In these terms and conditions Consultiv Utilities Limited company registered number 11040368 whose registered office is 12 Merchant Court, Hebburn, Gateshead, United Kingdom, NE31 2EX is referred to as Consultiv Utilities.

The customer of Consultiv Utilities is referred to as the Customer.

1. Definitions and Interpretation

In these Standard Terms:

1.1. the following words and expressions have the following meanings unless the context otherwise expressly requires:

“Affiliate” in respect of a person, any persons that Control, are Controlled by or are under common Control with that person from time to time;

“Applicable Law” means all applicable provisions of constitutions, statutes, rules, regulations and orders of all governmental bodies and all orders and decrees of all courts, tribunals and arbitrators and/or any legally binding industry code of conduct or guideline which relates to the Contract, the Products, and/or the Services;

“Change in Control” will occur in respect of a person (the “relevant entity”) where:

(a) Control of the relevant entity is obtained (whether directly or as a result of obtaining Control of one or more other persons) by any person who did not at the Start Date hold Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity; or

(b) a person who has Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity at any time during the term of the Contract ceases to have Control (whether directly or as a result of having Control of one or more other persons) of the relevant entity;

“Charges” such charges for the provision of Products and/or Services, including the Services Fee and the Product Fee as set out in the Proposal or elsewhere as specified, as may be updated and notified to you by us from time to time;

“Commission Payment”: the payment Consultiv Utilities is entitled to receive from the Supplier as a result of the Customer entering into the Contract.

“Conditions” the Standard Terms and where applicable the Proposal;

“Consultancy Services” has the meaning given in Schedule 1 to this Agreement and in the Proposal;

“Consultancy Services Charges” the fees payable by you in respect of the provision of Consultancy Services by us as set out in Schedule 1 to this Agreement and in the Proposal or such other document or contract agreed between us;

“Consumption Data” all information either (i) in your possession, custody and control and/or (ii) held by any current or past Utility Provider and which relates to your consumption of Utilities from time to time, including any prices charged in relation to such consumption;

“Control” in relation to a person, the power (whether direct or indirect) to direct or cause the direction of its affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise and “Controlled” will be construed accordingly;

“Contract” the contract between us and you for the sale and purchase of the Products and/or Services in accordance with these Conditions;

“Cost Savings” the relative reduction to you in the cost of the relevant item over the period set out in the Proposal or such other document or contract agreed between us;

“Customer” the person or firm who is to receive Services or Products from us under the Contract, as set out in the Order and/or Proposal as the case may be;

“Customer Data”

(a)          the Consumption Data; and

(b)          all data in any medium which you permit or request (whether expressly or by implication) us to access, store, transmit, distribute or otherwise process in the delivery of the Products and/or performance of the Services;

“Customer Default” has the meaning given to it in clause 6;

“Data Controller” the meaning given to it in the DPA;

“Data Processor” the meaning given to it in the DPA;

“Deliverables” any hosting services, written reports, utility consumption data generated by us or any of our utility monitoring products and any other written materials which we have specifically agreed in writing to provide to you as part of our Products or Services;

“DPA” the Data Protection Act 2018;

“Data Protection Legislation” means all relevant data protection and privacy legislation in force from time to time in England and Wales a non-exhaustive list of which includes 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.;

“Event” an act, event, omission or circumstance

“Force Majeure Event” means any event or circumstance or combination of events and circumstances which materially and adversely affect the performance of the obligations of either party to this agreement and is not within the reasonable control (directly or indirectly) of the party affected.

