
11.3 Confidentiality.
11.3.1 Each party undertakes that it shall not at any time during the Contract, and for a period of 5 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 11.3.2.
11.3.2 Each party may disclose the other party’s confidential information:
(a) 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 11.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
11.4.1 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.
11.4.2 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.
11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
11.5 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).
11.6 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 right or remedy. 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.
11.7 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.
11.8 Notices.
11.8.1 Any notice 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).
11.8.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) 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 or at the time recorded by the delivery service.
11.8.3 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.
11.9 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any Third Party Rights to enforce any term of the Contract.
11.10 Agency & Partnership. We are an independent consultant, and nothing in these Terms is intended to, or shall be deemed to establish any partnership between the parties or constitute any party as the agent of the other.
11.11 Governing law. 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 the State of Delaware.
11.12 Jurisdiction. Each party irrevocably agrees that the courts of Delaware 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.