“Agreement” shall mean the agreement between the parties for the provision of the Services by LGE to the Client whether that agreement be made in writing or by the Client’s purchase order or LGE’s acceptance of an order or is made by any other method whatsoever.
“Client” means the Client for whom LGE is providing the Services.
“Confidential Information” means confidential information relating to the business of the Client, LGE, their customers, suppliers, contractors, personnel and know how; or to their financial, marketing or other commercial activities; or to their intentions or plans relating to any of these matters; and to technical information relating to its computer systems, networks and databases, including computer or other machine readable data, logic diagrams, flow charts, algorithms, source code or other codes, listings, test data, test routines, diagnostic programs, or similar information;
“Control” the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise;
“Fees” means all fees and costs due to LGE from the Client in respect of LGE providing the Services to the Client under the terms of the Agreement;
“Information” means information provided in oral, documentary, magnetic, electronic, graphic or digitised form, or by way of models or other tangible forms, or by demonstration to or observation made by or on behalf of LGE at the Client Premises or elsewhere;
“Intellectual Property” means inventions (whether patentable or not), discoveries, letters patent or the right to apply for letters patent or similar protection anywhere in the world; utility models, copyright, design right, topography rights, registered designs and know how;
“LGE” means LG Energy Group Limited;
“Premises” means the premises of the Client;
“Services” means the services to be provided by LGE to the Client pursuant to the Agreement and as detailed in the Service Level Agreement, including but not limited to consultancy, training and the provision of know-how and other information relating thereto which LGE provides or is to provide to the Client pursuant to the Agreement;
“Working Day” means each day on which LGE is open for business.
1.2 In the event that any provision of the Agreement conflicts with the Terms and Conditions the Agreement shall prevail.
- COMPANY UNDERTAKINGS
LGE undertakes that:
2.1 It has the experience and capability to execute the Services in accordance with the provisions of the Agreement and in accordance with generally acceptable standards for businesses providing services the same as or similar to the Services;
2.2 It will provide the Services using all reasonable endeavours, care and skill;
2.3 All persons carrying out the Services shall at all times be either employees of or be in a contractual relationship with LGE unless otherwise agreed in writing by the Client.
- THE SERVICES
3.1 LGE shall provide the Services, in accordance with the Agreement and these Terms and Conditions. The Agreement shall be subject to these Terms and Conditions and not any other terms and conditions which have not been expressly accepted in writing by both parties.
3.2 LGE’s personnel shall at all times remain under the direction and control of LGE. Notwithstanding LGE’s overall control, LGE recognises that the services may require LGE to perform work in relation to a Client managed activity and that, in this event, the Client shall be responsible for and shall supervise and manage such activity.
3.3 LGE undertakes to procure that each of LGE’s personnel shall:
3.3.1perform his/her work with the appropriate level of skill, care and technical ability;
- 3.2 perform his/her work within a reasonable timescale, and comply with all lawful directions given by authorised personnel of the Client and on request within a reasonable timescale give a full account of all matters with which he/she is entrusted;
3.3.3 keep sufficient records of his/her work (which shall remain at all times the property of LGE) to enable other individuals to carry on that work without interruption at the end of the period of supply of the Services or if he/she is unable at any time to work whether through ill health, injury or otherwise, and keep at least one employee of LGE informed of any know-how used, learned or developed in the course of his/her work to enable that employee to carry on with such work alone and use his/her best endeavours to transfer or otherwise teach his/her skills to such employee.
3.3.4 LGE will from time to time provide training at the request of the Client, as agreed by LGE particularly in respect of current market tools being used in the field of the Services. Any costs for such training will be agreed in writing between the parties prior to any such training commencing.
3.4 In the event of an increase in the scope of the Services or the time required to provide the Services such that the Client requires additional Services from LGE as determined by the Client, the Client may notify LGE in writing of the need for such additional Services. Whereupon both parties will agree in writing to provide such additional Services and agree any additional fees for such additional Services. Upon receipt of a notice in writing from the Client, LGE shall use all reasonable endeavours to provide additional Services to the Client upon the terms and conditions set out in the Agreement, other than the terms and conditions relating to the level of the fees for such additional services which shall be agreed by the parties.
