Dated:

(1) CROWN COMMERCIAL SERVICE ("Authority")

AND

(2) [………………………………………………………..] ("Customer")

CUSTOMER ACCESS AGREEMENT

(for Crown and Non-Crown Customers)

Version : 4.7.17

Customer Access Agreement (Crown) V4.0 Contents

Contents

1. Definitions and Interpretation ...................................................................................... 1

2. Authority Services and Responsibilities ...................................................................... 6

3. Customer Responsibilities .......................................................................................... 8

4. Adding or withdrawing supply points ........................................................................ 12

5. Duration ................................................................................................................... 13

6. Protection of Data .................................................................................................... 14

7. Confidentiality ........................................................................................................... 15

8. Force Majeure .......................................................................................................... 16

9. Termination of an Energy Product Order .................................................................. 16

10. Breach Damages ..................................................................................................... 17

11. Transfer .................................................................................................................... 18

12. Amendments to this Agreement ............................................................................... 18

13. Freedom of Information Act 2000 and The Environmental Information Regulations 2004 ......................................................................................................................... 18

14. Publicity .................................................................................................................... 18

15. Official Secrets Acts ................................................................................................. 18

16. Communications ...................................................................................................... 19

17. General .................................................................................................................... 20

18. Law and Jurisdiction ................................................................................................. 20

19. Entire Agreement ..................................................................................................... 20

20. Customer status ....................................................................................................... 20

21. Warranties and Representations .............................................................................. 20

22. Intellectual Property Rights ....................................................................................... 21

23. Liability and Remedies ............................................................................................. 21

24. Rights of Third Parties .............................................................................................. 23

25. Waiver ...................................................................................................................... 23

26. Severability .............................................................................................................. 23

27. Corrupt Gifts and Payments of Commissions ........................................................... 23

28. Discrimination ........................................................................................................... 24

29. Jurisdiction and Dispute Resolution Procedure (NON-CROWN) .............................. 24

30. Dispute Resolution Procedure (CROWN) ................................................................. 26

ANNEX 1 COMMISSION ......................................................................................................... 26

ANNEX 2 INDICATIVE FORM OF ENERGY PRODUCT REQUEST

Customer Access Agreement

Recitals

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THIS AGREEMENT is made on [………………………………] (the “Agreement”)

BETWEEN

(1) THE MINISTER FOR THE CABINET OFFICE as represented by Crown Commercial Service, being a separate trading fund of the Cabinet Office without separate legal personality, whose office is at 9th Floor, The Capital, Old Hall Street, Liverpool L3 9PP (the "Authority"); and

(2) [name………………….……………………………..], [address……………………………………………………………………………………………] (the "Customer")

each being a “Party” and, collectively, the “Parties.

Introduction

(A) The Authority has entered into (and may enter into further) framework agreements (each a "Framework Agreement") with suppliers (each a "Supplier") for the supply of Energy Products and Ancillary Services to Relevant Customers. The Authority manages, on a not-for-profit basis, Suppliers’ provision of these products and services for the benefit of Relevant Customers.

(B) As part of these arrangements, Relevant Customers enter into Energy Product Orders and these become binding on Relevant Customers following the relevant Commitment Date for each Energy Product.

(C) The Authority then establishes a final estimated aggregated demand for each Energy Product and proceeds to set and unset the price of Energy Products.

(D) In order to access the relevant Energy Products and/or Ancillary Services, and to take advantage of the Services during the Contract Period, the Customer wishes to enter into this Agreement, which will remain in force until terminated in accordance with Clause 5.

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Agreed terms

1. DEFINITIONS AND INTERPRETATION

1.1 The following expressions in this Agreement shall have the following meanings attached to them:

Ancillary Services has the meaning given to it in the applicable Framework Agreement.

Applicable Law any applicable national, municipal or state statute, ordinance or other law (including tax), regulation or by-law of England, Wales, Scotland or Northern Ireland (as applicable) or any part of these, or the European Union or any instruction, direction, code of conduct, permit, consent, authorisation, licence (including any natural gas or electricity supply licence) or the directive of a Competent Authority.

Breach Damages has the meaning set out in Clause 10.1.

BSC the Balancing and Settlement Code and any other equivalent code in addition to it or substitution of it, required to be in place pursuant to a transmission licence granted under section 6(1)(b) of the Electricity Act 1989.

Commission the commission payable by the Customer as part of the invoice amount payable to the Supplier pursuant to the relevant Customer Contract, the current levels of which are set out at, or calculated in accordance with, Annex 1.

Commitment Date has the meaning given to it in Clause 3.10, in respect of each Energy Product Order, after which the Customer may not cancel the relevant Energy Product Order.

Competent Authority any court, arbitral body, tribunal, inquiry or committee or any local, national or supra-national agency (including any taxing authority), authority, department, inspectorate, minister, ministry, official or public or statutory person (whether autonomous or not and including a regulatory body) of the Government of the United Kingdom or the European Union.

Confidential Information

all information designated as such by either Party in writing, together with all other information which relates to the business, affairs, developments, trade secrets, know-how, personnel, customers and suppliers of either Party or information which may reasonably be regarded as the confidential information of the disclosing Party. In the case of the Authority, Confidential Information includes monthly pricing reports and price change emails, energy performance reviews, annual reports, reconciliation emails and external governance materials.

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Contract Period from the Effective Date to the date on which this Agreement terminates in accordance with Clause 5.

Contracting Body a contracting authority as defined in Regulation 2 of the Public Contracts Regulations 2015.

Crown Body any department, office, agency or other body which is specified as a Crown Body as set out in a list held and maintained by the Office of Public Sector Information of Her Majesty's Government as amended from time to time, and "Crown Bodies" shall have the same meaning.

Customer Contract has the meaning given to it in the applicable Framework Agreement.

Customer Data any data relating to the Customer obtained from the Customer, or any Supplier, by the Authority in the performance of its obligations under this Agreement or any applicable Framework Agreement.

Day calendar day.

Default any breach of the obligations of either Party including a fundamental breach or breach of a fundamental term or any default, act, omission, negligence or statement of either Party, its employees, agents or sub-contractors in connection with or in relation to the subject matter of this Agreement and in respect of which such Party is liable to the other.

Dispute has the meaning given to it in Clause 29.2 or 30.1, as applicable.

DM Gas Meter a natural gas meter which is read daily as determined in accordance with the Uniform Network Code.

Effective Date the date of the last signature of this Agreement by the Parties or, where this Agreement was entered into by exchange of emails, the date of the email sent by the Authority to the Customer confirming the Authority's acceptance of the Customer's email offer to enter into this Agreement.

Energy Product the Non Half Hourly Products, the Half-Hourly Products and the Gas Products.

Energy Product Basket the particular Energy Product which has been selected by a Customer in respect of a relevant delivery period and strategy.

Energy Product Order has the meaning given to it in Clause 3.1.

Energy Product Request

has the meaning given to it in Clause 3.1.

Framework Agreement has the meaning given to it in the introduction to this Agreement.

Gas Product the supply of gas.

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Good Industry Practice standards, practices, methods and procedures conforming to Applicable Law and the exercise of that degree of skill and care, diligence, prudence and foresight which would be expected from a leading company within the relevant industry or business sector.

Half-Hourly Product the supply of electricity measured on a half hourly basis or deemed to be measured on a half hourly basis for the purposes of the BSC.

Industry Documents in relation to each Energy Product, has the meaning given to it the applicable Framework Agreement.

Intellectual Property Rights

patents, trade marks, service marks, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, know-how, trade or business names and other intellectual property rights or obligations whether registrable or not in any country, including but not limited to the United Kingdom.

Interim Price has the meaning given to it in the applicable Customer Contract.

Interim Supply has the meaning given to it in the applicable Customer Contract.

Interim Supply Period has the meaning set out in the applicable Customer Contract.

Last Order Date in relation to each Energy Product Basket, the date described at Clause 3.1.

Managed Registration Information

the information provided by the Authority to the Supplier in relation to each Supply Point, and pursuant to the applicable Framework Agreement, to enable the Supplier to register the relevant Supply Point.

