Terms and Conditions
TERMS OF BUSINESS – UTILITY SUPPLY CONTRACTS ONLY
1) DEFINITIONS AND INTERPRETATION
1.1 The following words have the following meanings:
Letter of Authority (LOA): means a document allowing Advantage Utilities to liaise with suppliers and relevant third parties on behalf of customers.
Services: means one or more of the services agreed upon.
Charges: means the charges payable by the Client for the Services.
Commission: means the fees payable by a supplier to Advantage Utilities in respect of a client’s supply contract.
1.2 The following construction rules apply:
(i) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(ii) a reference to a party includes its personal representatives, successors or permitted assigns;
(iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision 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;
(iv) 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; and
2) TERMS
This Agreement shall continue for the duration of any agreement signed via Advantage unless terminated under clause 7.
3) SERVICES
3.1 Advantage Utilities to provide any agreed Services and will do so with reasonable skill and care.
4) GENERAL
This Agreement sets out the entire agreement and understanding between the Client and Advantage Utilities in connection with the provision of the Services and shall supersede and replace all documentation previously issued by Advantage Utilities purporting to set out its terms and conditions of provision of the Services.
4.1 Any notice or other communication given to a party under or in connection with this Agreement shall be: in writing and shall be delivered 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); deemed to have been received at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
4.2 The Client shall not be entitled to assign, charge, subcontract, or transfer this Agreement or any part of it without the prior written consent of Advantage Utilities. Advantage Utilities may assign, charge, subcontract, or transfer the Agreement or any part of it to any person (and the Client hereby agrees to the same and shall enter into any document necessary to give effect to the same).
4.3 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
4.4 Nothing in this Agreement shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
4.5 The waiver by either party of any breach of this Agreement shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
4.6 If at any time any one or more of the Clauses of this Agreement (or any sub-clause or paragraph or any part of one or more of these Conditions) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from this Agreement and the validity and/or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired as a result of that omission.
5) CHARGES AND PAYMENT
5.1 Where Clause 5.2 does not apply, the Client agrees to pay the Charges to Advantage Utilities.
5.2 Unless otherwise agreed, Advantage Utilities will arrange with the Client's energy, water, waste or telecoms supplier (as applicable) to pay the charges to Advantage Utilities, which the supplier will then recover via the Client's supply contract. The charges will be included in the energy cost forecasts for each tender.
5.3 The Commission received from any utility supplier in respect of procurement invariably equates to a small percentage of the overall cost. Specifically, the commission will typically be in the 0.5-3% of contract value bracket dependent on a range of factors including but not limited to market conditions and services provided.
5.4 After a Client has arranged and agreed on a contract with a supplier in good faith through the use of Advantage Utilities’ services, if subsequent action is taken by the Client which prevents the contract from being fulfilled, for instance by signing another contract covering the same supply and time period, Advantage Utilities reserves the right to recover any commission due to it should it deem it appropriate to do so.
6) EXCLUSION AND LIMITATION OF LIABILITY
6.1 Advantage Utilities reserves the right to suspend or to cancel the Agreement in whole or in part (without liability to the Client) if it is prevented from or delayed in the carrying on of its business and its obligations under the Agreement due to circumstances beyond its reasonable control including Acts of God, fire, flood, lightening, war, revolution, acts of terrorism, failure of supplies of power, fuel, transport, equipment, raw materials or other goods or services.
6.2 Nothing in this Agreement excludes or limits the liability of Advantage Utilities for death or personal injury caused by Advantage Utilities' negligence, or for fraudulent misrepresentation.
6.3 Advantage Utilities' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Agreement during a calendar year shall be limited to the Charges paid by the Client during the calendar year.
6.4 Advantage Utilities shall not be liable to the Client for any loss of profit or other economic loss (direct or indirect), indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) or loss or damage (contractual, tortious, breach of statutory duty or otherwise) which arises out of or in connection with this Agreement, or for any liability incurred by the Client to any other person for any economic loss, a claim for damages or awards howsoever arising from the Services or otherwise.
6.5 The pricing information provided by Advantage Utilities under this Agreement does not constitute recommendations or advice or guarantees. All prices that the Client chooses to accept are chosen by the Client at its own risk. Any prices agreed by Advantage Utilities on the Client's behalf will be agreed upon in accordance with the Client's chosen risk strategy. The Client accepts that wholesale energy prices are subject to change. Advantage Utilities does not guarantee that a price agreed on the Client's behalf will necessarily be better than the price that might subsequently be available.
6.6 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
7) BREACH OF CONTRACT, INSOLVENCY AND TERMINATION
7.1 Advantage Utilities may immediately suspend further performance of this Agreement or cancel any outstanding provision of Services or by notice in writing to the Client terminate this Agreement without liability to the Client if:
(i) the Client commits a material breach of any of its obligations under this Agreement which is incapable of remedy;
(ii) the Client fails to remedy a breach of its obligations under this Agreement which is capable of remedy, or persists in any breach of any of its obligations under this Agreement after having been requested in writing by Advantage Utilities to remedy or desist from such breach within a period of 21 days;
(iii) the Client (being a partnership) or the Client's partner offers to make any arrangements with or for the benefit of the creditors of the Client or the Client’s partner generally or there is presented in relation to the Client or the Client’s partner a petition of bankruptcy;
(iv) the Client (being a limited company) is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed; or the Client presents, or has presented, a petition for a winding up order; or an application to appoint an administrator is made in respect of the Client or a notice of intention to appoint an administrator is filed in respect of the Client; or any other steps are taken by the Client or any other person to appoint an administrator over the Client; or the Client has an administrator, administrative receiver, or receiver appointed over all or any part of the Client’s business, undertaking, property or assets; or the Client takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it.
7.2 Notwithstanding any such termination or suspension in accordance with Clause 7.1 or 7.2 above the Client shall pay Advantage Utilities the Charges for all Services provided up to and including the date of suspension or termination and the termination of this Agreement for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any such owing or to become owing to the other.
8) DATA
8.1 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 this Agreement, 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 this Agreement. 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.
8.2 Any intellectual property rights (including any patent, copyright, database right, moral right, design right, registered design trademark, service mark, domain name, know-how, utility model, unregistered design or where relevant any application or any such right or other industrial or intellectual property right subsisting in any part of the world) created by Advantage Utilities in the course of the performance of this Agreement or otherwise in the provision of the Services shall remain Advantage Utilities' property. Nothing in this Agreement shall be deemed to have given the Client a licence or any other right to use any of the intellectual property rights of Advantage Utilities.
8.3 The Client permits Advantage Utilities to gather water and/or energy consumption and other related data from third parties and licenses Advantage Utilities to use that data for any reasonable purpose that it considers appropriate. The client will provide Advantage Utilities with a valid and in-date Letter of Authority (LOA)
9) LAW AND JURISDICTION
9.1 This Agreement shall be governed by English law. This Agreement shall be subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit.