Parties:   

These terms & conditions apply to the agreement between the parties outlined in Section 1 of the SME Flex Management agreement.

Background:

The Service User wishes to appoint the Provider as its energy consultant to carry out the Consultancy Services exclusively and the Provider has agreed to that appointment upon the terms set out in this Agreement.

 1. Appointment of the Provider

The Service User appoints the Provider to provide the Consultancy Services to the Service User and the Provider agrees to provide the Consultancy Services to the Service User for the duration of this Agreement upon the following terms and conditions.

2. Consultancy Services

“Consultancy Services” in this Agreement means the services set out in Schedule 1

3. Term of the Agreement

3.1        This Agreement shall be for an initial term outlined in Section 2 of the Flex Management Contract signed by the Service User commencing on the date the Service User signs the Agreement (“the Initial Term”), subject to termination pursuant to Clause 7.

3.2       Provided that, unless not less than 3 months prior written notice of termination is given by either Party to the other, expiring at the end of the Initial Term, this Agreement shall continue in force for a further period which is the equivalent of the Initial Term herein defined as the Additional Term, and such Additional Term (and subsequent Additional Terms) shall similarly renew in the manner set out in this clause unless not less than 3 months written notice of termination is given by either Party prior to the end of the Additional Term.

4. The Provider’s Obligations

For the duration of this Agreement the Provider shall:

4.1        Use reasonable endeavors to provide the Consultancy Services.

4.2       ensure that the Consultancy Services are carried out with reasonable care, skill and diligence,

4.3       provide the Consultancy Services in accordance with established practice applicable to the industry in which the Provider carries out its business.

4.4        Work with the Service User in good faith and a constructive manner to understand and accommodate reasonable requests by the Service User, from time to time, related to the delivery by the Provider of the Consultancy Services.

4.5        The Provider will use its best endeavours to resolve to the reasonable satisfaction of the Service User any complaint of errors in the performance of the Consultancy Services within 21 calendar days of the Service User having notified the Provider of such error in writing along with any written evidence related to that complaint.

4.6        The Provider will, on request of the Service User, provide quotations for Fixed supply contracts from suppliers that the Service User is eligible to switch to under; this agreement, any pre-existing supply agreements, status and where the Service User would achieve a saving in relation to the 3-month rolling average Flex delivered rate achieved by the Service User in relation to the meter for which has been quoted, on an estimated annual cost comparison basis, using the estimated annual consumption the Provider holds for the meter. The Provider will only be obliged to undertake such review once in any 3-month period.

5. Fees, Expenses and Late Fees

5.1         The Service User shall pay to the Provider a fee, as outlined in Section 2 of the Flex Management Contract signed by the Service User, per meter managed for each calendar month for the Consultancy Services (“Fees”) payable in advance on a day nominated by the Provider Day of each month,

5.2       The Service User shall reimburse the Provider all reasonable travelling and other out of pocket expenses wholly and reasonably incurred in the performance of its obligations hereunder, excluding any expenses for meetings between the Parties which will be held at quarterly intervals or additional meetings between the Parties as the Parties may both agree from time to time (“Expenses”), provided that on request the Provider shall provide the Service User with such vouchers or other evidence of actual payment of such Expenses as the Service User may reasonably require.

5.3       The Provider will charge the Service User an additional late payment fee in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 for each invoice which is not paid in full on or before the invoice due date (“Late Fee”), to cover the Provider’s reasonable administration costs. The Provider acting reasonably will have the sole right to waive any fee.

5.4       The Provider will charge the Service User a cancelled direct debit fee of £50.00 for each instance where a direct debit mandate is cancelled (“Cancelled Direct Debit Fee”), to cover the Provider’s reasonable administration costs. The Provider acting reasonably will have the sole right to waive any fee.

5.5       All amounts in this Agreement are exclusive of VAT, which shall, where applicable, be payable in addition.

5.6       Where any invoice becomes overdue, interest will be accrued daily at 8% plus the prevailing Bank of England base rate. An invoice for the interest due will be raised on payment in full and will apply to the full invoice amount irrespective of any partial payment made before the full balance is settled.

6. Payment Method

6.1       All Fees, Expenses, and any Interest and/or Late Fees are to be paid by Direct Debit.

6.2       Any payments made by any other payment method than Direct Debit will have a 2% Surcharge applied and this will be payable within 7 days.

