Electric Fleet Referal Agreement
These current Electric Fleet Referral Agreement terms were published on 8th August 2021.
1. Definitions and Interpretations
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement means the Order Form and this agreement for the provision of the Services (as defined below) including any schedules.
Applicable Laws means all applicable laws, regulatory requirements, codes of practice, policy, standard, accreditation terms and guidance in force from time to time in the United Kingdom and/or governing the performance or receipt of the Services, including Data Protection Legislation and the Supply Licence Conditions.
Commission means the commission payable by Octopus to the Introducer under this Agreement, as set out in the Order Form.
Customer means a customer of Octopus (which for the avoidance of doubt includes any of its associated brands) who is supplied Electricity Services and/or Gas Services, and who is not a customer of Octopus (including any of its associated brands) before the Supply Start Date.
Data Protection Legislation means the European Union's General Data Protection Regulation (2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and all applicable laws and regulations relating to the processing of personal data and privacy as amended, re-enacted, replaced or superseded from time to time, including where applicable the mandatory guidance and codes of practice issued by the United Kingdom's Information Commissioner.
Electricity Services means the supply of electricity services provided by Octopus.
Gas Services means the supply of gas services provided by Octopus.
Good Industry Practice means the use of standards, practices, methods and procedures and the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in the same type of undertaking under the same or similar circumstances and conditions as the Introducer.
Group means in relation to a company, that company, any subsidiary or holding company from time to time and any subsidiary from time to time of a holding company of that company.
Intellectual Property Rights means patents, utility models, rights to inventions, training material, copyright and neighbouring and related rights, trademarks 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, database rights, rights 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 all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Introducer means the Fleet Manager as defined in the Order Form.
Losses means where a Customer closes their account for Electricity Services and/or Gas Services after they have become a Customer and switches away to another supplier.
Order Form means the order form between Octopus and the Fleet Manager which incorporates these terms.
Payment Period means 30 calendar days.
Services means where the Introducer discusses switching to Octopus for the provision of Electricity Services and/or Gas Services with a Prospective Customer
Supply Start Date means the date on which a Customer's supply of gas and/or electricity begins to be provided by Octopus and on which the Customer becomes liable to pay charges to Octopus.
Tariff Information means the list of all applicable charges levied by Octopus on Customers for the supply of Electricity Services and/or Gas Services, the tariff details and tariff terms and conditions, all as may be updated by Octopus in its sole discretion and notified to the Introducer from time to time.
Term means the Subscribed Service Period as specified in the Order Form.
Terms and Conditions means Octopus's terms and conditions for the supply of Electricity Services and/or Gas Services to Customers.
2 Appointment and Term
2.1 During the Term, the Introducer agrees to provide the Services in accordance with the terms of this Agreement.
2.2 The parties acknowledge and agree that Octopus is contracting with the Introducer on a non-exclusive basis. Octopus may appoint any party to provide services to Octopus that are the same as or similar to the Services.
2.3 The Introducer shall not make, or permit any person to make, any public announcement, communication or circular concerning this Agreement, the wider transactions contemplated by it, or the relationship between the Parties, without the prior written consent of Octopus.
3 Commission and Invoicing
3.1 There are no payments due to or from either Party for the Services under this Agreement, aside from those detailed in the Order Form. However to the extent any payments are required under this Agreement, each Party shall pay any invoiced amount to the other within the Payment Period. All amounts payable under this Agreement are exclusive of VAT, which may be added to the relevant invoice if appropriate. Octopus shall pay to the Introducer all VAT properly chargeable and charged for the Services.
3.2 Octopus shall have no liability to make any payments to the Introducer other than as expressly set out in the Order Form.
4 Introducer Obligations
From the Commencement Date and during the Term of this Agreement, the Introducer shall provide the Services:
(a) with reasonable care, skill and diligence and in any event in accordance with Good Industry Practice;
(b) only using such sales and marketing materials, and to promote such tariff as set out in the latest Tariff Information, as have been provided by or approved in advance by Octopus, and which have not been withdrawn by Octopus;
(c) in accordance with this Agreement and all Applicable Laws, which for the avoidance of doubt includes the Data Protection Legislation; and
(d) where Octopus has provided an affiliate link to support the Services such link shall only be used in accordance with the express written instruction of Octopus, it shall not be shared with any parties other than as approved by Octopus, nor shall it be used to upload data relating to Prospective Customers unless agreed with Octopus.
5 Intellectual Property
5.1 All Intellectual Property Rights in the Tariff Information and information regarding the Electricity Services and Gas Services, together with any other communications, documentation and materials prepared or supplied by Octopus to the Introducer shall remain the property of Octopus.
5.2 This Agreement does not transfer any interest in Intellectual Property Rights. All Intellectual Property Rights developed or created by a party pursuant to the provision of Services (Created IPR) shall be owned by Octopus.
5.3 Octopus grants to the Introducer a non-exclusive, revocable, personal, royalty-free licence during the Term to use the Created IPR solely to the extent necessary for the other party to carry out its obligations in relation to this Agreement.
6.1 The Introducer acknowledges that any information provided to it by Octopus pursuant to this Agreement shall be considered Confidential Information and shall not use or disclose such information other than as expressly authorised in writing by Octopus.
7 Data Protection
7.1 Controller, Data Subject, Personal Data and Processor shall each have the meanings given in the applicable Data Protection Legislation.
7.2 The Introducer warrants to Octopus on a continuing basis throughout the Term that it has made the appropriate notifications and has complied with the notification provisions under the Data Protection Legislation in respect of its obligations under this Agreement and that performance of its obligations under this Agreement shall not breach or contravene such notification, nor cause Octopus to breach its requirements under the Data Protection Legislation.
7.3 The Introducer warrants to Octopus on a continuing basis throughout the Term that, where it collects any Prospective Customer or Customer personal data, which it subsequently transfers to Octopus, that:
(a) it has collected such data fairly and lawfully;
(b) the disclosure of such data to Octopus for use by Octopus in accordance with its legitimate business purposes is fair and lawful; and
(c) that the Introducer's use of such personal data for the purposes of carrying out its obligations under this Agreement shall not breach the Data Protection Legislation.
7.4 Although the Parties acknowledge that the Data Protection Legislation shall ultimately determine status, they are of the view that they are separate Data Controllers as defined by and for the purposes of the Data Protection Legislation. Each Party agrees that it shall comply with all applicable Data Protection Legislation, including as set out in this Agreement.
7.5 If one Party receives a subject access request in relation to Personal Data held by the other, the other Party holding such Personal Data shall do all things as are reasonably necessary to assist the Party in receipt of the subject access request to perform such compliance obligations.
7.6 Each Party shall ensure that it puts in place appropriate technical and organisational controls to ensure that Personal Data is protected against unauthorised or unlawful processing and against accidental loss or destruction or damage.
7.7 Both Parties agree to maintain a notification with the United Kingdom's Information Commissioner to the extent required under the Data Protection Legislation.
7.8 The Introducer shall fully indemnify and keep indemnified Octopus on demand from and against all costs (including the costs of enforcement), expenses, liabilities, losses damages, claims, demands, proceedings or reasonable legal costs and judgements which Octopus incurs or suffers in respect of any claim or action brought against it by any third party during or after the termination of this Agreement howsoever and whenever arising by the actions or omissions of the Introducer, its officers or employees arising from, or incurred by, reason of any loss, damage or distress suffered by any person as a result of the loss, destruction or unauthorised disclosure of, or unauthorised access to, Personal Data by the Introducer or its officers or employees as a result of any failure to comply with the provisions of this clause 7.
8 Limitation and Exclusion of Liability
8.1 Nothing in this Agreement shall limit or exclude a Party's liability:
(a) for death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors;
(b) for fraud or fraudulent misrepresentation;
(c) for breach of any obligation as to title or quiet possession implied by statute; or
(d) for any other act, omission, or liability which may not be limited or excluded by law.
8.2 Subject to clauses 18.1, neither Party shall have any liability to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with the Agreement.
8.3 Subject to clause 8.1, Octopus’s liability to the Introducer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the amount of Commission for Services properly provided which remain unpaid as at the date of the relevant claim.
9 Termination and Review
9.1 This Agreement shall continue unless and until terminated pursuant to this Clause 9. Other than as set out in this Agreement neither Party shall have any further obligation to the other under this Agreement after its termination.
9.2 Octopus may terminate this Agreement for its convenience on not less than 30 days written notice to the Introducer.
9.3 Octopus may terminate or suspend all or any part of this Agreement with immediate effect if it determines that the ongoing provision of the Services could cause Octopus, or any of its Group Companies to be non-compliant with any Applicable Laws, its business strategies and/or may cause financial or reputational detriment to Octopus.
9.4 Either Party may terminate this Agreement immediately on giving written notice to the other if:
(a) the other Party commits any material or persistent breach of this Agreement and (in the case of a breach capable of being remedied) fails to remedy the breach within 30 days after the receipt of a request in writing from the other to do so;
(b) the other Party has an administrator, administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets; and/or
(c) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
9.5 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
9.6 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
10.1 Neither Party shall, during the Term and for a period of 12 months from the termination of this Agreement (except with the prior written consent of the other Party) directly or indirectly solicit or entice away (or attempt to solicit or entice away) any employee of the other Party who is employed or engaged in the provision of the Services or the carrying out of that Party's obligations pursuant to this Agreement.
10.2 During the Term and for a period of 24 months from the termination of this Agreement (except with the prior written consent of Octopus), the Introducer shall not directly or indirectly solicit or entice away (or attempt to solicit or entice away) any Customer of Octopus. If the Customer approaches the Introducer without any inducement from the Introducer whatsoever, this clause will not apply.
11 Assignment and Other Dealings
11.1 The Introducer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of Octopus.
12 Variation and Severance
12.1 No variation of this Agreement shall be effective unless it is in writing and signed by an authorised representative of each the Party.
12.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
12.3 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted, the provision or part-provision in question shall apply with such deletions as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision in place of the provision so deleted.
13.1 Any notice or other communication given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand, by email or by pre-paid first-class post or other next working day delivery service at its registered office.
13.2 If sent by email, notices to Octopus should be served to both the Octopus Partnership Manager at the time and to firstname.lastname@example.org.
14 No Partnership or Agency
14.1 Nothing in this Agreement is intended to, or shall be deemed to:
(a) establish any partnership between the Parties; or
(b) constitute any Party as the agent of the other Party; or
(c) authorise any Party to make or enter into any commitments for or on behalf of any other Party.
The failure or delay in exercising any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are not cumulative and are exclusive of any rights or remedies provided by law. Any waiver of any breach of this Agreement shall be in writing.
This Agreement may be executed in any number of counterparts, each of which when executed shall be an original and all the counterparts together shall constitute the one agreement.
17 Third Party Rights
Unless expressly provided in this Agreement, no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
18 Entire Agreement
This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral.
19 Governing Law and Jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it shall be governed by the laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
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