4.1 In consideration of the Services provided pursuant to the Agreement, the Client shall pay LGE such fees and charges as set out in the Agreement.
4.2 All rates set out in the Agreement shall unless expressly stated to the contrary be inclusive of all costs incurred by LGE. Such rates will be exclusive of value added tax.
4.3 All rates set out in the Agreement shall be fixed for the agreed term. Fees for any additional Services agreed after the commencement of the Agreement shall be in writing and fixed for the period agreed. Thereafter the rates shall be reviewed annually and any subsequent changes shall be negotiated in good faith by both parties.
- INVOICES AND PAYMENT
5.1 Except as provided in the Agreement, invoices with supporting documentation shall be rendered each calendar month in advance and payment of LGE’s invoices will be made by the Client within 30 days from the start of the period to which it relates.
5.2 LGE shall be entitled to charge interest at the rate of 3% per annum above the base rate of Barclays Bank on all invoices which remain unpaid after the due date.
5.3 P2p- AE21 20% of share of savings payable on signature of the supply contract with the remainder payable monthly throughout the duration of the supply contract term. This term of this agreement is 36 months from commencement of the new supply agreement.
6.1 Each party hereby agrees that, from the commencement date of the Agreement until twelve (12) months after the expiry thereof, it shall not (without the consent of the other) employ or solicit or offer employment or engagement to or entice away on behalf of itself or any other person or organisation, any employee or other personnel engaged by the other (whether on a temporary basis or otherwise) involved with the supply of Services.
6.2 Unless otherwise agreed, the Client shall, if it acts in breach of Clause 6.1 pay to LGE an introduction fee equal to 10% of the relevant individual’s gross remuneration for the period of the supply of the Services for the Client or the period of twelve months up to the date such individual leaves the employment or engagement of LGE, whichever is the lesser.
6.3 Unless otherwise agreed, LGE shall, if it acts in breach of Clause 6.1, pay to the Client an introduction fee equal to 20% of the relevant individual’s annualised gross remuneration as at the date such individual leaves the employment or engagement of the Client.
6.4 The parties acknowledge and agree that the duration, extent and application of the provisions of this Clause are reasonable and no greater than this is necessary for the protection of their respective interests.
- OBSERVANCES OF REGULATIONS
LGE agrees to procure that its personnel, when they are engaged in activities on the Client’s Premises, shall comply with such regulations and restrictions in respect of access, restricted areas, dress, conduct, safety and working conditions as apply to the Client staff as notified separately to LGE in writing by the Client.
- INDEMNITY AND INSURANCE
8.1 Except in respect of death or personal injury caused by LGE’s negligence or as expressly provided herein, LGE shall not be liable to the Client whether in contract or tort or otherwise for any direct, indirect, consequential (including any loss of anticipated profits, damage to reputation or goodwill, loss of expected future business, damages, costs or expenses payable to any third party or any other indirect losses) punitive or special damages arising out of or in connection with the provision of the Services except that where such damages arise out of the gross negligence of LGE, LGE shall be liable but its entire liability hereunder shall not exceed the amount of fees received by it from the Client in respect of the Services.
8.2 LGE shall not be liable to the Client or be deemed to be in breach of the Agreement between it and the Client by reason of any delay in performing, or any failure to perform, any of LGE’s obligations in relation to the Services, if the delay or failure was due to any cause beyond its reasonable control.
8.3 LGE shall not be liable to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any inaccuracies in any information and/or data supplied to LGE by any third party and relied upon by LGE in the provision of the Services.
8.4 LGE shall effect and maintain in force for the duration of the Agreement Professional Indemnity Insurance for liability incurred in the provision of the Services, the subject of the Agreement. Such Professional Indemnity Insurance shall be with insurers or underwriters and up to a limit of indemnity in accordance with the normal requirements for the Services provided (as determined by LGE).
