Terms of Business
1 Definitions and interpretation
1.1 In these Terms of Business:
1.1.1 These Terms of Business constitute an agreement between the BSG Utilities Limited whose company registration number is 13787104 and registered office address is Cobalt 3.1, Silver Fox Way, Cobalt Business Park, Newcastle-Upon-Tyne, NE27 0QJ, trading as HARSAV Group herein defined as the “Company”, and the party using the services of the Company herein defined as “Service User” for the Service User to use the services listed in Schedule 1 herein defined as “Service(s)” &/or the services outlined within Schedule 2 herein defined as “Supplementary Service(s)” of the Company under these terms.
1.1.2 a reference to these Terms of Business 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 these Terms of Business are included for convenience only and shall have no effect on the interpretation of this these Terms of Business; 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.
These Terms of Business shall start on the earlier of: the date on which the Service User sign the Company’s Letter of Engagement &/or a Letter of Authority, or 14 days after these Terms of Business have been provided to the Service User herein defined as “Commencement Date”, and continue so long as the Company provides the agreed Services, unless these Terms of Business are terminated sooner in accordance with these Terms of Business.
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 these Terms of Business.
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 these Terms of Business;
3.2.2 comply with the Policies;
3.2.3 co-operate with the Company in all matters arising under these Terms of Business 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 these Terms of Business.
3.3 The Service User shall pay the sum of £1500 or the Default Fee as defined in clause 8.3, whichever is larger herein defined as the “Event Fee”, should a course of action by the Service User, which causes the Company to lose their expected, evidencable income from the use or intended use of their Service(s) and/or the Supplementary Services (s) once a Service(s) or Supplementary Services (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 here in defined as a “Breach Event” occur.
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.
4.1 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 &/or MPRN number which the Company are supplying Services to, whether directly or indirectly, from any other person or business, during the Term.
4.2 Nothing in these Terms of Business shall restrict the Company from supplying any services which are the same as or similar to the Service(s), to other Service User’s.
5 Obligations of the Company
5.1 Time of performance shall not be of the essence. The Company shall use its reasonable endeavours to perform the Service(s) in accordance with any commencement or end dates specified for performance.
5.2 The Company shall not be liable for any delay or failure in the performance of the Services caused by:
5.2.1 the Service User’s failure to provide the Company with adequate instructions for the performance of the Service(s);
5.2.2 the Service User’s failure to provide the necessary documentation required to procure the Services;
5.2.3 Force Majeure.
5.2.4 Events which the Company deems outside of their control
5.2.5 Utility Provider (as defined in Schedule 1) failure, error, negligence, default &/or decision in relation to the Service User &/or the Company.
5.3 The Company is under no obligation to compare all Utility Supplier(s), and will only provide quotes they deem appropriate, and viable for their own business purposes.
6.1 The Service User warrants that:
6.1.1 it has the right, power and authority to enter into these Terms of Business and grant to the Supplier the rights (if any) contemplated in these Terms of Business; 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.
7.1 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 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.
8.1 The Fees for the Services are as defined in Schedule 3.
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 greater of:
8.3.1 The number of days outstanding on the date of termination of Supply Contract as defined in Schedule 1, multiplied by Actual Daily Commission &/or the Estimated Daily Consumption, whichever is greater, multiplied by the number of days outstanding on the date of termination of Supply Contract, multiplied by the Per Unit Commission included within the contractual unit rate of the Supplier Contract.
8.3.2 The number of days during the Term of Supply Contract as defined in Schedule 1, multiplied by Actual Daily Commission &/or the Estimated Daily Consumption, whichever is greater, multiplied by the number of days outstanding on the date of termination of Supply Contract, multiplied by the Per Unit Commission included within the contractual unit rate of the Supplier Contract.
9.1 By agreeing to use the Services, the Service User agrees, and understands that the Company is entitled to receive a commission for providing the Services.
9.2 The Company will not receive a commission from the respective Utility Supplier in relation to a Supply Contract agreed by the Service User if the Supply Contract is registered with the Utility Supplier for the relevant Supply Contract on or around the agreed contract start date within the Supply Contract herein defined as “Go Live”.
9.3 If the transaction is successful, and the Company receive, or are due to receive a commission;
9.3.1 The charge for the Services will be included within of the price contained within the energy supply contract proposed, prior to the Supply Contract being executed.
9.3.2 Supplementary Services are not included within the energy proposal, or Supply Contract.
9.4 If the transaction is unsuccessful and any supply contract executed by the Company on behalf of the Service User does not Go Live the Services User will be liable to pay the Default Fee as defined in Clause 8.3.
9.5 The maximum commission the Company will charge is £0.03 per kWh of energy per unit consumed and/or £1 per day of the contractual term.
9.5.1 In line with TPI Code of Conduct, should you require specifics regarding the commission value built into your proposal, or service contract, any request or notice, must be given in accordance with clause 13.
9.6 Commissions paid by the supplier are exclusive of VAT.
10 Limitation of liability
10.1 The Company is not liable for any losses incurred by the Service User in relation to these Terms of Business.
10.2 Nothing in these Terms of Business 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 these Terms of Business, 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 the Service User 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 these Terms of Business, 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.
11.1 These Terms of Business 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 these Terms of Business at any time by giving notice in writing to the other party if:
11.2.1 the other party commits a material breach of these Terms of Business, and such breach is not remediable;
11.2.2 the other party commits a material breach of these Terms of Business 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 these Terms of Business 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 these Terms of Business immediately on written notice to the Service User if the Service User has failed to pay any amount due under these Terms of Business 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 Either party may terminate these Terms of Business at any time by giving notice in writing to the other party if that other party:
11.4.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
11.4.2 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;
11.4.3 becomes the subject of a company voluntary arrangement under IA 1986;
11.4.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
11.4.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
11.4.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
11.4.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
11.4.8 has a resolution passed for its winding up;
11.4.9 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;
11.4.10 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;
11.4.11 has a freezing order made against it;
11.4.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
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 These Terms of Business 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 these Terms of Business in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in these Terms of Business.
13.3 Nothing in these Terms of Business purports to limit or exclude any liability for fraud.
14.1 Any notice or other communication given by a party under these Terms of Business 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 these Terms of Business 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 these Terms of Business 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 Terms of Business.
No variation of these Terms of Business shall be valid or effective unless it is in writing, refers to these Terms of Business 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 these Terms of Business, 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 these Terms of Business, 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 these Terms of Business 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 these Terms of Business 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.
21.1 If any provision of these Terms of Business (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Terms of Business shall not be affected.
21.2 If any provision of these Terms of Business (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 these Terms of Business, 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 these Terms of Business by the other party (or its employees, agents and representatives).
23 Third party rights
23.1 A person who is not a party to these Terms of Business shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of these Terms of Business.
23.2 The Affiliates of the Company shall have the right to enforce the provisions of these Terms of Business.
24 Governing law
These Terms of Business 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.
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, these Terms of Business, its subject matter or formation
Schedule 1 – Standard Services
Services relating to commercial Energy, Gas and Water Supply:
Standard Procurement – the act of obtaining goods or services, once procured and the service contract supplied, anything outside this remit may become chargeable.
Supply Contract – the contract between the the supplier of electricity &/or gas as the case may be herein defined as the “Utility Supplier” and the Service User
Schedule 2 -Supplementary Services
Services relating to commercial Energy, Gas and Water Supply.
All services which are outside Standard Procurement, which may specifically include, but not limited to:
-Corporate Power Purchase Agreement
-Risk Management Strategy Development
-Fixed Price Solutions
-Flexible Risk Managed Solutions
-OJEU Compliant Procurement
-Market Research and Intelligence
-Contract Validation & Review
-Hourly Charged Consultancy Provisions