Web Usage Terms and Conditions : Save Energy Online

Guaranteed Energy Savings Agreement (Internet) Terms and Conditions

1 INTERPRETATION

1.1 Owner means ENER•G Efficiency PLC
1.2 User means the customer defined in the Order Confirmation
1.3 Internet means www.saveenergyonline.co.uk
1.4 In this Agreement unless the context otherwise requires:-

Acknowledgement means the e-mail sent by the Owner to the User acknowledging receipt of the User’s order and referring to the arranging of a survey;
Additional Equipment means items added at the User’s request during or after installation of the Equipment;
Agreement Period means the period starting on the Confirmation Date of this Agreement and ending 5 years after the Commencement Date;
Annual Fuel Usage means the fuel usage figure of each year which, in respect of the Base Year, is to be set out on the Order Confirmation as the total number of kWh of gas or fuel oil used in the Base Year and relating to the building(s) served by the Equipment. This figure should be taken from copies of gas and/or oil bills provided to the Owner by the User;
Base Year means the last 12 months prior to the Confirmation Date readily available to the User;
Commencement Date means date of Commissioning or commencement of use;
Commissioning means the signing of the Commissioning Certificate or commencement of use;
Confirmation Date means the date the Owner sends its Order Confirmation to the User;.
Equipment means items installed to control and monitor the heating, ventilation, and air conditioning to specifically provide an energy saving;
Expressions shall have the meanings ascribed to them in the Order Confirmation;
Normal Working Hours means the hours of 9.00am to 5.00pm on a Business Day, i.e. except on any Saturday, Sunday or a public holiday in England;
Order Confirmation means the confirmation e-mail sent to the User by the Owner via the Internet;
Proposal means the Owner’s proposal of energy savings that may be available, arrived at using the Energy Savings Calculator;
Year means a period of 12 months starting on the Commencement Date or on an anniversary of that date.

1.5 In the event of the Owner agreeing to perform any services in addition to the services outlined in this Agreement, the provisions of this Agreement shall apply to such additional services unless otherwise agreed in writing.

2 INTERNET ORDERING

2.1 By placing its order, the User understands and agrees that it is offering to acquire an energy savings solution from the Owner, on these terms, and on the basis of the Proposal and that this offer may be accepted by the owner issuing an Order Confirmation. The User is required to proceed with the transaction unless its order is rejected by the Owner under clause 2.2, or unless the User terminates under clause 2.3. For the avoidance of doubt, the User is not entitled to reject an Order Confirmation unless it has the right to do so under clause 2.3.
2.2 The User understands that information concerning its order must be assessed by the Owner, and a survey conducted. If the solution can be provided in accordance with the Proposal, the Owner will issue an Order Confirmation which accords with the Proposal. However, the User understands and agrees that the Owner may reject any order and that the Owner is not bound by this Agreement, and is not bound to provide a solution to the User unless and until the Owner has sent to the User an Order Confirmation. In the unlikely event that an order is rejected, the Owner will notify the User promptly.
2.3 In the event that the Owner does not wish to reject the order, but as a result of its assessment of the order, the Owner wishes to change the Proposal, then the Owner will issue an Order Confirmation which reflects these changes, which will be binding on the User. However, the User shall be entitled to reject such an Order Confirmation and terminate this Agreement without penalty by written notification to the Owner [within 2 working days of receiving the Order Confirmation] if (and only if) the figures in the Order Confirmation for the Monthly Fixed Fee, the Guaranteed Percentage Savings or the Annual Net Profit are different to those in the Proposal to the detriment of the User. Upon any such termination, this Agreement shall cease to have effect.
2.4 For the avoidance of doubt, neither the Proposal, nor the Acknowledgement is binding on the Owner.

3 SUPPLY

3.1 The Owner shall supply with effect from the Commencement Date the Equipment and Additional Equipment on hire and:

3.1.1 remote 24hr online monitoring.
3.1.2 a monthly savings and performance report.