Meter has the meaning given to it in the relevant Customer Contract.

Metering Equipment has the meaning given to it in the relevant Customer Contract.

Metering Point has the meaning given to it in the relevant Customer Contract.

Month calendar month.

Nominated Consumption

has the meaning given to it in the relevant Customer Contract.

Non-Crown Body a Customer which is not a Crown Body.

Non-Half-Hourly Product

the supply of electricity measured on a non-half-hourly basis, or deemed to be measured on a non-half-hourly basis for the purposes of the BSC.

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Procurement Services the procurement, demand and supply management services for Energy Products provided by the Authority to the Customer in accordance with this Agreement and the applicable Framework Agreement and which shall include, at the Authority’s sole discretion, entering into Transactions to set and unset the price of Energy Products.

Registered has the meaning given to it in the Uniform Network Code, and “Registration” shall be interpreted accordingly.

Regulatory Bodies those government departments and regulatory, statutory and other entities, committees and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, are entitled to regulate, investigate, or influence the matters dealt with in this Agreement or any other affairs of the Authority and "Regulatory Body" shall be construed accordingly.

Relevant Customer each customer which has entered into a customer access agreement in order to benefit from a Framework Agreement or a framework agreement that it has replaced.

Services (i) the Procurement Services;

(ii) the general customer services set out in Clause 2.5;

(iii) framework management services set out in Clauses 2.6 to 2.8; and

(iv) liaison services set out in Clause 2.9.

Site has the meaning given to it in the applicable Framework Agreement.

Successive Commitment Date

the date on which each Energy Product Order is automatically renewed, as set out in Clause 3.11.

Supplier has the meaning given to it in the introduction to this Agreement.

Supply Point has the meaning given to it in the applicable Framework Agreement.

Supply Start Date has the meaning given to it in the applicable Framework Agreement.

Supply Year has the meaning given to it in the applicable Framework Agreement.

Transaction has the meaning given to it in the applicable Framework Agreement.

Wilful Default an intentional or reckless disregard of any provision of this Agreement, but shall not include any error of judgement or

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mistake made in the exercise, in good faith, of any function, authority or discretion conferred pursuant to this Agreement.

Uniform Network Code the uniform network code prepared by the gas transporters pursuant to the gas transporters licence granted to them under Section 7 of the Gas Act 1986 .

Working Day any Day other than a Saturday or a Sunday which is not Christmas Day, Good Friday or a public holiday in England and Wales.

Year a calendar year.

1.2 The interpretation and construction of this Agreement shall all be subject to the following provisions:

1.2.1 words importing the singular meaning include where the context so admits the plural meaning and vice versa;

1.2.2 words importing the masculine include the feminine and the neuter and vice versa;

1.2.3 the words “include”, “includes” “including” “for example” and “in particular” and words of similar effect shall not limit the general effect of the words which precede them;

1.2.4 references to any person shall include natural persons and partnerships, central government or Crown Bodies, unincorporated associations, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assigns or transferees;

1.2.5 references to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended or re-enacted whether before or after the date of this Agreement by any subsequent enactment, modification, order, directive, regulation or instrument;

1.2.6 headings are included in this Agreement for convenience and shall not affect the interpretation or construction of this Agreement;

1.2.7 reference to any document (including to this Agreement) is a reference to it as amended, supplemented, novated or superseded from time to time, and includes a reference to any document which amends, is supplemental to, novates, or is entered into made or given pursuant to or in accordance with any terms of it (other than as explicitly specified otherwise); and

1.2.8 obligations to provide notices, reports, data or other information on a day that is not a Working Day shall be construed as an obligation to provide the notice, report, data or other information on the Working Day next following that day.

1.3 References to "Clauses" and "Annexes" are, unless otherwise provided or the context so necessitates, references to the Clauses of and Annexes to this Agreement. References to "Parts" and “Schedules” are, unless otherwise provided or the context so necessitates, references to the Parts and Schedules of this Agreement respectively.

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1.4 In case of conflict between Clauses 1 to 30 (inclusive) of this Agreement and any Annex or Schedule to it, the Clauses shall prevail.

1.5 References in this Agreement to setting or unsetting prices shall mean the fixing or unfixing of volumes of Energy Products by the Authority with a Supplier in a Transaction.

1.6 The requirements on the Customer in this Agreement shall be additional to and shall not limit the Customer’s obligations and liabilities under each Customer Contract it enters into.

2. AUTHORITY SERVICES AND RESPONSIBILITIES

The Authority's right to perform the Services

2.1 During the Contract Period the Customer irrevocably grants the Authority the right to perform the Services.

2.2 In carrying out its obligations or exercising its rights under this Agreement, the Authority does not act as an agent of any Supplier.

The Authority's standard of performance

2.3 In providing the Services the Authority shall:

2.3.1 in relation to the Procurement Services, seek to achieve the best value for the relevant Energy Products that is available in the market with due consideration for price, timing and reliability of service;

2.3.2 work diligently and in good faith in accordance with sound commercial principles and practices and Good Industry Practice;

2.3.3 comply with Applicable Law; and

2.3.4 retain copies of documents relating to its provision of the Services until expiry of the period of six (6) Years from the end of the Contract Period.

Energy Products and Ancillary Services

2.4 The Authority shall make available to the Customer from time to time information about the Energy Products and Ancillary Services which are then currently available pursuant to the Framework Agreement(s).

General customer services

2.5 The Authority shall:

2.5.1 provide the Customer with such assistance as the Authority deems appropriate in order that the Customer can access the Energy Products and the Ancillary Services;

2.5.2 manage contract change control with Suppliers in accordance with the terms of the Framework Agreements, including with respect to charging methodologies;

2.5.3 provide the Customer with such information, as the Authority decides from time to time, about material issues relating to Energy Products and their supply; and

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2.5.4 make available to the Customer from time to time such information about each Energy Product to which the Customer has committed as the Authority determines.

Framework management

2.6 The Authority shall:

2.6.1 keep Suppliers' performance of their obligations pursuant to Framework Agreements under review and liaise with the Suppliers in connection with the performance of Suppliers; and

2.6.2 where the Authority deems appropriate, exercise any rights the Authority may have under the Framework Agreements,

with the aim of ensuring each Supplier complies with its obligations under the applicable Framework Agreement.

2.7 The Authority shall manage and implement any variation to the Framework Agreements.

2.8 The Authority shall, to the extent it deems appropriate, liaise and co-operate with the relevant Supplier, Competent Authorities and other relevant persons where there has been a force majeure event or a disaster, as each is defined in an applicable Framework Agreement, with a view to facilitating:

2.8.1 the continued performance of the Parties' obligations under this Agreement, the Framework Agreement and Customer Contracts; and

2.8.2 resumption of full performance of the Parties' obligations,

as soon as is reasonably practicable provided that, in complying with the obligation under this Clause 2.8, the Authority shall not be obliged to incur any additional, material expenditure.

Liaison services

2.9 The Authority shall, unless the Customer or a third party is (in the reasonable opinion of the Authority) the most appropriate person to carry out the relevant activity, assist Customers with any queries sent to them from the institutions of the European Union, National Audit Office, Parliament and other relevant bodies about the Authority.

Exceptions to the Authority’s Services obligations

2.10 The Authority shall not be required to provide Services where, and to the extent that, such non-provision is caused by:

2.10.1 any act or omission of the Customer, including in relation to the provision of data and other information and its accuracy by the Customer to the Authority and/or the Supplier; or

2.10.2 a Force Majeure Event; or

2.10.3 a “force majeure event” as defined in an applicable Framework Agreement,.

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2.11 The Authority shall not be obliged (but shall be entitled to) provide the Procurement Services to the Customer before the Authority has received and confirmed an Energy Product Request pursuant to Clause 3.1.

2.12 Where applicable, the Authority shall not be obliged to provide the Procurement Services in respect of a relevant Gas Product, unless the Nominated Consumption in respect of all DM Gas Meters included in each relevant Supply Point has been provided, or is deemed to have been provided, to the Supplier in accordance with Clause 3.10.