“Standard Terms” the terms and conditions set out in this document;

“Indemnified Costs” all costs (on a full indemnity basis) including legal and other professional costs and costs of enforcement;

“Insolvent” you are Insolvent where you:

(a) give notice under section 84 Insolvency Act 1986 of, or propose or pass a resolution for, your winding up or in the case of a limited liability partnership proposes or determine that you will be wound up;

(b) have a winding up petition presented against you or have a winding up order or a notice of striking off made in respect of you;

(c) have an administration order or an application for an administration order made in respect of you or has a notice of appointment of an administrator or a notice of intention to appoint and administrator filed in respect of you at any court;

(d) propose, make or are subject to a company voluntary arrangement;

(e) are unable to pay debts as they fall due; or the value of your assets are less than its liabilities, including your contingent and prospective liabilities; or

(f) are the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction;

“Installation” the installation of Products at the Premises as part of the performance of the Services; and “Install” and “Installed” will be construed accordingly;

“Intellectual Property Rights” all intellectual and industrial property rights of any kind whatsoever including but not limited to, patents, supplementary protection certificates, rights in know-how, registered trade marks, registered designs, models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise),  database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;

“Liability” liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in this and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of our obligations under the Contract and/or any defect in any of the Products or Services, in each case howsoever caused including if caused by negligence;

“Losses” all losses including all direct, indirect and consequential losses;

“Order” your request for the supply by us of Products and/or Services, whether as set out in your purchase order form, your letter of authority, your written acceptance of our quotation, or such other document, as the case may be;

“Personal Data” any personal data (as such term is defined in the DPA and subsequent replacement legislation);

“Premises” any premises (whether belonging to or under the control of Customer or otherwise) in respect of which we have agreed to deliver or Install Products and/or perform Services;

“Product Fee” such sums as are payable by you in respect of our supply to you of the Products, as described in our Proposal;

“Products” the products to be supplied by us to you as described in our Proposal;

“Proposal” the document issued by us to you setting out the nature of the services and products to be supplied by us to you;

“Recoverable Liabilities” all Losses, liabilities, Indemnified Costs, damages and expenses that the indemnified person does or will incur or suffer, all claims or proceedings made, brought or threatened against the indemnified person by any person and all Losses, liabilities, Indemnified Costs, damages and expenses the indemnified person does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding;

“Services” such of the Consultancy Services, as are to be supplied to you as set out in our Proposal and as those services may be varied from time to time together with such other services as we may agree in writing to supply to you;

“Services Fee” such sums as are payable by you in respect of our provision to you of the Services, as described in our Proposal, and which may include the Consultancy Services Charges;

“Start Date” the earlier of the date upon which we agree to provide Products and/or Services to you, or the date upon which we commence the supply of services;

“Share of Savings Calculation” the calculation set out in the Proposal identifying a Share of Savings Element to be paid to us;

“Share of Savings Element” the proportion of any Cost Savings to be paid to us, as set out in the Proposal;

“Year” the period of 12 months starting on the Start Date, each successive period of 12 months during the Term and the period (if any) starting on the day following the expiry of the last such period of 12 months and ending on the Termination Date.

1.2. all headings are for ease of reference only and will not affect the construction or interpretation of the Contract;

1.3. unless the context otherwise requires:

1.3.1. references to the singular include the plural and vice versa and references to any gender include every gender;

1.3.2. references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);

1.3.3. references to a “Party” or to the “Parties” will mean we and/or you as the context requires and will include a reference to its or their successors and (to the extent applicable) permitted assigns and references to a third party will mean any person other than the Parties;

1.4. references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;

1.5. any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;

1.6. to the extent only of any conflict or inconsistency between the Standard Terms and the Proposal, the Proposal shall take priority.

1.7. an obligation on a Party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that Party; and

1.8. any obligation on a Party not to do or omit to do anything includes an obligation not to allow (whether expressly or by a failure to take reasonable steps to prevent) that thing to be done or omitted to be done by any other person.

2. Commencement and term

The Contract shall commence on the Start Date and shall continue, unless terminated earlier in accordance with its terms, until we have completed the provision of the Services and/or supply of the Products under the Contract.

3. Basis of contract

3.1. 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.

3.2. The Order or alternatively a Letter of Authority constitutes an offer by you to purchase the Products and/or Services from us in accordance with these Conditions. You are responsible for ensuring that the terms of the Order/Letter of Authority are complete and accurate.

3.3. The Order/Letter of Authority shall be deemed to be accepted by us upon the earlier of the following:

3.3.1. our issuing to you a written acceptance of the Order/Letter of Authority, or

3.3.2. commencement of provision of the supply of Products or Services to you at which point the Contract shall come into existence.