3.2 The maintenance shall be carried out by the Owner at such intervals as the Owner deems necessary using reasonable care and skill. The Owner shall attend at the site during Normal Working Hours (at such time to be agreed in advance from time to time) or at such time outside Normal Working Hours as may be requested by the User, provided that all work requested outside Normal Working Hours will be charged for at the Owner’s reasonable charges on a time and materials basis.
3.3 The Owner shall use all reasonable endeavours to supply spare parts, replacement components and consumables required to maintain only the Equipment in good working order, and no extra charge will be made for their supply. If, however, any damage to the Equipment arises out of any act or omission of the User or any third party, the Owner reserves the right to charge the User for supplying the same at the Owner’s reasonable charges on a time and materials basis.
3.4 The Maintenance Service does not include:

3.4.1 items other than the Equipment installed by the Owner.
3.4.2 any work to the extent required as a result directly or indirectly of any failure by the User to comply with the terms of this Agreement;
3.4.3 any work which in the reasonable opinion of the Owner has arisen as a result of the Equipment being subjected to unacceptable environmental conditions;
3.4.4 any other cause which is not due to any negligent act or default of the Owner including without limitation any act or omission of the User or any third party.
3.4.5 any upgrade to hardware or software other than to repair a fault or bug.

3.5 Service will only be provided to the User if no material breach of these Terms and Conditions has occurred. In particular, a failure to pay the Monthly Fixed Charge or comply with clause 5.3 may result in a suspension of the service.
3.6 The monthly savings and performance report will only be provided to the User if the information stated under clauses 5.3.1 and 5.3.2 has been provided.

4 MONTHLY FIXED CHARGE

4.1 In consideration for the hire, installation, and maintenance of the Equipment and Additional Equipment and the monitoring service, the User undertakes to pay to the Owner each month in advance by direct debit the Monthly Fixed Charge on the 25th of the month following the month of the Commencement Date and each subsequent month and the Owner shall provide an invoice to the User accordingly. The Owner reserves the right to increase the charge on each anniversary of the Commencement Date by a percentage (if any) equal to the percentage increase in the latest figure of the all items (U.K.) General Index of Retail Prices published by the Government prior to such anniversary of the Commencement Date, compared with the figure of the said Index published on or nearest to the day falling 12 months before the date of publication of such latest figure.
4.2 All payments referred to herein are exclusive of VAT.
4.3 To the extent the User pays otherwise than by Direct Debit the Owner reserves the right to apply a 2.5% surcharge to the relevant Monthly Fixed Charges.
4.4 Where a Direct Debit is in force, the Owner herby gives permission for this to be used to recover any monies owed to the Owner by the User.

5 SAVINGS GUARANTEE

5.1 Following the first Year, the Owner will promptly pay to the User any shortfall in the actual percentage saving achieved by the Equipment compared with the Guaranteed Percentage Saving based on actual units used in that Year against units used for the Base Year based on the Site Operating Hours and the Annual Fuel Usage. The payment will be calculated at the lowest of the Fuel Unit Costs of each type of fuel charged to the User at any time during the first Year for consumption of units. Such payment shall not exceed the charges (excluding VAT) paid by the User to the Owner for the Equipment in respect of the first Year. Any such payment made by the Owner to the User shall be treated as a reduction in the charges paid and payable by the User applicable only to the Equipment in respect of the first Year. Also, in the event of such a shortfall the Owner will then remove the Equipment leaving only the Additional Equipment (if any) which will still remain subject to this Agreement. If there is no Additional Equipment remaining, the Agreement will terminate.
5.2 Following each subsequent Year, if the Equipment has not achieved the Guaranteed Percentage Saving relative to the Annual Fuel Usage in respect of the Base Year calculated in similar manner to that provided in clause 5.1, the User will have no financial claim against the Owner in that respect but may terminate this Agreement at any time during the following 3 months and the Owner will remove the Equipment leaving only the Additional Equipment (if any) which will still remain subject to this Agreement.
5.3 The User’s rights under this clause 5 are conditional upon:

