Omni Management Ltd: terms and conditions
In these terms and conditions Omni Management Ltd company number 14666993 whose registered office is Unit F4, The Foundry, Beehive Yard, Bath, Somerset BA1 5BT isreferred to as Omnium.
The customer of Omnium is referred to as the Customer
Definitions
“Agreement”: the contractual relationship between Omnium and the Customer as set out in these terms and conditions and Letter of Authority.
“Breach Fee”: payment due from the Customer to Omnium in the event of a Customer Breach.
“Commencement Date”: has the meaning given in clause 1.
“Commission Payment”: the payment Omnium is entitled to receive from the Supplier as result of the Customer entering into the Contract.
“Confidential Information”: means such information as one party may provide to the other as part of or in relation to this Agreement.
“Customer Breach”: any act or omission of the Customer that represents a breach of the terms of this Agreement by the Customer.
“Contract”: the contract entered into by you (or by us on your behalf) with the Supplier for the supply of energy and as part of the Services and any extensions to this Agreement.
“Customer Obligations”: as set out in clause 3.
“Data Protection Legislation”: all relevant data protection and privacy legislation in force from time to time in England and Wales a non-exhaustive list of which includes 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.
“Fees”: the payment Omnium is entitled to receive from the Customer as a result of the provision of Other Services.
“Goods Supplier”: supplier of goods relating to Other Services.
“Letter of Authority”: such letters of authority being as the Customer may sign from time to time.
“Management Fee”: such monthly Fee as may be agreed between the parties and as confirmed in Omnium’s quotation in return for the provision by Omnium of Services and or Other Services.
“Services”: the services that we will provide to you including presenting you with details of a proposed supply contract(s) from one (or a number) of Suppliers from our portfolio of suppliers for you to choose to accept and as set out in the Letter(s) of Authority.
“Other Services”: the services that we will provide to you, besides energy procurement, which include but is not limited to energy reduction and monitoring applications and devices, energy efficiency products and compliance proposals.
“Supplier”: the supplier that you chose to enter into a Contract with.
“Working Day”: Monday to Friday other than a public holiday in England.
1. SUPPLY OF SERVICES AND OTHER SERVICES
The Customer agrees that:
- the Letter(s) of Authority constitutes a request by the Customer to tender Services in accordance with these conditions. This Agreement shall come into existence
(Commencement Date) when the Letter(s) of Authority signed by the Customer is received by Omnium;
- in return for it requesting Omnium to provide the Services and/or Other Services Omnium shall do so and shall supply the Services and/or Other Services to the Customer as per this Agreement; and
- Where amendment (including cancellation) to Services and or Other Services is required by any law, regulatory or other requirement Omnium will endeavour to so notify the Customer immediately; and
- Omnium is not a price comparison service. Although Omnium works with many suppliers of energy and goods, it does not have access to every such supplier.
Omnium does not guarantee that it will arrange what a third party may claim is the cheapest supply available. Omnium considers a number of factors when assessing which suppliers and which supply contracts, or material goods, are best suited to the Customer.
Omnium will seek the option(s) that in its opinion is/are best suited to the Customer with price of the supply and/or goods being just one of the factors to consider.
- CUSTOMER’S OBLIGATIONS
The Customer agrees:
- to co-operate with Omnium in all matters relating to the Services and Other Services and not in any way through acts or omissions hinder, prevent or delay the provision of the Services and Other Services;
(ii) to comply at all times promptly and completely with both this Agreement and any terms and conditions of the relevant Supplier and/or Goods Supplier relating to the Contract;
(iii) to provide such information, data or documents as Omnium may request from time to time, along with any relevant permissions, consents, licenses or otherwise;
(iv) to ensure that all information and documents provided to Omnium is complete, up to date and accurate at all times;
(v) to provide such assistance as Omnium may reasonably require from time to time in relation to the Services and Other Services;
(vi) to immediately inform Omnium in the event there is any change in the Customer’s circumstances which may affect the provision of the Services and Other Services;
(vii) to comply with the provisions of the Bribery Act 2010 and any other applicable legislation; and
(viii) not at any time to have entered into or enter into any other contract (for any reason including due to a change in tenancy or change in occupancy) for the supply of energy (“Other Contract”) for the intended period of the Contract whereby that Other Contract provides energy and/or the Other Services, whether in whole or in part, to be provided under the Contract.
