1. Definitions and Interpretation
1.1 In these Conditions the following words and expressions have the following meanings unless inconsistent with the context:
“Additional Charges” the costs of any taxes, duties or other charges levied by any Governmental or authority in respect of or by reason of the sale, delivery, courier and messenger costs and any other additional charges payable by the Customer in addition to the Price;
“Climate Change Levy” the climate change levy as introduced under the Finance Act 2000 as amended, altered or replaced from time to time with another change or levy intended to have a similar effect or purpose;
“Conditions” these terms and conditions;
“Contract” any agreement for the supply of Services from Utility Exchange to the Customer in accordance with Condition 2.4;
“Contract Details” the specific details of the Contract confirmed by Utility Exchange and provided to the Customer prior to delivery of the Services, including any Proposal;
“Customer” the person which has accepted these Conditions;
“Price” the price due from the Customer for the supply of Services as detailed in the Contract Details or as otherwise notified to the Customer in accordance with Condition 3.1;
“Promotion” as defined in Condition 6.1;
“Proposal” any proposal, tender, estimate or quotation submitted to the Customer by Utility Exchange prior to the Contract being made;
“Services” the services to be provided by Utility Exchange to the Customer pursuant to the Contract and detailed in Contract Details;
“Supplier” any supplier of services, products and/or goods selected by Utility Exchange from time to time;
“Utility Exchange” Utility Exchange Online Limited, whose principal place of business is 6th Floor, 39 Deansgate, Manchester, M3 2BA;
“Website Terms” the website terms and conditions of use of Utility Exchange as amended from time to time and as displayed on Utility Exchange’s website; and
1.2 References to any statute or statutory provision include, unless the context otherwise requires, a reference to the statute or statutory provision as modified or re-enacted and in force from time to time and any subordinate legislation made from time to time under the relevant statute or statutory provision.
1.3 References to persons include natural persons, firms, partnerships, companies, corporations, associations and organisations, (in each case whether or not having separate legal personality).
1.4 Use of any gender includes the other genders.
1.5 Words in the singular include the plural and words in the plural include the singular.
1.6 Any reference to “writing” or any cognate expression includes communications by post, facsimile and email but excludes text messages.
1.7 The headings to Conditions do not affect the interpretation of these Conditions.
1.8 Any phrase introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding that term.
2. Basis of Contract
2.2 No variation of these Conditions shall be binding unless agreed in writing by a director of Utility Exchange and no collateral or supplemental contract may be made or construed unless confirmed in writing by a director of Utility Exchange.
2.3 Any Proposal submitted to the Customer will not constitute an offer and shall remain valid for the period stated therein or where no period is stated 72 hours. Notwithstanding this Condition 2.3, any Proposal shall no longer be valid in the event that a Supplier changes its charges.
2.4 Each order or acceptance of a Proposal for the supply of Services by the Customer shall be deemed to be an offer by the Customer to purchase the Services subject to these Conditions. The Order shall only be deemed to be accepted when Utility Exchange commences supply of the Services and not before, at which point the Contract shall come into existence.
2.5 Utility Exchange may at any time without notifying the Customer make any changes to the Services which do not materially affect the nature or quality of the Services.
2.6 Utility Exchange’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by Utility Exchange in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed save that nothing in this Condition excludes Utility Exchange’s liability for fraudulent misrepresentation.
2.7 Any typographical, clerical or other omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Utility Exchange shall be subject to correction without any liability on the part of Utility Exchange.
3.1 Use of the Services is currently free to the Customer. However, Utility Exchange reserves the right to charge the Customer for the Services. The Customer will be clearly notified of any applicable charges before any such Services are carried out or before any such charges are levied (“Price”).
3.2 Notwithstanding Condition 3.1, where the Customer has entered into an agreement with a Supplier pursuant to the Services and subsequently cancels that agreement prior to the provision of the relevant utility service(s) by that Supplier, Utility Exchange may charge the Customer, as an Additional Charge, for the Services including any costs and expenses incurred by Utility Exchange.
3.3 Where Condition 3.1 or Condition 3.2 applies, all Prices shall be exclusive of VAT (or any other sales tax).
4.1 The payment terms in this Condition 4 apply save to the extent that they are inconsistent with any specific payment terms set out in the Contract Details or otherwise agreed in writing between the parties.
4.2 Where applicable Utility Exchange shall be entitled to invoice the Customer for the Price and any Additional Charges on or at any time after delivery of the Services or any instalment thereof.
4.3 The Customer shall pay each invoice from Utility Exchange without any set-off or other deduction within 30 days from the invoice date. The time for payment of Utility Exchange’s invoices shall be of the essence of the Contract.
4.4 If the Customer fails to pay in full any invoice from Utility Exchange by the due date for payment without prejudice to any other right or remedy Utility Exchange may have, all invoices issued by Utility Exchange pursuant to the Contract shall immediately fall due for payment and Utility Exchange shall be entitled to charge the Customer interest (both before and after any judgment) on the amount unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time.
4.5 Unless otherwise agreed in writing by Utility Exchange, all queries from the Customer regarding any invoice must be received prior to the required payment date in Condition 4.3.