5.3.1 the User having supplied to the Owner prior to the Commencement Date the Annual Fuel Usage figures relating to the Base Year and relating to the building(s) served by the Equipment;
5.3.2 the User having supplied to the Owner on a monthly basis during the Agreement the Annual Fuel Usage figures relating to the building(s) served by the Equipment;
5.3.3 adjustments reasonably made by the Owner for changes to the building(s) or its use;
5.3.4 allowance and adjustments reasonably made by the Owner for weather patterns as defined by Government degree-day data compared with previous periods;
5.3.5 allowance and adjustments for the installation of any Additional Equipment;
5.3.6 the User having installed at its cost any applicable oil or bulk fuel (e.g. LPG) flow meters provided by the Owner;
5.3.7 the User having made available at its cost a suitable modem connection line and IT infrastructure for the use of the Owner’s monitoring systems;
5.3.8 all payments due to the Owner being paid promptly on the due dates and no other material breach of these Terms and Conditions;
5.3.9 the User not having elected to retain the Equipment and waive or reduce the Guaranteed Savings Percentage.

5.4 In the event that Annual Fuel Usage figures relating to the Base Year provided by the User are found to the reasonable satisfaction of the Owner at any time after the Commencement Date during the first Year to be inaccurate, the Owner shall recalculate any aspect of the Agreement including without limitation the Guaranteed Percentage Saving, Annual Fuel Usage and/or Monthly Fixed Charge based upon the true figures and the Owner will promptly bring this to the attention of the User so that the corrected figures shall apply from the Commencement date provided that if the Guaranteed Percentage Saving or Annual Fuel Charge alters to the User’s detriment the User may only by written notice to the Owner without delay terminate the Agreement without penalty if the Guaranteed Percentage Saving will not result in a saving which would exceed the Monthly Fixed Charge for the first Year. Any monies paid to the Owner by the User in respect of the period following such termination of the Agreement shall be refunded promptly. Upon any such termination the User shall assist the Owner in its recovery of the Equipment and the Additional Equipment.
5.5 For the avoidance of doubt should the Equipment be removed under the terms set out in clause 5.1 or 5.2 the Owner shall not be liable to reinstate the User’s site to the state prior to installation of the Equipment. The Owner is only liable to leave the site’s electrical installation in a safe condition.
5.6 The Equipment only is subject to clause 5. Additional Equipment is not subject to the terms of the savings guarantee and remains subject to the Agreement at all times.

6 USER’S UNDERTAKINGS

The User shall:

6.1 maintain in good working order all necessary connections to the Equipment and Additional Equipment;
6.2 keep the Equipment and Additional Equipment insured for the full replacement value against all risks and in the event of any loss or damage such policy shall be payable direct to the Owner, the User hereby authorising the Owner to give good and valid receipt of such policy monies;
6.3 ensure that title to the Equipment and Additional Equipment at all times remains with the Owner and shall not sell, assign, let, hire, charge, encumbrance or otherwise dispose of or part with possession or title;
6.4 not, nor shall it allow any person other than the Owner, to bypass, re-configure, maintain, repair, modify, replace or remove the Equipment or Additional Equipment or any part thereof without the Owner’s written consent;
6.5 ensure the safety of the Owner’s employees and representatives when visiting the location, including but not limited to, informing it of safety and security regulations in force and shall indemnify the Owner against all actions, claims, demands, charges or expenses arising out of any damage or injury to any employee or representative of the Owner for which the Owner may become liable save for any damage or injury arising out of the negligence or default of the Owner.

