Terms & Conditions

BROWNLOW UTILITIES LIMITED TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES. 

The terms and conditions below shall apply to and be incorporated into the agreement set out overleaf (the “Agreement”) and any subsequent contract between us for the supply of the services.  Please read carefully.     

1. Formation of Contract  

1. Any quotation is given on the basis that no contract shall come into existence until the Agreement is signed by you and returned to us.  Any quotation (including the terms set out in the Agreement) is valid for a period of 30 days only from its date, provided that we have not previously withdrawn it.  

2. Subject to any variation under paragraph 1.3, the Agreement shall be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document).  

3. No addition, alteration, substitution or waiver of these terms and conditions will be valid unless expressly accepted in writing by us or a person authorised to sign on our behalf.  

4. By signing the Agreement, you acknowledge that you have not relied on any statement, promise or representation made or given by us or on our behalf which is not set out in the Agreement.  (Nothing in these terms and conditions shall exclude or limit our liability for fraudulent misrepresentation).  

5. We may assign or sub-contract the Agreement or any part of it to any person, firm or company.  You shall not be entitled to assign the Agreement or any part of it without our written consent.  

6. The services to be provided by us shall be as set out in the Agreement together with such additional services as are agreed in writing.  We may at any time make changes to the services (and/or our fees) which are necessary to comply with any statutory requirements or to improve the services.  

7. We do not supply or install hardware products.  Where we recommend certain suitable products, we do not make any representation (unless confirmed in writing) or give any warranty or guarantee as to their quality, fitness for purpose or otherwise and you must rely upon the terms of your agreement with the third party supplier.  

2. Contract Period  

1. The Agreement will commence on the date of this Agreement (Agreement Start Date) and shall continue (unless terminated pursuant to paragraph 7 below) for the Minimum Contract Period (or if there is no Minimum Contract Period stated in the Agreement, for 36 months) and thereafter shall continue for successive periods of 12 (twelve) months from the anniversary of the Agreement Start Date unless and until (and subject to paragraph 2.2 below) either of us gives to the other notice in writing not less than 3 months prior to the anniversary of the Agreement Start Date.  

2. Notwithstanding that notice may have been served in accordance with paragraph 2.1 above and for the services where applicable, the Agreement shall continue whilst an Energy Supply Contract with a UK licensed energy supplier, selected with our involvement, is in force.  

3. Payment Terms  

1. Unless stated to the contrary in the Agreement, we shall raise invoices on a monthly basis. Payment terms are 14 days net of invoice unless mutually agreed in writing. Time for payment shall be of the essence.  

2. Our charges will be subject to a RPI (Retail Price Index) increase on each anniversary of the commencement of this agreement equivalent to the percentage increase in the RPI in the previous 12 month.  

3. You will be responsible for reimbursing us for any travelling, accommodation and other expenses reasonably incurred by us in performing the services.  

4. Where applicable., we reserve the right to receive ongoing commissions and other remuneration directly from the energy suppliers.  

5. All charges quoted are exclusive of any Value Added Tax, which shall be paid by you at the applicable rate from time to time.  

6. If payment is not made on the due date we shall be entitled, without limiting any other rights we may have, to suspend our services and/or charge interest on the outstanding amount at the rate of 5% above the base rate of Barclays Bank plc from time to time and have a right to recover any charges for letters sent and legal costs where incurred.   

7. We reserve the right to increase the unit rate as per the sales order if your forecasted consumption falls below 75% of the actual consumption as per the ABV Reports as referenced in the Agreement and/or the purchase order. 

8. We are entitled to receive payments directly from utility suppliers and/or off-takers 

4. Our Responsibility  

1. We will ensure that any work carried out is carried out with reasonable care and skill.  

2. Before starting any work we will undertake to make sure that all work quoted is appropriate and practicable.  

3. If, following commencement of the Agreement, it becomes apparent that further work is necessary either because of alterations in usage, application or process by you or a change in the sites or meter points involved and this causes an increase in costs we will communicate these extra costs to you and will only proceed with the services once your acceptance has been received.  

4. We shall use reasonable endeavours to meet any performance dates specified in the Agreement but any such dates are estimates only and time for performance shall not be of the essence.  

5. We reserve all rights in any data, reports or information supplied as part of the services and you shall not use or dispose of the same without our consent in writing.  

6. We will only use your personal information to administer your account, provide the product/ services you have agreed and to keep in contact with you unless you have given additional, written consent. More details are available in our Privacy Policy at https://brownlowutilities.co.uk/privacy-policy.    

