1. Definitions

1. In this document the following terms shall be defined as follows:

1. “Client”, “you” or “your” means the limited company shown on the contract acceptance page or the organisation or person who buys Services from the Service Provider.

2. “Services” means the Easy ESOS service which is to be supplied to the Client by the Service Provider.

3. “Service Provider”, “us” or “we” means Enistic Ltd.

2. Scope

1. These Terms & Conditions shall apply to all contracts for the sale of Services by the Service Provider to the Client to the exclusion of all other terms and conditions referred to, offered or relied on by the Client whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Client, unless the Client specifically states in writing separately from such terms that it wishes such terms to apply and this has been acknowledged by the Service Provider in writing.

2. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Service Provider.

3. These Terms and Conditions will become immediately effective. They supersede any and all previously agreed to terms and conditions, whether verbal, written or otherwise, without exception.

3. Pricing and Payment Terms

1. The price shall be the price agreed in the quotation, or such other price as the parties may agree and will be exclusive of VAT.

2. Payment of the price and any other applicable costs shall be due as specified herein unless otherwise agreed in writing prior to the sale.

3. The Service Provider shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment pursuant to late payment of commercial debts (interest) Act 1998

4. Alternatively, the Service Provider shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 8.0% per annum pursuant to s69 of the County Court Act 1984

5. In addition, a £20 administration charge will be levied per item of correspondence relating to overdue invoices entered into, Debt recovery charges of £100.00 pursuant to the late payment of commercial debts (interest) Act 1998, plus all other reasonable and properly incurred associated fees will be charged in addition to the original invoice and interest

6. If payment of the invoice or any part thereof is not made by the due date, and if you have been advised in writing of such breach and you fail to rectify such breach within 15 days of receipt of such advice, the Service Provider shall be entitled to:

1. Require payment in advance of delivery in relation to any Services not previously completed and delivered.

2. Refuse to continue to act on behalf of the Client.

3. Terminate the contract.

7. VAT will be charged in accordance with current HM Customs & Revenue guidelines.

8. Should a payment fail to clear then the Client shall be charged a £30 banking administration fee, per failed payment submission, in addition to the outstanding payment, which must then be made prior to the delivery and/or completion of any further services. If these are goods, then these remain the property of the Service Provider until all payments are fully cleared.

9. The Service Provider reserves the right to pursue any costs, late payments or any outstanding balance howsoever caused through legal means. In such circumstances the Client will become liable for any reasonable and properly incurred fees, charges, interest or any other cost incurred by the Service Provider in the pursuance of the payment.

10. A reasonable increase due to inflation will be applied every 1st January after the first 12 months. This will be calculated fairly based on the prevailing CPI at the time.

4. Confidential Information

1. Both parties recognise that the other is engaged in confidential works and that confidentiality is a prime concern to both.

2. “Confidential Information” shall mean any confidential information in any form relating to either party and its business, affairs, investors, the portfolio investments of any funds managed or advised by either party and their respective businesses (including any copies and any document which contains, reflects or is derived from Confidential Information) disclosed by or on behalf of one of us to the other (whether before or after the date of the Engagement Letter). Confidential Information does not include any information that: (i) is or subsequently becomes public knowledge; or (ii) was known by the receiving party on a non-confidential basis prior to disclosure; or (iii) becomes available to the receiving party on a non-confidential basis from a person who is not bound by obligations of confidence; or (iv) the owner of such information agrees in writing is not confidential or may be disclosed. 

3. You and we shall keep the other’s Confidential Information confidential and shall not use such Confidential Information except for the purpose of exercising or performing the relevant rights and obligations under the Engagement and shall not disclose any Confidential Information to a third party, except as expressly permitted by this paragraph. We may disclose your Confidential Information to our personnel on a strict need-to-know basis and on the understanding that such personnel will treat the information as Confidential Information on terms consistent with the terms of this paragraph 4. Either you or we may disclose Confidential Information to the extent required by law, court order, any regulatory body which you or we are subject to or any professional body of which you or we are a member.

4. No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Engagement.

5. Obligations of the Service Provider

1. The Service Provider undertakes to provide the services as agreed with the Client in the Engagement Letter between the parties to the terms of this agreement (the “Services”) in consideration of the payment as set out in same.

2. Should the Client request and the Service Provider agree to provide services additional to those specified, the fees for those additional services shall be charged for in accordance with our standard quoting procedures, but otherwise for all purposes of this Agreement the additional services shall be deemed to be included within the definition of Services.

3. The Services shall be carried out by the Service Provider with all reasonable skill and care, and in full compliance of relevant established current professional standards.

4. The client shall have defined both in terms of requirements and budget the overall quality and finish of the service they require prior to commencement of services. The service provider will use good practice and judgment in selecting, installing and/ or using reasonable and good materials in order to fulfil the service obligations appropriate to the client’s needs.

5. All communications and all other information supplied to or obtained by the Service Provider in the course of or as a result of the discharge of their obligations under this Agreement and all information relating to any invention, improvement, report, recommendation or advice given to the Service Provider in pursuance of these obligations shall be treated by the Service Provider as confidential and shall not be disclosed to any third party or published without prior written consent of the Client, such consent not to be unreasonably withheld, unless legally required to do so.

6. Obligations of the Client

1. The Client must provide proof of identity of themselves and/ or proof of authority to act on behalf of a business. The Service Provider is entitled to refuse to act on their behalf if this is unreasonably withheld. Such proof of authority is accepted by the service provider in good faith and in no way does errors in such cause or bring the service provider to be in trespass or to be unlawfully undertaking services at or on the building or dwelling upon which the service was purchased

2. The Client shall undertake to pay all invoices within the terms as specified within this agreement, in consideration of the Services provided for them by the Service Provider.

