T&C's Energy Gurus (UK) Ltd: terms and conditions
In these
terms and conditions Energy Gurus Limited company registered number 12102496 whose registered office is 50 Lord Street, Fleetwood, Lancashire FY7 6DT is referred to as Energy
Gurus.
The
customer of Energy
Gurus is referred to as the Customer
Definitions “Agreement”: the contractual relationship between Energy Gurus and
the Customer as set out in these terms and conditions and Letter of Authority.
“Breach
Fee”: payment due from the Customer to
Energy Gurus in the event of a Customer Breach.“Commencement Date”: has the meaning given in clause 1.
“Commission Payment”: the
payment Energy Gurus is entitled to receive from the Supplier as a result of
the Customer entering into the Contract.
“Confidential
Information”: means such information as one party may provide to the
other as part of or in relation to this Agreement.
“Contract”: the contract entered into by you (or by us on
your behalf) with the Supplier for the supply of energy and as part of the
Services and any extensions to this Agreement.“Customer Breach”: any act or omission of the Customer that
represents a breach of the terms of this Agreement by the Customer.
“Customer
Obligations”: as set out in clause 2.
“Data
Protection Legislation”: 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.
“Letter
of Authority”: such
letters of authority being as the Customer may sign from time to time. “Services”: the services that we will provide to you including
presenting you with details of a proposed supply contract(s) from one (or a
number) of Suppliers from our portfolio of suppliers for you to choose to
accept and as set out in the Letter(s) of Authority.
“Supplier”: the supplier that you chose to enter into a
Contract with.
“Working
Day”: Monday to Friday other than a
public holiday in England.
1.
SUPPLY OF
SERVICES
The
Customer agrees that:
Energy
Gurus does not guarantee that it will arrange what a third party may claim is
the cheapest supply available. Energy
Gurus considers a number of factors when assessing which suppliers and which
supply contracts are best suited to the Customer.
Energy
Gurus will seek the option(s) that in its opinion is/are best suited to the
Customer with the price of the supply being just one of the factors to consider.
2.
CUSTOMER’S
OBLIGATIONS
The
Customer agrees:
(vi) to
ensure that all information and documents provided to Energy Gurus is complete, up-to-date and accurate at all times;
(v) to
provide such assistance as Energy Gurus may reasonably require from time to
time in relation to the Services;
(vi) to
immediately inform Energy Gurus in the event there is any change in the
Customer’s circumstances which may affect the provision of the Services and or
impact the Contract or proposed Contract;
(viii)
not at any time whether directly or indirectly instruct, direct, permit, cause
or allow the Supplier to cease or withhold the payment of any commission to
Energy Gurus; and
(ix) not at any time to have entered into or enter into any other contract
(for any reason including due to a change in tenancy or change in occupancy)
for the supply of energy (“Other Contract”) for the intended period of the
Contract whereby that Other Contract provides energy and/or the Services,
whether in whole or in part, to be provided under the
Contract.
3.
CUSTOMER’S
BREACH OF THE AGREEMENT: SUSPENSION AND TERMINATION
The Customer’s attention is drawn to this clause:
the consequences of the Customer breaching this agreement
Without affecting any other right or remedy
available to it Energy Gurus may as it sees fit terminate or suspend the
Agreement with immediate effect by giving written notice to the Customer if:
(i) the Customer commits a material breach of any
term of the Agreement and (if such a breach is remediable) fails to remedy that
breach to Energy Gurus’ satisfaction within fourteen days of the Customer being
notified in writing to do so;
In the event of such termination or suspension,
Energy Gurus is relieved of all its obligations under the Agreement.
Further in the event of:
(i)
termination
(that may conclude suspension); or
(ii) any
breach of a Customer Obligation for whatever reason
the Customer will on receipt of demand pay to
Energy Gurus the Breach Fee. The Breach
Fee shall be a payment of whichever is higher either:
(i) representing the Commission Payment (or such
balance of the Commission Payment yet to be paid to Energy Gurus) which Energy
Gurus would have received from the Supplier but is not received or will not be
received due to the Customer Breach; or
(ii) a fixed amount of £750 per meter.