5. Your Responsibility  

1. Where work is required on your site, you will permit us during normal working hours to undertake the works according to the programme set out in the Agreement.  

2. Where you are required to provide us with information, you undertake to make sure that such information is correct and provided in a timely manner.  If we rely on the information given when preparing any proposal, sales order or in performing the services and such information is incorrect, we reserve the right to increase our quotes rates, prices and/or the charges drawing directly or indirectly from the information supplied by you to make good any errors, breaches and/or additional work required as a result.  Furthermore, in addition to paragraph 3.7, where such information is used in a report including but not limited to an ABV Report and/or application submitted to either an energy supplier or regulatory authority, you agree to indemnify us against any loss, charges, costs and delays we may suffer or incur as a result of such information being incorrect or misleading.  

3. You should provide access to your premises, information, personnel and/or other resources as are reasonably requested by us to facilitate delivery of the services in accordance with the Agreement.  Any required hardware should be purchased by you and installed by a properly qualified electrician prior to commencement of the services.  If we are prevented or delayed in performing the services as a result of your failure to provide such access or install such hardware properly, we reserve the right to invoice in full for any costs, charges or losses arising from such failure.  

4. You shall work in collaboration with us in the delivery of the services and in particular you shall:  

1. execute a Letter of Authority (“LOA”) in an agreed form that authorises us to deal directly with energy/utility suppliers and other industry participants and to directly receive information and data on your behalf; and 

2. ensure signature of any energy or utility supply or off-taker agreements which you select, or any other relevant documentation required to facilitate the delivery of services and within the industry/utility supplier required timeframes.  

5. Where our charges are performance related, you shall: 

1. not unreasonably withhold the approval of any recommendations made by us as part of the delivery of the services; and 

2. not act in any way that would reverse or otherwise prevent the services from being delivered and the benefits therefore accruing / continuing. 

6. You shall within 2 weeks from the Agreement Start Date provide us with all information relating to any outstanding and current queries you have with your energy/utility suppliers. 

6. Force Majeure  

1. We shall not be liable for delay or failure to perform any of our obligations under the Agreement if the delay or failure is caused by any circumstances beyond our reasonable control.  

2. For the purposes of this condition “force majeure” shall include but not be limited to acts of God, war, terrorism, civil disorder, industrial dispute, flood, fire, pandemic, epidemic or explosions, compliance with any law or governmental rules or regulations or default of suppliers or subcontractors.  

3. Upon the happening of a “force majeure” event we shall be entitled to a reasonable extension of time for the performance of our obligations.  

7. Termination  

1. Either party may (without limiting any other remedy) at any time terminate the Agreement if the other commits a relevant breach of any of the terms of the Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters administration, or a moratorium comes into force in respect of the other (within the meaning of the Insolvency Act 1986).  

2. Either party may terminate the Agreement by giving to the other not less than 6 months’ notice provided that:  

1. Such notice shall not expire prior to the completion of the duration of this Agreement; and 

2. If energy/utility procurement forms part of the service provided by us, such notice shall not expire before the expiry date of your latest energy/utility supply agreement.  

3. Each party’s further rights and obligations shall cease immediately on termination except that paragraph 15 (Confidentiality); paragraph 3 (Payment Terms), paragraph 7 (Termination), paragraph 22 (Service of Notice), paragraph 24(Non-Solicitation), paragraph 8(Utility Suppliers), paragraph 27(Severability) and paragraph 11(Governing Law), together with those paragraphs the survival of which is necessary for the interpretation of the Agreement, shall survive termination of this Agreement, and shall continue in full force and effect.  

4. Upon termination of this Agreement:  

1. Your right to receive the services shall cease automatically; 

2. Each party shall immediately return to the other all property and materials containing Confidential Information belonging to the other; and 

3. All amounts due that remain outstanding from you under this agreement shall be paid immediately to us as per our directions and for the avoidance of doubt, the full amount of any outstanding Historical Bill Audit as specified in the Agreement, or the purchase order shall remain payable by you for the duration specified in the Agreement and/or the purchase order.  

8. Utility Suppliers  

1. We work with a panel of utility suppliers which we deem are able to meet the needs and demands of the products which we offer, and which allow us to provide the services. The panel of utility suppliers may change from time to time at our complete discretion. We do not guarantee or represent that any of the utility suppliers set out within the Supplier Policy will enter into a contract for energy supply with you. 