5.1 Utility Exchange shall reasonably endeavour to perform the Services on the date(s) specified by Utility Exchange in the Contract Details or as otherwise agreed between the parties in writing, subject to the availability of Utility Exchange’s employees, agents and sub-contractors and the availability and delivery of the Services. The time of performance of the Services and the length of time of performance shall not be of the essence.
5.2 Utility Exchange may at any time withdraw any Supplier (or any product or service of a Supplier) from the Services.
5.3 Acceptance of the Services shall take place in accordance with the provisions set out Contract Details.
6.1 Utility Exchange may offer an enticement and/or incentive from time to time pursuant to the Services (“Promotion”). Details of current Promotions will be available on Utility Exchange’s website or via a Utility Exchange account manager.
6.2 All Promotions are invitations to treat and subject to availability. Utility Exchange reserves the right to change or withdraw any Promotion at any time.
6.3 Utility Exchange shall be entitled to alter the value of a Promotion at any time and in particular where the Customer’s projected consumption of a Supplier’s utility does not reflect the actual usage.
6.4 Promotions are available for Customers and cannot be used in conjunction with other Promotions or offers. No cash alternatives are available.
7. Customer Obligations
7.1 The Customer warrants that it will carry out all actions specified in the Contract Details by the times and dates set out therein and that any information it provides to Utility Exchange is true, complete and accurate in all material respects. The Customer will promptly notify Utility Exchange or any changes to such information.
7.2 The Customer shall be responsible for all payments due to the Supplier, including any Climate Change Levy that may be due on the terms agreed with the relevant Supplier. For the avoidance of doubt, Utility Exchange shall have no responsibility for payments to the Supplier from the Customer.
7.3 Utility Exchange will inform the Customer of any applicable terms and conditions imposed by a Supplier, in relation to the supply of its services, products and/or goods and the Customer agrees to abide by these terms and conditions.
7.4 If the Customer fails to comply with the Conditions, Utility Exchange may suspend provision of the Services. If Utility Exchange suspends the Services, it may refuse to restore the Services until it receives an assurance from the Customer in a form deemed acceptable by Utility Exchange, that there will be no further breach of these Conditions.
7.5 If the Utility Exchange’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors or employees, Utility Exchange shall not be liable for any costs, expenses, losses or charges sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
7.6 Notwithstanding the provisions of Condition 7.5, Utility Exchange may charge the Customer as an Additional Charge for any additional reasonable costs and expenses incurred by Utility Exchange caused by the Customer’s instructions, failure to provide instructions, or failure to comply with Condition 7.1.
7.7 The Customer shall not, without the prior written consent of Utility Exchange at any time from the expiry of 6 months after the last date of supply of the Services, solicit or entice away from Utility Exchange or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier in the provision of the Services.
7.8 Any consent given by Utility Exchange in accordance with Condition 7.7 shall be subject to the Customer paying to Utility Exchange a sum equivalent to 20% of the then current annual remuneration of Utility Exchange’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee or sub-contractor.
8.1.1 perform the Services with reasonable care and skill subject to the Customer complying with the obligations set out in Condition 7.1;
8.1.2 use its reasonable endeavours to ensure that the information relating to the Supplier’s services and the cost of such services is updated regularly. However, the Customer acknowledges that the prices are not updated every day and that it is the Customer’s responsibility to verify the prices with the Supplier; and
8.1.3 use its reasonable endeavours to ensure the information provided to it by Suppliers is accurate.
8.2 The Service is made available to Customers solely to communicate information and to permit the Customer to obtain quotations of Suppliers or transact with Suppliers. Utility Exchange will not be a party to any such transactions with Suppliers and all such transactions are subject to the terms and conditions of the relevant Suppliers. Utility Exchange shall in no circumstances have any liability whatsoever in respect of any such transaction. Utility Exchange will not be responsible for any loss, cost or damage incurred by Customers arising out of or in relation to the transaction or attempt to enter into a transaction (including but not limited to failure to transmit or deliver any services, products or goods).
8.3 Utility Exchange will accept liability for the transmission or reception of, or the failure to transmit or receive, material, except where such transmission reception or failure is caused by or relates to a third party or customer system.
8.4 Utility Exchange does not guarantee to provide the Service free of faults. In the event of a fault the Customer should report in by telephone on the support number provided to the Customer.
8.5 Utility Exchange does not warrant that the Customer’s use of the Services will be uninterrupted and does not warrant that any messages or information provided by Utility Exchange in provision of the Services will be transmitted accurately, reliably, in a timely manner or at all. Utility Exchange reserves the right to make the Service unavailable at any time or restrict access to parts of it without notice.
8.6 Utility Exchange does not warrant and excludes all liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Services and the Customer agrees that sole responsibility for the accuracy, completeness, fitness for purpose or legality of information relating to the Supplier’s information, goods or services shall rest with the Supplier.