3. CUSTOMER RESPONSIBILITIES

Energy Product Orders

3.1 No later than the date designated by the Authority for that Energy Product Basket (the “Last Order Date”), the Customer shall, if it wishes to request an Energy Product Basket, complete a request for the supply of an Energy Product Basket (“Energy Product Request”) stating:

3.1.1 the Energy Product Basket required by the Customer; and

3.1.2 such other information as the Authority reasonably requires,

in the form notified by the Authority to the Customer from time to time, the current version of which is set out at Annex 2. The Customer shall also notify the Authority (in the form required by the Authority) of the Supply Points to which it wishes the Energy Product Basket in question to be supplied If the Authority confirms the Energy Product Request provided under this Clause 3.1, it shall, in respect of each Energy Product Basket ordered, become an “Energy Product Order”. An Energy Product Order entitles the Customer to receive the Procurement Services in respect of that Energy Product Basket and the Customer irrevocably authorises the Authority to do anything the Authority considers is required to provide the Procurement Services in respect of that Energy Product Basket, including set and unset prices in respect of that Energy Product Basket.

3.2 The Authority may rely on all information contained within Energy Product Orders and all information that the Customer provides to the Authority and/or the Supplier in respect of its Sites and Supply Points and (where applicable) the Nominated Consumption in order to provide the Procurement Services.

Customer Contracts

3.3 The supply of:

3.3.1 each Energy Product which is subject to an Energy Product Order; and/or

3.3.2 any Ancillary Services that it wishes to order,

shall be governed by a Customer Contract with the relevant Supplier and the Customer shall promptly enter into an applicable Customer Contract in relation to an Energy Product or Ancillary Services with the relevant Supplier if it has not already done so..

3.4 The Customer shall comply with the terms of each such Customer Contract to which it is a party and provide a copy of each such Customer Contract to the Authority within twenty (20) Working Days of the Authority so requesting.

3.5 If the Customer does not promptly (as the same is determined by the Authority) execute a Customer Contract, the Authority may by notice to the Customer deem the Customer to have

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appointed the Authority as its agent to enter into a Customer Contract with the relevant Supplier on substantially similar terms to the model contract appended to the applicable Framework Agreement and the Authority may enter into a Customer Contract as the Customer’s agent.

3.6 The Customer irrevocably authorises the Authority to act as its agent for any purpose under or in connection with the Customer Contract.

3.7 The Customer shall not assign, transfer or novate (or purport or attempt to assign, transfer or novate) all or part of any Customer Contract without the Authority's prior written consent.

3.8 The Commission shall be added to the price of the Energy Product(s) and the Customer shall pay such Commission to the Supplier unless and to the extent otherwise directed by the Authority.

Nominated Consumption for Gas Products

3.9 In respect of each DM Gas Meter included in a Supply Point:

3.9.1 the Customer shall provide the Supplier and the Authority with the Nominated Consumption pursuant to each relevant Customer Contract;

3.9.2 the Authority may consult with the Supplier in relation to Nominated Consumption, taking into account the Customer's views, and may seek to agree the relevant Nominated Consumption with the Supplier; and

3.9.3 if the Customer fails to provide the Supplier with its Nominated Consumption pursuant to the relevant Customer Contract the Customer shall be deemed to have provided to the Supplier that Nominated Consumption which has been agreed between the Authority and the Supplier pursuant to Clause 3.9.2.

Price Setting

3.10 Other than in the case of Interim Supply, or as otherwise specified by the Authority in relation to a particular Energy Product, the Authority intends to set and unset prices for Energy Products and there is a commitment date (“Commitment Date”) set out in each Energy Product Order after which the Customer may not terminate that Energy Product Order. The Customer acknowledges that (amongst other losses) mark to market loss may be sustained by Relevant Customers if the Customer terminates an Energy Product Order after the relevant Commitment Date. The Customer shall therefore accept and pay for the supply of Energy Products subject to that Energy Product Order and which are supplied pursuant to the relevant Customer Contract.

3.11 Each Energy Product Order which is in force shall be automatically renewed on similar terms at 11.59pm on the Day before each anniversary of its Commitment Date (“Successive Commitment Date”) and the Customer shall continue to be committed to accept and pay for the supply of Energy Products subject to that Energy Product Order unless:

3.11.1 the Customer gives at least ten (10) Working Days’ notice before the relevant Successive Commitment Date to the Authority, that it wishes to cancel that Energy Product Order; or

3.11.2 the Authority notifies the Customer no later than the last Working Day before the relevant Successive Commitment Date that the Energy Product Basket subject to that

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Energy Product Order is no longer being supplied under the applicable Framework Agreement,

in which case the relevant Energy Product Order shall expire in accordance with its terms.

Interim Supply

3.12 During any Interim Supply Period, :

3.12.1 the relevant Supplier may supply Energy Products on an interim basis pursuant to the relevant Customer Contract; and

3.12.2 the Authority may (and the Customer authorises the Authority to) agree the Interim Price with the Supplier on behalf of the Customer in accordance with the applicable Framework Agreement.

Co-operation with the Authority and provision of information

3.13 Without limiting any specific provision of this Clause 3, the Customer shall:

3.13.1 co-operate with the Authority;

3.13.2 provide such other assistance to the Authority (including providing information at such times and in such formats as the Authority may require from time to time),

as required by the Authority in order to: (i) meet its obligations; and/or exercise its rights under any Framework Agreement; and (ii) perform the Services.

3.14 The co-operation and assistance referred to in Clause 3.13 shall include:

3.14.1 on termination or expiry of a Framework Agreement giving such consents, taking such steps and doing such other things as are necessary to enable:

3.14.1.1. if applicable, the assignment, novation or other transfer of any Customer Contract from the relevant Supplier to a new Supplier and/or the entering into of a Customer Contract with the new Supplier;

3.14.1.2. the registration of such new Supplier as the Supplier to the Customer of the relevant Energy Products under applicable Industry Documents at the relevant Supply Points; and/or

3.14.1.3. the Authority to enter into a framework agreement with the new Supplier for the purposes of supplying such Energy Products and/or Ancillary Services to Relevant Customers;

3.14.2 providing such feedback, information and documentation on Suppliers and their performance under applicable Framework Agreements and/or Customer Contracts as the Authority may from time to time request;

3.14.3 providing access to any Sites and employees, agents or sub-contractors of the Customer and such information, documentation and other evidence as is necessary to assist the Authority in carrying out an audit of a Supplier and its performance under any Framework Agreement and/or Customer Contract;

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3.14.4 providing access to any Sites and employees, agents or sub-contractors of the Customer and such information, documentation and other evidence as is necessary or useful (in the opinion of the Authority) to assist in any dispute or claim made by or brought against the Authority (whether by a Supplier or a third party) arising out of or in connection with the applicable Framework Agreement and/or any Customer Contract, whether for breach of contract, negligence or other tort or otherwise;

3.14.5 providing such assistance as the Authority requires in relation to the AQ Review process undertaken pursuant to section G of the Uniform Network Code;

3.14.6 providing information or documents to enable the Authority to provide the Managed Registration Information;

3.14.7 promptly notifying the Authority of any changes to information provided to the Authority in accordance with the Authority’s requirements from time to time;

3.14.8 notifying the Authority as soon as practicable after any decision by the Customer to add or remove any of its Sites, or where it plans to vary or remove any Energy Products or Ancillary Services supplied by a Supplier to one or more of its Sites, or where it plans materially to increase or reduce its consumption of an Energy Product or where it wishes to be supplied with additional Energy Products and/or Ancillary Services to one or more of the Sites; and

3.14.9 notifying the Authority if there is any dispute under any Customer Contract and consulting with the Authority before commencing any enforcement action pursuant to the Customer Contract and in appropriate circumstances the Parties shall agree on a course of action to be taken in order to resolve such dispute.