9.1 The Confidential Information is confidential to the parties and in consideration of the parties entering into the Agreement and disclosing the Confidential Information to each other they hereby undertake to each other to:
9.1.1 Keep the Confidential Information confidential;
9.1.2 Use the Confidential Information solely for the purposes of carrying out and complying with the terms of the Agreement and for no other purpose whatsoever without the prior written consent of the other party;
9.1.3 Allow access to the Confidential Information only to those persons who need to see and use it for the purposes of supplying the Services and to notify each of such employees of the confidential nature of the Confidential Information before allowing them such access and to ensure that they comply with the provisions of this Clause;
9.1.4 Wherever possible, or whenever requested to do so by an officer of the disclosing party, obtain from any third party to whom the other party intends to disclose Confidential Information, a written obligation of confidence on no less onerous terms than are contained in the Agreement, and shall, if required, give all such assistance as may be required by the disclosing party to enforce any such obligations to protect its Confidential Information;
9.1.5 Strict unauthorised access to the Confidential Information and keep it secret by adopting appropriate security measures in accordance with the disclosing party’s reasonable guidelines as published from time to time;
9.1.6 Make copies of any documents containing any Confidential Information only to the extent necessary for the purposes of undertaking the supply of the Services and complying with the terms of the Agreement and;
9.1.7 Deliver up to the disclosing party at its request at any time all documents, copies of documents and other materials in the possession, custody or control of the other party which contain any Confidential Information or which are produced or received by the other party in connection with the supply of the Services.
9.2 The obligations of confidentiality assumed by the parties under the Agreement shall not apply to any information which a party can show (and it shall be for that party to show):
9.2.1 Was known to the party before such Confidential Information was imparted to the party by or acquired by the party from the disclosing party;
9.2.2 Is in or subsequently comes into the public domain other than by a breach by the party of its obligations under the Agreement;
9.2.3 Is lawfully received by the party from a third party who is lawfully entitled to possess and impart such Information.
- INTELLECTUAL PROPERTY
10.1 The Client acknowledges and agrees that any Intellectual Property made, devised or developed in connection with the supply of the Services under the Agreement shall belong exclusively and in its entirety to LGE, except where third parties do not sell their rights, but merely allow use for a period of time.
10.2 The Client agrees to assign to LGE all right, title and interest in and to any Intellectual Property made, devised or developed by LGE in connection with the supply of the Services. Without prejudice to the generality of the foregoing, the Client hereby assigns to LGE by way of future assignment of copyright and design right the copyright and design right in any works, documents or models in which such rights may subsist for all classes of act which by virtue of the Copyright Designs and Patents Act 1988 the owner of the copyright and/or the design right has the exclusive right to do throughout the world and for the whole period for which such copyright and/or design right is to subsist.
10.3 The Client acknowledges and agrees that LGE may use the Intellectual Property described in clause 10.1 for providing services to other Clients of LGE so long as this does not incur a breach of the obligations contained in clause 9.
11.1 Without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating this agreement with immediate effect if:
11.1.1 The other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; or
11.1.2 An order is made or a resolution is passed for the winding up of the other party or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
11.1.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
11.1.4 a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party or if any other person takes possession of or sells the other party’s assets; or
11.1.5 The other party makes any arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
11.1.6 The other party ceases to trade; or
11.1.7 The other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
11.1.8 The other party fails to perform the Services as detailed in the Service Level Agreement.
11.2 For the purposes of Clause 11.1, a breach shall be considered capable of remedy if the party in breach can comply with the provisions in question in all material respects other than as to the time of performance.
11.3 Any termination of the Agreement shall be without prejudice to any provision of the Agreement, which by its terms is intended to survive the termination of the Agreement, including Clauses 6, 7 and 9.
11.4 Termination of the Agreement for whatever reason shall be without prejudice to the rights of either party against the other in respect of anything done prior to such termination or in respect of any sums or claims outstanding at the time of such determination and the termination of the Agreement shall be without prejudice to the rights and obligations of the party generally as at the date of termination.