3.4. You waive any right you might otherwise have to rely on any term endorsed upon, delivered with or contained in any of your documents that is inconsistent with these Conditions.

3.5. A quotation for the Products and/or Services given by us shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) days from its date of issue.

3.6. Consultiv Utilities is not a price comparison service. Although Consultiv Utilities works with many suppliers of energy it does not have access to every such supplier.

3.7. Consultiv Utilities does not guarantee that it will arrange what a third party may claim is the cheapest supply available.  Consultiv Utilities considers a number of factors when assessing which suppliers and which supply contracts are best suited to the Customer.

3.8. Consultiv Utilities will seek the option(s) that in its opinion is/are best suited to the Customer with price of the supply being just one of the factors to consider.

4. Our Obligations to You

4.1. Subject to clause 4.5,

4.1.1. we will supply the Services to you in accordance with reasonable care and skill and in accordance with good industry practice in place at the time of performing the Services.

4.1.2. we will use reasonable endeavours to supply the Services to you in accordance with the timescales:

4.1.2.1. set out in the Order and/or Proposal to which such Services relate; or

4.1.2.2. as otherwise agreed between the Parties in writing, specifically in accordance with any agreed risk management policy provided that time of performance of the Services will not be of the essence of the Contract.

4.2. Subject to clause 4.5,

4.2.1. we will deliver the Deliverables to you in accordance with the requirements set out in Services Specifications.

4.2.2. we will use reasonable endeavours to deliver the Deliverables in accordance with the timescales:

4.2.2.1. set out in the Order and/or Proposal to which such Services relate; or

4.2.2.2. as otherwise agreed between the Parties in writing, provided that time of delivery of the Deliverables will not be of the essence of the Contract.

4.3. Title to Deliverables will remain with us at all times.

4.4. Risk in each Deliverable will pass to you upon delivery of that Deliverable to you.

4.5. Without prejudice to clause 6, if we fail to perform any of our obligations to the standards required by, or by the relevant date for performance:

4.5.1. set out in the Contract; or

4.5.2. as otherwise agreed between the Parties in writing, then the date for performance by us of any obligations which relate to and/or are dependent on such performance by you will be extended by the period which we reasonably require in order to manage the impact of your defect or delay in performance.

4.6. We reserve the right, as determined in our sole discretion, to make any improvement, substitution or modification in the specification of any element or part of the Services at any time to the extent that such improvement, substitution or modification:

4.6.1. will not have a material detrimental impact on the Services; or

4.6.2. is necessary to comply with any Applicable Law or health and safety requirements.

5. Your Obligations to Us

5.1. You agree that you shall:

5.1.1. perform all of your obligations under the Contract;

5.1.2. promptly provide us, on request, with all co-operation, information, assistance, materials and resources that we may reasonably require from time to time in connection with the supply of the Products and/or Services and the performance of our obligations under the Contract;

5.1.3. provide all necessary access to Consumption Data, the Premises and relevant facilities and personnel to enable us to comply with its obligations under the Contract;

5.1.4. take all necessary precautions to protect the health and safety and security of our personnel whilst they are at the Premises;

5.1.5. provide us with such access to data as is we consider necessary to enable us to perform our obligations under the Contract;

5.1.6. obtain and maintain in force all licences, permissions, authorisations, consents and permits needed by you in order for you to receive the Services and/or to enable us to perform the Services and our other obligations under the Contract;

5.1.7. ensure that all information which you provide to us is accurate, adequate and complete and we shall be entitled to rely on the accuracy of the information provided;

5.1.8. immediately inform us if there is any change in the Premises, circumstances and/or business, which may affect the provision of the Services and we should be entitled to rely on the accuracy of the information provided; and

5.1.9. comply with all Applicable Law, including the provisions of the Bribery Act 2010 and the Modern Slavery Act 2015.

5.2. You acknowledge that you are solely responsible for:

5.2.1. understanding the regulatory requirements applicable to your business and for using the Products and Services in a manner that complies with those requirements; and

5.2.2. ensuring that you possess and maintain appropriate software and hardware to use the Services.

