Terms of Business (Utility Procurement and Carbon Services)

These conditions apply only where a Letter of Authority or Contract Supply Schedule has been signed. They are incorporated by reference into those documents.

1.1 Definitions:

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

Conditions: these terms and conditions set out in clause 1 to clause 9 (inclusive).

Contract: the contract between the Customer and SBS for the supply of the Services incorporating the Letter of Authority and these Conditions.

SBS: Sustainable Business Services Limited, trading as Sustainable Business Services.

Letter of Authority: the letter of authority provided by SBS to the Customer and executed by the Customer to authorise SBS to negotiate on behalf of the Customer with Utility Providers.

Services: the services, including without limitation production of any comparisons, analysis, documents or information produced by SBS for or on behalf of the Customer, to be provided by SBS pursuant to this Contract.

Utility Providers: any provider of water, gas and/or electricity.

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 and Duration

The Contract shall commence on the date when the Letter of Authority has been signed by both parties for utility services or when the Contract Supply Schedule has been signed for Carbon management services, and shall continue, unless terminated earlier in accordance with its terms, until either party gives to the other not less than 30 days’ written notice to terminate.

3. Supply of Services

3.1 SBS shall supply the Services to the Customer from the date of execution of the Letter of Authority or Contract Supply Schedule in accordance with this Contract.

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

4. Customer’s Obligations

4.1 The Customer shall:

• a. co-operate with SBS in all matters relating to the Services;
• b. provide, in a timely manner, such information as SBS may reasonably require, and ensure that it is accurate in all material respects; and immediately inform SBS if there is any change in the Customer’s circumstances and/or business, which may affect the provision of the Services;
• c. immediately inform SBS if there are any reasons why the authority given by the Letter of Authority should be revoked;
• d. provide authority for SBS to enter into discussions and/or arrangements with such Utility Providers as SBS may determine (as further detailed in the Letter of Authority) and the Customer agrees that SBS may supply any information, data or documents that SBS may receive from the Customer to any such Utility Provider; and
• e. comply with the provisions of the Bribery Act 2010 and any other applicable legislation.

4.2 If the performance by SBS of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, SBS 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 SBS sustains or incurs that arise directly or indirectly from such prevention or delay.

5. Fees and Remuneration

5.1 SBS work with several selected suppliers when providing our utilities (energy and water) procurement and management services.

5.2 Our services are either paid for by these selected suppliers when you enter a contract with one of them in relation to your supply or by a fee agreed directly between you and ourselves.

5.3 When authorised by you pursuant to your letter of authority we will contact our selected suppliers to present you with options for your selection of supplier.

5.4 We are not your agent for the selection of suppliers or for entering your contract.

5.5 Our income per contract varies based on market and industry conditions at the time of entering the contract and the specific characteristics of your consumption patterns and is only known after the contract has completed.

5.6 With respect to utilities where we are paid by the supplier, instead of a fixed fee received from you, the typical payment received from our supplier for our services averages 2% of your spend on the utility.

5.7 Sustainable Business Services will present both options as part of the quote.

5.8 Where SBS has been appointed to provide Carbon Accounting and management services, these are delivered through SBS Compass, our own carbon accounting platform. Access is set up through your account in our Sustainability Hub, with secure sign-in to SBS Compass. Use of SBS Compass is subject to its own terms of use. For Carbon services, SBS will issue a Contract Supply Schedule for signature, confirming the service provided, payment method and fixed term as agreed.

6. Limitation of Liability

6.1 Nothing in this Contract shall limit or exclude SBS’s liability for:

• a. death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors;
• b. fraud or fraudulent misrepresentation; and
• c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

6.2 Subject to clause 6.1, SBS 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 anticipated savings of costs of utilities (whether or not such anticipated savings were suggested or calculated by SBS);
• e. loss of use or corruption of software, data or information;
• f. loss of or damage to goodwill; and
• g. any indirect or consequential loss.

6.3 Subject to clause 6.1, the total liability of SBS 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 20% of the average annual commissions earned by SBS under this Contract.

6.4 The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

7. Termination

7.1 Without affecting any other right or remedy available to it, either party to this Contract may terminate it with immediate effect by giving written notice to the other party if:

• a. the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
• b. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
• c. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

7.2 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.

8. General

8.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

8.2 Assignment and other dealings.

• 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 SBS.
• b. SBS 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.

8.3 Entire agreement.

• a. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
• 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 based on any statement in this Contract.

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

8.5 Waiver. 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.

8.6 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.

9. Ownership of Documents

9.1 You agree that all documents produced or received by us in connection with providing our services to you are owned by us. We may agree to provide you with copies of some or all these documents upon written request, subject to your written agreement not to disclose any such documents and/or the information contained within them to any third parties without our prior written consent. Depending on the nature of your request this may incur an administration fee.

Previous version: Terms of Business v1.2 (June 2021)