VAT is due to be paid on a Breach Fee.
The
Customer agrees that the Breach Fee, whether fixed or Commission-based,
represents the reimbursement of loss suffered by Energy Gurus resulting from
the Customer Breach. It does not
represent an unfair gain or windfall on the part of Energy Gurus that is in the
nature of or is capable of falling within the definition of a penalty.
The
Commission Payment for the purposes of this clause is calculated on the basis
of the consumption as set out in the Contract or related documents.
The
Breach Fee is due to be paid as per this clause irrespective of any date or
dates the Supplier may have been due to make the Commission Payment to Energy
Gurus.
4.
CHANGE OF TENANCY
The
Customer’s attention is drawn to this clause: the requirement to notify Energy
Gurus of a change of tenancy (as defined) and the consequences of failing to do
so
Where a customer enters into a contract through Energy
Gurus but permanently vacates the relevant premises either before the supply of
energy commences or during the period of supply under that Contract the
Contract will terminate. This is called
a change of tenancy (“a COT”).
A COT involves either (i) a party not connected to or
associated with the Customer taking over the premises (a party is connected to
the Customer if it falls within the definition set out in sections 1122 and
1123 Corporation Tax Act 2010) or (ii) the premises becoming vacant for a
minimum period of three months following the Customer’s departure.
Energy Gurus’ fees are adjusted by a Supplier if a COT
occurs. It is therefore important that
Energy Gurus receives from the Customer at least fourteen Working Days before
the date of vacating the premises written confirmation of the change together
with evidence of the COT satisfactory to Energy Gurus, this may include (a non-exhaustive list by way of example only) a land sale contract/TR1, assignment or
surrender of a lease certified by the Customer’s solicitor.
The written notice from the Customer must include a
letter from the Customer’s solicitor confirming that the vacation of the
premises is a COT as set out above and provide sufficient detail to enable
Energy Gurus to satisfy itself as to the nature of the COT.
Failure to so notify Energy Gurus in the event of a COT
will incur a fee for the loss/reduction in the commission the supplier pays to
Energy Gurus. In those circumstances,
Energy Gurus reserves the right to charge the Customer a one-off fee of £750
per meter or the total value of the Commission Payment Energy Gurus would have
received in relation to the Contract, whichever is the higher figure. In calculating the said fee Energy Gurus will
apply a discount percentage to reflect the Commission Payment that has actually
been received (subject to a minimum failed Contract fee of £750 per meter).
5.
CONSUMPTION TOLERANCE
The Customer’s attention is drawn to this clause:
in the event the Customer’s consumption of energy under the Contract falls
below a certain level it will be liable to make a payment to Energy Gurus
The Contract provides an estimate of the Customer’s
consumption. Energy Gurus’s Commission Payment is calculated by
reference to such anticipated consumption.
In the event the actual consumption under a Contract as
confirmed by the relevant Supplier is more than 20% less than the anticipated
consumption as per the Contract over the term of the Contract the Customer
shall on demand pay to Energy Gurus an amount equal to the balance of the
Commission Payment Energy Gurus would have received had the consumption
decrease not exceeded a 20% decrease of the total anticipated consumption under
the Contract.
6.
CONSEQUENCES
OF TERMINATION
Termination
or expiry of the Agreement shall not affect:
(i) any
rights, remedies, obligations or liabilities of the parties that have accrued
up to the date of termination or expiry;
(ii) the
liability of the Customer to Energy Gurus in the event of a Customer Breach;
and
(ii)
in any
event any liability of the Customer to make a payment to Energy Gurus of this
agreement.
7.