7 INSTALLATION

7.1 Any unfixed plant or machinery or stock restricting access to the site or the areas in which the Owner will be installing Equipment or Additional Equipment will be moved by the User (or failing that, by the Owner) entirely at the User’s risk and cost.
7.2 Where an installation programme has been agreed in advance, the Owner reserves the right to charge for any abortive time caused by the User delaying the programme or limiting the work time when on site on a time and materials basis at the Owner’s then current rate.
7.3 All installation and commissioning work will be carried out during Normal Working Hours otherwise it will be charged on a time and materials basis at the Owner’s then current rate.
7.4 The Owner shall be allowed to use 110Vac transformers and power tools while on the User’s site. The User shall provide at its cost any light, heat and power for use by the Owner during its installation work at the site.
7.5 The User shall ensure that the Owner will be able to use the User’s mechanical elevated working platforms and other access equipment while working at the site.
7.6 The electrical installation will be carried out to the Owners standard method statement and specification. Any additional specification imposed by the User shall be charged extra to the User on a time and materials basis at the Owner’s then current rate.
7.7 Where the Owner is being permitted by the User to use existing cable ducts, the User shall ensure they are free of obstruction, fit for use and capable of accepting new cabling. Where this is found not to be the case, the Owner is under no liability to repair, reinstate or enlarge the cable ducting, but if the Owner undertakes such work the Owner may charge for any additional work or materials required on a time and materials basis at the Owner’s then current rate.
7.8 Unless specifically stated in the Order Confirmation, the Equipment and Additional Equipment contains no manual override facilities as standard but these features can be provided as an optional extra at additional cost.
7.9 The User will promptly make available to the Owner adequate records of the existing installation. Where inadequate or no records are available, the Owner may charge extra for investigation work on a time and material basis at the Owner’s then current rate.
7.10 Prior to installation the Owner will provide to the User a set of design documentation for approval. The User shall have 5 Business Days to approve the design. Where the User fails to approve the design, the Owner shall proceed with installation. In the event that the User subsequently instructs a change to the design or installation, the Owner may charge for extras on a time and material basis at the Owner’s then current rate. Where the User approves the design but subsequently instructs a change to the design or installation the Owner reserves the right to charge for extras on a time and material basis at the Owner’s then current rate.
7.11 The User will provide a single point of contact throughout the currency of the Agreement.

8 IT AND COMMUNICATIONS

8.1 Prior to Commissioning the User will provide the Owner with a suitable PC for the Owner’s VuSite software to be installed upon. This does not need to be a dedicated PC and a minimum specification will be provided.
8.2 The Owner’s Fixed Monthly Charge includes the supply of one copy of VuSite software only. Additional copies will incur an extra license charge at the Owner’s then current rate.
8.3 The User shall make available a suitable modem connection line and IT infrastructure for the use of the Owner’s monitoring systems. Further the User shall not disconnect the modem at any time unless directed by the Owner to do so. In the event that the Owner is forced to attend the site due to failure to provide a suitable modem connection line the Owner reserves the right to charge the User reasonable charges on a time and materials basis at the Owner’s then current rate including without limitation travel time where appropriate.
8.4 The Owner has included two tutorial sessions within its Fixed Monthly Charge. Should additional tutorials be required the Owner reserves the right to charge for these on a time and materials basis at the Owner’s then current rate.
8.5 The User will allow without restriction e-mail messages to be routed via the User’s IT system to the Owner’s servers.

9 METERING

9.1 The User is responsible, unless specifically included in the supply as stated in the Order Confirmation, for providing primary meters or secondary sub-meters with suitable pulse outputs where necessary and prior to Commissioning.

10 HEALTH AND SAFETY

10.1 The Owner will provide a copy of its Health and Safety manual and risk assessments to the User prior to working on the User’s site. Where specific measures need to be taken to comply with the User’s health and safety requirements while working on site, the Owner reserves the right to charge extra for any time and materials required on a time and materials basis at the Owner’s then current rate.
10.2 Where specialist personal protective equipment or training is needed to work on the User’s site, the User will make this available to the Owner’s personnel free of charge. Where a training course exceeds 2 hours in duration the Owner reserve the right to charge for the excess time at its then current rate.
10.3 The User shall provide free of charge any necessary welfare and/or parking facilities for use by its personnel while on the site.