Investigations

3.15 The Customer shall co-operate with any investigation into:

3.16.1 alleged inappropriate disclosure of Confidential Information, alleged use of Confidential Information not in accordance with public policy, or alleged use or disclosure of Confidential Information which is not in accordance with this Agreement;

3.15.1 any alleged breach of Clause 22(Intellectual Property Rights);

3.16.2 alleged breaches of competition law, any regulatory matter, alleged criminal activity; or

3.16.3 any other matter,

that might be conducted by the Authority and/or any appropriate authority. In the case of alleged breaches relating to use and/or disclosure of Confidential Information and/or Intellectual Property Rights, the Customer shall enable the Authority to have access to the Customer’s designated information officers.

General requirements of the Customer

3.16 If applicable, the Customer shall be responsible for the protection of any authentication materials, including usernames, passwords, PINs and private keys, and shall not provide or disclose such authentication materials to unauthorised parties.

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3.17 If there is any persistent or serious breach of this Agreement by the Customer, the Authority may suspend the provision of some or all of the Services. The Customer shall remain liable for paying its Suppliers, and shall continue to comply with its obligations under any relevant Customer Contract, without recourse to the Authority.

3.18 Without limiting any of its other obligations under this Agreement or any Customer Contract, the Customer shall use all reasonable care, skill and diligence in undertaking its responsibilities under this Agreement and each Customer Contract.

3.19 In providing the Procurement Services and in fulfilling its obligations under this Agreement, the Authority does not provide any:

3.19.1 advice to the Customer in relation to the suitability of any Energy Product; or

3.19.2 investment or transactional advice.

Certain regulatory aspects of the Authority’s communications with the Customer

3.20 Any marketing activities carried out by the Authority may include contacting the Customer by telephone, post, email or otherwise.

3.21 The Authority is not required to comply with Regulations 9(1), 9(2) and 11 of the Electronic Commerce (EC Directive) Regulations 2002.

Indemnity

3.22 The Customer (if a Non-Crown Body) shall on demand indemnify and keep the Authority indemnified in full from and against all claims, demands, actions, costs, expenses (including legal costs and disbursements on a solicitor and client basis), losses and damages incurred in respect of or in connection with: (i) any act or omission of the Customer arising out of or in connection with this Agreement and/or any Customer Contract (including any breach by the Customer of its obligations under such Customer Contract); and/or (ii) an Energy Product or Ancillary Service that has been called-off by the Customer pursuant to the applicable Framework Agreement whether, in either case, arising from tort (including negligence), breach of contract, breach of statutory duty, misrepresentation, and any claim for restitution or however arising under or in connection with this Agreement.

3.23 The Customer may not bring any claim or proceedings howsoever arising against the Authority for any claims, proceedings, losses, liabilities, costs (including legal costs and expenses), damages or expenses incurred or suffered by the Customer as a result of any act or omission of a Supplier arising out of or in connection with a Customer Contract, including breach of that contract by that Supplier, tort (including negligence and breach of statutory duty), misrepresentation, any other breach or default and/or termination of a Customer Contract either by the Customer or the Supplier.

4. ADDING OR WITHDRAWING SUPPLY POINTS

Adding Supply Points

4.1 If a Customer wishes to add a Supply Point in respect of one or more Energy Products, it shall notify the Authority and, together with or following such notice, give to the Authority any information the Authority requests in respect of any additional Supply Point.

4.2 If the Customer adds a Supply Point the Customer shall pay the Supplier the Interim Price in respect of Interim Supply to the Supply Points during the Interim Supply Period.

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Supply Point Withdrawal

4.3 If a Customer proposes to:

4.3.1 vacate a Site;

4.3.2 sell, assign, transfer or otherwise dispose of an interest in a Site; or

4.3.3 remove a Metering Point from a Site, or otherwise disconnect a Metering Point from the transportation or distribution system to which the Metering Point is connected,

as a result of which the Customer no longer has a sufficient interest in the Site to enable it to purchase Energy Products supplied by the Supplier to a Supply Point located at that Site ("Supply Point Withdrawal"), the Customer shall give the Authority at least thirty (30) Days’ notice in writing that it no longer wishes the Supplier to provide Energy Products to the relevant Supply Point.

4.4 The Customer shall, within two (2) Working Days of the date on which a Supply Point Withdrawal becomes effective, provide the Authority with written notice including:

4.4.1 details of the date when such Supply Point Withdrawal became effective;

4.4.2 in the case of a Supply Point Withdrawal under Clause 4.3.2, details of the new occupier of the Supply Point (including contact information) and the date of occupancy; and

4.4.3 Meter readings on the date on which the Supply Point Withdrawal took effect.

Energy Product Orders

4.5 Where a Supply Point has been added or withdrawn in accordance with this Clause 4, the relevant Energy Product Order(s) shall apply to or cease to apply to that Supply Point (as applicable).

5. DURATION

5.1 This Agreement shall come into force on the Effective Date and shall continue until the earliest date when:

5.1.1 there are no live Energy Product Orders, there are no Energy Products nor Ancillary Services being supplied or provided by a Supplier to the Customer under a Customer Contract, and all Customer Contracts with the Customer have been terminated or have expired, and either Party then gives the other Party at least ten (10) Days’ written notice of termination of this Agreement;

5.1.2 either Party gives thirty (30) Days’ written notice to the other Party if a Force Majeure Event continues for three (3) consecutive Months and is continuing and has a material adverse effect on the ability of either Party to perform or take the benefit of this Agreement;

5.1.3 the Authority gives notice to terminate it where :

5.1.3.1. a supervisor, liquidator, receiver, administrator, administrative receiver or any other encumbrancer takes possession of or is appointed over, or

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any distress, execution or other process is levied or enforced upon, the whole or any part of the assets of the Customer; or

5.1.3.2. the Customer ceases to carry on business or becomes unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or

5.1.3.3. an order is made or a petition is presented or a resolution is passed for the making of an administration order or the winding-up, bankruptcy or dissolution of the Customer, other than for the purpose of reorganisation or as part of a scheme of reconstruction or amalgamation which has been approved by the Customer;

5.1.4 a Party is in breach of one or more of the provisions of Clause 27 and the other Party gives the first Party at least at least ten (10) Days’ written notice of termination;

5.1.5 the Customer has committed a material breach of any of the provisions of this Agreement and the Authority gives the Customer at least at least ten (10) Days’ written notice of termination; or

5.1.6 the Parties agree in writing to terminate it.

5.2 Termination shall take effect on expiry of the relevant notice period or where otherwise agreed by the Parties.

6. PROTECTION OF DATA

6.1 The Customer gives the Authority irrevocable authority to collect and use Customer Data for the following purposes:

6.1.1 reviewing and improving the operation and performance of the Authority and Suppliers pursuant to this Agreement and the Framework Agreements;

6.1.2 developing, offering and providing new products and services to be provided by Suppliers to customers pursuant to the Framework Agreements; and

6.1.3 complying with any requirement of Applicable Law.

6.2 The Customer consents to the Authority obtaining and/or compiling any information, including commercially sensitive information, about a Supplier’s performance or non-performance under a Customer Contract. If the Authority, at its sole discretion, provides that information to the Customer, without limiting Clause 7, the Customer shall keep such information confidential and shall:

6.2.1 only use it and store it in accordance with the Authority’s instructions;

6.2.2 not pass on such information to its employees other than on a “need to know” basis or to its agents, sub-contractors or customers or other third parties without the consent of the Authority, such consent not to be unreasonably withheld; and

6.2.3 ensure that the persons to whom it has disclosed such information in accordance with this Clause 6.2 shall sign a confidentiality undertaking on substantially the same terms as are set out in Clause 7.

6.3 The Authority shall, during the performance of its obligations hereunder, process the Customer Data (to the extent that it is personal data as defined by the Data Protection Act 1998) in

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accordance with the Data Protection Act 1998 and solely for purposes connected with the provision by the Authority of the Services and in the manner specified from time to time to the Authority by the Customer (acting reasonably) in writing.

