These Terms & Conditions (the “Terms”) are between you (the “Customer”) and Balboski Ltd T/A Fairer Business Energy (company number 9644873) (“FBE”). Any services provided to the Customer by FBE relating to the provision of utilities to the Customer by third parties are subject to the following provisions.
1. Definitions and Interpretation
1.1 In these Terms, unless the context otherwise requires, the following expressions have the following meanings:
“Commencement Date” means the date on which FBE takes instruction from the Customer to provide the Services; “Confidential Information” means, in relation to either party, information which is disclosed to that party by the other party pursuant to or in connection with these Terms (whether orally or in writing) or any other medium, and whether or not the information is expressly stated to be confidential or marked as such;
“Services” means the Energy Broker services provided by FBE to the Customer as set out in the Specification;
“Specification” means the description of the Service agreed in writing or orally by FBE with the Customer
“Supplier” means each utility provider with which the Customer contracts directly for the supply of gas & electricity as shall be agreed between the Supplier and the Customer; and
“Terms and Conditions” means the terms on which the Supplier supplies the utilities to the Customer.
2. Supply of Services
2.1 These terms shall:
(I) apply to and be incorporated in these Terms; and
(II) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of these Terms shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
2.3 The Customer’s instruction to FBE to provide the Services (whether orally or in writing) constitutes an offer by the Customer to purchase the Services specified in it on these Terms; accordingly, the provision to the Customer of a copy of the Specification or instruction by the Supplier, or the Supplier’s commencement or energy contracts for execution of the Services, shall establish a contract for the supply and purchase of on these Terms (the “Contract”). Any terms and conditions supplied by the Customer shall not govern the Contract unless and to the extent they are specifically agreed by FBE in writing prior to the provision of the Services.
2.4 FBE acts as a third party intermediary (the “TPI”) between the Customer and the Suppliers to supply the Services to the Customer in accordance with the Specification. As such, FBE shall not be a party to any contract between the Customer and the Suppliers for the provision of all or any utilities.
2.5 FBE shall research, analyse and evaluate the energy sector as part of the Services and shall provide the Services as set out in these Terms and Specification.
2.6 FBE shall provide the Services with reasonable care and skill and in accordance with the professional standards observed by companies offering utility brokerage and market intelligence services.
2.7 FBE does not warrant that the Supplier shall provide services and utilities of satisfactory quality or with reasonable care and skill, nor is FBE liable for the Suppliers’ failure to provide services and utilities of satisfactory quality, consistency or with reasonable care and skill or at all.
2.8 FBE shall use reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3. Customer’s Obligations
3.1 The Customer shall:
(I) ensure that the terms of the Specification and any information it provides in it are correctly complete and accurate in all material respects;
(II) provide FBE with a letter of authority (if necessary) permitting FBE to act on the Customer’s behalf in carrying out the Services and liaising with the Suppliers;
(III) co-operate with FBE in all matters relating to the Services;
(IV) provide FBE with such information and materials as FBE may reasonably require in order to supply the Services; and
(V) ensure that it complies with the Supplier’s Terms and Conditions applicable to the provisions of utilities, and in particular pays all the Supplier’s invoices in full without deduction, counter claim or set-off.
3.2 The Customer acknowledges that:
(I) FBE shall not be a party to the contract between the Customer and the Supplier and therefore has no responsibility to either the Customer or Supplier in relation to the provision of utilities;
(II) any contract entered into between the Customer and the Supplier shall be subject to the Supplier’s Terms and Conditions; and
(III) it is not the responsibility of FBE to provide to the Customer with such Terms and Conditions, although the Customer may request FBE to obtain a copy of such Terms and Conditions on behalf of the Customer, which FBE shall use its reasonable endeavour to do. It shall be the Customer’s responsibility to ensure it has received and reviewed the Supplier’s up to date Terms and Conditions applicable to the provision of the utilities.
3.3 If FBE’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (the “Customer Default”):
(I) FBE 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 reply on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays FBE’s performance of any of its obligations;
(II) FBE shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from FBE’s failure or delay to perform any of its obligations as set out in this clause 3.3; and
(III) the Customer shall reimburse FBE on written demand for all unpaid fees and any costs or losses sustained or incurred by FBE arising directly or indirectly from the Customer Default.
4. Charges and Payment
4.1 FBE shall communicate to the Customer the prices offered by Suppliers and; unless stated otherwise, such prices shall be exclusive of VAT and Climate Change Levy (the “CCL”) at the applicable rates.
4.2 The Contract price agreed between the Supplier and Customer may, at the Suppliers’ discretion, be subject to change at short notice in accordance with the applicable Terms and Conditions referred to at clause 4.6 with reasons including (but not limited to) a change in applicable tax or third party charge levied on the Supplier, or market fluctuation in price.