6.3       The Provider will notify the Service User of any Late Fees not less than 3 days prior to the Direct Debit being taken.

6.4       The Service User must complete and sign a Direct Debit form, provided by the Provider and the Provider must be in receipt of this completed.

6.5       All monies paid by the Service User to the Provider pursuant to this Agreement will be non-refundable.

7. Termination

7.1       Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party shall commit any breach of this Agreement and, in the case of a breach which is capable of remedy, fails to remedy it within 28 days’ after receiving written notice giving full particulars of the breach and requiring it to be remedied within that period.

7.2        Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party is deemed to be unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986, calls a meeting to pass a resolution to wind up, presents or has presented a petition for a winding up order, has an administrator or receiver appointed, proposes a company voluntary arrangement or suffers any procedure analogous to the foregoing.

7.3       Termination of this Agreement shall be without prejudice to the rights of either Party which may have accrued up to the date of termination.

8. Early Termination

8.1       If this Agreement is terminated by the Provider pursuant to clause 7.1 then the Service User will pay all outstanding Fees, Expenses and Late Fees relating to the relevant term to the Provider within 14 calendar days of the notice having been given by the Provider.

8.2      If this Agreement is terminated by the Service User pursuant to clause 7.1 or 7.2 then the Service User will only pay to the Provider any Fees, Expenses and Late Fees outstanding at the date this Agreement is terminated.

9. Confidential Information

9.1.        Each Party shall at all times keep confidential (and take reasonable steps to procure that its employees and agents shall keep confidential) and shall not at any time for any reason disclose or permit to be disclosed to any person or make use of or permit to be made use of any information relating to the other Party’s business methods, plans, systems, finances, projects, trade secrets or provision of products or services or customers, clients or suppliers, to which it attaches confidentiality or in respect of which it holds an obligation to a third party.

9.2       Upon termination of this Agreement for whatever reason each Party shall deliver to the other Party all working papers or other material and copies which have either been provided by that other Party or have been prepared by the other Party, in either case pursuant to or for the purposes of this Agreement.

10. Non-Circumvention

Both Parties hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of this Agreement, including but not limited to those provisions regarding the payment of the Fees, and affirm that in every case that they will act with the highest standards of ethics in their dealings with each other.

11. Notice

11.1      All notices to be given under this Agreement by either Party to the other shall be in writing and shall be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

11.2     Notices shall be deemed to have been duly given:

11.2.1   when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

11.2.2  when sent, if transmitted by e-mail and a return receipt is generated; or

11.2.3  on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid.

In each case notices shall be addressed to the most recent address or e-mail address notified to the other Party.

12. Status of the Provider and Employees, and Tax Indemnity

12.1       The Provider shall at all times be an independent contractor.

12.2      Nothing in this Agreement shall render the Provider or any of its Employees to be an employee, agent or partner of the Service User and neither the Provider nor its Employees shall hold themselves out as such.

13. Data Protection

13.1      The Parties shall at all times comply with their respective obligations under the provisions of the Data Protection Acts and EU Regulation 2016/679 General Data Protection Regulation (GDPR) and any statutory modification or re-enactment thereof and any statutory regulations made thereunder.

14. Variation

14.1     These Terms & Conditions may be varied from time to time by the Provider by informing the Service User in writing of any variation 30 days before the variation takes effect. Any variation will be deemed to have been accepted, variations will not and cannot be applied retrospectively.

15. Applicable Law and Jurisdiction

15.1      This Agreement shall be governed by and construed in accordance with the laws of England and Wales.

15.2     The Parties agree to submit to the exclusive jurisdiction of the courts of England and Wales.

SCHEDULE 1 – CONSULTANCY SERVICES

The Provider will undertake the following on behalf of the Service User in respect of the sites owned, managed and occupied by the Service User:

1) Manage SME Day-Ahead Flex Contract Implementation for the Service User.

2) On request, procure fixed energy quotations from eligible suppliers for the Service User in accordance with clause 4.6;

3)Use reasonable endeavours to keep the Service User updated on key energy industry regulation changes that are relevant to the Service User and identify any key areas of non-compliance that might adversely affect the Service User.

4) Exclusive procurement of all gas and electricity contracts during the Term.

5) Arrange for all energy invoicing to be sent by suppliers to The Provider, so the Provider can check the accuracy of the billing and identify any incorrect charges, use reasonable endeavours to have errors corrected and credits received where necessary before validating the invoice