2. We do not work with all licenced utility suppliers, however may consider adding additional utility suppliers to its panel upon request by you. Any decision to work with a non-panel energy supplier shall be at our sole discretion and the agreement of commercial terms. 

3. Access to services offered by the utility suppliers will be provided in accordance with the relevant Supplier Policy. 

4. We shall act as your agent for the selection of utility supplier or for entering into the your utility supply contract. 

5. For the purposes of efficient management of your account, we may provide services to the utility supplier.  

9. Limitation of Liability  

1. Save as expressly set out herein all warranties, conditions and other terms implied by statute are to the fullest extent permitted by law, excluded from the Agreement.  

2. Except in respect of death or personal injury caused by our negligence, or as expressly provided in the Agreement, we shall not be liable by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any loss or profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by our negligence, our employees, subcontractors or otherwise) which arise out of or in connection with the provision of the services pursuant to the Agreement, and our entire liability under or in connection with the Agreement shall not exceed the amount of our charges paid by you for the provision of the services under the Agreement during the 12 months preceding the date on which the claim arose.  

3. We or our insurers shall not be liable or investigate any claim for loss unless you have given written notice to us within 21 days of its occurrence and given us or our insurers every facility to investigate such occurrence.  

4. A person who is not a party to the Agreement shall have no rights under or in connection with it.  

5. In the event of a delay in delivery due to any act or omission on your part, when a firm deadline has been expressly accepted by the parties and in the absence of provisions to the contrary, discharging liquidated damages of 0.5% of the value of the services for which the delivery is delayed shall be applied for each full week of delay following a two weeks period of grace, it being hereby stipulated that this liquidated damages shall not, in all cases, exceed 5% of the amount specified for such delayed services in this agreement. Payment of liquidated damages by us to you shall be your sole and exclusive remedy for any delay caused by our direct actions or omissions.  

10. Complaints  

1. We aim to provide a high level of service.  If you do have an enquiry or complaint regarding the services provided by us, please refer to our complaints policy which can be found at https://brownlowutilities.co.uk/complaints-policy.   

11. Governing Law  

1. If any part of these terms and conditions are found to be unlawful it shall not affect the validity or enforceability of the remaining paragraphs.  These terms and conditions shall be construed in accordance with the laws of England and shall be subject to the exclusive jurisdiction of the English Courts.  

12. Exclusive Agreement 

1. We shall be the exclusive provider of services to you for the duration of this Agreement.  

13. Relationship of the Parties  

1. Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, contract of employment, agency, advisor or fiduciary relationship between the parties. 

14. Security  

1. We shall take all reasonable measures necessary to comply with the provisions of any enactment relating to security that may be applicable in the performance of the services and shall process and store all data in accordance with, and using, reasonable skill and care and GDPR guidelines. 

2. You acknowledge that it may be necessary for us to capture images to support our work and that you will assist us in this regard as required. 

3. Any additional costs that are incurred by us in complying with security restriction will be passed on to you unless otherwise agreed in writing between the parties. 

15. Confidentiality 

1. “Confidential Information” shall mean, in relation to either party, all confidential information which is disclosed to that party by the other party pursuant to or in connection with the Agreement (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), including, but not limited to; information relating to the products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities or business affairs; 

2. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. 

3. Each party undertakes to the other that they shall not (save in the proper performance of their respective obligations under the Agreement), without the prior consent of the other, disclose to any person the Confidential Information. 

4. This paragraph 14 shall not apply to any information which is in or enters into the public domain otherwise than in breach of any undertaking of confidentiality or which either party is obliged to disclose pursuant to any legal obligation. 

5. The parties shall each only divulge Confidential Information to those of their employees directly involved in the Agreement and then only to the extent necessary and will ensure that such employees are aware of and comply with this confidentiality undertaking. 

16. Announcement  

1. The parties agree that each may refer to the work being undertaken and to the existence of the Agreement, subject to the following: 

1. parties must agree in advance the content of announcement, such agreement not to be unreasonably withheld; and  

2. for avoidance of doubt, there must be no reference in any announcement to the commercial arrangements, including the fees under this Agreement.  

17. Intellectual Property Rights  

1. You hereby grant to us for the term of the Agreement a non-exclusive, royalty free, non-transferable licence to use any of your Intellectual Property for the sole purpose of providing the services under the Agreement. 

