1               Definitions and interpretation

1.1           In this Agreement:

1.1.1       These terms & conditions of the Export Framework Agreement constitute an agreement between the Parties for the Service User to use, BSG Renewables Limited who’s company number is 13706391 whose registered office is at Royal Quays Business Centre, Newcastle Upon Tyne, NE29 6DE, herein defined as “Company”  & the Company’s services listed in Schedule 1 & Detailed in the Export Framework Agreement herein defined as the Agreement.

1.1.2       a reference to the Agreement includes its schedules, appendices and annexes (if any);

1.1.3       a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.1.4       a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.1.5       a reference to a gender includes each other gender;

1.1.6       words in the singular include the plural and vice versa;

1.1.7       any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.1.8       the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and

1.1.9       Business Days shall be defined as meaning a day other than a Saturday, Sunday or bank or public holiday in England.

2               Term

2.1           This Agreement shall start on the date which the Export Framework Agreement is signed herein defined as the “Start Date”. On the date that the first contract begins with a third party, herein defined as “Nominated Provider”, for the purchase of the Service User’s Exported Energy, herein defined as “Access Agreement”, is agreed under this Agreement, herein defined as “Commencement Date” and continue for the Initial Term as defined in the Export Framework Agreement “Term Details”, herein defined as the “Expiry Date”unless this agreement is terminated sooner in accordance with this Agreement.

2.2.          During the term of the agreement the Service User may exercise their right to extend the term of this agreement by the Extension Term detailed in Export Framework Agreement “Term Details” by providing written confirmation to the Company.

3               Service User obligations

3.1           During the Term, the Company agrees to supply Services, and the Service User agrees to purchase the Services on the terms set out in this Agreement.

3.2           The Service User shall, at all times and in all respects:

3.2.1       perform its obligations in accordance with the terms of this Agreement;

3.2.2       comply with the Policies;

3.2.3       co-operate with the Company in all matters arising under this Agreement or otherwise relating to the performance of the Services;

3.2.4       inform the Company in a timely manner of any matters which may affect the provision of the Services;

3.2.5       obtain and maintain all necessary licences, permits and consents required to enable the Company to provide the Services and otherwise comply with its obligations under this Agreement.

3.3           The Service User shall pay the sum of £1500 or the Default Fee as defined in clause 8.3, whichever is larger, should a course of action by the Service User, which causes the Company to lose their Expected Income as defined in clause 8.7 from the use or intended use of their Service(s) once a Service(s) has or have been agreed to be used or has been used. Including but not limited to, an unauthorised change of tenancy, duplicate contracts and supplying incorrect information.

3.4           The Service User is required to notify the Company when contemplating a Change of Tenancy, at the supply address.

3.4.1       All documents relating the Change of Tenancy must be supplied to the Company

3.4.2       The documents must be approved by a representative of the company, failure to disclose, or ascertain approval shall constitute a Breach Event.

4               Exclusivity

4.1           The Company shall be the exclusive supplier to the Service User, of the Services.

4.1.1       The Service User shall not purchase Services from another provider, relating to the MPAN numbers, serial numbers, addresses & postcodes which the Company intends to supply Services for, whether directly or indirectly, from any other person or business, during the Term.

4.2           Nothing in this Agreement shall restrict the Company from supplying any services which are the same as or similar to the Services, to other Service User’s.

5               Performance of the services

5.1           Following procurement of the Services, the Company shall provide written confirmation to the Service User:

5.1.1       the specifics of the Service supplied, including but not limited to, term, start date supplier etc;

5.2           Time of performance shall not be of the essence. The Company shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance.

5.3           The Company shall not be liable for any delay or failure in the performance of the Services caused by:

5.3.1       the Service User’s failure to provide the Company with adequate instructions for the performance of the Services;

5.3.2       the Service User’s failure to provide the necessary documentation required to procure the Services;

5.3.3       Force Majeure.

5.3.4       Events which the Company deems outside of their control

5.3.5       Provider(s) (as defined in Schedule 1) failure, error, negligence, default &/or decision in relation to the Service User &/or the Company.