3. CUSTOMER’S BREACH OF THE AGREEMENT: SUSPENSION AND TERMINATION
The Customer’s attention is drawn to this clause: the consequences of the Customer breaching this agreement
Without affecting any other right or remedy available to it Omnium may as it sees fit terminate or suspend the Agreement with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach to Omnium’s satisfaction within fourteen days of the Customer being notified in writing to do so;
(ii) the Customer fails to make pay any amount under the Contract on the due date for payment;
(iii) the Customer fails to make pay any amount for any Fees on the due date for payment;
(iv) the Customer 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), is subject to a winding up process (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), has a receiver appointed to any of its assets or ceasing to carry on business; or
(v) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
In the event of such termination or suspension Omnium is relieved of all its obligations under the Agreement.
Further in the event of:
- termination (that may conclude suspension); or
- any breach of a Customer Obligation for whatever reason
the Customer will on receipt of demand pay to Omnium the Breach Fee. The Breach Fee shall be a payment of whichever is higher either:
(i) representing the Commission Payment (or such balance of the Commission Payment yet to be paid to Omnium) which Omnium would have received from the Supplier but is not received due to the Customer Breach;
(ii) representing the Management Fee (or such balance of the Management Fee yet to be paid to Omnium) which Omnium would have received from the Customer under the current Agreement, but is not received due to the Customer Breach; or
(iii) a fixed amount of £750.
VAT is due to be paid on a Breach Fee.
The Customer agrees that the Breach Fee is due to be paid within seven days of receiving demand for the same and that it enjoys no right of set off, defence, counter claim or other reason to withhold or delay payment.
The Customer agrees that the Breach Fee, whether fixed or Commission, or Management based, represents the reimbursement of loss suffered by Omnium resulting from the Customer Breach. It does not represent an unfair gain or windfall on the part of Omnium that is in the nature of or is capable of falling within the definition of a penalty.
The Commission Payment for the purposes of this clause is calculated on the basis of the consumption as set out in the Contract or related documents.
The Breach Fee is due to be paid as per this clause irrespective of any date or dates the Supplier may have been due to make the Commission Payment to Omnium.
- CANCELLATION AND AMENDMENTS
The Customer’s attention is drawn to this clause: the requirements for both the Customer and Omnium to amend or cancel aspects of the Services and/or Other Services
Omnium any at any time at its absolute discretion withdraw, cancel or amend a quotation prior to acceptance of the same by the Customer if it has not been accepted by the Customer.
Where a Customer wishes to amend Services and/or Other Services it shall make such request in writing, or electronic mail, as soon as possible. Omnium will use its reasonable endeavours to make any requested changes. Any additional costs as a result of such amendments will be included in the Fees and invoiced to and payable by the Customer.
5. CHANGE OF TENANCY
The Customer’s attention is drawn to this clause: the requirement to notify Omnium of a change of tenancy in the event of a change of tenancy (as defined) and the consequences of failing to do so
Where a Customer enters into a contract through Omnium but vacates the relevant premises either before the supply of energy commences or during the period of supply under that Contract the Contract will terminate. This is called a “change of tenancy” or “COT”.
A COT involves either (i) a party not connected to or associated with the Customer taking over the premises (a party is connected to the Customer if it falls within the definition set out in sections 1122 and 1123 Corporation Tax Act 2010) or (ii) the premises becoming vacant for a minimum period of three months following the Customer’s departure.
Omnium’s fees are adjusted by supplier if a COT occurs. Its therefore important that Omnium receives from the Customer at least fourteen Working Days before the date of vacating the premises written confirmation of the change together with evidence of the COT satisfactory to Omnium, this may include (a non-exhaustive list by way of example only) a land sale contract/TR1,assignment of a lease or surrender certified by the Customer’s solicitor.
The written notice from the Customer must include a letter from the Customer’s solicitor confirming the vacation of the premises is a COT as set out above and provide sufficient detail to enable Omnium to satisfy itself as to the nature of the COT. Failure to so notify Omnium in the event of a COT will incur a fee for the loss/reduction in commission the supplier pays Omnium. In those circumstances Omnium reserves the right to charge the Customer a one off fee of £750 per meter or the total value of Commission Payment Omnium would have received in relation to the Contract per meter, whichever is the higher figure. In calculating the said fee Omnium will apply a discount percentage to reflect Commission Payment that has actually been received (subject to a minimum failed Contract fee of £750 per meter).
