PROVISION OF NON-DOMESTIC EPC – TERMS AND CONDITIONS
BACKGROUND
MEES Solutions Limited (Company No. 10721225), a company registered in England and Wales whose registered office address is 54 Thorpe Road, Norwich, Norfolk NR1 1RY (MEES Solutions) is a provider of Non-Domestic Energy Performance Certificates (EPC). All EPCs must be produced by a Qualified and Accredited Energy Assessor, qualified to cover certain types of buildings. All of MEES Solutions’ Assessors are qualified for Level 4 buildings which will cover almost all Non-Domestic building types. Details of which accreditation scheme monitors the Energy Assessor will be clearly stated on the EPC and disputes may be referred to the scheme in question if they cannot be resolved by the Assessor and/or MEES Solutions.
1. DEFINITIONS AND INTERPRETATION
1.1. In these Conditions, unless context otherwise requires, the following expressions have the following meanings:
Accreditation Body
the relevant body through which the Assessor has obtained their accreditation;
Additional Services
the meaning in clause 6.1 of these Conditions;
Assessor
a qualified and accredited Energy Assessor;
Business Day
any day other than a Saturday, Sunday or bank holiday in England;
Calendar Day
any day, including a Saturday, Sunday or bank holiday in England;
Commencement Date
has the meaning given in clause 2.2;
Conditions
these terms and conditions as amended from time to time;
Contract
the contract between MEES Solutions and the Customer for the supply of the Services in accordance with these Conditions;
Customer
the person or firm who purchases the Services from MEES Solutions;
EPC
Non-Domestic Energy Performance Certificate;
EPC Register
the central Energy Performance of Buildings Register run by the Ministry of Housing, Communities and Local Government (to which all EPCs must be uploaded);
Inspection
an inspection of the Property by an Assessor as set out in clause 4;
Inspection Date
the agreed date on which the Inspection of the Property takes place;
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, right to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
MEES Solutions
MEES Solutions Limited (Company No. 10721225), a company registered in England and Wales whose registered office address is 54 Thorpe Road, Norwich, Norfolk NR1 1RY;
Non-Domestic EPC Methodology and Conventions
the Non-Domestic EPC Conventions for England and Wales, as amended from time to time;
Order
the Customer’s request for the supply of Services;
Project Milestone
the phases of the Services to be provided by MEES Solutions as may be agreed between the Customer and MEES Solutions;
Property
the premises which the Customer owns and/or has a right of occupation in respect of;
Purpose
the meaning in clause 5.5 of these Conditions;
Results
the meaning in clause 5.5 of these Conditions;
SBEM
Simplified Building Energy Model;
Services
the services, including the preparation of the EPC, supplied by MEES Solutions to the Customer as expressly set out in the Quotation. [For the sake of greater clarity unless expressly stated in the Quotation the Services do not include the provision of the 3D modelling file relating to the EPC]; and
Quotation
the quote for the Services issued by MEES Solutions to the Customer.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality.
1.3. A reference to a party includes its personal representatives, successors and permitted assigns.
1.4. A reference to legislation or a legislative provision:
1.4.1. is a reference to it as amended, extended or re-enacted;
1.4.2. includes all subordinate legislation made under that legislation or legislative provision
provided that, as between the parties, no such amendment, extension or re‑enactment made after the Commencement Date shall apply for the purposes of the Contract to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of MEES Solutions and/or the Customer.
1.5. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6. A reference to writing or written include email.
1.7. The headings used in these Conditions are for convenience only and shall have no effect on the interpretation of these Conditions.
1.8. Words imparting the singular number shall include the plural and vice versa.
1.9. References to any gender shall include the other genders.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2. The Order shall only be deemed accepted when MEES Solutions issues a Quotation to the Customer which the Customer accepts, at which point and on which date the Contract shall come into existence (Commencement Date). For the avoidance of doubt, if the Customer does not accept the Quotation in writing, then Customer will be deemed to have accepted the Quotation by continuing to instruct MEES Solutions.
2.3. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.
2.4. Any Quotation provided by MEES Solutions shall not constitute an offer and is only valid for a period of 28 Calendar Days from the date of its issue.
2.5. The Quotation provided is for the provision of a Level 3 or Level 4 EPC. If a Level 5 (DSM) EPC is requested or required then a further Quotation shall be provided to the Customer to account for the additional time and costs associated with preparing a Level 5 EPC, which requires a more in-depth methodology to prepare and incurs higher fees to lodge the same with the EPC Register.
