Terms and conditions

1 Definitions and interpretation

1.1 In these Conditions the following definitions apply:

Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;

Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;

CEC means Control Energy Costs Limited whose registered office is at Kingsgate, 62 High Street, Redhill, RH1 1SH;

CEC Personnel means all employees, officers, staff, other workers, agents and consultants of CEC, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;

Client means the named client party in the Master Services Agreement which has agreed to purchase the Services from CEC and whose details are set out in the Client Order;

Client Information means the information to be provided to CEC under and in accordance with the Master Services Agreement;

Client Order means the Client’s request or order for  Services from CEC whether made by way of email, text or any other form of communication that is accepted by CEC;

Conditions means CEC’s terms and conditions of supply set out in this document and which form part of the Master Services Agreement;

Confidential Information means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Master Services Agreement;

Control has the meaning given to it in section 1124 of the Corporation Tax Act 2010 OR means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;

Fees has the meaning set out in clause 3.1;

Force Majeure shall have meaning given to it in the Master Services Agreement;

Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:

1. whether registered or not;
2. including any applications to protect or register such rights;
3. including all renewals and extensions of such rights or applications;
4. whether vested, contingent or future;
5. to which the relevant party is or may be entitled, and
6. in whichever part of the world existing;

Location means the address or addresses for performance of the Services as set out in the Client Order;

Master Services Agreement means the agreement between CEC and the Client for the supply and purchase of Services incorporating these Conditions including all their respective schedules, attachments, and annexures;

Modern Slavery Policy means CEC’s anti-slavery and human trafficking policy in force and notified to the Client from time to time;

MSA Offence has the meaning given in clause 9.2.1;

Products means any documents, data, reports and other material developed, written or delivered by CEC in the course of performing the Services; 

Services means the Services to be performed in accordance with the Master Services Agreement;

Specification means the description provided for the Services set out or referred to in the Master Services Agreement; and

VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.

1.2 In these Conditions, unless the context requires otherwise:

1.2.1 reference to the Master Services Agreement includes these Conditions, the Client Order, and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

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

1.2.4 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;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

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

1.2.8 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;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form; and

1.2.10 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2 Application of these Conditions

2.1 These Conditions apply to and form part of the Master Services Agreement between CEC and the Client. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Client’s order, purchase conditions, confirmation of order, specification or other document shall form part of the Master Services Agreement except to the extent that CEC otherwise agrees in writing.

2.3 CEC may vary these Conditions upon giving written notice to the Client and the Client will be deemed to have accepted such variation unless it gives written notice that it rejects it within fourteen (14) Business Days of CEC’s notice under this clause 2.3.

2.4 Each Client Order by the Client to CEC shall be an offer to purchase Services subject to the Master Services Agreement including these Conditions.

2.5 If CEC is unable to accept a Client Order, it shall notify the Client in writing as soon as reasonably practicable.

2.6 The offer constituted by a Client Order shall remain in effect and be capable of being accepted by CEC for thirty (30) Business Days from the date on which the Client submitted the Client Order, after which time it shall automatically lapse and be withdrawn.

2.7 CEC may accept or reject a Client Order at its discretion. A Client Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:

2.7.1 CEC’s written acceptance of the Client Order; or

2.7.2 CEC performing the Services or notifying the Client that they are ready to be performed (as the case may be).

2.8 Rejection by CEC of a Client Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Client.

2.9 CEC may issue quotations to the Client from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Client.

2.10 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Master Services Agreement.

3 Fees

3.1 The fees for the Services shall be as set out in the Master Services Agreement or, where no such provision is set out, shall be calculated in accordance with CEC’s prevailing scale of charges in force from time to time or as advised by CEC from time to time before the date the Client Order is placed.

3.2 All Fees are exclusive of:

3.2.1 All out of pocket and other expenses which shall be charged in addition at CEC’s standard rates, and

3.2.2 VAT (or equivalent sales tax).

3.3 The Client shall pay any applicable VAT to CEC on receipt of a valid VAT invoice.

3.4 Where provided in the Master Services Agreement, CEC may increase the Fees at any time by giving the Client not less than fourteen (14) Business Days’ notice in writing.

3.5 Notwithstanding clause 3.4, CEC may increase the Fees with immediate effect by written notice to the Client where there is an increase in the direct cost to CEC of supplying the relevant Services which exceeds three (3) % and which is due to any factor beyond the control of CEC.

4 Payment

4.1 CEC shall invoice the Client for the Services in accordance with the Master Services Agreement.

4.2 The Client shall pay all invoices:

4.2.1 in full without deduction or set-off, in cleared funds within not more than thirty days of the date of each invoice; and

4.2.2 to the bank account nominated by CEC in the Master Services Agreement.

4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

4.3.1 CEC may, without limiting its other rights, charge interest on such sums at three (3) % a year above the base rate of NatWest Group from time to time in force, and

4.3.2 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.

