1. Interpretation
1.1 In these Terms, the following definitions apply:
| Business Day | a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business. |
| Commencement Date | has the meaning set out in clause 2.2. |
| Conditions | the Terms and the End User Licence Agreement, both as amended from time to time in accordance with clause 14.8. |
| Customer | the person or firm who purchases the Goods and/or Services from Optimal. |
| Delivery Location | has the meaning set out in clause 3.1 |
| Effective Date | the date on which the customer’s site data is able to accept data import on the ISX System |
| End User Licence Agreement | the licence agreement between Optimal and the Customer for web-hosted energy monitoring and targeting ISX Platform software products. |
| Force Majeure Event | has the meaning given to it in clause 14.1.1 |
| Goods | the goods (or any part of them) set out in the Order. |
| Intellectual Property Rights | all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. |
| Order | the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s acceptance of a Quotation (by clicking the confirm button on the company’s quotation sheet), as the case may be. |
| Optimal | Optimal Monitoring Limited, a limited company registered in England with company number 03788490 and whose registered office is at 16 Great Queen Street, Covent Garden, London, United Kingdom, WC2B 5AH. |
| Materials | has the meaning set out in clause 8.1.8 |
| Quotation | a written quotation from Optimal to the Customer for the supply of Goods and/or Services. |
| Services | the ISX & project management (including surveys) services supplied by Optimal to the Customer as set out in the Specification. |
| Specification | The description or specification for Services or goods provided by Optimal to the Customer.on the company’s quotation sheet. including any specification for Goods (including any relevant plans or drawings) that is produced by Optimal and agreed in writing by the Customer. |
1.2 In these Terms, the following rules apply :
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision 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;
1.2.4 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; and
1.2.5 except where otherwise stated, a reference to writing or written includes faxes and e-mails.
2 Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services from Optimal in accordance with the Conditions.
2.2 The Order shall only be deemed to be accepted when Optimal issues written acceptance of the Order or when the customer clicks the ‘accept’ button on the Company’s quotation document, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 All orders are placed on the understanding that the user will accept the terms of Optimnal’s end user license agreement
2.4 Where any Goods have embedded firmware or dedicated software, that firmware or software is licensed to the Customer in accordance with the End User Licence Agreement.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Optimal which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by Optimal and any descriptions or illustrations contained in the Optimal’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or any other contract between Optimal and the Customer for the supply of the Goods and/or Services.
2.6 The Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 A Quotation given by Optimal shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.8 All of the Conditions shall apply to the supply of Goods and Services except where otherwise specified.
3 Delivery of Goods
3.1 Optimal shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Optimal notifies the Customer that the Goods are ready.
3.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Optimal shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Optimal with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.4 If Optimal fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Optimal shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide Optimal with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
3.5 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of Optimal notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Optimal’s failure to comply with its obligations under the Contract in respect of the Goods:
3.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the 5 Business Day following the day on which Optimal notified the Customer that the Goods were ready; and
3.5.2 Optimal shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.6 If 15 Business Days after Optimal notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, Optimal may resell or otherwise dispose of part or all of the Goods.
3.7 Optimal may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4 Quality of Goods
4.1 All physical goods provided are covered by the original manufacturer’s warranty. Optimal does not issue any further warranties over and above these OEM warranties which are, unless otherwise stated all back to base warranties..
5 Title and risk
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until Optimal has received payment in full (in cash or cleared funds) for:
5.2.1 the Goods; and
5.2.2 any other goods that Optimal has supplied to the Customer in respect of which payment has become due.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1 hold the Goods on a fiduciary basis as Optimal’s bailee;
5.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Optimal’s property;
5.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Optimal’s behalf from the date of delivery;
5.3.5 notify Optimal immediately if it becomes subject to any of the events listed in clause 12.2.2 to clause 12.2.12; and
5.3.6 give Optimal such information relating to the Goods as Optimal may require from time to time, but the Customer may use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in 12.2.2 to clause 12.2.12 or Optimal reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been irrevocably incorporated into another product, and without limiting any other right or remedy Optimal may have, Optimal may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6 Supply of Services
6.1 Optimal shall provide the Services to the Customer in accordance with the Specification in all material respects.
6.2.1 Unless stated otherwise, all ISX System contracts are three years in duration (‘Initial Contract Term ‘) starting on the Effective Date.
6.2.2 Contracts will renew automatically at the end of the Initial Contract Term and subsequently on each anniversary of the Effective Date unless cancelled in writing by the Customer giving at least sixty days notice.
6.3 Optimal shall use all reasonable endeavours to meet any performance dates for the Services specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.4 Optimal shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Optimal shall notify the Customer in any such event.
6.5 Optimal warrants to the Customer that the Services will be provided using reasonable care and skill.
7 Surveys
7.1 Site surveys may be purchased at a standard price of £1,000 without obligation to use Optimal’s ISX Solution.
7.2 At Optimal’s sole discretion it may provide this gratis or at a 50% discount, to be confirmed on acceptance of order, on the basis of an order for an ISX agreement being placed within 30 days of the completion of the survey. If such an offer is made and accepted and the subsequent order does not materialise then the survey fee becomes immediately payable in full..
7.3 The Intellectual Property Rights in any documentation prepared by Optimal in connection with such a Survey shall remain with Optimal until such time as Optimal receives payment for the provision of the Survey.
