Terms & Conditions
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning given in clause 3.1.
Commission Payment: The payment Procure Smart is entitled to receive from the Supplier as result of the Customer entering into the Contract.
Conditions: these terms and conditions set out in clause 1 to clause 8 (inclusive).
Contract: the contract between the Customer and Procure Smart for the supply of the Services incorporating the Letter of Authority and these Conditions.
Customer: the person or organisation who purchases Services and any agreed Value Added Services from Procure Smart;
Customer Breach: Any act or omission of the Customer that represents a breach of the terms of this Agreement by the Customer.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including 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.
Default Fee: Payment due from the Customer to Procure Smart in the event of a Customer Breach.
Letter of Authority: the letter of authority provided by Procure Smart to the Customer and executed by the Customer to authorise Procure Smart to negotiate on behalf of the Customer with Utility Providers.
Procure Smart: Procure Smart Limited (CRN 14426752), trading as Procure Smart.
Utility Providers: any provider or supplier of water, telecommunications, gas and/or electricity (which shall include any third-party provider of consumption data including but not limited to Electralink and Xoserve).
Value Added Services: any additional services such as account management, bureau services, access to online review portal, discounted access to energy management platforms that are agreed between the parties.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes email.
2.COMMENCEMENT & TERM
2.1 The Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 30 days’ written notice to terminate.
2.2 The Letter of Authority is valid from the date it has been signed and shall continue until the later of (i) 12 months from that date or such renewal date pursuant to clause 2.3, (ii) such date as Procure Smart still requires authority to terminate an existing contract between the Utility Provider and the Customer, or (iii) termination of this Contract pursuant to clause 2.1.
2.3 The Letter of Authority shall renew on each anniversary of its date of expiry unless the Customer notifies Procure Smart in writing within thirty (30) days of the date of Procure Smart’s written notification to the Customer providing the Customer with the option to opt out of such renewal.
3.SUPPLY OF SERVICES
The Customer agrees that:
3.1 The Letter of Authority constitutes a request by the Customer to purchase Services in accordance with these conditions. This Contract shall come into existence (Commencement Date) when the Letter(s) of Authority signed by the Customer is received by Procure Smart;
3.2 In return for Procure Smart receiving the Commission Payment Procure Smart shall supply the Services to the Customer from the date of execution of the Letter of Authority in accordance with this Contract.
3.3 In supplying the Services, Procure Smart shall perform the Services with reasonable care and skill.
3.4 Nothing in this Contract is intended to, nor shall be deemed to, establish any partnership or join venture between the parties nor constitute any party the agent of the other party. The parties acknowledge and agree that Procure Smart is a supplier of Services and acts as an independent contractor to the Customer.
Your attention is particularly drawn to this clause.
4.1 The Customer shall:
(a) comply at all times with these Conditions, as well as any applicable Terms & Conditions of any relevant Utility Provider, relating to any New Supply Contract;
(b) co-operate and provide such assistance as Procure Smart may reasonably require from time to time in relation to the Services;
(c) provide, in a timely manner, such information as Procure Smart may reasonably require, and ensure that it is accurate in all material respects;
(d) immediately inform Procure Smart if there is any change in the Customer’s circumstances and/or business, which may affect the provision of the Services;
(e) Not to 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 New Supply Contract whereby that Other Contract provides the Services, whether in whole or in part, to be provided under the New Supply Contract.
(f) provide authority for Procure Smart to enter into discussions and/or arrangements with such Utility Providers as Procure Smart may determine (as further detailed in the Letter of Authority) and the Customer agrees that Procure Smart may supply any information, data or documents that Procure Smart may receive from the Customer to any such Utility Provider; and
(g) comply with the provisions of the Bribery Act 2010 and any other applicable legislation.
4.2 If the performance by Procure Smart of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, Procure Smart shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; and
(b) be entitled to recover any additional costs, charges or losses of Commission Payments Procure Smart sustains or incurs that arise directly or indirectly from any breach of the Customer’s Obligations whether by action or omission under the Contract together with any reasonably incurred costs associated with any recovery action
The Default Fee shall entirely be at Procure Smart’s discretion and will be a payment:
- Representing the Commission Payment (or such balance of the Commission Payment yet to be paid to Procure Smart) which Procure Smart would have received from the Utility Provider but is not received due to the Customer Breach; or
- A fixed amount of £750.
VAT is due to be paid on a Default Fee.
The Customer agrees that the Default Fee is due to 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. The Customer agrees that the Default Fee, whether fixed or Commission Payment based, represents the reimbursement of loss suffered by Procure Smart resulting from the Customers breach of these Conditions. It does not represent an unfair gain or windfall on the part of Procure Smart 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 Default 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 Procure Smart.
Your attention is particularly drawn to this clause.
Procure Smart will receive a Commission Payment direct from the Utility Provider in the event that the Customer enters into a supply contract with any Utility Provider. The amount of commission will vary for each Utility Provider but will not exceed 3.0 pence per kWh for each supply meter. Such commission will be included in the price or rates offered by the Utility Provider to the Customer and the Utility Provider shall pay any such Commission Payment direct to Procure Smart.
Below is an illustrative example using simple figures to aid understanding: Basic Cost of Energy = 20p/kWh > TPI Commission = 1p/kWh > Your bill shows 21p/kWh (Paid to the supplier) > Supplier passes 1p/kWh to TPI, e.g. consumption 50,000kWh/annum, TPI receives £500.
Procure Smart will also receive introduction payments or other commissions from those providers of Value Added Services, these too will vary dependent upon the commercial terms between Procure Smart and the provider. Such Commission Payments will be included in the cost of those services.
By entering into this Contract the Customer hereby confirms that it is aware that commissions will be payable direct to Procure Smart and hereby waives any rights it may have to challenge such commissions now or in the future.
6.LIMITATION OF LIABILITY
Your attention is particularly drawn to this clause.
6.1 Nothing in this Contract shall limit or exclude Procure Smart’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
6.2 Subject to clause 6.1, Procure Smart shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings of costs of utilities (whether such anticipated savings were suggested or calculated by Procure Smart);
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
Should the Customer assert liability on the part of Procure Smart then it must notify Procure Smart 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 Procure Smart shall have no liability to the Customer. Procure Smart 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.
6.3 Subject to clause 6.1, the total liability of Procure Smart to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to 20%) of the average annual commissions earned by Procure Smart under this Contract.
6.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
7.2 On termination of this Contract for whatever reason:
(a) 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 which existed at or before the date of termination; and
(b) 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.
8.1 Force majeure. 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 events, circumstances or causes beyond its reasonable control.
8.2 Assignment and other dealings.
(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the prior written consent of Procure Smart.
(b) Procure Smart may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.
(a) Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 8.3(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
8.4 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
8.5 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
8.6 Waiver. Save as set out in clause 5, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
8.7 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post, other next working day delivery service or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 8.8(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
8.9 Data Protection.
(a) Procure Smart do not anticipate receiving any Personal Data (as defined in the Data Protection Legislation) from the Customer pursuant to this Contract, other than contact details of the relevant personnel who are responsible for dealing with the Contract, which Procure Smart shall process as a separate Controller (as defined in the Data Protection Legislation).
(b) The Customer agrees that Procure Smart may also share the contact details of relevant personnel with the Utility Provider.
(c) Each party shall comply with all the obligations imposed on a Controller under the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Procure Smart are the processor.
8.10 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
8.11 Governing law. This Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
8.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.