2.6. Any dates for the provision of the Services (including the Inspection Date) or any part thereof given by MEES Solutions or specified by the Customer shall be estimates only. Time shall not be of the essence for the performance of the Services. For the avoidance of doubt, any extension to the estimated dates by MEES Solutions shall not entitle the Customer to a refund and/or a reduction of the fee payable for the Services.
3. CUSTOMER’S OBLIGATIONS
3.1. In advance of the Inspection Date, the Customer shall provide to MEES Solutions the information and documents set out below (where available). It is understood by the Customer that the provision of such information reduces the amount of defaults used by the Assessor and ensures a more accurate rating on the EPC:
3.1.1. scale floor plans of the building(s) comprising the Property including, where possible, elevations, sections and site plans;
3.1.2. fabric information on walls, floors, roofs which may include U-value (thermal transmittance) calculations, information on original construction or evidence of retrofit insolation;
3.1.3. glazing and door specifications or U-values;
3.1.4. details of all space heating/cooling and water heating systems installed, including exact make and model(s), heating and cooling seasonal efficiencies, controls, fuel type, hot water storage size and standing losses and, if possible, HVAC (heating, ventilation and air conditioning) layouts and schematics;
3.1.5. specification (including design and commissioning information on flow rates, heat recovery efficiencies or calculated SFPs) for any ventilation or extraction, local or centralised;
3.1.6. lighting information which could include any original lighting design or lamp/luminaire efficiency information. The Customer should include details of any constant illuminance or PiR controls if relevant;
3.1.7. if any renewable or low/zero carbon technologies are installed, the exact specification of those technologies, details of the manufacturers and copies of the product brochures/MCS certificates;
3.1.8. Air Permeability Certificate (if ever tested); and
3.1.9. details on any BMS systems, metering of HVAC or lighting, monitoring and targeting, power factor calculations, calculated thermal bridges, AHU or ductwork leakage test certificates.
3.2. The Assessor may, if any such information and/or documents set out in clause 3.1 above (or any information and/or documents specifically requested of the Customer by the Assessor) is not provided, then the Assessor shall make allowable assumptions in accordance with the Non-Domestic EPC Methodology and Conventions and may use SBEM default values in the absence of specific information having been provided by the Customer. Neither the Assessor nor MEES Solutions shall be liable should specific information and/or documents be made after the Inspection which was not made available to MEES Solutions prior to the Inspection Date and which would have changed the EPC rating for the Property.
3.3. The Customer shall ensure that the Assessor is given full access to the Property on the Inspection Date (and to any parts of the Property which the Assessor may reasonably require access) so that the Assessor can carry out the Inspection.
3.4. The Customer shall ensure that MEES Solutions are kept fully informed of any health and safety risks which may be present at the Property of which the Assessor should be made aware in advance of the Inspection Date.
3.5. The Customer will make prompt payment of any fees and interest due for the Services in accordance with clause 8.
4. INSPECTION
4.1. Prior to the Inspection Date, the Customer should ensure that MEES Solutions has been provided with:
4.1.1. as much information and/or documentation as set out in clause 3.1 as is reasonably possible; and
4.1.2. details of any health and safety issues present at the Property as set out in clause 3.4.
4.2. The Customer shall agree with MEES Solutions a date and time on which the Inspection will take place (Inspection Date). Whilst MEES Solutions shall endeavour to have an Assessor carry out the Inspection on the agreed Inspection Date, the date and/or time of the Inspection may be subject to change. Should the Inspection Date change, MEES Solutions shall keep the Customer fully informed as to any re-estimated time scales. For the avoidance of doubt, clause 2.6 applies to the Inspection Date (and any revised Inspection Date) and MEES Solutions shall not be liable for any losses suffered by the Customer as a result of any delay in carrying out the Inspection.
4.3. MEES Solutions may use a qualified and accredited consultant Assessor who is not directly employed by MEES Solutions to carry out the Inspection and to prepare the EPC.
