Terms & Conditions
General Client Terms and Conditions
1.1 Definitions. In these Conditions, the following definitions apply:
a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
the person or firm who requests Services from SafeSwitch and is identified in the Proposal.
the commission payable by the Client for the supply of the Services in accordance with clause 10.
these terms and conditions as amended from time to time in accordance with clause 15.7.
the contract between SafeSwitch and the Client for the exclusive supply of Services in accordance with these Conditions.
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures”
as defined in the Data Protection Legislation.
“Data Protection Legislation”
the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications.
has the meaning set out in clause 13.1 and as detailed in the Proposal.
“Intellectual Property Rights”
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
SafeSwitch t/a Smith Bellerby registered in England and Wales with company number 04273013.
Shall mean any refunds we receive, in the form of direct payment or credit, resulting from the taking of an action recommended by SafeSwitch.
the document setting out details of the Client, Commission/fee and other details of the arrangements under these Conditions, as set out in the Proposal document.
Shall mean the difference between the amount paid to a supplier subsequent to the implementation of any recommendation made by SafeSwitch and the amount which would have been paid had the Client not taken such action or otherwise altered its supply agreement.
the exclusive services performed by SafeSwitch for the Client in accordance with these Conditions as set out in the Proposal.
the suppliers of electricity, gas and water supplies to the Client.
has the meaning set out in clause 13.1.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 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; and
1.2.5 a reference to writing or written includes faxes.
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Client’s written or oral request for services constitutes an offer by the Client for SafeSwitch to provide the Services on an exclusive basis in respect of all of the Client’s present and future locations where the Client is responsible for payment of utility charges, in accordance with these Conditions.
2.3 The Client’s request shall be deemed to be accepted when SafeSwitch issues its written Proposal and either all parties have signed it or SafeSwitch has commenced providing the Services, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of SafeSwitch which is not set out in the Contract.
3.1 The Client acknowledges and agrees that SafeSwitch shall be the Client’s exclusive provider of the Services to all the Client’s present and future locations where the Client is responsible for payment of utility charges, during the Term. The Client agrees not to instruct any third parties to supply services that are the same as or similar to the Services during the Term.
3.2 If the Client breaches clause 3.1, the Client shall indemnify SafeSwitch for the loss of income to SafeSwitch.
3.3 For the avoidance of doubt Clause 3.2 will not apply to any current or future subsidiary organisations where Services are performed by third parties as part of pre-existing arrangements prior to being introduced to SafeSwitch.
4 PROVISION OF INFORMATION
4.1 The Client acknowledges that SafeSwitch will require information from it to carry out the Services and the Client agrees to provide SafeSwitch with such information as may be required by SafeSwitch, in a format acceptable to SafeSwitch, and to keep SafeSwitch informed as changes occur, particularly (but not limited to) in respect of changes to the Client’s supply locations. In particular the Client agrees to provide SafeSwitch with:
4.1.1 details of the supply locations;
4.1.2 invoices – a minimum of the last electricity and gas invoice for each supply location and meter point covered by this Contract and preferably invoices for a full 12 months;
4.1.3 half hourly data – any available data relating to the half hourly electricity consumption for Client supply locations with the appropriate meter installed;
4.1.4 Supplier contracts – copies of all existing electricity and gas supply contracts and copies of any renewal prices as they are notified;
4.1.5 contacts – names, addresses, titles, telephone, fax and e-mail address of Client personnel selected to be the Client’s key contacts; and
4.1.6 letter of authority – appropriate authority letters to Suppliers completed on the Client’s headed paper, authorising SafeSwitch to negotiate and accept electricity and gas contract prices on behalf of the Client and to deal directly with Suppliers for the purpose of obtaining those contract prices, billing or other information relevant to this Contract and any other information reasonably requested by SafeSwitch relating to the provision of the Services.
4.2 The Client acknowledges and agrees that in addition to the information to be supplied by the Client, SafeSwitch may seek such further information and/or make additional enquiries insofar as SafeSwitch, at its discretion, thinks appropriate.
4.3 The Client acknowledges that any failure or delay to provide the information detailed in clauses 5.1 or 5.2 may affect SafeSwitch’s ability to carry out the Services, including the timing of its approach to the market for the purpose of trading or obtaining energy prices. SafeSwitch shall have no liability to the Client for any failure or delay in SafeSwitch providing the Services to the Client due to the Client’s failure or delay in providing such required information in accordance with clauses 5.1 and 5.2.
4.4 The Client acknowledges that once all the required information has been supplied by the Client to SafeSwitch there may be a further period of time before SafeSwitch are able to provide the Services due to, among other things, the Supplier performing a credit checking process, collecting data from SafeSwitch, shaping such data for the Client. SafeSwitch shall keep the Client updated as to progress during this period and shall inform the Client when it is able to commence the Services.
4.5 The Client acknowledges that delays caused by a Supplier will impact SafeSwitch’s commencement of the provision of the Services. Such delays are outside SafeSwitch’s reasonable control and SafeSwitch accepts no liability for delays caused by any Suppliers.
4.6 The Client acknowledges and agrees that SafeSwitch, in carrying out the Services, shall use any information supplied by the Client in accordance with these Conditions and that SafeSwitch shall process and store such information together with data obtained by SafeSwitch from Suppliers.