5.3. We may also receive a Commission Payment direct from the Utility Provider in the event that you enter into a supply contract with any utility provider.  The amount of commission will vary for each utility provider.  Such commission may be included in the price or rates offered by the utility provider to the Customer and the utility provider shall pay any such commission direct to us.  By entering into this Contract you hereby confirm that you are aware that commissions may be payable direct to us and hereby waive any rights it may have to challenge such commissions now or in the future.

6. Customer Default

If the performance of any of our obligations under the Contract is prevented or delayed by any of your acts or omissions, including any breach of the terms and conditions of the Contract (“Customer Default”):

6.1. we shall, without limiting our other rights or remedies, have the right to suspend delivery of Products and/or the performance of Services until you remedy such Customer Default;

6.2. we shall not be liable to you for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay in performing any of our obligations under the Contract; and

6.3. you shall reimburse us on demand for any costs or losses sustained or incurred by us arising directly or indirectly from such Customer Default.

6.4. Should the customer at any time and for whatever reason directly or indirectly instruct or cause the supplier to cease the Commission Payment to Consultiv Utilities the customer shall be liable to pay Consultiv Utilities that lost commission on demand.

The Default Fee shall entirely be at Consultiv Utilities’ discretion and will be a payment:

• Representing the Commission Payment (or such balance of the Commission Payment yet to be paid to Consultiv Utilities) which Consultiv Utilities would have received from the utility supplier but is not received due to the Customer Default; or
• A fixed amount of £750 per meter – whichever is the higher figure.

VAT is due to be paid on a Default Fee.

7. Customer Data and Data Protection

7.1. In relation to Customer Data:

7.1.1. you will either own the Customer Data or have sufficient rights to use such Customer Data for the purposes of the Contract, and are responsible for the accuracy and content of such data;

7.1.2. you hereby grant us a perpetual royalty-free licence to use such Customer Data for the following purposes:

7.1.2.1. the provision of the Products and Services under the Contract;

7.1.2.2. analysis and review of Consumption Data as part of our normal business practices; and

7.1.2.3. for such other purposes as are necessary in relation to our business objects. 7.1.3. you warrant that the Customer Data is accurate and complete.

7.2. The Parties agree that, in respect of any Personal Data, you are the Data Controller and we are the Data Processor.

7.3. You will comply with your obligations under Data Protection Legislation in respect of Personal Data.

7.4. We will:

7.4.1. take appropriate technical and organisational measures against unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to, Personal Data, having regard to the state of technological development and the cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing, accidental loss, destruction or damage and the nature of the Personal Data;

7.4.2. only process Personal Data for the purpose of performing our obligations under the Contract and in accordance with your lawful instructions (provided such instructions are in accordance with the DPA); and

7.4.3. take reasonable steps to ensure the reliability of our employees who have access to the Personal Data.

7.5. You warrant to us that you have all necessary rights to permit us to process Personal Data in accordance with the Contract.

7.6. You will indemnify us against all Recoverable Liabilities arising out of or in connection with any breach by you of your warranty at clause 7.5.

7.7. We reserve the right to carry out such credit and identity checks on all our customers, as we, or a third party in our absolute discretion deem necessary. Consequently, you agree that we may check your details on any database (public or private), that we may use for the purpose of assisting other companies with such checks and may keep records of all such searches.

7.8. You agree and consent to our retaining recordings of calls for the purposes of training and monitoring our staff.

8. Charges and Payment

8.1. Unless specified otherwise, you will pay us the Charges in accordance with this clause 8.

8.2. Any sum payable under the Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by Applicable Law from time to time.

8.3. We will be entitled to vary the Charges at any time by giving written notice to you to reflect any variation in the cost of supplying the Products and/or Services which arise as a consequence of any change in Applicable Law, any variation in your requirements for the Products and/or Services and/or any information provided by you being inaccurate or incomplete.

8.4. We will be entitled to invoice you:

8.4.1. for the Product Fee, following Delivery of the Products; and

8.4.2. for the Services Fee following performance of the Services, save where performance extends over one month, and in which case we shall issue quarterly invoices for Services payable in advance.

8.5. Unless otherwise expressly agreed with you in writing or as set out in the Proposal, each invoice will be payable by you within 30 days following the date on which the invoice is issued.

All payments will be made in pounds sterling in cleared funds by cheque or electronic bank transfer to such bank account as we may nominate from time to time, and cash is not acceptable as a method of payment.

8.6. Time will be of the essence in respect of the timescales for payment of invoices set out in clause 8.5.

8.7. Notwithstanding any purported contrary appropriation by you, we will be entitled, by giving written notice to you, to appropriate any payment by you to any invoice issued by us.

8.8. If any sum payable under the Contract is not paid on or before the due date for payment we will be entitled to charge you interest on that sum at 8% per annum above the base lending rate from time to time of the Bank of England from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.

8.9. Notwithstanding clause 8.8, we may, at our sole discretion and as an alternative to clause 8.8, claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8.10. If you fail to make any payment due to us under the Contract, we will be entitled to withhold further deliveries of Products and to suspend provision of any Services until payment of all overdue sums has been made.

8.11. Save as otherwise expressly provided in the Contract or required by Applicable Law, all payments to be made by you to us under the Contract will be made in full and without any setoff or any deduction or withholding including on account of any counterclaim.

9. Confidentiality

9.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any Affiliate, except as permitted by clause 9.2.

9.2. Each party may disclose the other party’s confidential information:

9.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9;

9.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and

9.2.3. is required to be disclosed in compliance with the UK Corporate Governance Code (if listed on any UK stock exchange), by the regulations of any stock exchange on which the securities are listed or by any clearing house in connection with any issue of securities.

9.3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

9.4. Nothing within this Contract shall require us to return or destroy confidential information or copies that we are required to retain by applicable law, professional record keeping obligations, or to satisfy the rules or regulations of a regulatory body or stock exchange to which such person is subject, or which has been created pursuant to automatic IT back-up or internal disaster recovery procedures, or which is contained in our board minutes or investment committee papers.

10. Warrant

10.1. Subject to clause 11.1, all warranties, conditions and other terms implied by Applicable Law (whether by statute, common law or otherwise) are excluded from the Contract.

10.2. Notwithstanding any other term of the Contract, we will not be in breach of the Contract and, subject to clause 11.1, will have no Liability to you, to the extent our failure to perform or delay or defect in performance of our obligations under the Contract arises as a result of:

10.2.1. any failure by you to comply with the terms and conditions of the Contract;

10.2.2. our reliance on any incomplete or inaccurate data provided by you or a third party;

10.2.3. our compliance with any instruction or request by you or one of its employees; or

10.2.4. any circumstances beyond our control including but not limited to the following:

10.2.4.1. any delay or failure attributable to third parties;

10.2.4.2. any failure of hardware or software belonging to you or any third party;

10.2.4.3. any damage caused to hardware or software as a result of your negligence or misuse.

10.3. Where we do have to investigate any defect reported by you, if such defect is as a result of any of the circumstances listed above at clause 10.2, we reserve our position to charge you our reasonable costs arising out of our investigation of the reported defects.

YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

11. Exclusions and Limitations of Liability

11.1. Nothing in the Contract will operate to limit or exclude our Liability for:

11.1.1. death or personal injury caused by its negligence, or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977);

11.1.2. fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;

11.1.3. breach of its obligations under Section 12 Sale of Goods Act 1979;

11.1.4. breach of its obligations arising under Section 2 Supply of Products and Services Act 1982; or

11.1.5. any other matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.

11.2. Subject to clause 11.1, we will have no Liability to you, for any:

11.2.1. loss of profit (whether direct, indirect or consequential);

11.2.2. loss of goodwill, loss of reputation of loss of opportunity (in each case whether direct, indirect or consequential);

11.2.3. loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);

11.2.4. loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);

11.2.5. loss of use or value of any data or software (whether direct, indirect or consequential);

11.2.6. loss or damage arising out of any failure by you to keep full and up to date security copies of any computer program and data held or used on behalf of you (whether direct, indirect or consequential);

11.2.7. wasted management, operational or other time (whether direct indirect or consequential);

11.2.8. liability of you to third parties (whether direct, indirect or consequential); and

11.2.9. special, indirect or consequential loss or damage.