6. CONSEQUENCES OF TERMINATION
Termination or expiry of the Contract shall not affect:
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry; and
- the liability of the Customer to Omnium in the event of a Customer Breach.
7. COMMISSION PAYMENTS TO OMNIUM
The Customer’s attention is drawn to this clause: the commission payments that will be made to Omnium
The Customer agrees and acknowledges the Commission Payment will be due to Omnium. The timing and amount of the Commission Payment varies from Supplier to Supplier. The Commission Payment is included within the price charged per unit of energy in the Contract. By way of example if the Commission Payment for the supply of energy was
0.5 per unit then the amount payable per unit under the Contract by the Customer would be (i) base price of the unit plus (ii) 0.5p per unit.
Therefore a supply of 40,000 units per year over a two year period would result in total commission payment of £400 for that two year supply.
Should at any time the Customer wish to be provided with more information as to the Commission Payment then it should contact Omnium.
Should the Customer at any time and for whatever reason directly or indirectly instruct or cause the Supplier to cease the Commission Payments to Omnium the Customer shall be liable to pay Omnium that lost total Commission Payment which Omnium would have received from the Supplier for the remaining duration of the Contract on demand.
- FEES
The Customer’s attention is drawn to this clause: the fees payable to Omnium for Other Services
The Customer agrees that the Fees for Other Services are set out in the quotation and are on a time and materials basis.
In addition to the Fees, Omnium can recover the following costs from the Customer:
(i) reasonable incidental expenses, including but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses;
(ii) the cost of services provided by third parties and required by us for the performance of Other Services; and
(iii) the cost of any materials required for the provision of Other Services.
The Fees are exclusive of any applicable VAT and other taxes or levies.
- PAYMENT
The Customer’s attention is drawn to this clause: the payment terms for Omnium’s delivery of Other Services
Omnium will invoice for the payment of Fees either:
(i) When Omnium have completed the Other Services; or
(ii) On the invoice dates set out in the quotation.
The Customer agrees:
(i) To pay any and all Fees due within 7 days of the invoice, or otherwise in accordance with any credit terms agreed between the parties;
(ii) Time for payment shall be of the essence of the Agreement;
(iii) Without limiting any other right or remedy Omnium has for statutory interest, if payment is not made within the period set out above, Omnium will charge the Customer interest at the rate of 4% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full;
(iv) All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law. Neither party can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part;
(v) Receipts for payment will be issued only at the request of the Customer; and
(vi) All payments must be made in Great British Pounds unless otherwise agreed in writing between both parties.
- INTELLECTUAL PROPERTY
The Customer agrees and acknowledges that Omnium reserve all copyright and intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services and Other Services. Omnium reserves the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
11. LIMITATION OF LIABILITY
The Customer’s attention is drawn to this clause: limits to the liability of Omnium to the Customer
Omnium does not incur any liability to the Customer where a delay or failure to provide Services or Other Services arises wholly or in part directly or indirectly due to delay or failure on the part of the Customer to comply with any Customer Obligations.
The Customer acknowledges and agrees that by entering into the Contract, the Customer contracts directly with the Supplier and not Omnium for the supply. The Customer therefore further acknowledges that Omnium incurs no liability arising from or in connection with the Customer’s obligations and liabilities arising under the Contract.
The Agreement does not seek to avoid Omnium’s liability to the Customer where such liability arises from dishonesty on the part of Omnium or death or personal injury on the part of the Customer.
Omnium’s total liability (including any principal, interest, costs and charges whatsoever and howsoever arising) to the Customer shall not in any event exceed the amount of the Commission Payment received by Omnium, and/or the total amount of Fees payable by the Customer under this Agreement.
The Customer acknowledges and agrees that Omnium’s representatives, agents and employees shall incur no liability to the Customer by virtue of the Agreement or in relation to it save where such liability is incapable of being excluded by law.