2. For the avoidance of doubt, you will retain all rights in the Intellectual Property owned by you. 

3. Prior to the commencement of the services under the Agreement, we shall inform you of all the Intellectual Property (whether developed by us prior to the Agreement Start Date or owned by a third party or otherwise) desirable for use in connection with the service provision under the Agreement (hereby referred to as “Background Intellectual Property Rights”). 

4. We hereby grant to you for the term of the Agreement a non-exclusive, royalty free, non-transferable licence for you to use the Background Intellectual Property for the purpose of or enjoyment of the services. 

5. For the avoidance of doubt, we retain all rights in all Intellectual Property Rights whether Background or otherwise vested by it. 

6. Each party shall indemnify the other party in full and shall keep the other party fully indemnified on a continuing basis from and against any costs, claims, damages, losses, demands and expenses (including all legal expenses) which it may suffer as a result of any claim that the use of any Intellectual Property provided by the other party in the services in accordance with the Agreement infringes the Intellectual Property of any third party. 

18. Assignment and Sub-Contracting  

1. We may assign, transfer or sub-contract any part of the Agreement however this action shall not relieve it of any obligation or duty attributable to it under the Agreement. 

19. Amendments and Waivers  

1. No variation of the Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorised representatives. 

2. The failure of either party to exercise any right or remedy shall not constitute a waiver of that right or remedy. 

3. No waiver shall be effective unless it is communicated to the other party in writing. 

4. A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Agreement. 

20. Set Off  

1. Neither party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time. 

21. Warranties and Representations  

1. Each party warrants and represents to the other that it has the full capacity and authority and all necessary consents (including, but not limited to, where its procedures so require, the consent of its parent company) to enter into and perform the Agreement and that the Agreement is executed by a duly authorise representative. 

2. Each party shall discharge its obligations hereunder with reasonable due skill, care and diligence and (without limiting the generality of this paragraph) in accordance with its own established internal procedures. 

3. That there are no facts known which would prevent the delivery of the services. 

4. Neither party is in default in the payment of any due and payable taxes or in the filing, registration or recording of any document or under any legal or statutory obligation or requirement which default might have a material adverse effect on its business, assets or financial condition or its ability to observe or perform its obligations under the Agreement.  

22. Service of Notices and Communications  

1. Except as otherwise expressly provided within the Agreement, no notice or other communication from one party to the other shall have any validity under the Agreement unless made in writing by or on behalf of the party concerned.  

2. Any notice or other communication which is to be given by either party to the other shall be given by letter, facsimile or email.  

3. Provided the relevant communication is not returned as undelivered, the notice or communication shall be deemed to have been given 2 working days after the day on which the letter was posted, or four hours, in the case of electronic mail or facsimile transmission or sooner where the other party acknowledges receipt of such letters, facsimile transmissions or emails.  

23. Data Protection  

1. For the purpose of this paragraph 23, “Personal Data” means any and all data that relates to an identifiable person who can be directly or indirectly identified from that data in accordance with General Data Protection Regulation. In this case, it means any Personal Data that you provide to us. This definition shall, where applicable, incorporate the definition provided in the Data Protection Act 1998 or EU Regulation 2016/679 – the General Data Protection Regulation (“GDPR”).  

2. We may need to collect Personal Data in course of providing services to you in accordance with the Agreement.  

3. Where any Personal Data is transferred to us under the terms of this Agreement, it will be processed and stored securely, for no longer than is necessary in the light of the reason(s) for which it was first collected. 

4. Each party shall comply with the provisions of the Data Protection Act 1998 or GDPR as applicable to it in connection with the Agreement.  

24. Non-Solicitation  

1. Neither party shall (except with the prior written consent of the other party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) from the employment of the other party any person employed or engaged by such other party in the provision of the services or (in your case) in the receipt of services at any time during the duration of this agreement and for a further period of 12 months after the termination of this Agreement.  

2. If either party breach paragraph 24.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one year’s basic salary or annual fee that was payable by the claiming party to that employee, worker or independent contractor plus the recruitment costs incurred by the claiming party in replacing such person.  

25. Entire Agreement  

1. The agreement along with any purchase/sales order constitutes the entire agreement between the parties relating to the subject matter of this Agreement.  

2. The Agreement supersedes all prior negotiations, representations and undertakings, whether written or oral.  

3. Each party acknowledges that, in entering into this Agreement, it has not relied on and shall no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement.  

26. Counterparts 

1. The Agreement may be entered into in any number of counterparts and by the parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument. 

27. Severability 

If any 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 of the Agreement shall continue in full force and effect as if the Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall immediately commence negotiations in good faith to remedy the invalidity.