11.3. Subject to clauses 10, 11.1 and 11.2, and any express provisions set out in the Proposal, our total Liability to you arising out of or in connection with the Contract or otherwise between the parties from Events which occur in any one Year will be limited to the total Charges paid by you to us for Products and Services supplied to you in that Year.

11.4. Nothing in this clause 11 will prevent or restrict the right of a Party to seek injunctive relief or specific performance or other discretionary remedies of the court.

11.5. The exclusions from, and limitations of, liability set out in this clause 11 will be considered severally.

12. Termination of the Contract

12.1. If you commit a material breach of the Contract:

12.1.1. which cannot be remedied; or

12.1.2. which can be remedied but is not remedied within 14 days of receipt of written notice from us setting out the breach and requiring you to remedy the breach, we may terminate the Contract immediately by giving written notice to that effect to you.

12.2. We may also terminate the Contract immediately, by giving written notice to you if you:

12.2.1. fail to make any payment due to us under the Contract within 30 days of the due date for payment of the same (provided that such sum is not the subject of a bona fide dispute);

12.2.2. become Insolvent;

12.2.3. undergo a Change in Control; or

12.2.4. the parties may terminate the Contract by mutual consent.

12.3. On termination of the Contract for any reason you shall immediately pay to us all our outstanding unpaid invoices and interest.

12.4. Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

12.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

12.6. If the Contract is terminated in accordance with clause 12 all Services which have not been fully performed and Products which have not been fully supplied as at the Termination Date will be deemed to be cancelled without us incurring any Liability to you. You will reimburse to us all costs and expenses incurred by us in furtherance of its obligations under the Contract prior to the date of deemed cancellation.

12.7. Our rights under this clause 12 are in addition to and separate from our rights of suspension under clause 6.1 above.

13. Force Majeure

13.1. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for six months, the party not affected may terminate this Contract by giving 12 weeks written notice to the affected party.

13.2. If we are affected by the Force Majeure Event you will continue to pay our invoices in accordance with clause 8 in respect of any Products and Services which we continue to supply notwithstanding the occurrence of the Force Majeure Event.

14. Intellectual Property Rights

14.1. With effect from the date on which the relevant Deliverable is supplied to you, we grant to you a non-exclusive licence to use the Intellectual Property Rights in that Deliverable solely to the extent necessary to use that Deliverable for its intended purpose. You may not assign or sub-licence the rights granted to you by us under this clause 14.

14.2. You grant to us a non-exclusive, royalty-free licence to use your Intellectual Property Rights to the extent required for the purpose of the supply of the Services and the performance of our other obligations under the Contract. We may grant a sub-license of this license to any sub-contractor appointed by us in connection with the Contract.

14.3. Save as otherwise expressly provided in this clause 14, you acknowledge and agree that all Intellectual Property Rights in the Deliverables shall belong to us and nothing in the Contract will operate to transfer to you, or to grant to you any license or other right to use, any of our Intellectual Property Rights.

14.4. You warrant to that you have all necessary rights, consents and/or licenses necessary to grant us the rights set out in clause 14.2.

15. Assignment and Sub-Contracting

15.1. We will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of our rights under the Contract.

15.2. You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under the Contract.

15.3. We will be entitled to sub-contract any of our obligations under the Contract.

15.4. You will not be entitled to sub-contract any of your obligations under the Contract.

16. Dispute Resolution

The parties will each use their reasonable efforts to negotiate in good faith and settle any major or material dispute that may arise out of or relate to the Agreement. If any such dispute cannot be settled amicably through ordinary negotiations by the respective representatives the dispute shall be referred to the senior representatives nominated by the Parties who will meet (physically or virtually) in good faith in order to try and resolve the dispute.