Subject to the above Omnium incurs no liability to the Customer that arises under or in connection with this Agreement in respect of:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of or damage to goodwill; or
- indirect or consequential loss.
Should the Customer assert liability on the part of Omnium then it must notify Omnium in writing to that effect:
within six calendar months of the first event said to give rise to such liability coming to the attention of the Customer, its agents or representatives; or within six calendar months of the first event said to give rise to such liability which ought reasonably to have come to the attention of the Customer.
The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail and provide copies of all relevant documents and information.
In the absence of such timely notification Omnium shall have no liability to the Customer. Omnium makes no express warranties and specifically disclaims any implied warranties with respect to the performance of Services to the extent permissible by law. This clause survives termination of the Agreement.
12. DATA PROTECTION
Omnium does not anticipate receiving any personal data (as defined in data protection legislation from time to time) from the Customer other than contact details of the relevant personnel who are responsible for dealing with the Agreement.
The Customer agrees that Omnium may share such contact details with the Supplier and/or Goods Supplier, its agents and representatives.
Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.
13. CONFIDENTIALITY
Neither party shall disclose to any third party any Confidential Information in respect of the other at any time acquired in connection with this Agreement and no reference is to be made to this Agreement by either party in any advertising publicity or promotional material without prior written consent of the other party.
14. NOTICES
Any notice given to a party under or in connection with the Agreement shall be in writing and signed by, or on behalf of, the party giving notice. Any written notice shall be delivered by hand or by pre-paid first-class post or other next Working Day delivery service at its registered office (if a company) or its principal place of business (in any other case).
Any notice shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- if sent by pre-paid first-class post or other next Working Day delivery service, at 9.00 am on the second Working Day after posting or at the time recorded by the delivery service; or
(iii) if sent by air mail, at 09:00 am on the tenth Working Day after posting.
- CIRCUMSTANCES BEYOND A PARTY’S CONTROL
The Customer agrees that neither party (the Customer and Omnium) is liable for any failure or delay in performing the obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
Such causes include, but are not limited:
(i) industrial action;
(ii) civil unrest;
(iii) fire;
(iv) flood;
(v) storms;
(vi) earthquakes;
(vii) acts of terrorism;
(viii) acts of war;
(ix) governmental action; or
(x) any other event that is beyond the control of the party in question
16. DISPUTE RESOLUTION
The parties will each use their reasonable efforts to negotiate in good faith and settle any major or material dispute that may arise out of or relate to the Agreement. If any such dispute cannot be settled amicably through ordinary negotiations by the respective representatives the dispute shall be referred to the senior representatives nominated by the parties who will meet (physically or virtually) in good faith in order to try and resolve the dispute.
If the dispute or difference is not resolved as a result of such meetings either party may (at such meeting or within fourteen days of its conclusion) propose to the other in writing that structured negotiations be entered into with the assistance of a neutral adviser or mediator (the Adviser) before resorting to litigation with costs shared equally.
If the parties fail to reach agreement in the structured negotiations within twenty-one days of the Adviser being appointed, either party may then refer any dispute to litigation.
17. GENERAL MATTERS
If any term or provision of the Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if the Agreement had been agreed with the invalid, illegal or unenforceable provisions eliminated.
The Agreement constitutes the entire agreement between the parties and supersedes any previous agreement or understanding. The Agreement may not be varied except in writing between the parties.
No failure or delay by either party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
The parties acknowledge and agree that the Agreement shall not establish or constitute any relationship of partnership, joint venture, franchise or agency between the parties and except as otherwise expressly provided or agreed neither party shall have the power to bind the other without the other’s prior written consent.
The Customer agrees not to assign, mortgage, charge, transfer, subcontract, delegate, declare a trust over or deal otherwise with any of its rights and obligations under this Agreement.
The Customer grants Omnium a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials and information provided by to the Customer to a Supplier in relation to a potential Contract.
Omnium will use its reasonable endeavours to deliver the Services in a timely manner, but time shall not be of the essence for performance of the Services.
The Customer agrees that Omnium does not incur any liability for delay in performing, or failure to perform, any of its obligations as per this Agreement in the event such delay or failure result from partially or entirely events, circumstances or causes beyond Omnium’s reasonable control.
Unless it expressly states otherwise this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
This Agreement shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
