Procurement Services

1. INTERPRETATION

1.1 Definitions:

Business Day: a day other than Saturday, Sunday or public holiday in England when banks in London are open for business.

Conditions: the terms and conditions as set out in the below inclusive clauses

AF: Atom Financial Ltd, a company registered in England and Wales under company number 13460585, with registered address as 71 The Larun Beat, Yarm, Cleveland, United Kingdom, TS15 9HR.

Letter of Authority: The Letter Of Authority provided by AF to the Customer and executed by the Customer to authorise AF to obtain business energy and water pricing and negotiate on behalf of the Customer with Business Energy Suppliers.

Business Energy Suppliers: any provider or supplier of water, gas and/or electricity including any third-party providers of energy and water consumption data.

Contract: the contract between the Customer and AF for the supply of the Services incorporating the Letter of Authority (detailed within the Letter of Authority) and these Conditions.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(c) A reference to writing or written includes email.

2. COMMENCEMENT & TERM

2.1 The Contract shall commence on the date when the Letter of Authority has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other written notice to terminate, provided by a person authorised to do so.

2.2 The Letter of Authority is valid from the date it has been signed by the Customer and is valid for a period of 12 months from the date it is signed by the Customer.

3. SERVICE SUPPLY

3.1 AF shall supply the Services to the Customer from the date of execution of the Letter of Authority in accordance with this Contract.

3.2 In supplying the Services, AF shall perform the Services with reasonable care and skill.

3.3 Nothing in this Contract is intended to, nor shall be deemed to, establish any partnership or joint venture between the parties nor constitute any party the agent of the other party. The parties acknowledge and agree that AF is a supplier of Services and acts as an independent contractor to the Customer.

3.4 AF are not the Customers agent for the selection of Business Energy Supplier or for the Customer entering into contract(s) with Business Energy Suppliers.

4. COMMISSION FROM SUPPLY OF SERVICES

4.1. By agreeing to use the Services, the Customer agrees that AF is entitled to receive a commission for providing the Services.

4.2. AF will only earn a commission if it is successful in brokering an Energy Contract with a Business Energy Supplier(s) on the Customer’s behalf. If AF is not successful in brokering an energy contract on the Customer’s behalf with a Business Energy Supplier, AF will earn no commission and the Services are cost free to the Customer, unless there have been prior alternative commercial arrangements agreed between AF and the Customer.

4.3 AF’s services are paid for by Business Energy Suppliers when the Customer enters into a contract with one or more of them in relation to the Customers energy and/or water supply. AF may receive commission directly from the Business Energy Suppliers where the Customer enters into a supply contract with any Business Energy Supplier, where AF have sourced, obtained and negotiated said contract on behalf of the Customer with the Business Energy Supplier(s). The amount of commission will vary for each Business Energy Supplier. AF’s specific remuneration per contract varies based on market conditions prevalent at the time of entering into the contract and the specific characteristics of your consumption patterns during your contract and the actual is only known after the contract has completed.

5. CUSTOMER’S OBLIGATIONS

5.1     In addition to the Customer’s other obligations set out in these Terms, the Customer warrants, represents and undertakes:

a) to co-operate with the Supplier(s) in all matters relating to the Services including, without limitation, providing all relevant information in a timely manner as the Supplier(s) and/or AF may require from time to time and that all such Customer information will be true, accurate, complete, reliable and current in all respects;

b) to comply at all times with these Terms and any applicable terms and conditions imposed by a Supplier in relation to the supply of the Supplier Services;

(b) to co-operate with AF in all matters relating to the Services provided;

(c) to immediately inform AF if there is any change in the Customers circumstances and/or business, which may affect the provision of the Services and/or the fulfilment of the Customers energy contracts;

(d) to not enter into any other supply contract for the intended period of the New Supply Contract for any reason including due to a change in tenancy or change in occupancy.