If the dispute or difference is not resolved as a result of such meetings either party may (at such meeting or within fourteen days of its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral adviser or mediator (the Adviser) before resorting to litigation with costs shared equally.

If the parties fail to reach agreement in the structured negotiations within twenty-one days of the Adviser being appointed, either party may then refer any dispute to litigation.

17. General Matters

If any term or provision of the Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if the Agreement had been agreed with the invalid, illegal or unenforceable provisions eliminated.

The Agreement constitutes the entire agreement between the parties and supersedes any previous agreement or understanding.  The Agreement may not be varied except in writing between the parties.

No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

The parties acknowledge and agree that the Agreement shall not establish or constitute any relationship of partnership, joint venture, franchise or agency between the parties and except as otherwise expressly provided or agreed neither party shall have the power to bind the other without the other’s prior written consent.

The Customer grants Consultiv Utilities a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials and information provided by to the Customer to a Supplier in relation to a potential Contract.

Consultiv Utilities will use its reasonable endeavours to deliver the Services in a timely manner, but time shall not be of the essence for performance of the Services.

The Customer agrees that Consultiv Utilities does not incur any liability for delay in performing, or failure to perform, any of its obligations as per this Agreement in the event such delay or failure result from partially or entirely events, circumstances or causes beyond Consultiv Utilities’ reasonable control.

Unless it expressly states otherwise this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

Schedule 1 – Consultancy Services

1. Consultancy Services

1.1. In consideration of payment of the Consultancy Services Charges, we shall provide you with the Consultancy Services.

1.2. The Consultancy Services to be provided by us shall be as set out in our Proposal which may include any or all the following:

1.2.1. Utilities budget analysis and support;

1.2.2. provision of market intelligence in relation to the Utilities supply market;

1.2.3. energy management support, including quarterly analysis of Consumption Data for your sites;

1.2.4. retrospective bill validation, including analysis of invoices received by you from your historic utility suppliers;

1.2.5. electricity capacity analysis; and such other consultancy services as may be set out in the Proposal to which the Contract relates.

2. Payment of the Consultancy Services Charges

2.1. In consideration of the provision of Consultancy Services, you agree to pay us the Consultancy Services Charges.

2.2. The Consultancy Services Charges shall comprise the following elements:

2.2.1. the Consultancy Services Fee; and

2.2.2. the Share of Savings Element (if any)

2.3. Upon signature of the Contract we shall be entitled to invoice you in respect of the Consultancy Services Fee.

2.4. Where the Consultancy Services Charges contains a Share of Savings Calculation, you agree that we shall be entitled to invoice you in respect of the Share of Savings Element at a fixed point in time as agreed between us.

2.5. You agree to provide us with such information as we reasonably require regarding your Consumption Data, your historic and future business activities, and your arrangements with utility suppliers to enable us to provide the Consultancy Services to the best of our ability.

2.6. You agree that you shall not commit any act or omission which has the object or effect of preventing or reducing our ability to provide you with any savings in the cost of Utilities that we may need to provide in order to receive the Share of Savings Element.

2.7. We may, at our sole discretion, agree to withhold charges that would otherwise be payable in respect to Consultancy Services subject to you entering into a Utility Contract promptly following our supply of the Procurement Services and in respect of which we are paid a Procurement Fee by the Utility Provider with whom you enter into a Utility Contract.

2.8. If you fail to enter into a Utility Contract with a Utility Provider in accordance with clause 2.7 the relevant withheld charges shall become payable.

3. Liability

3.1. Subject to clauses 10, 11.1 and 11.2, of the Standard Terms, our total Liability to you in connection with the provision of Consultancy Services will be limited to the Consultancy Services Fee payable by you under the Contract Proposal which may include any or all of the following:

3.2.1. Utilities budget analysis and support;

3.2.2. provision of market intelligence in relation to the Utilities supply market;

3.2.3. energy management support, including quarterly analysis of Consumption Data for your sites;

3.2.4. retrospective bill validation, including analysis of invoices received by you from your historic utility suppliers;

3.2.5. electricity capacity analysis; and such other consultancy services as may be set out in the Proposal to which the Contract relates.