6.4 In order to assist the Authority in monitoring compliance with the relevant rules of conduct and to avoid misunderstandings between the Authority and the Customer, the Authority may make and keep a sound recording of telephone conversations between the Authority and the Customer. The Authority’s recordings shall be, and shall remain, the sole property of the Authority and shall be accepted by the Customer as conclusive evidence of the orders, instructions or conversations so recorded. The Customer hereby agrees that the Authority may deliver copies or transcripts of such recordings to any court, arbitrator or regulatory authority.

6.5 Where the Customer reasonably requests, the Authority shall provide copies of documents relating to the Authority’s provision of the Services to the Customer for the purpose of any review by the Customer of the Authority's performance. The Authority may refuse to provide documents if it would be entitled to do so pursuant to a request under the Freedom of Information Act 2000. Any request made by the Customer pursuant to this Clause 6.5 shall be made in writing and shall be no more frequent than once every two (2) Months.

7. CONFIDENTIALITY

7.1 Without limiting the application of the Official Secrets Acts 1911 to 1989 to any Confidential Information, any Confidential Information obtained from or relating to the Authority, its servants or agents is the property of the Authority and the Customer shall use and store all Confidential Information disclosed to it by the Authority only in accordance with the Authority’s instructions.

7.2 Each Party shall ensure that:

7.2.1 its employees, staff, other workers, agents and consultants or any sub-contractors engaged by it in connection with this Agreement, only use Confidential Information for the purposes of this Agreement;

7.2.2 its employees, staff, other workers, agents and consultants and any sub-contractors engaged by it in connection with this Agreement shall not disclose or permit the disclosure of any Confidential Information to any third party without the express prior written consent of the Party who disclosed the Confidential Information;

7.2.3 it takes all necessary precautions to ensure that all Confidential Information is treated as confidential and not disclosed, save as set out in Clause 7.3, or used other than for the purposes of this Agreement by employees, staff, other workers, agents and consultants and any sub-contractors engaged by it in connection with this Agreement; and

7.2.4 neither it nor its employees, staff, other workers, agents and consultants and any sub-contractors engaged by it shall use the Confidential Information for the solicitation of business.

7.3 The provisions of Clauses 7.1 and 7.2 shall not apply to any information which:

7.3.1 is or becomes public knowledge other than by breach of this Clause 7;

7.3.2 is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party;

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7.3.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

7.3.4 is required to be disclosed as a result of an application made pursuant to the Freedom of Information Act 2000 or the Environmental Information Regulations 2004, subject to the requirement that the Party in receipt of the application uses its reasonable endeavours to consult the other Party prior to such disclosure;

7.3.5 is independently developed without access to the Confidential Information; or

7.3.6 is required by law to be disclosed.

7.4 Nothing in this Clause 7 shall be deemed or construed to prevent the Authority from disclosing any Confidential Information obtained from the Customer:

7.4.1 to any other Contracting Body. All Contracting Bodies receiving such Confidential Information may further disclose the Confidential Information to other Contracting Bodies on the basis that the information is confidential and is not to be disclosed to a third party which is not a Contracting Body, whereupon the Authority shall have no further liability for breach of confidentiality by such Contracting Bodies. All Contracting Bodies in receipt of such Confidential Information shall be considered as parties to this Agreement within section 1(1) of the Contracts (Rights of Third Parties) Act 1999 for the purpose only of being entitled to further disclose the Confidential Information to other Contracting Bodies on such terms as are set out in this Clause 7; or

7.4.2 to any consultant, Supplier or other person engaged by the Authority in connection herewith, provided that the Authority shall have obtained from the consultant, Supplier or other person a signed confidentiality undertaking on substantially the same terms as are contained in this Clause 7.

7.5 Nothing in this Clause 7 shall prevent the Parties from using data processing techniques, ideas and know-how gained during the performance of this Agreement in the furtherance of their normal business, to the extent that this does not relate to a disclosure of Confidential Information or an infringement by either Party of any Intellectual Property Right.

8. FORCE MAJEURE

8.1 Neither Party shall in any circumstances be liable to the other for any loss of any kind whatsoever, including, but not limited to, any damages or charges payable under a Customer Contract, whether directly or indirectly caused to or incurred by the other Party by reason of any failure or delay in the performance of its obligations under this Agreement which is due to a Force Majeure Event, provided that the Party affected by a Force Majeure Event shall use all reasonable endeavours to continue to perform, or resume performance of, such obligations for the duration of such Force Majeure Event.

8.2 If either Party becomes aware of a Force Majeure Event that gives rise to, or that is likely to give rise to, any such failure or delay on its part, it shall immediately notify the other Party by the quickest method then available and shall inform the other Party of the period for which it is estimated that such failure or delay shall continue.

9. TERMINATION OF AN ENERGY PRODUCT ORDER

9.1 The Authority may terminate an Energy Product Order if it terminates this Agreement pursuant to Clauses 5.1.3, 5.1.4 and 5.1.5 and, if the relevant Commitment Date for that Energy Product

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Order has passed, the Customer shall pay to the Authority (or, as and to the extent the Authority directs, the Supplier, for distribution to Relevant Customers), on demand, a sum equal to the Breach Damages, as set out in Clause 10.

9.2 Except where expressly stated to do so, termination of any Customer Contract or Framework Agreement will not result in the termination of any Energy Product Orders.

9.3 The Customer shall not give notice to terminate an Energy Product Order on or after the relevant Commitment Date in respect of the Energy Product Basket to which the relevant Energy Product Order relates. If the Customer does so give notice in breach of this Agreement, the Authority may require the Customer to pay to the Authority (or, as and to the extent the Authority directs, the Supplier, for distribution to Relevant Customers), on demand, a sum equal to the Breach Damages, as set out in Clause 10.

9.4 Any termination of an Energy Product Order as contemplated by Clause 9.2 is without limitation to the rights and remedies of either Party which have accrued or may accrue under this Agreement in relation to that Energy Product Order until such termination, including the right of the Authority to recover any sums properly due to it.

9.5 The Customer shall serve any notice to terminate an Energy Product Order on the Authority, and any purported notice of termination served on the Supplier will be of no effect.

10. BREACH DAMAGES

10.1 The Authority may calculate an amount (the "Breach Damages") equal to the aggregate of:

10.1.1 any mark to market loss sustained by Relevant Customers which results from the termination of the Energy Product Order; and

10.1.2 any and all resulting losses of the Authority arising from any applicable adjustments, costs, expenses, fees or other amounts payable and/or incurred in connection with the termination of the Energy Product Order; and

10.1.3 any and all resulting increased costs of a Supplier arising from any applicable adjustments, costs, expenses, fees or other amounts payable and/or incurred in connection with the termination of the Energy Product Order,

so as to ensure that, so far as reasonably practicable, neither the Authority or any Relevant Customer suffer any financial or other loss nor a Supplier suffers any increased costs as a result of termination of the Energy Product Order by the Customer. The Authority may continue to set and unset prices for volumes of the relevant Energy Product Basket as if the relevant Energy Product Order had not been terminated. Such volumes shall be taken into account by the Authority in calculating the Breach Damages.

10.2 If the Customer objects to the Authority’s calculation of the Breach Damages and the Parties cannot reach agreement within a reasonable period, either Party may refer the dispute to an expert. The expert shall be chosen by agreement of the Parties and if the Parties do not agree within ten (10) Working Days of referral, the expert shall be chosen by the President from time to time of the Law Society of England and Wales.

10.3 The expert shall act as an expert and not as an arbitrator and the expert’s determination shall be final and binding other than in the case of fraud or manifest error. The expert shall make his or her determination only in relation to matters expressly referable to an expert by the terms of this Clause 10 and shall have no discretion to come to any determination on any other

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matter except with the prior agreement of both Parties. The expert may appoint advisers having appropriate qualifications and experience whose services are desirable to assist him or her in considering the matter referred to him or her. The costs of the expert in determining the dispute shall be borne as determined by the expert.

11. TRANSFER

11.1 This Agreement is personal to the Authority and the Customer. The Customer shall not assign, novate, sub-contract or otherwise dispose of this Agreement or any part of it without the previous consent in writing of the Authority.