3. The Client shall ensure a free flow of information in regards all aspects of the services being provided by the Service Provider, any withheld pertinent information may cause the contract to be terminated without notice.

4. The Client will act in full compliance of the relevant established current professional standards expected of them in their business. The Client will act in good faith to provide the Service Provider with all necessary information to conduct an accurate and honest service.

5. Information provided by the Client will be used in order to fulfil the details of the contract of service and any changes, errors, inaccuracies, discrepancies or oversights must be notified to the Service Provider as soon as reasonably practicable.

6. The Client is responsible for providing documentation, data entry, paperwork and any other information to the Service Provider, unless otherwise agreed by both parties.

7. Other Conditions

1. The Service Provider enters into this Agreement as an independent contractor and that they nor any of their employees are not nor shall for any purpose be regarded as an employee of the Client.

2. Except as otherwise provided in this Agreement, all notices, instructions or other communications shall be in writing and may be made by email, letter or other form of communication as agreed between the parties from time to time, and delivered to the requisite party at its address.

8. Storage of Papers, Data and Documentation

1. The Service Provider will hold relevant and pertinent details on behalf of the client and may create a client file in both paper and electronic form.

2. The Service Provider reserves the right to copy and retain key documentation pertaining to and evidence of all services provided by the Service Provider for and on behalf of the Client.

3. All information held by the Service Provider will be kept in a secure environment and will be treated as confidential.

4. Any files or data which are required to be kept in order to comply with statutory requirements will be retained for up to seven years after which time they will be destroyed.

9. Data Protection

1. Under the Data Protection Act 1998, the Client is entitled to a copy of any personal information relating to themselves held by the Service Provider.

2. The Service Provider may hold and possess Client information by computer or otherwise.

3. The Clients’ information is disclosed only to those with a need to know, sub-contractors and agents to the extent that they need this information in order to provide that service to the Client, and to the extent that such information is of a confidential nature, the disclosee shall be made fully aware of its confidential nature and of our obligations of confidentiality under this Agreement.

4. The Clients’ personal information is held on an accounts database. The Service Provider may use this information to send the Client information regarding any services that is felt may be of interest to them.

10. Force Majeure

1. The Service Provider shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Service Provider shall be entitled to a reasonable extension of its obligations. If the delay persists for more than 3 months, each party may, without liability on its part, terminate the contract. 

2. If there is a delay in the performance of our obligations in accordance with this paragraph 10, you shall be entitled to delay payment until such obligations have been performed, and you shall not be liable to pay interest or charges for late payment in accordance with paragraph 3 above.

11. Relationship of the Parties

1. Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.

12. Assignment and Sub-Contracting

1. The contract between the Buyer and Seller for the sale of Goods and services shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by either party, without the prior written consent of other party.

13. Waiver and limit of liability

1. The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

2. The maximum liability of either party is limited to the fees paid by you in connection with the provision of the Services.

3. We will endeavour to provide the Services to you in a timely and professional manner and we will endeavour to carry out the work needed to make any legal submissions or reports that are required but we will not be liable for the accuracy or timely completion of these or any other of the Services. This exclusion of liability includes, but is not limited to, penalties incurred by you for inaccurate submission(s) or late submission(s) for which you will be liable. For the purposes of avoidance of doubt, we will not be liable for any consequential or indirect damages which arise from erroneous, inaccurate, incomplete or late provision of the Services (except to the extent that the liability has arisen from our gross negligence, fraud or wilful default).

4. Nothing in these Terms and Conditions shall limit or exclude either party’s liability for death or personal injury caused by its negligence or in respect of its own fraud.

14. Governing Law and Jurisdiction

1. This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.

15. Termination

1. This is a rolling contract and will continue to operate until terminated.

2. Except if specified otherwise, by default this Agreement can be terminated by either party after 12 months with 1 months’ notice with the exception of any circumstances that may arise through the operation of any terms and conditions detailed within this document.

3. Termination by either party must be in writing and sent direct to either party without delay.

4. The Service Provider undertakes to return all documentation, information, papers and any other item that belongs to the Client within a 30-day period. Should this be unreasonable due to forces beyond the reasonable control of the Service Provider, such as investigation, accounting periods or anything else which may affect the Service Provider’s ability to return all documentation then the Service Provider will instruct the Client as such and will undertake to return the outstanding items as soon as is reasonably possible.

5. Upon termination payment for all works completed shall become due immediately (save for in the circumstances described in sub-paragraph (g) below).

6. If the contract should be terminated or should the Service Provider for any reason whatsoever brought about through the proper performance of these terms and conditions, or by upholding any clauses and/or good practices created by these terms and conditions, be forced to refuse to act the Service Provider will not be liable for any consequential costs and/or damages.

7. Without prejudice to any right or remedy a party may have against the other for breach of these terms and conditions, either party may, with immediate effect by notice in writing to the other party, terminate this Engagement on or at any time after the happening of any of the following events:

1. the other party commits a material breach of any of the terms and conditions provided that where such breach is capable of remedy it has been advised in writing of the breach and has not rectified it within thirty (30) days of receipt of such advice;

2. the other party passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the winding-up or the dissolution of the other party;

3. any steps are taken for the making of an administration order or the appointment of an administrator under the out-of-court procedure under the Enterprise Act 2002 or notice is given of an intention to appoint an administrator in relation to the other party or any steps are taken for the appointment of a receiver or administrative receiver, or an encumbrancer takes possession of or sells any of the other party's assets;

4. the other party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally;

5. the other party ceases to carry on business at any time for 30 consecutive days; or

6. the other party is unable to pay its debts (within the meaning of that term under section 123, Insolvency Act 1986).

16. CONFIRMATION

1. By placing an order, we, the client, confirm that we have read, understood and agree to be bound by the terms and conditions as set out herein.