4.4. With regards to the Inspection itself:
4.4.1. the Assessor will, in collating data for the EPC whilst carrying out the Inspection, need access to all parts of the Property; failure to grant access to any area of the Property may affect the ability of the Assessor to produce the EPC. The Inspection will only however be an examination of those areas of the Property which are accessible; in other words, visible and readily available for examination from ground and floor levels, without risk of causing damage to the Property and/or injury to the Assessor. Due care is therefore exercised throughout the Inspection regarding safety, practicality and the constraints of being a visitor to the Property (which may be occupied);
4.4.2. furniture, floor coverings and other contents will not be moved or lifted and no part will be forced or laid open to make it accessible;
4.4.3. where necessary, parts of the Inspection may be made from adjoining public property. In certain instances, a ladder may be used, but not more than three metres above ground level;
4.4.4. roof spaces will only be inspected if there is a safely accessible hatch and a safety rail;
4.4.5. the Assessor will take notes, photographs, measurements and make such other records as may be required for the purpose of the production of the EPC. Such documents shall remain the property of the Assessor and will not be provided to any third party other than the relevant Accreditation Body for quality assurance purposes; and
4.4.6. the Assessor reserves the right to cancel the Inspection if the Property or its occupants present a health and safety risk to the Assessor.
4.5. The Assessor will use all reasonable care during the Inspection but will not be liable (to the extent that it is legally possible to exclude such liability) for any damage alleged to have been caused to the Property and/or any of its fixtures and fittings during the Inspection.
4.6. For the avoidance of doubt, the Assessor will not carry out an asbestos inspection of the Property as part of the Inspection and will not be acting as an asbestos inspector in completing an inspection of properties which may fall within the Control of Asbestos in the Workplace Regulations 2002.
5. EPC
5.1. Following the Inspection of the Property, the Assessor will carry out the required modelling and shall produce a draft EPC which will be provided to the Customer for approval.
5.2. MEES Solutions requires the Customer to provide its approval of the draft EPC in writing.
5.3. Once MEES Solutions has received the Customer’s written approval of the draft EPC and payment of all fees and interest in accordance with clause 8, it shall arrange to lodge the EPC to the EPC Register and shall confirm to the Customer once this has been done. The EPC will not be lodged unless and until written approval and payment of all fees and interest in full cleared funds is received.
5.4. Title to the EPC shall not pass to the Customer until MEES Solutions receives payment in full and in cleared funds. For the avoidance of doubt, the sending of the draft EPC to the Customer for approval does not constitute the passing of title to the Customer and the Customer shall not be entitled to submit the draft EPC to the EPC Register on its own behalf and/or to instruct a third party accredited assessor to submit the draft EPC to the EPC Register on its behalf.
5.5. The energy performance rating and recommendations in the draft EPC and EPC (Results) are prepared for and provided solely and exclusively for the purpose of facilitating the discharge by the Customer of their obligations under the relevant legalisation and to assist a Customer in taking decisions for improvements to the energy efficiency of the Property and/or as otherwise specifically set out in the Quotation (Purpose). If a Customer wishes to rely on and /or use the Results for any purpose other than strictly the Purpose, the Customer is permitted to do so only with the prior written consent of MEES Solutions (at its absolute discretion) and which may be subject to additional fees in accordance with clause 8 of these Conditions.
5.6. The Customer is aware and expressly acknowledges and agrees that any energy performance ratings in any draft EPCs and EPCs including predictions of energy performance ratings post improvements having been carried out, are provided based on the version of the government approved methodology for the production of EPCs used at the date of the draft EPCs. Any changes to the said methodology after the date of the production of the draft EPC may result in changes to the (predicted) energy performance rating.
6. ADDITIONAL SERVICES
6.1. If the Customer requests any services additional to the Services set out expressly in the Quotation such as for example:
6.1.1. that MEES Solutions models potential improvements and/or advises on improving the Property’s EPC rating; and/or
6.1.2. permission to use the Results for any purpose other than the Purpose; and/or
6.1.3. the 3D modelling file relating to the EPC for the Property
(Additional Services) then, unless such Additional Services are specifically set out in the Quotation, any such requests for Additional Services will incur additional fees in accordance with clause 8.
6.2. If following MEES Solutions’ advice and/or modelling, any improvement works are subsequently installed at the Property, a mandatory full re-survey is required for the production of an EPC. Any such further Inspection, the preparation of a revised EPC and/or any other related services required will incur additional fees in accordance with clause 8 (unless such Services were specifically provided for in the Quotation).
6.3. All fees due for the initial Inspection, modelling, reporting and preparation of the EPC (including where that EPC is held at draft stage and has not been lodged to the EPC Register) will be due in accordance with clause 8 notwithstanding any further modelling, re-inspection, amended EPC prepared and/or any other related services provided by MEES Solutions.