11 LIABILITY

11.1 The Owner’s liability for any loss or damage under or in connection with the Agreement or in relation to the performance or non-performance of any services provided pursuant to the Agreement shall:

11.1.1 in the case of loss or damage to physical property caused by the negligence or wilful default of the Owner be limited to £5 million in respect of any one claim or series or claims arising out of one cause and in any event shall not exceed £5 million per Year and;
11.1.2 in all other cases, however caused (including without limitation by misrepresentation, negligence, other tort, breach of contract or breach of statutory duty) be limited to an amount per claim or series of claims arising out of one cause and per Year equal to 125% of the charges (excluding VAT thereon) paid by the User to the Owner in respect of the Year immediately preceding the Year during which the date of claim is made , or in the case of a claim(s) made within the first Year, the charges (excluding VAT thereon) payable by the User to the Owner in respect of the first Year.

11.2 Notwithstanding Clause 11.1, the Owner shall not be liable to the User or any other person for:

11.2.1 any indirect or consequential loss or damage, or any loss of or damage to profits, revenue, anticipated savings, data, contracts, market, intangible property or inconvenience caused to the User or any other person however caused as aforesaid;
11.2.2 any loss or damage arising out of any act or omission of the User or any third party or otherwise not attributable to the negligence or default of the Owner.

11.3 Any claim by the User against the Owner shall be fully barred and unenforceable unless notified in writing to the Owner within 90 days after the date of termination of the Agreement.
11.4 Nothing in the Agreement seeks to limit liability for negligently causing death or injury, for fraudulent misrepresentation or other fraud or otherwise as prohibited by law.
11.5 No third party shall be entitled to the benefit of any of the provisions of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (“TP Act”) save that the benefit of this Clause 11 and Clause 6.5 shall extend to all employees, servants or agents of the Owner who shall each be entitled to every right, defence, exemption, indemnity or limitation to which the Owner is entitled hereunder and each shall have the benefit under the TP Act. The Owner shall be entitled to vary or cancel this Agreement without reference to or the consent of any employees, servants or agents or any third party whatsoever.

12 FORCE MAJEURE

The Owner shall not be in breach of this Agreement if it fails to perform its obligations under this Agreement or delays in performance as a result of any event or circumstance beyond its reasonable control including without limitation act of God, strike, lockout, general or partial stoppage or other industrial action (whether involving employees of the Owner or of another third party) and unavailability of third party spare parts and the obligations of the Owner under this Agreement shall be suspended for a period equal to the circumstances of the force majeure event.

13 TERM

The duration period for the supply of the solution shall commence upon the Confirmation Date and such supply and this Agreement shall subject to its terms continue in force until the expiry of the Agreement Period and shall continue thereafter unless or until terminated by either party giving to the other not less than 3 months’ notice in writing to expire on the last day of the Agreement Period or any subsequent anniversary thereof.

14 GENERAL

14.1 The User is not entitled to claim capital or other tax allowances in respect of the Equipment and Additional Equipment.
14.2 The Owner may transfer, assign, mortgage, charge or dispose of any of its rights under the Agreement or sub-contract or otherwise delegate any of its obligations hereunder without consent. The User may not without the prior written consent of the Owner transfer, assign, mortgage, charge or dispose of any of its rights under the Agreement, or sub-contract or otherwise delegate any of its obligations under it.
14.3 The Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or understanding between the parties with respect to the arrangements contemplated by or referred to in it. Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to the Agreement or not) which is not expressly set out in the Agreement; and the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in the Agreement shall be for breach of contract under the terms of the Agreement.
14.4 No variation to the Agreement shall be effective unless made in writing and signed by a director of the Owner.
14.5 You are subject to our data protection and privacy policy and our website terms and conditions.
14.6 This Agreement shall be governed by English law and the Parties submit to the nonexclusive jurisdiction of the English Courts.