11.2 If the Customer sub-contracts this Agreement, or any part of it, the Customer shall remain responsible for the performance of its obligations under this Agreement at all times and shall be responsible for the acts and omissions of any sub-contractor as though they are its own.

11.3 The Authority may assign, novate or otherwise dispose of its rights and obligations under this Agreement to any Contracting Body.

11.4 Any change in the legal status of the Authority such that it ceases to be a Contracting Body shall not affect the validity of this Agreement. In such circumstances, this Agreement shall bind and enure to the benefit of any successor body to the Authority.

12. AMENDMENTS TO THIS AGREEMENT

The Authority may amend this Agreement on notice to the Customer where the Authority reasonably considers it necessary or appropriate to reflect amendments to Framework Agreements, new Framework Agreements, changes to industry practice and/or changes to the operation and/or management of the Framework Agreements and/or this Agreement. This Agreement shall not otherwise be varied or amended unless variation or amendment is agreed in writing by a duly authorised representative on behalf of each Party.

13. FREEDOM OF INFORMATION ACT 2000 AND THE ENVIRONMENTAL INFORMATION REGULATIONS 2004

The Parties shall provide reasonable assistance to each other in meeting any requests for information in relation to this Agreement made to the Authority or the Customer in connection with either the Freedom of Information Act 2000 or the Environmental Information Regulations 2004, or both, or any related guidelines or codes of practice. The Customer shall use all reasonable endeavours to ensure the observance of the provisions of this Clause 13 by its sub-contractors. Either Party (the “Serving Party”) may from time to time serve on the other Party an information notice requiring that Party, within such time and in such form as is specified in the information notice, to provide the Serving Party with such information as the Serving Party may reasonably require relating to such requests for information.

14. PUBLICITY

Either Party may publicise this Agreement subject to compliance with Clause 7, but in the case of the Customer only if the Authority has given its prior approval.

15. OFFICIAL SECRETS ACTS

Each Party shall take all reasonable steps to ensure that all people employed by it or its agents and sub-contractors in connection with this Agreement and the Customer Contracts are aware of the Official Secrets Act 1989 and, where appropriate, with the provisions of the Atomic Energy Act 1946, and that these Acts apply to it during the term of this Agreement and the

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Customer Contracts and after the expiry or termination of this Agreement and the Customer Contracts.

16. COMMUNICATIONS

16.1 Except as otherwise provided for in this Agreement any notice or other communication to be given or made in respect of this Agreement by one Party to the other shall be given or made in writing to the other at the address or email address specified below.

in respect of the Customer :

[Address……………………………………………………………

……………………………………………………………………….

………………………………………………………………………]

Email:……………………………………………………………….

Contact:…………………………………………………………….

in respect of the Authority:

Director of Utilities and Fuels Crown Commercial Service 9th Floor, The Capital, Old Hall Street, Liverpool L3 9PP Email: info@crowncommercial.gov.uk

or any substitute address, email address or department or officer as the Party may notify to the other Party, by not less than ten (10) Working Days’ notice.

16.2 Any communication or document made or delivered by one Party to another under or in connection with this Agreement will only be deemed to have been delivered where sent to the person and contact details set out at Clause 16.1 and:

16.2.1 if delivered by hand, on the Working Day of delivery or on the 1st Working Day after the date of delivery if delivered on a day other than a Working Day or after 17:00 hours on a Working Day;

16.2.2 if sent by first class post, on the Working Day of delivery or on the 1st Working Day after the date of delivery if delivered on a day other than a Working Day or after 17:00 hours on a Working Day; or

16.2.3 if sent by email, on the day of receipt in legible form if received before 17:00 hours on a Working Day or otherwise on the 1st Working Day after receipt;

and, if a particular department or officer is specified as part of its address details set out at Clause 16.1 , if addressed to that department or officer.

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17. GENERAL

Save to the extent expressly stated, this Agreement shall not create a partnership or agency between the Parties and neither Party shall represent to any third party that it is the other Party's partner.

18. LAW AND JURISDICTION

18.1 This Agreement is (where the Customer is a Non-Crown Customer) binding on the Authority and its successors and assignees and on the Customer and the Customer's successors and permitted assignees.

18.2 This Agreement and/or any non-contractual obligations or matters arising out of or in connection with it shall (where the Customer is a Non-Crown Customer) be governed by and construed in accordance with the laws of England and Wales.

19. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes all previous agreements, understandings and undertakings. No representation, whether made orally or in writing before or after the execution of this Agreement, shall form part of this Agreement or be used in its interpretation.

20. CUSTOMER STATUS

20.1 If a Customer is (a) a Crown Body, or (b) changes from a Non-Crown Body to a Crown Body during the Contract Period , the Parties acknowledge that from (a) the Effective Date or (b) the Date of Crown Status (respectively):

20.1.1 Clauses 21 to 29 (inclusive) shall not apply and Clause 30 shall apply; and

20.1.2 this Agreement shall be construed not as a legally binding contractual document but a memorandum of understanding (“MOU”) between two Crown Bodies. Accordingly those provisions of this Agreement which, expressly or by implication, are not appropriate for a non-legally binding MOU, shall not apply between Crown Bodies.

20.2 If a Customer is (a) a Non-Crown Body, or (b) changes from a Crown Body to a Non-Crown Body during the Contract Period, Clause 30 shall not apply and Clauses 21 to 29 (inclusive) shall apply from (a) the Effective Date or (b) the Date of Non-Crown Status (respectively).

21. WARRANTIES AND REPRESENTATIONS

21.1 The Customer warrants and represents that:

21.1.1 it has full capacity and authority and all necessary consents to enter into and to perform this Agreement;

21.1.2 this Agreement is executed by the duly authorised representatives of the Customer; and

21.1.3 each Energy Product Request made by the Customer has been and will be submitted by an officer duly authorised to do so and to bind the Customer.

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21.2 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise, including but not limited to fitness for purpose, are hereby excluded to the extent permitted by law.

21.3 Each of the Parties warrants, represents and undertakes that:

21.3.1 the execution of this Agreement and performance of its obligations and duties hereunder does not and will not violate any agreement to which it is a party or is otherwise bound; and

21.3.2 it is duly authorised to enter into this Agreement and perform its obligations under this Agreement.

22. INTELLECTUAL PROPERTY RIGHTS

22.1 Subject to the Intellectual Property Rights of third parties, Intellectual Property Rights:

22.1.1 in the methods, systems or processes of providing the Services shall in each case be and remain vested in the Authority or its licensors as the case may be; and

22.1.2 of the Customer shall remain vested in the Customer,

and the Parties agree at all times to protect such Intellectual Property Rights and each Party grants to the other Party a non-exclusive, royalty-free, irrevocable and non-transferable intellectual property licence for the duration of this Agreement to the extent necessary for the provision and ordinary use of the Services.

22.2 The Customer may not:

22.2.1 except in the ordinary course of business and to take advantage of the Services, copy, distribute, or alter information and/or documentary elements forming part of the Services or any part of them;

22.2.2 sell or offer for sale any element of the Services or information accessed through the Authority; or

22.2.3 reproduce or use any trade or service marks used in or in relation to the Services.

23. LIABILITY AND REMEDIES

23.1 Neither Party excludes nor limits liability to the other Party for:

23.1.1 death or personal injury arising from by its negligence, or that of its employees, agents or sub-contractors; or

23.1.2 fraud or fraudulent misrepresentation by it or its employees.

23.2 Subject to Clauses 10, 23.1 and 23.3 in no event shall:

23.2.1 either Party be liable to the other for:

23.2.1.1. loss of profits, business, revenue, goodwill or anticipated savings; or

23.2.1.2. indirect, special or consequential loss or damage;

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23.3 The Authority may claim against the Customer for:

23.3.1 additional operational and administrative costs and expenses incurred by the Authority arising from Default by the Customer; and

23.3.2 expenditure or charges wasted as a result of any Default by the Customer.

23.4 The Authority shall not have any liability, either under this Agreement or otherwise, to the Customer:

23.4.1 arising out of or in connection with the supply or non-supply of Energy Products or Ancillary Services in accordance with a Customer Contract or the provision of other services by any Supplier to the Customer;.

