Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions set out in clause 1 to clause 9 (inclusive).
Contract: the contract between the Customer and Utility Works Ltd for the supply of the Services incorporating the Letter of Authority and these Conditions.
Utility Works Ltd - Company Registration 11296710
Letter of Authority: the letter of authority provided by Utility Works Ltd to the Customer and executed by the Customer to authorise Utility Works Ltd to negotiate on behalf of the Customer with Utility Providers.
Services: the services, including without limitation production of any comparisons, analysis, documents or information produced by Utility Works Ltd for or on behalf of the Customer, to be provided by Utility Works Ltd pursuant to this Contract.
Utility Providers: any provider or Utility Works Ltd of gas and/or electricity.
(a) 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 any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2. COMMENCEMENT & TERM
The Contract shall commence on the date when the Letter of Authority has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 30 days’ written notice to terminate.
3. SUPPLY OF SERVICES
3.1 Utility Works Ltd shall supply the Services to the Customer from the date of execution of the Letter of Authority in accordance with this Contract.
3.2 In supplying the Services, Utility Works Ltd shall perform the Services with reasonable care and skill.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
(a) co-operate with Utility Works Ltd in all matters relating to the Services;
(b) provide, in a timely manner, such information as Utility Works Ltd may reasonably require, and ensure that it is accurate in all material respects; and
(c) immediately inform Utility Works Ltd if there is any change in the Customer’s circumstances and/or business, which may affect the provision of the Services;
(d) immediately inform Utility Works Ltd if there are any reasons why the authority given by the Letter of Authority should be revoked;
(e) provide authority for Utility Works Ltd to enter into discussions and/or arrangements with such Utility Providers as Utility Works Ltd may determine (as further detailed in the Letter of Authority) and the Customer agrees that Utility Works Ltd may supply any information, data or documents that Utility Works Ltd may receive from the Customer to any such Utility Provider; and
(f) comply with the provisions of the Bribery Act 2010 and any other applicable legislation.
4.2 If the performance by Utility Works Ltd of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Utility Works Ltd 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; and
(b) be entitled to recover any additional costs, charges or losses of commissions Utility Works Ltd sustains or incurs that arise directly or indirectly from such prevention or delay.
Utility Works Ltd may receive a commission direct from the Utility Provider in the event that the Customer enters into a supply contract with the Utility Provider. Such commission may be included in the price or rates offered by the Utility Provider to the Customer and the Utility Provider shall pay any such commission direct to Utility Works Ltd.
6. LIMITATION OF LIABILITY
6.1 Nothing in this Contract shall limit or exclude Utility Works Ltd liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) 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.
6.2 Subject to clause 6.1, Utility Works Ltd 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 of costs of utilities (whether or not such anticipated savings were suggested or calculated by Utility Works Ltd);
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
6.3 Subject to clause 6.1, the total liability of Utility Works Ltd to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to 20%) of the average annual commissions earned by Utility Works Ltd under this Contract.
6.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the full extent permitted by law, excluded from the Contract.
7.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) 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; or
(c) 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.
7.2 On termination of this Contract for whatever reason:
(a) termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
8.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
8.2 Assignment and other dealings.
(a) 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 this Contract without the prior written consent of Utility Works Ltd
(b) Utility Works Ltd may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
(a) Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, 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 8.3(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 this 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 8.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
8.4 Entire agreement.
(a) This 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 agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this Contract.
8.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.6 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
8.7 Severance. If any provision or part-provision of this 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 this Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office 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, or sent by pre-paid first class post, other next working day delivery service or commercial courier.
(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 8.8(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 email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
8.9 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
8.10 Governing law. This 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.
8.11 Jurisdiction. 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 this Contract or its subject matter or formation.