8 Customer’s obligations
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and the information it provides in the Specification are complete and accurate;
8.1.2 indemnify Optimal for any loss suffered (including any legal costs) as a result of Optimal’s breach of any third party rights following the Customer’s instructions and directions;
8.1.3 co-operate with Optimal in all matters relating to the Services;
8.1.4 provide Optimal, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Optimal to provide the Services;
8.1.5 provide Optimal with such information and materials as Optimal may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
8.1.6 prepare the Customer’s premises for the supply of the Services;
8.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
8.1.8 keep and maintain all materials, equipment, documents and other property of Optimal or its suppliers (Materials) at the Customer’s premises in safe custody at its own risk, maintain the Materials in good condition until returned to Optimal, and not dispose of or use the Materials other than in accordance with the original equipment manufacturer’s written instructions or authorisation.
8.2 If Optimal’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 Optimal shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Optimal’s performance of any of its obligations;
8.2.2 Optimal shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Optimal’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse Optimal on written demand for any costs or losses sustained or incurred by Optimal arising directly or indirectly from the Customer Default.
9 Charges and payment
9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in Optimal’s published price list as at the date of delivery. The price of the Goods includes the cost of installation but is exclusive of all costs and charges for delivery of the Goods, which shall be paid by the Customer when it pays for the Goods.
9.2 Annual service charges will be increased at each service anniversary by the annual increase in the UK Consumer Price Index as at 1st January, if any.
9.3 The charges for project management services shall be on a time and materials basis:
9.3.1 the charges shall be calculated in accordance with Optimal’s standard daily fee rates, as set out in the Order;
9.3.2 Optimal’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; and
9.3.3 Optimal shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Optimal engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Optimal for the performance of the Services, and for the cost of any materials.
9.4 Optimal reserves the right to:
9.4.1 increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. Optimal will give the Customer written notice of any such increase 2 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify Optimal in writing within 2 weeks of the date of Optimal’s notice and Optimal shall have the right without limiting its other rights or remedies to terminate the Contract by giving 30 days’ written notice to the Customer; and
9.4.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Optimal that is due to:
9.4.2.1 any factor beyond the control of Optimal (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.4.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification in respect of the Goods; or
9.4.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Optimal adequate or accurate information or instructions in respect of the Goods.
9.5 In respect of Goods, Optimal shall invoice the Customer on or at any time after completion of delivery. In respect of ISX Services, Optimal shall invoice the Customer annually in advance..
9.6 The Customer shall pay each invoice submitted by Optimal:
9.6.1 within 30 days of the date of the invoice; and
9.6.2 in full and in cleared funds to a bank account nominated in writing by Optimal, and time for payment shall be of the essence of the Contract.
9.7 All amounts payable by the Customer under the Contract and for the Survey are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made by Optimal to the Customer, the Customer shall, on receipt of a valid VAT invoice from Optimal, pay to Optimal such additional amounts in respect of VAT as are chargeable on the supply of the Survey, Services or Goods at the same time as payment is due for the supply of the Survey, Services or Goods.
9.8 Without limiting any other right or remedy of Optimal, if the Customer fails to make any payment due to Optimal by the due date for payment (Due Date), Optimal shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Barclays Bank plc’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
9.9 The Customer shall pay all amounts due to Optimal in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Optimal in order to justify withholding payment of any such amount in whole or in part. Optimal may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Optimal to the Customer.
10 Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Optimal.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on Optimal obtaining a written licence from the relevant licensor on such terms as will entitle Optimal to license such rights to the Customer.
10.3 All Materials are the exclusive property of Optimal.
11 Limitation of liability
11.1 Nothing in the Conditions shall limit or exclude Optimal’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
11.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
11.1.5 defective products under the Consumer Protection Act 1987.
11.2 Subject to clause 11.1:
11.2.1 Optimal shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Contract [(including any losses that may result from; and
11.2.2 Optimal’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the lesser of £10,000 or 125% of the total ISX fees paid in any 12 month period.
11.3 Except as set out in the Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.4 This clause11 shall survive termination of the Contract.
12 Termination
12.1 In this clause 12, a notice shall not be validly served if it is sent by email.
12.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.2.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
12.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;
12.2.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
12.2.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
12.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
12.2.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
12.2.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
12.2.8 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
12.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
12.2.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.2 to clause 12.2.9 (inclusive);
12.2.12 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
12.3 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
12.3 Without limiting its other rights or remedies, Optimal may terminate the Contract:
12.3.1 by giving the Customer 3 months’ written notice;
12.3.2 with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.4 Without limiting its other rights or remedies, Optimal shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Optimal if:
12.4.1 the Customer fails to make pay any amount due under the Contract on the due date for payment; or
12.4.2 the Customer becomes subject to any of the events listed in clause 12.2.to clause 12.2.12, or Optimal reasonably believes that the Customer is about to become subject to any of them.
13 Consequences of termination
On termination of the Contract for any reason:
13.1 the Customer shall immediately pay to Optimal all of Optimal’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Optimal shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.2 the Customer shall return all of the Materials. If the Customer fails to do so, then Optimal may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
13.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
13.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14 General
14.1 Force majeure:
14.4.1 For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of Optimal including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party 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.
14.4.2 Optimal shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
14.4.3 If the Force Majeure Event prevents Optimal from providing any of the Services and/or Goods for more than 4 weeks, Optimal shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Customer.
14.2 Assignment and subcontracting:
14.2.1 Optimal may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
14.2.2 The Customer shall not, without the prior written consent of Optimal, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
14.3 Notices:
14.3.1 Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
14.3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
14.3.3 This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action.
14.4 Waiver and cumulative remedies:
14.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
14.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
14.5 Severance:
14.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
14.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
14.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.8 Variation: Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Optimal.
14.9 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England.