COMMISSION
PAYMENTS TO ENERGY GURUS
The Customer’s attention is drawn to this clause: the commission
payments that will be made to Energy Gurus
The
Customer agrees and acknowledges the Commission Payment will be due to be made
to Energy Gurus. The timing and amount
of the Commission Payment varies from Supplier to Supplier. The Commission
Payment is included within the price charged per unit of energy in the
Contract. By way of example if the
Commission Payment for the supply of energy was 0.5 per unit then the amount
payable per unit under the Contract by the Customer would be (i) base price of
the unit plus (ii) 0.5p per unit.
Therefore
a supply of 40,000 units per year over a two-year period would result in a total
commission payment of £400 for that two-year supply.
Should at
any time the Customer wish to be provided with more information as to the
Commission Payment then it should contact Energy Gurus
8.
LIMITATION
OF LIABILITY
The Customer’s attention is drawn to this clause: limits to the liability of Energy
Gurus to the Customer
The Customer
acknowledges and agrees that by entering into the Contract the Customer
contracts directly with the Supplier and not Energy Gurus for the supply of
energy. The Customer therefore further
acknowledges that Energy Gurus incurs no liability arising from or in
connection with the Customer’s obligations and liabilities arising under the
Contract.
The
Agreement does not seek to avoid Energy Gurus’ liability to the Customer where
such liability arises from dishonesty on the part of Energy Gurus or death or
personal injury on the part of the Customer.
Energy
Gurus’ total liability (including any principal, interest, costs and charges
whatsoever and howsoever arising) to the Customer shall not in any event exceed
the amount of the Commission Payment received by Energy Gurus.
The
Customer acknowledges and agrees that Energy Gurus, its representatives, agents
and employees shall incur no liability to the Customer by virtue of the
Agreement or in relation to it save where such liability is incapable of being
excluded by law.
Subject
to the above Energy Gurus incurs no liability to the Customer that arises under
or in connection with this Agreement in respect of:
(i)
loss of profits;
Should
the Customer assert liability on the part of Energy Gurus then it must notify
Energy Gurus in writing to that effect:
within
six calendar months of the first event said to give rise to such liability
coming to the attention of the Customer, its agents or
representatives; or
within
six calendar months of the first event said to give rise to such liability
which ought reasonably to have come to the attention of the Customer.
The
notice must be in writing and must identify the event and the grounds for the
claim in reasonable detail and provide copies of all relevant documents and
information.
In the absence of such timely notification, Energy
Gurus shall have no liability to the Customer.
Energy Gurus makes no express warranties and
specifically disclaims any implied warranties with respect to the performance
of Services to the extent permissible by law.
This
clause survives termination of the Agreement.
8. DATA PROTECTION
Energy
Gurus does not anticipate receiving any personal data (as defined in data
protection legislation from time to time) from the Customer other than contact
details of the relevant personnel who are responsible for dealing with the
Agreement.
The
Customer agrees that Energy Gurus may share such contact details with the
Supplier, its agents and representatives.
Each
party shall comply with all the obligations imposed on a controller under the
Data Protection Legislation.
9. CONFIDENTIALITY
Neither
party shall disclose to any third party any Confidential Information in respect
of the other at any time acquired in connection with the Agreement and no
reference is to be made to this Agreement by either party in any advertising
publicity or promotional material without prior written consent of the other
party.
10. NOTICES
Any
notice shall be deemed to have been received:
11. 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 an agreement in the structured negotiations within twenty-one days of the Adviser being appointed, either party may then refer any
dispute to litigation.
12. GENERAL
MATTERS
The
Customer agrees that any payment it is due to make to Energy Gurus under the
Agreement or otherwise shall be paid within seven days of receiving demand for
the same and that it enjoys no right of set off, defence, counter claim or
other reason to withhold or delay payment.
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 agrees not to assign, mortgage,
charge, transfer, subcontract, delegate, declare a trust over or deal otherwise
with any of its rights and obligations under this Agreement.
The Customer grants Energy Gurus 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.
Energy Gurus will use its reasonable endeavors to
deliver the Services in a timely manner but time shall not be of the essence
for the performance of the Services.
The Customer agrees that Energy Gurus 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 Energy Gurus’
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.
