APERTUS TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICE
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Commencement Date: has the meaning set out in clause 2.2;
Conditions: these terms and conditions as amended from time to time in accordance with clause 8.7;
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these
Conditions; Customer the person or firm who receives Services from the Supplier;
Letter of Authority: the Customer’s signed letter of authority appointing the Supplier as its agent in connection with the Services;
Schedule of Services: the services description document provided by the Supplier to the Customer entitled Schedule of Services; and
Services: the services supplied by the Supplier to the Customer as set out in the Schedule of Services;
Supplier: Apertus Ltd registered in England and Wales with company number.......
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and a reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
1.2.4 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Letter of Authority constitutes an offer by the Customer to receive the Services in accordance with these Conditions.
2.2 The offer set out in clause 2.1, shall only be deemed to be accepted when the Supplier issues a written acknowledgement of the Letter of Authority, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between the Customer and the Supplier. The Customer acknowledges that it has not relied on any statement, promise, warranty or representation (whether made negligently or innocently) made or given by or on behalf of the Supplier which is not expressly set out in the Contract. The Customer agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in the Contract.
2.4 Any descriptive matter or advertising issued by the Supplier, and any descriptions contained in the Supplier’s advertising or marketing material, 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; unless expressly set out in the Schedule of Services.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES
3.1 Subject to clauses 7 and 8.1; the Supplier shall from the Commencement Date supply the Services to the Customer in accordance with the Conditions.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates provided by the Supplier from time to time; provided always any such dates shall be estimates only and time shall not be of the essence for performance of the Services or any part thereof by the Supplier.
3.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER'S OBLIGATION
4.1 The Customer shall:
4.1.1 ensure that any information, data or documents provided by the Customer to the Supplier, from time to time, are complete, up to date and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 on demand provide the Supplier with such information, data or documents as the Supplier may require from time to time in order to supply the Services;
4.1.4 provide such assistance as the Supplier may reasonably require from time to time in relation to the Services;
4.1.5 immediately inform the Supplier if there is any change in the Customer’s circumstances and/or business, which may affect the provision of the Services;
4.1.6 provide authority to enter into discussions and/or arrangements with such utility providers as the Supplier may determine (as further detailed in the Letter of Authority) and the Customer agrees that the Supplier may supply any information, data or document the Supplier may receive from the Customer to any such utility provider; and
4.1.7 comply with the provisions of the Bribery Act 2010 and any other applicable legislation.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer in connection with, or related to, the Services or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in these Conditions; and
4.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.3 The Customer warrants and represents that all information, data and documents provided by it to the Supplier from time to time are complete, up to date and accurate.
5.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees,agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
5.2 This clause 5 shall survive termination of the Contract.
5.3 The Customer’s details and preferences are held by Apertus under the Data Protection Act and are also held by the energy supplier.
6. LIMITATION OF LIABILITY: FOR THE CUSTOMER’S PRIMARY ATTENTION
6.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
6.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
6.1.2 fraud or fraudulent misrepresentation;
6.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
6.1.4 any other liability which it is illegal or unlawful for the Supplier to limit or exclude liability for.
6.2 Without prejudice to clause
6.2, the Supplier shall not under any circumstances whatsoever, be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
6.2.1 loss of profit;
6.2.2 loss of goodwill;
6.2.3 loss of business;
6.2.4 loss of anticipated saving;
6.2.5 special, indirect or consequential damage suffered by the Customer arising under or in connection with the Contract.
6.3 Without prejudice to clauses 6.1 and 6.2, the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate commission received by the Supplier from a utility provider in connection with the Services provided to the Customer.
6.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.5 This clause 6 shall survive termination of the Contract (for whatever reason).
7.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
7.1.1 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
7.1.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
7.1.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
7.1.4 the other party is the subject of a bankruptcy petition or order;
7.1.5 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
7.1.6 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
7.2 The Supplier may promptly terminate the provision of the Services at any time by providing written notice to the Customer.
8.1 Force majeure:
8.1.1 for the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of any current or potential utility provider (whether engaged by the Customer, Supplier or not);
8.1.2 the Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
8.1.3 if the Force Majeure Event prevents the Supplier from providing any of the Services for more than 30 days, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
8.2 Assignment and subcontracting:
8.2.1 the Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent;
8.2.2 the Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
8.3.1 a waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy;
8.3.2 unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
8.4.1 if a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected;
8.4.2 if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
8.5 No partnership: 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, the other party in any way.
8.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
8.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.
8.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.