8.7 Except for the circumstances set out at Conditions 8.2 to 8.6 inclusive above, Utility Exchange will not be liable for any loss or damage suffered as a result of any use of the Services, including any direct loss or damage and any loss or damage which could not be contemplated by the Customer and Utility Exchange at the time of the Customer’s use of the Services. Utility Exchange also has no liability for any failure by a Supplier to supply its services properly or at all. That liability rests with the Supplier with whom the Customer has contracted. Where the Customer is using the Service for commercial purposes no liability for loss of revenue, profits or other economic loss, or for corruption or destruction of data arising out of a breach of the Condition can be accepted.
8.8.1 in respect of any loss of profits, loss of business, loss of goodwill, loss of anticipated savings, loss of use or for any type of consequential, special or indirect loss or damage, Utility Exchange’s liability shall be nil;
8.8.2 in respect of all other direct loss (whether in contract, tort or otherwise) Utility Exchange’s total liability under the Contract shall not exceed the lowest cost of replacing the Services with the same or nearest comparable services at the time of the claim in aggregate.
8.10 Nothing in these Conditions seeks to limit Utility Exchange’s liability for personal injury or death caused by Utility Exchange’s negligence in respect of which Utility Exchange’s liability shall be unlimited.
9.1 All intellectual property rights (including all copyright, patents, trade marks, service marks, trade names, designs (including the “look and feel” and other visual or non-literal elements) whether registered or unregistered) in the Utility Exchange website, information and content on the website, any database operated by Utility Exchange and software shall remain the property of Utility Exchange or its licensors and the Customer shall not obtain, and shall not attempt to obtain any title to any such intellectual property rights.
9.2 No part of the Service may be reproduced in any form or used in any other way except in accordance with these Conditions.
9.3 Utility Exchange grants the Customer a non-exclusive non-transferrable licence to use Utility Exchange software solely in executable form and only to the extent necessary for use of the Services and for no other purpose.
9.4 The Customer grants Utility Exchange a royalty free, perpetual, non-exclusive right to use, copy, modify, adapt, translate, publish and distribute world-wide any material transmitted by the Customer via the Services, save where such message is transmitted by way of private correspondence.
10. Data Protection
11.1 Without prejudice to any other remedies or rights whether under the Contract or otherwise and notwithstanding Condition 7.4, Utility Exchange may suspend the Services or terminate the Contract at any time by written notice to the Customer and the notice taking effect as specified in the notice if:
11.1.2 Utility Exchange suspects on reasonable grounds that the Customer may have committed or be committing any fraud against Utility Exchange or any Supplier; or
11.1.3 the Customer suspends, or threatens to suspend, payment of its debts, or the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business, or is subject to an insolvency event (including but not limited to a voluntary arrangement, bankruptcy, administration or liquidation), or a creditor or encumbrancer attaches or takes possession of, or a process is levied or enforced on or sued against, the whole or any part of any property or assets of the Customer;
11.1.4 Utility Exchange reasonably apprehends that any of the events mentioned above is about to occur and notifies the Customer accordingly.
11.2 For the purposes of Condition 11.1.1, a breach shall be considered capable of remedy if the Customer can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
12. Consequences of termination
12.1 Upon termination of the Contract for any reason the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
13. Force Majeure
13.1 Utility Exchange shall not be liable to the Customer or be deemed to be in breach of this Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Contract, if the delay or failure was due to any cause beyond Utility Exchange’s reasonable control such as (but without limitation) any strike, lock-out or other form of industrial action, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors or inability to procure materials required for performance of the Contract.
13.2 Utility Exchange shall promptly notify the Customer in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 1 month, Utility Exchange may terminate the Contract by written notice to the Customer.
14.1 A person who is not a party to the Contract will not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
15.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Notices sent by post shall be deemed served on the next Working Day following posting where the notice is sent and received within the United Kingdom, or 7 Working Days following posting where the notice is sent and/or received outside of the United Kingdom. Any notice delivered personally shall be deemed served at the time of personal delivery provided the same occurs on a Working Day. Any notice sent by email or fax shall be deemed served at the time of transmission provided that the transmission occurs on a Working Day and a confirmatory copy of the email or fax is sent by post within 24 hours of transmission of the fax or e-mail.
16. Entire agreement
16.1 Each Contract constitutes the entire agreement between the parties in relation to its subject matter, supersedes any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
17.1 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for or to bind another party in any way.
18. Further assurance
18.1 Each party to the Contract shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of the Contract or to make it easier to enforce.
19.1 Utility Exchange may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19.2 The Customer shall not, without the prior written consent of Utility Exchange, assign, transfer, charge, sub-contract or deal in any manner with all or any of its rights or obligations under the Contract.
20.1 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions shall remain in full force and effect.
21.1 If Utility Exchange fails or delays or compromises in exercising a right or remedy under the Contract, the right or remedy is not to be treated as having been waived, restricted or varied and agreement by Utility Exchange to refrain from exercising a right in one particular instance will not prevent it from exercising it in full in the future.
22. Cumulative remedies
22.1 All rights and remedies available to either of the parties under the terms of the Contract or under the general law are to be cumulative, and no exercise by either of the parties of any such right or remedy is to restrict or prejudice the exercise of any other right or remedy granted by the Contract or otherwise available to that party.
23. Governing law and jurisdiction
23.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter will be governed by and construed in accordance with the law of England.
23.2 The parties irrevocably agree that the courts of England will have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.