23.4.2 for any loss suffered by the Customer as a result of or in connection with the provision by the Authority of the Services or which arise out of any statement or advice given by the Authority or its employees, except in the case of Wilful Default by the Authority in respect of the Procurement Services;

23.4.3 for losses, damages, costs or expenses which are due to the provision of false, misleading or incomplete information or documents by, or due to the acts or omissions of, any person other than the Authority.

Decisions as to the appropriateness of the terms of Customer Contracts and the suitability of the Supplier shall be entirely the responsibility of the Customer. Each Party agrees that the provisions of this Clause 23.4 are fair and reasonable having regard to the circumstances as at the date of execution of this Agreement.

23.5 Subject to Clause 23.1, each Party’s total aggregate liability in respect of all causes of action arising out of or in connection with this Agreement, howsoever arising, shall not exceed five hundred thousand pounds sterling (£500,000) provided that this cap shall not apply to: (i) a failure by the Customer to pay any sum(s) due under this Agreement; indemnities from the Customer pursuant to Clause 3.23; or (ii) any liability of the Customer to pay Breach Damages.

23.6 This Clause 23 sets out the entire financial liability of the Authority, including any liability for the acts or omissions of its employees, to the Customer in respect of: (a) any breach of the Agreement; and/or (b) any representation, statement or tortious act or omission including negligence, breach of statutory duty, claim for restitution, or however otherwise arising under or in connection with this Agreement, and that the limits of liability referred to in this Clause 23 shall survive termination of this Agreement.

23.7 Nothing in this Clause 23 shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a Party or conferring any right or remedy upon a Party to which it would not otherwise be entitled.

23.8 Monetary damages may not be an adequate remedy for any breach or threatened breach of this Agreement and each Party may apply for specific performance, injunctive relief and any other equitable relief in order to enforce this Agreement in addition to any other remedies which may be available.

23.9 Termination or expiry of this Agreement (however caused) shall not affect any rights or obligations which may have accrued prior to such expiry or termination or which result from the event giving rise to termination.

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24. RIGHTS OF THIRD PARTIES

This Agreement shall not create any rights that shall be enforceable by anyone other than the Parties to this Agreement and a person who is not a Party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.

25. WAIVER

25.1 The failure of either Party to insist upon strict performance of any provision of this Agreement, or the failure of either Party to exercise any right or remedy to which it is entitled under this Agreement, shall not constitute a waiver of it and shall not cause a diminution of the obligations established by this Agreement.

25.2 A waiver of any Default shall not constitute a waiver of any subsequent Default.

25.3 No waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other Party.

26. SEVERABILITY

26.1 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction or any Competent Authority, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision(s) eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the Parties shall immediately commence good faith negotiations to remedy such invalidity.

26.2 Any provision of this Agreement which expressly or by implication is intended to come into or remain in full force and effect on or after expiry or termination of this Agreement shall continue in full force and effect in accordance with its terms.

27. CORRUPT GIFTS AND PAYMENTS OF COMMISSIONS

27.1 Neither Party shall:

27.1.1 offer or give or agree to give any employee, agent, servant or representative of the Authority, any other public body or person employed by or on behalf of the Authority, or any other public body (“Relevant Person”) any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or performance of this Agreement or any other agreement with a Relevant Person or for showing or forbearing to show favour or disfavour to any person in relation to this Agreement; nor

27.1.2 enter into this Agreement if in connection with it commission has been paid or has been agreed to be paid to a Relevant Person by either Party or on behalf of either Party or to the knowledge of either Party, unless before this Agreement is made particulars of any such commission and of the terms and conditions of any agreement for the payment thereof have been disclosed in writing to the other Party.

27.2 In the event of any breach of this Clause 27 by either Party or by anyone employed by either Party or acting on either Party's behalf, whether with or without the knowledge of either Party, or the commission of any offence by either Party or by anyone employed by either Party or acting on behalf of either Party under the Prevention of Corruption Acts 1889 to 1916 or the

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Bribery Act 2010 in relation to this or any other contract with a Relevant Person, the non-breaching Party may summarily terminate this Agreement by notice, provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to either Party and provided always that either Party may recover from the other Party the amount or value of any such gift, consideration or commission.

28. DISCRIMINATION

28.1 The Customer shall not, in connection with this Agreement or any Customer Contract, victimise, harass or unlawfully discriminate within the meaning of the provisions of the Equality Act 2010 and shall not breach any equality clause or non-discrimination rule under the Equality Act 2010 nor breach the Protection of Harassment Act 1997 or other relevant law.

28.2 The Customer shall take all reasonable steps to secure the observance of the provisions of Clause 28.1 by any sub-contractors employed by the Customer in connection with this Agreement and/or any Customer Contract.

29. JURISDICTION AND DISPUTE RESOLUTION PROCEDURE (NON-CROWN)

29.1 Subject to this Clause 29, the Parties submit any Dispute arising under or in connection with this Agreement solely to the courts of England and Wales.

29.2 Any dispute, difference or disagreement between the Parties arising out of or in connection with this Agreement ("Dispute") including any question regarding its existence, validity or termination or any claim of breach, tort or otherwise shall be dealt with in accordance with this Clause 29, and neither Party may commence or pursue any legal proceedings under the jurisdiction of the courts in connection with any such Dispute until the procedures set out in this Clause have been exhausted.

29.3 Clause 29.2 shall not prevent termination in accordance with this Agreement and shall not prevent either Party from applying for injunctive relief in the case of:

29.3.1 breach or threatened breach of confidentiality by the other Party; or

29.3.2 infringement or threatened infringement of its Intellectual Property Rights or those of a third party.

29.4 All Disputes between the Parties shall in the first instance be referred to the duly authorised representative of each Party for their consideration with a view to making a decision in relation to the Dispute. If the respective representatives fail to resolve the Dispute within ten (10) Working Days of it being referred to them:

29.4.1 it shall be referred to a senior manager of each Party for their consideration with a view to making a decision in relation to the Dispute. If the respective senior managers fail to resolve the Dispute within ten (10) Working Days of it being referred to them;

29.4.2 it shall be referred to the Customer’s [Insert Job Title: ………………………… ] (or similar) and the Authority's [ Head of Operations – Energy ] respectively for their consideration with a view to making a decision in relation to the Dispute.

29.5 If a Dispute cannot be resolved by the Parties in accordance with Clause 29.4.2 within ten (10) Working Days after referral of the Dispute to the relevant persons, the Dispute shall be further referred to mediation in accordance with Clause 29.7

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29.6 If any particular manager referred to in Clause 29.4 does not exist or is not available, then the relevant Party shall be able to refer the Dispute to another suitable alternative manager of similar status and authority.

Mediation

29.7 The following provisions shall apply to mediation:

29.7.1 a neutral adviser or mediator (the "Mediator") shall be chosen by agreement between the Parties or, if they are unable to agree within ten (10) Working Days after a request by one Party to the other, or if the Mediator agreed upon is unable or unwilling to act, either Party may apply to the Centre for Effective Dispute Resolution ("CEDR") to appoint a Mediator;

29.7.2 the Parties shall, within ten (10) Working Days of the appointment of the Mediator, meet with him to agree a programme for the exchange of all relevant information and the structure to be adopted for negotiations to be held. The Parties may at any stage seek assistance from CEDR to provide guidance on a suitable procedure;

29.7.3 all negotiations connected with the Dispute and any settlement agreement relating to it shall be conducted in confidence and without prejudice to the rights of the Parties in any future proceedings;

29.7.4 if the Parties reach agreement on the resolution of the Dispute, the agreement shall be made in writing and, when signed by both Parties, shall be binding on them;

29.7.5 failing agreement, either Party may invite the Mediator to provide a non-binding but informative opinion in writing. Such an opinion shall not be used in evidence in any proceedings relating to this Agreement without the prior written consent of both Parties;

29.7.6 each Party shall each bear its own costs in relation to any reference made to the Mediator and the fees and all other costs of the Mediator shall be borne jointly in equal proportions by the Parties;

29.7.7 each Party shall continue to comply with its obligations under this Agreement during the mediation process; and

29.7.8 if the Parties fail to reach agreement in the structured negotiations referred to in this Clause 29.7 within forty (40) Working Days of the Mediator being appointed, or such longer period as may be agreed, then any Dispute between them may be referred to arbitration in accordance with Clause 29.8

Arbitration

29.8 The following provisions will apply to arbitration:

29.8.1 if a Dispute is not resolved pursuant to Clause 29.7 a Party may, at any time before court proceedings are commenced, refer the matter to arbitration by giving written notice to the other Party which states:

29.8.1.1. that the Dispute is referred to arbitration; and

29.8.1.2. a brief summary of the subject of the Dispute;

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29.8.2 the Arbitration Act 1996 shall govern the arbitration, which shall take place under the procedural rules of the London Court of International Arbitration;

29.8.3 the arbitrator shall have the power to make provisional awards as provided for in section 39 of the Arbitration Act 1996;

29.8.4 except as required by law in judicial proceedings or by agreement, the arbitration process and anything said, done or produced in or in relation to the arbitration process, including any awards, shall be confidential between the arbitrator, the Parties, their legal representatives and any person necessary to the conduct of the proceedings; and

29.8.5 each Party shall each bear its own costs in any arbitration and the fees and all other costs of the arbitrator shall be borne jointly in equal proportions by both Parties unless otherwise directed by the arbitrator.

30. DISPUTE RESOLUTION PROCEDURE (CROWN)

30.1 Any dispute, difference or disagreement ("Dispute") between the Parties relating to this Agreement shall be dealt with in accordance with this Clause 30.

30.2 Clause 30.1 shall not prevent termination in accordance with this Agreement.

30.3 All Disputes between the Parties shall in the first instance be referred to the duly authorised representative of each Party for their consideration with a view to making a decision in relation to the Dispute.

30.4 If the respective representatives fail to resolve the Dispute within ten (10) Working Days of it being referred to them, it shall be referred to the Customer's [Insert Job Title: ………………………… ] and the Authority's Director of Utilities and Fuels respectively for their consideration with a view to making a decision in relation to the Dispute.

30.5 If the respective [Insert Job Title: ………………………… ] and the Director of Utilities and Fuels fail to resolve the Dispute within ten (10) Working Days of it being referred to them, it shall be referred to the Customer’s [Insert Job Title: ……………… ] and the Authority's Strategic Category Commercial Director - Buildings respectively for their consideration with a view to making a decision in relation to the Dispute.

30.6 If any particular manager referred to in Clauses 30.4 or 30.5 does not exist or is not available, then the relevant Party shall be able to refer the Dispute to another suitable alternative manager of similar status and authority.

30.7 If a Dispute cannot be resolved by the Parties in accordance with Clause 30.5 within a maximum of ten (10) Working Days after referral, the Dispute shall be further referred to the Attorney General for resolution.

ANNEX ONE - COMMISSION

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1 The Commission shall be calculated as follows:

ENERGY PRODUCT PRICE

Gas:

(Between 0 and 500,000 kWh)

(500,001 kWh +)

£36 per Site per annum

£240 per Site per annum

Electricity:

Metered supply

(a) Non Half-Hourly Products (metered)

(i) Profile Class 01 & 02

(ii) Profile Classes 03-08

(b) Half-Hourly Products (metered)

Unmetered supply

(a) Half-Hourly Products (unmetered)

(b) Non Half-Hourly Products (unmetered)

£5 per MPAN per annum

£24 per MPAN per annum

£240 per MPAN per annum

£240 per MPAN per annum

£24 per MPAN per annum

2 The mechanism for calculating the Commission may be varied from time to time during the Contract Period, as notified by the Authority to the Customer.

3 A Supplier may, at the request of any Customer, assist that Customer through the invoicing process in recovering any rebate or similar sums agreed between that Customer and any third party or emanation of that Customer. The calculation of the Commission does not take any account of these sums and the Authority has no responsibility or liability in relation to the recovery of these sums.

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ANNEX TWO – INDICATIVE FORM OF ENERGY PRODUCT REQUEST

This Energy Product Request should be read subject to and together with the Customer Access Agreement entered into between Crown Commercial Service (the "Authority") and [………………………………… Customer] ("Customer") (the "Agreement"). This Energy Product Request, if accepted by the Authority, shall be an Energy Product Order pursuant to which the Authority shall enter into transactions to set and unset prices for volumes of such Energy Product. Words and expressions used in this Energy Product Request shall have the same meaning as those used in the Agreement, unless otherwise provided. The details of the Energy Products to which this Energy Product Request relates are as follows. Each Energy Product is sub-divided into fixed delivery periods (which are typically, but not always, 12 months) commonly referred to as “Baskets”.. The Customer should make itself aware of the contractual framework which applies to these Energy Products, which have been procured pursuant to specific framework agreements:

Please select from the applicable drop down boxes within the excel spreadsheet

embedded below (recommended option) to determine which Basket(s)/ Energy

Product(s) your organisation wishes to enter or alternatively complete the relevant

boxes below

CAA Annex 2.xlsx

UTILITY: Natural Gas

PROCUREMENT ROUND:

COMMITMENT DATE PRIOR TO

THE START OF THE SUPPLY

YEAR:

29

LOCKED PRODUCT (where the

majority of energy is bought prior

to commencement of energy

delivery).

VARIABLE PRODUCT (where

only a percentage of the energy is

bought before Basket energy

delivery commencement, with the

remainder being purchased

within the delivery year. The price

here is only a reference price).

NAME OF PROCUREMENT

ROUND:

(Apr [ ] (procurement round/year)

followed by locked/variable

followed by 30 or 6 months prior)

UTILITY: Half Hourly Electricity

PROCUREMENT ROUND:

COMMITMENT DATE PRIOR TO

THE START OF THE SUPPLY

YEAR:

LOCKED PRODUCT (where the

energy is bought prior to

commencement of energy

delivery and the price is fixed

throughout the Basket delivery

year).

VARIABLE PRODUCT (where

only a percentage of the energy is

bought before Basket energy

delivery commencement, with the

remainder being purchased

within the delivery year. The price

30

here is only a reference price).

NAME OF PROCUREMENT

ROUND:

( Apr [ ] (procurement

round/year) followed by

locked/variable followed by 30 or

6 months prior)

UTILITY: Non Half Hourly Electricity

PROCUREMENT ROUND:

COMMITMENT DATE PRIOR TO

THE START OF THE SUPPLY

YEAR:

LOCKED PRODUCT:

(Only the Locked Product is

available for NHH)

(where the energy is bought prior to

commencement of energy delivery

and the price is fixed throughout

the Basket delivery year).

NAME OF PROCUREMENT

ROUND:

(Apr [ ] (procurement round/year)

followed by locked followed by 6

months prior)

31

UTILITY: Unmetered Electricity

PROCUREMENT ROUND:

COMMITMENT DATE PRIOR TO

THE START OF THE SUPPLY

YEAR:

LOCKED PRODUCT (where the

energy is bought prior to

commencement and the price is

fixed throughout basket delivery

year).

VARIABLE PRODUCT where only

a percentage of the energy is

bought before Basket energy

delivery commencement, with the

remainder being purchased

within the delivery year. The price

here is only a reference price)

NAME OF PROCUREMENT

ROUND:

( Apr [ ] (procurement

round/year) followed by

locked/variable followed by 30 or

6 months prior)

The Authority will respond to this Energy Product Request and if it confirms that it accepts the Energy Product Request, it will become automatically become an Energy Product Order at the end of the second Working Day after the Authority’s confirmation unless you send written notice to the Authority within this period that you wish to cancel the Energy Product Request.

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Signed for and on behalf of the Authority

By : ……………………………………..

Name :

Title :

Date :

Where executed electronically, tick the box [ ]

Signed for and on behalf of the Customer

By : ……………………………………..

Name :

Title :

Date :

Where executed electronically, tick the box [ ]