7. REFERRAL TO THIRD PARTY FOR IMPROVEMENT WORKS
7.1. Should the Customer request that MEES Solutions model potential improvements and/or advise on improving the Property’s EPC rating then MEES Solutions may refer the Customer to a third party contractor (Contractor) to carry out the recommended energy saving improvement works at the Property. If requested to do so by the Customer, MEES Solutions shall:
7.1.1. provide the Contractor with a specification for the improvement works required to achieve the improved EPC rating;
7.1.2. obtain a quote for the improvement works from the Contractor;
7.1.3. on completion of the improvement works, carry out all necessary re-inspections and prepare an updated EPC that reflects the improvement works carried out at the Property; and
7.1.4. carry out any other such works and/or correspondence with the Contractor which may be reasonably required or requested by the Customer from time to time.
7.2. MEES Solutions shall be entitled to charge the Customer an additional fee in accordance with clause 8 for any Services carried out as set out at clause 7.1 above.
7.3. Should the Contractor pay to MEES Solution any form of referral or introduction fee for referring the Customer to the Contractor, then MEES Solutions shall be entitled to receive such a fee and to retain it in full and the Customer consents to MEES Solutions retaining the entirety of any such fee.
7.4. For the avoidance of doubt, the contract for the improvement works shall be between the Customer and the Contractor. MEES Solutions shall not be liable for any of the following:
7.4.1. the timescale for completion of the improvement works;
7.4.2. the quality of the improvement works;
7.4.3. any planning permission and/or building control requirements to install and/or carry out the required improvement works;
7.4.4. any payments due to the Contractor for the improvement works. Any and all such fees will be the sole responsibility of the Customer and shall be paid by the Customer to the Contractor directly;
7.4.5. arranging access to the Property so that the Contractor can carry out the improvement works. The Customer must ensure that access is provided to the Contractor and that they are advised of any relevant health and safety issues. The Customer shall be solely responsible for any abortive fees or penalties due to the Contractor should the Contractor be unable to access the Property to carry out the improvement works; and
7.4.6. the sign off and/or approval of the completion of the improvement works.
7.5. For the avoidance of doubt, any services provided by MEES Solutions pursuant to this clause 7 shall at all times be provided by MEES Solutions as an independent contractor and not as the Customer’s agent. The engagement of MEES Solutions under the Contract does not create any mutual obligations on the part of MEES Solutions to offer or accept any further engagement in respect of any improvement works which may be carried out at the Property and no continuing relationship shall hereby be created or implied.
8. FEES AND PAYMENT
8.1. In consideration for the Services, the Customer shall pay to MEES Solutions the fee set out in the Quotation.
8.2. Should the scope of the Services required by the Customer change from that set out in the Quotation (for example, a Level 5 EPC is required and/or additional services are requested with regards to improvement modelling and/or instructing a Contractor to carry out such improvement works), then MEES Solutions shall be entitled to charge the Customer for such work carried out by either (i) issuing a further Quotation with an updated fee or (ii) if a Quotation is not issued, then to charge for such work based on MEES Solutions’ hourly rate of £100 plus VAT and expenses.
8.3. All fees owed by the Customer to MEES Solutions shall be invoiced as follows:
8.3.1. if expressly agreed by the parties, the fee for the Services will be divided into a series of Project Milestones, each instalment of the fee falling due on the successful completion and acceptance of the relevant Project Milestone; or
8.3.2. otherwise, MEES Solutions shall raise its invoices for completed Services (either in full or in part, as appropriate) at the end of each calendar month.
8.4. All invoices shall fall due for payment in cleared funds within 30 Calendar Days of the date of the invoice. For the avoidance of doubt, time shall be of the essence for payment of the invoice.
8.5. Where the Customer fails to make payment in accordance with this clause 8, then MEES Solutions shall be entitled to charge interest on the overdue sum from the due date up to and including the date of payment of the overdue sum, whether before or after judgment. Interest will accrue each day at 8% per annum above The Bank of England’s base rate from time to time, but at 8% per annum when that base rate is below 0%.