4.3 FBE does not warrant or undertake that the prices initially communicated to the Customer will remain fixed or valid for any period of time prior to any potential contract being entered into between the Customer and Supplier or for the duration of the contract period.
4.4 It is not within FBE’s control to influence Suppliers and as such FBE is unable to guarantee that the Supplier will enter into a contract with the Customer at all, or enter into a contract upon the terms initially communicated to the Customer from FBE.
4.5 The Services offered to the Customer by FBE are offered free of charge unless otherwise stated in the Specification.
4.6 In the event the Customer does not proceed with or cancels a Contract agreed with a Supplier using FBE’s Services, an additional fee of £150 (plus vat) shall be payable by the Customer by way liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of FBE’s loss as a result of such cancellation or early termination.
4.7 In the event that the Customer is not satisfied with Services provided by FBE, the Customer may request a copy of our formal complaints procedure by email from email@example.com, please ensure you provide your details for us to respond and an outline of the complaint, so that we can investigate any concerns.
Each party undertakes to keep in strict confidence all Confidential Information of the other party received by it. The receiving party shall only disclose such Confidential Information to employees, agents, subcontractors or Suppliers who need such information for the purpose of discharging the receiving party’s obligations under these Terms or the agreement with the Supplier. Each party shall ensure that such employees, agents, subcontractors and Suppliers comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s Confidential Information to the extent as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
5.2 FBE warrants and undertakes to hold the Customer’s personal data on a secure server and in accordance with the Data Protection Act 1998. FBE is registered as a data controller with the Information Commissioner and shall not disclose any of the Customer’s personal data to third parties except as necessary for the performance of the Services or as required by law.
5.3 This clause 5 shall survive the termination of the Contract.
6.1 The Customer warrants and undertakes that all information provided to FBE by the Customer or its agents (including those acting outside the scope of their authority) is correct, accurate, complete and not misleading. The Customer hereby indemnifies FBE in full and on demand from and against any and all actions, losses, liabilities, fines, damages, claims, settlements, costs (including legal costs on an indemnity basis) and expenses based on or arising directly from any breach of this clause.
7. Limitation of Liability
7.1 Nothing in these Terms shall limit or exclude FBE’s liability for:
(I) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(II) fraud or fraudulent misrepresentation; or
(III) any matter for which, according to applicable law, liability cannot be so excluded or limited.
7.2 Subject to clause 7.1:
(I) FBE shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit, or any direct or indirect or consequential loss arising under or in connection with the Services; and
(b) innocent or negligent misrepresentation.
(II) FBE’s total liability to the Customer in respect of all other losses arising under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Fees paid or payable to FBE in the preceding 12 month period.
7.3 This clause 7 shall survive termination or expiry of the Contract.
8.1 These Terms shall commence on the Commencement Date and shall continue until FBE makes a recommendation of Supplier(s) to the Customer, although the Customer is under no obligation to accept such recommendation. At this time, whether or not the Customer accepts the recommendation provided by FBE, FBE is deemed to have carried out their Services under the Contract.
8.2 The Customer may request, and FBE may from time to time provide further services, including assisting with and/or managing the relationship and accounts between the Customer and Supplier, but any such further services provided by FBE shall be provided without obligation or liability of FBE to the Customer in carrying out these further services, and they shall be provided without any representation or warranty by FBE.
9. Force Majeure
Neither Party to the Contract shall be liable; for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to; power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in default.
10.1 FBE may at any time assign, transfer, 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, provided that the Customer is informed of such assignment or transfer.
Each provision in these Terms is fully severable. If any provision or part-provision of this Contract becomes invalid, illegal or unenforceable then these Terms shall not be invalidated and all remaining provisions shall remain in full force and effect.
12. Entire Contract
(I) The Contract constitutes the whole Contract between the parties and supersedes any previous arrangement, understanding, or contract between them relating to the subject matter of the Contract.
(II) Each party acknowledges that, in entering into the Contract it does not rely on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to the Contract or not) other than expressly set out in the Contract.
(III) Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
(IV) If the Customer has entered into, or in future enters into, a service agreement for the provisions of energy broker’s services, in the event of any inconsistency, the provisions of the service agreement shall prevail.
13. Relationship of the Parties
Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14. Third Parties
A person who is not a party to the Contract shall not have any rights to enforce these terms.
Except as set out in these Terms, no variation, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by FBE.
16. Governing Law
The Contract shall be governed by the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
If you wish to discuss any aspect of this Contract please contact FBE on firstname.lastname@example.org