(e) to provide authority for AF to enter into obtaining pricing and contract options, pricing and contract negotiations and discussions with Business Energy Suppliers as AF may determine, as detailed in the Letter of Authority and the Customer agrees that AF may supply any information, data or documents that AF may receive from the Customer to any such Business Energy Supplier; and

(f) to comply with the all applicable legislation

(g) Go-Live: that the Business Energy Contracts will commence (i.e., the supply of energy and/or water to the Customer will start (Go Live)), run their entire contractual period and will not be cancelled, terminated, assigned to a third party, or otherwise transferred away from the Customer or Business Energy Supplier without the prior written consent of AF

(h) Communication Permissions: That it has given AF its express permission to communicate with it by telephone, email or in writing to discuss further products or services, including but not limited to future Business Energy Contracts, which permission remains effective unless and until the Customer tells AF otherwise.

5.2 If the performance by AF of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, AF shall:

(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; and

(b) be entitled to recover any additional costs, charges or losses of commissions AF sustains or incurs that arise directly or indirectly from such prevention or delay together with any reasonably incurred costs associated with any recovery action.

6. LIMITATION OF LIABILITY

6.1 AF will exercise all reasonable skill and care in providing the Services. However, the performance of the Services by AF may be dependent upon third parties (including, without limitation, Suppliers and Existing Suppliers) and AF is not able to guarantee or accept any responsibility for any failure or delay caused by such third parties or for any inaccurate, incomplete or unreliable information provided to the Customer by such parties via AF.

6.2 Nothing in this Contract shall limit or exclude AF’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its personnel;

(b) fraud or fraudulent misrepresentation; and

6.3 Subject to clause 6.2, AF shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of use or corruption of software, data or information;

(e) loss of or damage to goodwill; and/or indirect loss.

6.4 Subject to clause 6.2, the total liability of AF to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall be limited to 10%) of the average annual commissions earned by AF under this Contract.

7. TERMINATION

7.1 Without prejudice to the foregoing and any other rights and remedies that AF may have, AF shall be entitled to terminate or suspend the Services immediately upon written notice to the Customer in the event that:

(a) the Customer is in breach of any of the provisions of these Terms and that in the case of a breach capable of remedy, such breach shall not have been remedied within 7 days of the date of a written notice from AF to the Customer specifying such breach; or

(b) AF suspects on reasonable grounds that the Customer may have committed or attempted to have committed any fraud against AF and/or any Supplier.

7.2 The Customer hereby agrees to indemnify, keep indemnified, defend and hold AF and its parent companies, subsidiaries, affiliates and each of their respective officers, directors, employees, owners, agents, suppliers, contractors, partners, information providers and licensors harmless from and against any and all claims, damages, liability, demands, losses, costs and expenses (including legal fees) (whether or not foreseeable or avoidable) incurred or suffered by any of such parties and any claims or legal proceedings which are brought or threatened arising out of or in connection with any use by or conduct of the Customer in relation to any of the Services, any transactions, dealings or arrangements made with any third party as a result of using the Services or any breach of any of the provisions of these Terms or of any law or the rights of any third party.

7.3 On termination of this Contract for whatever reason:

(a) termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination; and

(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

OTHER
8. Force Majeure.

AF shall have no liability to the Customer if it is prevented from or delayed in performing any of its obligations in relation to the provision of any of the Services, or from carrying on its business, by acts, events, omissions or accidents beyond AF’s reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of AF 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, and AF shall be entitled to a reasonable extension of the time for performing such obligations in the event of any such occurrence.

9. Assignment

(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Contract without the prior written consent of AF.

(b) AF may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.

10. Confidentiality.

(a) Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

(b) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.

11. Entire agreement.

(a) The warranties, exclusions and other express provisions of these Terms and the Privacy Policy, set out the full extent of our obligations and liabilities concerning the subject matter and supersede any previous agreements between the parties relating thereto.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this Contract.

11.1 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.2 Save as set out in these Conditions above, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a) waive that or any other right or remedy; or

(b) prevent or restrict the further exercise of that or any other right or remedy.

12. Severance.

If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.

13. Notices.

(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post, other next working day delivery service.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the AF registered address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or, if sent by email, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14. Data Protection.

AF do not anticipate receiving any Personal Data (as defined in the Data Protection Legislation) from the Customer pursuant to this Contract, other than contact details of the relevant personnel who are responsible for dealing with the Contract. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and AF are the processor.

15. Third party rights.

Except as expressly provided for in clauses above, the parties agree that the provisions of these Terms are personal to them and are not intended to confer any rights of enforcement on any other third party.

16. Governing law & Jurisdiction.

These Terms are governed by the laws of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.