8.6. All amounts due under the Contract shall be paid in full without any set off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. LIQUIDATED DAMAGES
9.1. In the event that the Assessor is unable to access the Property at the agreed time and date for the purposes of carrying out the Inspection (or any subsequent inspections, site visits and/or meetings which may be required from time to time), the Assessor shall wait for a period of one hour after the agreed time, following which, if the Assessor has still not been granted access to the Property then, without prejudice to any rights and remedies available to MEES Solutions, the Customer shall pay, as liquidated damages 20% of the fee set out in the Quotation.
9.2. The Customer may cancel the Contract up to 7 Calendar Days before the Inspection Date. If the Customer wishes to cancel the Contract less than 7 Calendar Days before the Inspection Date, then without prejudice to any rights and remedies available to MEES Solutions, the Customer shall pay, as liquidated damages 50% of the fee set out in the Quotation.
9.3. The Customer shall pay these liquidated damages on demand.
9.4. The parties confirm that the liquidated damages set out in clause 9.1 and clause 9.2 are reasonable and proportionate to protect MEES Solutions’ legitimate interest in the performance of the Services and to cover the costs and expenses suffered by MEES Solutions in the event that the provision of the Services are cancelled or are otherwise delayed due to a failure of the Customer.
10. INDEMNITY
The Customer shall indemnify MEES Solutions against all costs, expenses, damages and losses (including, but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by MEES Solutions arising out of or in connection with the Customer’s failure to perform or discharge its obligations under the Contract and/or the enforcement of the Contract.
11. INTELLECTUAL PROPERTY
11.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by MEES Solutions.
11.2. The Customer grants MEES Solutions a fully paid-up, worldwide, non-exclusive, royalty-free non-transferrable licence to copy and modify any materials provided by the Customer to MEES Solutions for the terms of the Contract for the purpose of providing the Services to the Customer.
12. CONFIDENTIALITY
12.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or any member of the group of companies to which the other party belongs, except as permitted by clause 12.2.
12.2. Each party may disclose the other party’s confidential information:
12.2.1. to its employees, officers, representatives, contractors, subcontractors or advisors who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3. No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1. MEES Solutions has obtained insurance cover in respect of certain aspects of its own legal liability for individual claims not exceeding £5,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover that MEES Solutions has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
13.2. References to liability in this clause 13 include every kind of liability arising under or in connection with this Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3. Nothing in this clause 13 shall limit the Customer’s payment obligations under these Conditions or the indemnity set out in clause 10.
13.4. Nothing in these Conditions limits any liability that cannot be legally limited, including (but not limited to) liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation and breach of terms implied by section 2 of the Supply of Goods and Services Act 1982.
13.5. Subject to clause 13.3 and clause 13.4, MEES Solutions’ liability shall not exceed £5,000,000.
13.6. Subject to clause 13.3 and clause 13.4, MEES Solutions shall not be liable to the Customer for the following types of loss:
13.6.1. loss of profits;
13.6.2. loss of sales or business;
13.6.3. loss of agreements or contracts;
13.6.4. loss of anticipated savings;
13.6.5. loss of use or corruption of software, data or information;
13.6.6. loss of or damage to goodwill;
13.6.7. indirect or consequential loss;
13.6.8. any losses attributable to the Customer failing to comply with its obligations set out in clause 3 of these Conditions and/or otherwise under the Contract, including where any information and/or documents provided by the Customer to MEES Solutions is incomplete, inaccurate or incorrect or use of or reliance on the Results by the Customer for any purpose other than the Purpose;
13.6.9. without prejudice to clause 5.6 of these Conditions, any losses attributable to changes in the government approved methodology for the production of EPCs, including by reason of energy performance ratings being different than predicted post improvements having been implemented.
13.7. Unless the Customer notifies MEES Solutions that it intends to make a claim in respect of an event within 6 months, MEES Solutions shall have no liability for that event. The notice period for an event shall start on the day on which the Customer wishing to make a claim became, or ought reasonably to have become, aware of its grounds to make a claim in respect of the event and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14. TERMINATION
14.1. Without affecting any of the rights or remedies of the parties, the Contract shall automatically expire on completion of the Services by MEES Solutions (being the Services included in the Quotation and any additional Services in relation to which the Customer has instructed MEES Solutions).