5 Credit limit

CEC may set and vary credit limits for the Client from time to time and withhold all further supplies if the Client exceeds such credit limit.

6 Performance

6.1 The Services shall be performed by CEC at the Location on the dates and/or for the period specified in the Client Order or as otherwise agreed by the parties.

6.2 The Services shall be deemed performed on completion of the performance of the Services as specified in the Master Services Agreement.

6.3 Any delay or interruption in the provision of any of the Services that is caused by factors outside CEC’s control shall not entitle the Client to terminate the Master Services Agreement.

6.4 Time of performance of the Services is not of the essence. CEC shall use its reasonable endeavours to meet any estimated dates for performance, but any such estimated dates are indicative only and not binding on CEC.

6.5 CEC shall not be liable for any delay in or failure of performance caused by:

6.5.1 the Client’s failure to make the Location available;

6.5.2 the Client’s failure to provide any Client Information on time or at all; 

6.5.3 any act of omission, prevention or interference (including by any third party) which has the effect of delaying or interrupting the provision of the Services; and

6.5.4 Force Majeure.

7 Warranty

7.1 The Client warrants that it has provided CEC and will provide CEC when requested by CEC all relevant, full and accurate information as to the Client’s business and needs.

7.2 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.

7.3 CEC gives no warranties and makes no representations in relation to the Services; and

7.4 All warranties and conditions (including the conditions implied by ss 13–15 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

8 Anti-bribery

8.1 For the purposes of this clause 8 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

8.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that:

8.2.1 all of that party’s personnel;

8.2.2 all others associated with that party; and

8.2.3 all of that party’s sub-contractors;

involved in performing the Master Services Agreement so comply.

8.3 Without limitation to clause 8.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

8.4 The Client shall immediately notify CEC as soon as it becomes aware of a breach or possible breach by the Client of any of the requirements in this clause 8.

8.5 Any breach of this clause 8 by the Client shall be deemed a material breach of the Master Services Agreement that is not remediable and shall entitle CEC to immediately terminate the Master Services Agreement by notice under clause 16.1.1.

9 Anti-slavery

9.1 CEC shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.

9.2 The Client undertakes, warrants and represents that:

9.2.1 neither the Client nor any of its officers, employees, agents or subcontractors has:

1. committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
2. been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
3. is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;

9.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;

9.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to CEC on request at any time throughout the Master Services Agreement;

9.3 The Client shall notify CEC immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Client’s obligations under clause 9.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Client’s obligations.

9.4 Any breach of clause 9.2 by the Client shall be deemed a material breach of the Master Services Agreement and shall entitle CEC to terminate the Master Services Agreement with immediate effect.

10 Indemnity and insurance

10.1 The Client shall indemnify, and keep indemnified, CEC from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by CEC as a result of or in connection with the Client’s breach of any of the Client’s obligations under the Master Services Agreement.

10.2 The Client shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or another country by agreement in writing with CEC to cover its obligations under these Conditions. On request, the Client shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Client shall on request assign to CEC the benefit of such insurance.

11 Limitation of liability

11.1 The extent of the parties’ liability under or in connection with the Master Services Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.

11.2 Subject to clause 11.5, CEC’s total liability shall not exceed the sum of £1,000,000.00.

11.3 Subject to clause 11.5, CEC shall not be liable for consequential, indirect or special losses.

11.4 Subject to clause 11.5, CEC shall not be liable for any of the following (whether direct or indirect):

11.4.1 loss of profit;

11.4.2 loss of revenue;

11.4.3 loss or corruption of data;

11.4.4 loss or corruption of software or systems;

11.4.5 loss or damage to equipment;

11.4.6 loss of use;

11.4.7 loss of production;

11.4.8 loss of contract;

11.4.9 loss of commercial opportunity;

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

11.4.11 harm to reputation or loss of goodwill; and/or

11.4.12 wasted expenditure.

11.5 Notwithstanding any other provision of the Master Services Agreement, the liability of the parties shall not be limited in any way in respect of the following:

11.5.1 death or personal injury caused by negligence;

11.5.2 fraud or fraudulent misrepresentation;

11.5.3 any other losses which cannot be excluded or limited by Applicable Law.

12 Intellectual Property

12.1 The Intellectual Property Rights in and to all Products shall belong to CEC;

12.2 CEC shall grant a non-exclusive licence to use the Products for the duration of the Master Services Agreement.  

13 Confidentiality and announcements

13.1 The Client shall keep confidential all Confidential Information of CEC and of its Affiliates. 

13.2 The provisions of this clause shall not apply to:

13.2.1 any information which was in the public domain at the date of the Master Services Agreement;

13.2.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Master Services Agreement or any related agreement;

13.2.3 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Master Services Agreement

except that the provisions of clauses 13.2.1 to 13.2.3 shall not apply to information to which clause 13.5 relates.