11.5 LGE shall have the right to terminate the Agreement forthwith if there is a change of Control of the Client.
11.6 The Client shall have the right to terminate the Agreement forthwith if there is a change of Control of LGE…
12.1 LGE shall be allowed to mention the Client name in connection with the Agreement or disclose the existence, the nature or subject matter of the Agreement in any publicity material or other similar communications to third parties with the Client prior consent in writing.
12.2 Neither party shall use the name(s), trademark(s), trade name(s) (whether registered or not), logo or identities of the other party in publicity material, advertising or other similar communications to third parties without the prior written consent of the other party.
13 FORCE MAJEURE
13.1 For the purposes of the Agreement, Force Majeure shall mean any event or circumstance beyond the control of either party after the exercise of all reasonable diligence which prevents or impedes due performance of the obligations. Such events may include, but shall not be limited to, international or civil war, chemical or biological contamination.
13.2 Neither party shall be liable for any inability to comply with its obligations under the Agreement due to any cause whatsoever beyond its reasonable control and constituting Force Majeure and any time limit imposed for performance of any obligation shall be extended by a period corresponding to the period of such inability provided always that the party so prevented from performing shall give immediate notice to the other of the Force Majeure setting out full details (so far as they are available) of the circumstances claimed to constitute Force Majeure and the estimated duration of the period of Force Majeure and provided that the party seeking to rely on this clause uses all reasonable endeavours to remove the circumstances of Force Majeure and to resume performance of its obligations hereunder. In the event circumstances of Force Majeure prevent the performance by one party of its obligations for a period of twenty working days or more the other party may terminate this agreement without penalty except that sums accrued due prior to the effective date of termination.
If a dispute or difference arises between the Client and LGE out of under or in relation to the Agreement (including as to its existence or validity) each party will within seven (7) working days of one party notifying in writing the other that a dispute or difference has arisen appoint a representative to negotiate with the other party in order to attempt to resolve the matter. The appointed representatives will have all authority necessary to agree to settle or compromise the dispute or difference.
Neither party will institute any legal or other proceedings (but excluding proceedings for injunctive relief or of an interlocutory nature) until the negotiations referred to above have continued for at least twenty eight (28) days, or both representatives agree to terminate the negotiations, whichever shall first occur.
Notices to be served by LGE on the Client shall be sent to the address of the Client as stated in the Agreement, or such other address as the Client may have notified in writing to LGE. Notices to be served by the Client on LGE shall be sent to the following address:
Director of Trading and Operations
LG Energy Group Limited
5&6 Croft Court
Whitehills Business Park
Notices shall be deemed properly served if correctly sent by prepaid registered mail to the relevant address aforesaid, in the case of such service such notice shall be deemed to have been received by the party served at 10.00 hours on the next Working Day after dispatch by Email or two (2) Working Days after the day of posting as the case may be.
- VIRUS PROTECTION
The parties warrant that they shall use industry standard virus checking software before releasing data, software and other encoded information to the other party; and also upon receipt of data, software and other encoded information from the other party.
17.1 LGE and the Client agree that the Agreement incorporating these Terms and Conditions is the complete and exclusive statement of the Agreement between the parties which supersedes all proposals or prior agreements, oral and written, and all other communications between the parties relating to the subject matter of the Agreement.
17.2 LGE shall not assign the Agreement or any of its rights hereunder without the prior written consent of the Client.
17.3 LGE is an independent contractor and nothing in the Agreement shall be deemed to constitute a partnership or any employment relationship between the parties nor shall anything in the Agreement be deemed to constitute one party the agent of the other for any purpose.
17.4 The Agreement may only be modified by written agreement duly signed by both parties, in the case of LGE, by a person authorised on its behalf and, in the case of the Client, by a duly authorised employee of the Client.
17.5 If at any time any one or more provisions of the Agreement become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
17.6 No relaxation, forbearance, delay or indulgence by either party in enforcing any of the terms and conditions of the Agreement or the granting of any time by either party shall prejudice or affect or restrict any of that party’s rights, and nor shall any waiver by either party of any breach operate as a waiver of any subsequent or continuing breach.
17.7 Headings in these Terms and Conditions are for ease of reference only and shall not affect its construction or interpretation.
- GOVERNING LAW
The Agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the English Courts.