5.4           The Company is under no obligation to compare all Provider(s) and will only provide quotes they deem appropriate, and viable for their own business purposes.

6               Warranty

6.1           The Service User warrants that:

6.1.1       it has the right, power and authority to enter into this Agreement and grant to the Company the rights (if any) contemplated in this Agreement; and

6.1.2       The necessary documentation required for the procurement of the Services and all other information, documents, materials, data or other items provided by the Service User are legitimate, and do not infringe the Intellectual Property Rights of any third party.

7               Payment

7.1           The Service User understands payment for Services is severable from any third-party contract.

7.2           The Company may raise and issue their invoice for the procurement of Services at any time.

7.2.1       The Service User may request an individual invoice for the Services at any time during the Term, subject to clause 13.

7.3           The Service User shall pay all invoices:

7.3.1       in full in cleared funds within 7 days of the date of each invoice; and

7.3.2       to the bank account nominated by the Company.

7.4           Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:

7.4.1       The Company may, without limiting its other rights, charge interest on such sums at the base rate of nominated bank; and

7.4.2       interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

8               Fees

8.1           The Fees for the Services are paid to the Company by the Nominated Purchaser, except in the event of default by the Service User.

8.2           All Fees are exclusive of value added tax, as defined by the Value Added Tax Act 1994 herein defined as VAT.

8.3           The Default Fee will be calculated by the number of days outstanding on the date of termination between the greater of:

8.3.1       An Access Agreement end date as defined in any Access Agreement.

8.3.2       The Expiry Date as defined in clause 2.1,

multiplied by Average Daily Income multiplied by the Estimated Daily Volume.

8.4           Average Daily Income Shall be defined as the grand total income received by the Company divided by the number of complete days between the Commencement Date & the Termination Date.

8.5           If the number of completed days between the Commencement Date & the Termination Date is less than 365 days. The Estimated Daily Volume shall be the contracted Estimated Annual Volume divided by 365.

8.6           If the number of completed days between the Commencement Date & the Termination Date is greater than 365 days. The Estimated Daily Volume shall be the Year 1 Volume divided by 365.

8.7           Expected Income is hereby defined as the gross revenue the Company can evidence it is expected to make from this agreement.

9               Commission

9.1           By agreeing to use the Services, the Service User agrees, and understands that the Company is entitled to receive payment from the Provider which you enter into an Access Agreement.

9.2           Should the Service User wish to learn more about how the Company is paid by Provider(s) please contact your Account Manager.

10             Limitation of liability

10.1         The Company is not liable for any losses incurred by the Service User in relation to this Agreement.

10.2          Nothing in this Agreement shall operate to exclude or limit either Party’s liability for: (1) death or personal injury caused by its negligence; (2) fraud; (3) wilful misconduct; and/or (4) any other liability which cannot be excluded or limited under applicable law.

10.3         Notwithstanding any other provision of this Agreement, the aggregate liability of either Party, its respective directors and employees, whether in contract, tort or otherwise, shall in no circumstances whatsoever (but to the extent allowed by law) exceed the Fees paid by You to the Company. Neither Party shall be liable to the other Party or any third party for indirect or incidental losses and without limitation generally, to the foregoing, for any special consequential, exemplary or punitive damages, economic loss or failure to realise expected profits, savings or other benefits, regardless whether such damages where foreseeable and whether or not a party has been advised of the possibility of such damages

10.4         The Company is not responsible for anything they deem outside of their control

10.5         The Company shall not be liable for any of the following (whether direct or indirect):

10.5.1    loss of profit;

10.5.2    loss of or corruption to data;

10.5.3    loss of use;

10.5.4    loss of production;

10.5.5    loss of contract;

10.5.6    loss of opportunity;

10.5.7    loss of savings, discount or rebate (whether actual or anticipated);

10.5.8    harm to reputation or loss of goodwill.

10.6         Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:

10.6.1    death or personal injury caused by negligence;

10.6.2    fraud or fraudulent misrepresentation; or

10.6.3    any other losses which cannot be excluded or limited by applicable law.

11             Termination

11.1         This Agreement may be terminated at any time by the Company, giving not less than thirty days’ notice in writing to the Service User.

11.2         Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

11.2.1    the other party commits a material breach of this Agreement, and such breach is not remediable;

11.2.2    the other party commits a material breach of this Agreement which is not remedied within14 days of receiving written notice of such breach;

11.2.3    any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.

11.3         Without prejudice to any other rights that it may have, the Company may terminate this Agreement immediately on written notice to the Service User if the Service User has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid ten Business Days after the Service User has received a written notification from the Company that the payment is overdue.

11.4         This Agreement may be terminated by the Service User on the Expiry Date as defined in clause 2.1 by providing no less than 6 months written notice to the Company.

11.5         Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

11.5.1    stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

11.5.2    is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or if the non-defaulting party reasonably believes that to be the case;

11.5.3    becomes the subject of a company voluntary arrangement under IA 1986;

11.5.4    becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

11.5.5    becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

11.5.6    becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

11.5.7    has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

11.5.8    has a resolution passed for its winding up;

11.5.9    has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

11.5.10  is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;

11.5.11  has a freezing order made against it;

11.5.12  is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

11.6         If the export rate offered in any Access Agreement during the Term is less than the available SEG rate on the date which the Access Agreement is presented, the Service User may Terminate the Agreement without penalty, on the next Access Agreement expiration date.

11.7         In all instances of termination by the Service User or the Company (excluding under clause 11.6) all Fees due under clause 8.3 will become immediately due.

11.8         If termination notice is not provided in accordance with clause 11.4, the term of this agreement will be extended by the Extension Term detailed in the Export Framework Agreement “Term Details” section.

12             Confidential information

12.1         Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity herein defined as “Affiliates”, including any details of its business, affairs, customers, clients, suppliers, plans or strategy ‘Confidential Information’confidential and that it shall not use or disclose the other party’s Confidential Information to any person.

12.2         Each party recognises that any breach or threatened breach of this clause may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

13             Entire agreement

13.1         This Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

13.2         Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

13.3         Nothing in this Agreement purports to limit or exclude any liability for fraud.

14             Notices

14.1         Any notice or other communication given by a party under this Agreement shall be:

14.1.1    in writing and in English;

14.1.2    signed by, or on behalf of, the party giving it;

14.1.3    sent to the relevant party at the address.

14.2         Notices may be given, and are deemed received:

14.2.1    by hand: on receipt of a signature at the time of delivery;

14.2.2    by email: when sent from the registered email address

15             Force majeure

15.1         In this clause, Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement Inability to pay is not Force Majeure.

15.2         A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:

15.2.1    promptly notifies the other of the Force Majeure event and its expected duration; and

15.2.2    uses reasonable endeavours to minimise the effects of that event.

16             Further assurance

Each party shall at the request of the other party, and at the cost of the requesting party, do all acts and execute all documents which are necessary to give full effect to these this Agreement.

17             Variation

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party. Other than variations made under clause 18.

18             Assignment and sub-contracting

18.1         The Company may at any time assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, provided that it gives prior written notice to the Service User.

18.2         The Service User shall not assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights under this Agreement, in whole or in part, without the Company’s prior written consent.

19             Set off

The Service User shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

20             No partnership or agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

21             Severance

21.1         If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

21.2         If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

22             Compliance with law

Each party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither party shall be liable for any breach of this clause 22 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).

23             Third party rights

23.1         A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.

23.2         The Affiliates of the Company shall have the right to enforce the provisions of this Agreement.

24             Governing law

This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

25             Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation

Schedule 1 – Standard Services

Services relating to commercial electricity export agreements:

Export Agreements – the contract between a Provider and the Service User, also referred to in this Agreement as an Access Agreement

Export Meter Installations – the act of obtaining goods and/or services relating to metering export supplies (Chargeable on a case-by-case basis)