13.3 This clause shall remain in force for a period of five (5) years from the date of the Master Services Agreement and, if longer, three (3) years after termination of the Master Services Agreement.

13.4 The Client shall not make any public announcement or disclose any information regarding the Master Services Agreement, except to the extent required by law or regulatory authority.

13.5 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 14.

14 Data protection 

CEC will at all times comply with the terms of its Privacy Policy as set out on its website at: https://cec.uk.com/privacy-statement, which are incorporated into these Conditions.

15 Force Majeure

Subject to the terms of the Master Services Agreement, neither party shall have any liability under or be deemed to be in breach of the Master Services Agreement for any delays or failures in performance of the Master Services Agreement which result from Force Majeure.

16 Termination

16.1 CEC may terminate the Master Services Agreement at any time by giving notice in writing to the Client if:

16.1.1 the Client commits a material breach of Master Services Agreement and such breach is not remediable;

16.1.2 the Client commits a material breach of the Master Services Agreement which is capable of being remedied and such breach is not remedied within fourteen (14) days of receiving written notice of such breach;

16.1.3 the Client has failed to pay any amount due under the Master Services Agreement on the due date and such amount remains unpaid within thirty (30) days after CEC has given notification that the payment is overdue; or

16.1.4 any consent, licence or authorisation held by the Client is revoked or modified such that the Client is no longer able to comply with its obligations under the Master Services Agreement or receive any benefit to which it is entitled.

16.2 CEC may terminate the Master Services Agreement at any time by giving notice in writing to the Client if the Client:

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

16.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if CEC reasonably believes that to be the case;

16.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

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

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

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

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

16.2.8 has a resolution passed for its winding up;

16.2.9 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;

16.2.10 suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;

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

16.2.12 has a freezing order made against it;

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

16.2.14 is subject to any events or circumstances analogous to those in clauses 16.2.1 to 16.2.13 in any jurisdiction;

16.3 CEC may terminate the Master Services Agreement any time by giving not less than one 1) weeks’ notice in writing to the Client if the Client undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two (2) months.

16.4 The right of CEC to terminate the Master Services Agreement pursuant to clause 16.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Master Services Agreement.

16.5 If the Client becomes aware that any event has occurred, or circumstances exist, which may entitle CEC to terminate the Master Services Agreement under this clause 16, it shall immediately notify CEC in writing.

16.6 Termination or expiry of the Master Services Agreement shall not affect any accrued rights and liabilities of CEC at any time up to the date of termination.

17 Notices

17.1 Any notice or other communication given by a party under these Conditions shall:

17.1.1 be in writing and in English;

17.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and

17.1.3 be sent to the relevant party at the address set out in the Master Services Agreement

17.2 Notices may be given, and are deemed received:

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

17.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting; and

17.2.3 by email: on receipt of a delivery email from the correct address.

17.3 Any change to the contact details of a party as set out in the Master Services Agreement shall be notified to the other party in accordance with clause 17.1 and shall be effective:

17.3.1 on the date specified in the notice as being the date of such change; or

17.3.2 if no date is so specified, four (4) Business Days after the notice is deemed to be received.

17.4 All references to time are to the local time at the place of deemed receipt.

17.5 This clause does not apply to notices given in legal proceedings or arbitration.

18 Cumulative remedies

The rights and remedies provided in the Master Services Agreement for CEC only are cumulative and not exclusive of any rights and remedies provided by law.

19 Time

Unless stated otherwise, time is of the essence of any date or period specified in the Master Services Agreement in relation to the Client’s obligations only.

20 Further assurance

The Client shall at the request of CEC, and at the Client’s own cost, do all acts and execute all documents which are necessary to give full effect to the Master Services Agreement.

21 Entire agreement

21.1 The parties agree that the Master Services Agreement and any documents entered into pursuant to it 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.

21.2 Each party acknowledges that it has not entered into the Master Services Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Master Services Agreement or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Master Services Agreement.

21.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

22 Variation

No variation of the Master Services Agreement shall be valid or effective unless it is in writing, refers to the Master Services Agreement and these Conditions and is duly signed or executed by, or on behalf of, each party.

23 Set off

23.1 CEC shall be entitled to set-off under the Master Services Agreement any liability which it has or any sums which it owes to the Client under the Master Services Agreement or under any other contract which CEC has with the Client.

23.2 The Client shall pay all sums that it owes to CEC under the Master Services Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

24 Equitable relief

The Client recognises that any breach or threatened breach of the Master Services Agreement may cause CEC irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to CEC, the Client acknowledges and agrees that CEC is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

25 Governing law

These Conditions are subject to the governing law and jurisdiction as provided in the Master Services Agreement.