5 CLIENT’S OBLIGATIONS
5.1 The Client shall:
5.1.1 ensure that the terms of the Proposal are complete and accurate;
5.1.2 co-operate with SafeSwitch in all matters relating to the Services;
5.1.3 provide SafeSwitch, its employees, agents, consultants and subcontractors, with access to the Client’s locations as reasonably required by SafeSwitch;
5.1.4 provide SafeSwitch with such information (including the information pursuant to clause 5) and materials as SafeSwitch may reasonably require in order to supply the Services, and ensure that such information is accurate in all respects;
5.1.5 adhere to the terms and conditions of supply for the Client’s existing and future Suppliers;
5.1.6 pay, on receipt of validation reports provided by SafeSwitch, the invoices listed to the relevant suppliers;
5.1.7 provide SafeSwitch with a copy of the Client’s remittance advice for bills paid pursuant to clause 5.1.6; and
5.1.8 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
5.1.9 not disclose any pricing information provided by SafeSwitch as this is considered confidential information and intended for the clients use only.
5.1.10 ensure that SafeSwitch is party to all communications between the Client and Supplier.
5.1.11 ensure that SafeSwitch are given the opportunity to attend any meetings between the Client and Supplier.
5.1.12 pay the percentage refund/savings to SafeSwitch as agreed in the Proposal.
5.2 If SafeSwitch’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”):
5.2.1 SafeSwitch shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays SafeSwitch’s performance of any of its obligations;
5.2.2 SafeSwitch shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from SafeSwitch’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Client shall reimburse SafeSwitch for reasonable costs or losses sustained or incurred by SafeSwitch arising directly or indirectly from the Client Default.
6 SafeSwitch’S OBLIGATIONS
6.1 SafeSwitch shall:
6.1.1 co-operate with the Client in all matters relating to the Services;
6.1.2 shall supply the Services using reasonable care and skill;
6.1.3 at all times act with reasonable diligence to procure the Services expeditiously;
6.1.4 assist The Client in obtaining and maintaining all necessary licenses, permissions and consents which may be required before the date on which the Services to start.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by SafeSwitch.
7.2 The Client grants to the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy, modify and utilise the Client’s intellectual property for the purposes of the provision of services under this agreement.
7.3 The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
8.1 The Client shall be solely responsible for the accuracy of data provided to SafeSwitch and SafeSwitch shall rely on the data provided to it by the Client for the performance of the Services and under no circumstances shall SafeSwitch be liable to the Client for any losses incurred by the Client due to inaccuracies in such data.
8.2 The Client shall indemnify SafeSwitch against all damages, losses, claims, liabilities and expenses resulting from SafeSwitch’s use of data provided by the Client that subsequently turns out to be inaccurate, misleading or not up-to-date.
8.3 SafeSwitch shall pass the Client’s data to third parties in accordance with SafeSwitch’s Data Protection Policy in order for SafeSwitch to provide the Services to the Client and the Client agrees that SafeSwitch may process the Client’s data in this way.
9 DATA PROTECTION
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 9, Applicable Laws means (for so long as and to the extent that they apply to SafeSwitch) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
9.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the controller and SafeSwitch is the processor.
9.3. Without prejudice to the generality of clause 9.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to SafeSwitch for the duration and purposes of the Contract.
9.4. Without prejudice to the generality of clause 9.1, SafeSwitch shall, in relation to any personal data processed in connection with the performance by SafeSwitch of its obligations under the Contract:
9.4.1. process that personal data only on the documented written instructions of the Client unless SafeSwitch is required by Applicable Laws to otherwise process that personal data. Where SafeSwitch is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, SafeSwitch shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit SafeSwitch from so notifying the Client;
9.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.4.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
9.4.4. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
22.214.171.124. the Client or SafeSwitch has provided appropriate safeguards in relation to the transfer;
126.96.36.199. the data subject has enforceable rights and effective legal remedies;
188.8.131.52. SafeSwitch complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
184.108.40.206. SafeSwitch complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
9.4.5. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.4.6. notify the Client without undue delay on becoming aware of a personal data breach;
9.4.7. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data; and
9.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 9
10.1 Unless otherwise notified on the Proposal, SafeSwitch shall receive payment directly from the Suppliers for the provision of the Services.
11.1 Each party undertakes that it shall not at any time disclose to any person, Supplier or third party any confidential information concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives 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 or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
11.2.2 as may be required by law, court order or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
11.4 This clause 11 shall survive termination of the Contract.
12 LIMITATION OF LIABILITY
12.1 SafeSwitch shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
12.2 SafeSwitch’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of Commission received by SafeSwitch in the twelve (12) month period immediately preceding the loss for this site(s) to which the claim relates.
12.3 This clause 12 shall survive termination of the Contract.
13 TERM AND TERMINATION
13.1 This Contract shall commence on the date of the Proposal and shall continue in force for the period specified in the Proposal (“Initial Term”) and thereafter this Contract shall renew for consecutive term(s) unless either party provides a written notice of termination between 90 and 120 days prior to the Contract’s expiry date (together the “Term”).
13.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.2.1 the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach;
13.2.2 the other party is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party; an application is made to court, or an order is made, for the appointment of an administrator or administrative receiver; or the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
13.3 Without limiting its other rights or remedies, SafeSwitch shall have the right to suspend provision of the Services under the Contract if the Client becomes subject to any of the events listed in clause 13.2.2, or SafeSwitch reasonably believes that the Client is about to become subject to any of them.
14 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
14.1 the Client shall immediately pay to the SafeSwitch all of the SafeSwitch’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the SafeSwitch shall submit an invoice, which shall be payable by the Client immediately on receipt;
14.2 the Client shall return all of the SafeSwitch Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the SafeSwitch may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
14.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 Force majeure:
15.1.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of SafeSwitch including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of SafeSwitch or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
15.1.2 SafeSwitch shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.1.3 If the Force Majeure Event prevents SafeSwitch from providing any of the Services for more than four (4) weeks, SafeSwitch shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
15.2 Notices: Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.
15.3.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.3.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.4.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.4.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by SafeSwitch.
15.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.