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Terms and Conditions For The Supply Of Services
The following definitions and rules of interpretation apply in these conditions:
has the meaning given in clause 3.4;
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Business Energy Report”
the report that we will provide to you as part of the Services;
has the meaning given in clause 2.2;
has the meaning given in clause 5.1;
these terms and conditions as amended from time to time in accordance with clause 11.5;
the contract between you and us for the supply of Services in accordance with these Conditions;
or “you” or “your” the person or firm who receives Services from us;
has the meaning given in clause 4.6;
“Data Protection Legislation”
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
the energy supplier that you chose to enter into a New Energy Supply Contract with;
“First Letter of Authority”
has the meaning given in clause 4.3;
"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;
“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;
has the meaning given in clause 3.4;
“Second Letter of Authority”
has the meaning given in clause 4.4;
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);
"Supplier" or “we” or “us”
the Energy Checking Company Limited registered in England and Wales with company number 09163306 whose registered office is at Unit 4 Waverley Business Park, South Shields, Tyne & Wear, United Kingdom, NE33 1LE;
“Third Letter of Authority”
has the meaning set out in clause 4.5;
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 all subordinate legislation made under that statute or statutory provision.
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.
BASIS OF CONTRACT
By signing the First Letter of Authority, you are making an offer to obtain the Services in accordance with these Conditions.
The offer set out in clause 2.1 shall only be deemed to be accepted by us when we send you an email acknowledging receipt of the signed First Letter of Authority, at which point and on which date the Contract shall come into existence between you and us ("Commencement Date").
Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
SUPPLY OF SERVICES
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.
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.
We warrant to you that the Services will be provided using reasonable care and skill.
We can also present various energy efficiency solutions (such as LED, solar and 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.
CUSTOMER'S OBLIGATIONS General obligations
to co-operate with us in all matters relating to the Services;
on demand, to provide us with such information, data or documents as we may reasonably require in order to supply the Services;
to ensure that all information, data and documents provided to us by you are complete, up to date and accurate at all times;
to immediately inform us if there is any change in your circumstances and/or business which may affect the provision of the Services;
to provide such assistance as we may reasonably require from time to time in relation to the Services;
that we may supply any information, data or documents that we receive from you to such energy providers as we may determine;
to comply with the provisions of the Bribery Act 2010 and any other applicable legislation.
We will ask you to sign 3 letters of authority in connection with the Services.
By signing the first letter of authority (“First Letter of Authority”), you agree to the following:
to provide authority for us to obtain information from your current energy supplier(s) in relation to your current rates and energy consumption;
to provide authority for us to enter into discussions and/or arrangements with such energy providers from our portfolio as we may determine.
By signing the second letter of authority (“Second Letter of Authority”), you agree to the following:
we may terminate your existing energy supply contract on your behalf;
to enter into the New Energy Supply Contract with the Energy Supplier;
to provide authority for us to enter into the New Energy Services Contract with the Energy Supplier on your behalf (if necessary);
to transfer to the Energy Supplier in accordance with the terms of the New Energy Supply Contract and comply with the terms of the New Energy Supply Contract;
to provide a signed direct debit mandate for the New Energy Supply Contract (if required by the Energy Supplier);
to provide all information required by the Energy Supplier under the New Energy Supply Contract;
you warrant that you have not and you will not 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.
By signing the third letter of authority (“Third Letter of Authority”), you agree to the following:
to provide authority for us to obtain information from the Energy Supplier in connection with the New Energy Supply Contract including in relation to rates and energy consumption;
that we can provide you with details of extensions and changes or variations to the New Energy Supply Contract for you to choose to accept and authorising us to accept such extensions or changes on your behalf.
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"):
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;
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
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. 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. The amount could be up to ten percent (10%) of the total energy costs of the New Energy Supply Contract.
There is no direct fee payable by you to us in connection with the Services. 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.
INTELLECTUAL PROPERTY RIGHTS
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.
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).
You agree that we may also share the contact details of your relevant personnel with the Energy Supplier.
Each party shall comply with all the obligations imposed on a Controller under the Data Protection Legislation.
Your attention is particularly drawn to this clause
LIMITATION OF LIABILITY
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;
fraud or fraudulent misrepresentation.
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.
Subject to clause 8.1, we shall have no liability to you under or in connection with this Contract in respect of:
Loss of profits
Loss of sales or business.
Loss of agreements or contracts.
Loss of anticipated savings.
Loss of use or corruption of software, data or information.
Loss of or damage to goodwill.
Indirect or consequential loss.
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.
This clause 8 shall survive termination of the Contract.
TERM AND TERMINATION
Subject to clause 9.2:
if you do not sign a Second Letter of Authority, this Contract shall terminate on completion on the Services as set out in the Business Energy Report; or
if you do sign a Second Letter of Authority, this Contract shall terminate on the date that the New Energy Supply Contract terminates in accordance with its terms.
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:
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;
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;
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
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.
CONSEQUENCES OF TERMINATION
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.
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.
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.
Assignment and other dealings.
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.
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.
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.
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.
Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
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.
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.
Nothing in this clause shall limit or exclude any liability for fraud.
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).
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.
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.
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).
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.
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.
Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
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 England.
Jurisdiction. Each party irrevocably agrees that the courts of England 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.