14.2. Without affecting any of the rights or remedies of the parties, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1. the Customer fails to make payment of any amount due to MEES Solutions under the Contract on the due date for payment;
14.2.2. the other party commits any other material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 Business Days after receipt of notice in writing to do so;
14.2.3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.2.4. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.2.5. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
14.3. Without affecting any other right or remedy available to it, MEES Solutions may suspend the supply of Services and/or the delivery of the EPC under the Contract and any other contract between the Customer and MEES Solutions if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2.1 to clause 14.2.5, or MEES Solutions reasonably believes that the Customer is about to become subject to any of them.
14.4. On termination of the Contract the Customer shall immediately pay to MEES Solutions all of MEES Solutions’ outstanding unpaid invoices and interest and, in respect of the Services and EPC supplied but for which no invoice has been submitted, MEES Solutions shall submit an invoice, which shall be payable by the Customer immediately on receipt.
14.5. Termination or expiry of the Contract shall not affect the rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.6. Any provision of these Conditions that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
15. FORCE MAJEURE
15.1. MEES Solutions will not be liable for any failure or delay in performing its obligations where that failure or delay results from any cause that is beyond MEES Solutions’ reasonable control. Such clauses include, but are not limited to: power failure, internet service provider failure, strikes, lock-outs or other industrial action by third parties, riots or civil unrest, fire, explosion, flood, storms, earthquakes, subsidence, acts of terrorism (threatened or actual), act of war (declared, undeclared, threatened, actual or preparations for war), pandemic or epidemic or other natural disaster, or any other event which is beyond MEES Solutions’ reasonable control.
15.2. If any event described under this clause 15 occurs that is likely to adversely affect MEES Solutions’ performance of any of its obligations under the Contract:
15.2.1. MEES Solutions will inform the Customer as soon as is reasonably possible;
15.2.2. MEES Solutions’ obligations under the Contract will be suspended and any time limits which may be applicable will be extended accordingly; and
15.2.3. If the event prevents, hinders or delays MEES Solutions’ performance of its obligations for a continuous period of more than 6 months, then either party may terminate the Contract by giving not less that 7 Business Days’ written notice to the other party.
16. ASSIGNMENT AND OTHER DEALINGS
16.1. MEES Solutions at any time may assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other matter with any of its rights or obligations under these Conditions.
16.2. The Customer shall not, with the express written permission of MEES Solutions, assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other matter with any of its rights or obligations under these Conditions.
17. ENTIRE AGREEMENT
17.1. These Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understanding between them, whether written or oral, relating to its subject matter.
17.2. Each party agrees that it shall have no remedy in respect of any statement representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or misstatement based on any statement in these Conditions.
18. VARIATION
No variation of these Conditions shall be effective unless it is in writing and agreed between MEES Solutions and the Customer (or their authorised representatives).
19. WAIVER
No failure or delay by MEES Solutions to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. SEVERANCE
20.1. If any provision or part provision of these Conditions becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions.
20.2. If any provision or part provision of these Conditions is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. JOINT AND SEVERAL LIABILITY
21.1. Where the Customer is made up of more than one entity, each entity shall be jointly and severally liable for the Customer’s obligations under these Conditions.
21.2. MEES Solutions may take action against, or release or compromise the liability of, a co-obligor without affecting the liability of any other co-obligor.
22. NO PARTNERSHIP OR AGENCY
Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any part the agent of another party to make or enter into any commitments for or on behalf of any other party.
23. NOTICES
23.1. Any Notice given to a party under or in connection with these Conditions shall be in writing and shall be delivered by hand or pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case) or sent by email.
23.2. Any notice shall be deemed to have been received:
23.2.1. if delivered by hand, at the time the notice is left at the proper address;
23.2.2. if sent by pre-paid first-class post or other next working day delivery service, on the second Business Day after posting; or
23.2.3. if sent by email, at the time of transmission or, if this time falls outside of business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public bank holiday in England and Wales.
23.3. This clause does not apply to the service of any proceedings or other documents in legal action or, where applicable, any arbitration or other method of dispute resolution.
24. THIRD PARTIES
Unless it is expressly stated otherwise, these Conditions do not give rise to any rights to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions.
25. ADR
In the event that a dispute arises between MEES Solutions and the Customer, then the Customer should in the first instance set out their complaint to MEES Solutions in writing. A copy of MEES Solutions’ Complaints Handling Procedure is available on request. This clause does not affect the Customer’s statutory rights and/or the Customer’s right to seek recourse through the relevant Accreditation Body.
26. GOVERNING LAW AND JURISDICTION
26.1. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed and construed in accordance with the law of England and Wales.
26.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter.