Clause 1 – Definitions

In these RESERO Limited Terms and Conditions and the Engagement Letter the following terms shall have the following meanings:

1.1 “Client”: the person, firm or company to whom RESERO is to provide Services in accordance with the Terms of Business.

1.2 “RESERO”: RESERO Limited, whose registered office is at The Pump House, Coton Hill, Shrewsbury, SY1 2DP

1.3 “RESERO Terms and Conditions”: these RESERO standard terms and conditions of business.

1.4 “Engagement”: the Client’s appointment of RESERO to provide particular Services pursuant to the Terms of Business.

1.5 “Engagement Letter”: the RESERO letter for an RESERO business line issued to the Client which identifies particular Services to be provided by RESERO and that sets out other terms and conditions that shall form part of the contract of engagement RESERO and the Client, together with the RESERO Terms and Conditions and any documents cross-referenced in and/or attached to the RESERO letter.

1.6 “Force Majeure Event”: an event falling within the definition set out at Clause 14.1.

1.7 “GDPR” means the General Data Protection Regulation (EU) 2016/679.

1.8 “Intellectual Property Rights”: all patents, rights to inventions, copyrights and related rights, brand names and logos, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, website rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, 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.

1.9 “Party”: RESERO or the Client as the case may be.

1.10 “Personal Data” shall have the meaning assigned to it in the GDPR.

1.11 “Processing” and “Processor” shall have the meanings assigned to them under the GDPR.

1.12 “Services”: specialist consultancy services relating to the application of energy and sustainability solutions to commercial real estate to be provided by RESERO to a Client as more particularly identified in an Engagement Letter or, where no Engagement Letter has been issued, that are the subject of a Client instruction to RESERO to proceed to act on the Client’s behalf.

1.13 “Terms of Business”: subject to Clause 24.7, the RESERO Terms and Conditions and any applicable Engagement Letter.

Clause 2 – Scope of Business

2.1 Where the Client appoints RESERO to provide Services, the appointment shall be on the basis of the RESERO Terms and Conditions and any applicable Engagement Letters. The purpose of an Engagement Letter shall be to address business line and project specific issues, including without limitation the precise scope of Services, timescales for deliverables and fee levels as well as certain other terms and conditions.

2.2 In carrying out the Services, RESERO shall exercise the reasonable care and skill to be expected of a competent provider of services similar in scope, nature and complexity to the Services. No other warranty or representation, express or implied, shall apply under and/or in connection with the Engagement.

Clause 3 – Fees and Expenses

3.1 All fees for performance of the Services shall be calculated in accordance with the fee structure set out in the Engagement Letter.

3.2 The Client shall reimburse to RESERO all expenses properly incurred by it in the performance of the Services, including without limitation, travel expenses, accommodation, subsistence, telephone, postage, copying, photography, advertising and any other goods and services purchased in connection with the performance of the Services.

3.3 The Client shall pay to RESERO all fees when they become due for payment in accordance with the terms of the Engagement Letter. RESERO reserves the right to require payments to be made on account before commencing or completing any Services. In such event, the amount of the on-account payment shall be calculated having regard to the programme for performance of the Services and the likely timing and amounts of expenses to be incurred.

3.4 Fees stated shall be exclusive of value added tax which, where applicable, shall be charged to the Client at the prevailing rate.

Clause 4 – Payment

4.1 Invoices are payable by the client within 28 days of the date of the invoice.

4.2 All payments due to be made to RESERO under the Terms of Business shall be made without set-off or counterclaim and free of and without deduction for any taxes, levies or duties of any description. If the Client is required at any time by any applicable law to make any such deduction from any payment, the sum due in respect of such payment shall be increased such as shall result (notwithstanding such deduction in RESERO’s receipt on its due date) in a net sum equal to the sum RESERO would have received had no such deduction been required.

4.3 RESERO may charge the Client interest (both before and after any judgment) on the balance of any unpaid invoice, at the rate of 3 % per annum over the Bank of England base rate. Such interest shall run from the due date of settlement of the invoice until the date payment of the balance is received.

Clause 5 – The Client’s Obligations

5.1 The Client shall pay to RESERO all fees, expenses and value added tax, as required pursuant to Clauses 3 and 4. Without derogating from any other remedies contemplated in the RESERO Terms and Conditions, RESERO may suspend and/or cease further work on behalf of the Client in the event of non, partial or late payment of any RESERO invoice.

5.2 The Client shall provide to RESERO all information reasonably required, and at the necessary times, to enable RESERO to carry out the Services pursuant to the Terms of Business.

5.3 The Client acknowledges that RESERO is entitled to rely upon the accuracy, sufficiency and consistency of any information supplied to it by the Client. RESERO shall have no liability for any inaccuracies contained in any information provided by the Client or any third party on behalf of the Client, including without limitation in respect of any incorrect or inadequate recommendations suggested or conclusions drawn during the performance of the Services based on the inaccurate Client information.

5.4 The Client authorises RESERO to speak to or meet with any third party it may need to contact in order to provide the Services. RESERO may release to such third party for the purpose of the Services any information reasonably necessary to perform the Services and which it has obtained during the Engagement, provided that where appropriate and reasonable RESERO enters into a confidentiality agreement with such third party.

Clause 6 – Intellectual Property

6.1 RESERO is the beneficial owner of all Intellectual Property Rights arising out of or in connection with the provision of the Services to the Client.

6.2 Subject to all payments due under the Engagement having been paid, the Client shall have an irrevocable, royalty free, non-exclusive, non-transferable licence to copy and use all materials created by or on behalf of RESERO (and in relation to which RESERO is the beneficial owner of the Intellectual Property Rights) for any purpose relating to the Engagement.

Clause 7 – Electronic Communications

7.1 Neither Party shall be liable for any loss arising from the other Party’s receipt of any information, data or communications supplied or sent electronically, where such loss is due to any virus, worm, trojan virus or other malicious software contained or incorporated in any such information, data or communications. The Parties shall use all reasonable procedures to seek to ensure that any materials sent by any electronic medium and/or by computer disc to the other Party are virus free.

7.2 Subject to Clause 21, either Party may communicate with the other Party by email.

Clause 8 – Documents

8.1 The provision of the Services is for the Client’s benefit only. No part of any report or advice produced by RESERO for the Client shall be reproduced, transmitted, copied or disclosed to any third party without the prior written consent of RESERO (excluding any professional advisor of the Client in which case no prior written consent of RESERO shall be required) and RESERO shall not be liable to any third party, which relies upon any such report or advice.

8.2 After completing an Engagement, RESERO shall be entitled to retain any Client papers and documents until all payments due under the Engagement are outstanding, and the Client hereby consents to such retention.

8.3 RESERO shall keep its Engagement files for 6 years after issue of RESERO’s final invoice, on the basis that RESERO shall have the Client’s authority to destroy the files upon the expiry of that period unless the Client has beforehand requested in writing the return of Client papers or documents. RESERO shall not be liable for any loss of documentation after the stated retention date.

8.4 The Client shall be responsible for RESERO’s charges in producing any documentation which the Client requires in order to comply with a third-party request for disclosure under the Freedom of Information Act 2000 (FOIA). For the avoidance of doubt, the Client, not RESERO, shall liaise with such third party.

Clause 9 – Confidentiality

9.1 RESERO shall seek the Client’s prior consent to RESERO announcing without limitation, through advertising, and by references in proposals or submissions to prospective clients, that it is providing or has provided the Services to the Client. Such consent shall not be unreasonably withheld or delayed by the Client.

9.2 The Client shall keep confidential and not disclose to any other person (whether before or after termination or expiry of the Engagement): (a) any information received by it in respect of the methodologies and/or technologies used by RESERO in providing the Services; (b) the details of the commercial terms on which RESERO provides the Services; and (c) any other information in respect of RESERO’s business activities which comes into its possession as a consequence of RESERO providing the Services and which is not publicly available.

9.3 RESERO shall keep confidential and not disclose to any other person (whether before or after termination or expiry of the Engagement) any information in respect of the Client’s business activities which comes into its possession as a consequence of RESERO providing the Services and which is not publicly available.

9.4 The provisions of Clauses 9.2 and 9.3 shall not apply to either Party to the extent that disclosure is required by law or regulatory authorities or is made to the respective professional advisers of the Parties.

9.5 The provisions of this clause 9 shall survive the termination or expiry of this Agreement

Clause 10 – Professional Indemnity Insurance

10.1 RESERO shall effect and maintain professional indemnity insurance with a limit of indemnity of no less than £5 million provided always that such insurance remains available at commercially reasonable rates.

Clause 11 – Non-Solicitation by Client

11.1 The Client shall not offer employment to any employee of RESERO working on an Engagement for the Client or induce or solicit any such RESERO employee to take up employment with the Client for a period of 6 months following the end of any involvement by that person with any Engagement for the Client.

11.2 In the event that the Client breaches Clause 11.1, RESERO shall be entitled to be paid compensation by the Client equal to 6 months’ salary of the employee concerned.

Clause 12 – Limitation of Liability

12.1 Subject to the remaining provisions in this Agreement, RESERO shall be liable to the Client for any expense, loss or damage suffered by or occasioned to the Client to the extent caused by fraud, wilful neglect, bad faith or any material breach of this Agreement on the part of RESERO or RESERO’s workforce.

12.2 RESERO shall not be liable for any special, indirect or consequential loss or damage, nor for any claim for loss of profits or business revenue, loss of reputation, loss of goodwill, loss of business or business opportunities, loss of anticipated saving, or loss or corruption of data suffered by the Client in connection with the Engagement (including as a result of an action brought by a third party).

12.3 Without prejudice to the other sub-clauses of Clause 12, where the Engagement involves RESERO being appointed as part of a Client project team, liability for loss and/or damage arising under or in connection with the Engagement shall be limited to that proportion of the Client’s loss and/or damage which it would be just and equitable to require RESERO to pay having regard to the extent of RESERO’s responsibility for the same and on the basis that (i) all other Client consultants and contractors shall be deemed to have provided contractual undertakings on terms no less onerous than this Clause 12.3 to the Client in respect of the performance of their services in connection with the project; (ii) there are no exclusions of or limitation of liability nor joint insurance or co-insurance provisions between the Client and any other party referred to above; and (iii) such other Client consultants and contractors shall be deemed to have paid to the Client such proportion which would be just and equitable for them to pay having regard to the extent of their responsibility.

12.4 RESERO shall have no duty or liability in tort to the Client save that nothing in this Clause 12, or in the Engagement, shall exclude or restrict any liability either Party may have for death or personal injury arising out of negligence.

12.5 Notwithstanding anything to the contrary contained elsewhere in the Engagement, the total liability of RESERO arising under or in connection with an Engagement shall not exceed £5,000,000.

Clause 13 – Money Laundering Procedures

13.1 The Client shall provide all necessary cooperation so as to ensure that RESERO is able to meet its obligations under the Proceeds of Crime Act 2002 and Money Laundering Regulations 2007.

Clause 14 – Force Majeure

14.1 Neither Party shall be deemed to be in default or liable to the other Party for any matter whatsoever for including, without limitation, any delays in performance or failure to perform or to comply with the Terms of Business due to any cause beyond such Party’s reasonable control and not attributable to its negligence, wilful default, fraud or bad faith including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications, network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to such Party’s workforce) provided that such Party shall use all reasonable efforts to minimise any loss or damage suffered by the other Party.

14.2 Each Party agrees to give notice forthwith to the other upon becoming aware of a Force Majeure Event, such notice to contain details of the circumstances giving rise to the Force Majeure Event.

14.3 If a Force Majeure Event continues for a period of longer than 60 days, the Party not affected by the Force Majeure Event shall be entitled to terminate the Engagement immediately on written notice to the other Party.

Clause 15 – Termination

15.1 Without prejudice to any other rights or remedies a Party may possess:

15.1.1 The Engagement will terminate automatically without notice upon completion of the Services set out in the Engagement Letter, or at such later date as may be agreed between the Parties in writing;

15.1.2 RESERO may terminate the Engagement by notice immediately if the Client has failed to pay an invoice within 30 days of the due date for payment of that invoice;

15.1.3 Either Party may terminate the Engagement by notice immediately if the other Party becomes insolvent;

15.1.4 Either Party may terminate the Engagement by written notice immediately if the other Party is in material breach of its obligations and where such breach is capable of remedy the other Party fails to remedy such material breach within 30 days of receipt of a notice specifying the breach. Where the material breach is irremediable the non-breaching Party may terminate the Engagement immediately on written notice to the other Party.

15.2 For the purposes of Clause 15.1.2, a Party is insolvent if it enters into an arrangement, compromise or composition in satisfaction of its debts or goes into liquidation (in either case otherwise than for the purpose of amalgamation or reconstruction), or has a winding up or bankruptcy order made against it, or it has appointed to it an administrator or administrative receiver or any step analogous to any of the foregoing occurs.

15.3 Either Party may terminate an Engagement by giving not less than 90 days’ written notice to the other. In such event RESERO shall be entitled to payment of fees for the Services it has performed, and payment of the expenses it has properly incurred, up to the date of termination. Where the Engagement Letter does not identify how to calculate the fees that shall be payable where termination under this Clause 15.3 occurs, a fair and reasonable pro rata calculation shall apply having regard to the fees payable for the completion of the Engagement, the expected duration of the entire Engagement and the Services performed prior to termination.

15.4 The expiration or the termination of an Engagement, however arising, shall not operate to affect such of the provisions of the Engagement as are expressed to operate or continue in effect after then and shall be without prejudice to any rights or liabilities accrued at the date of such expiration or termination.

15.5 Client data held by RESERO in an environmental management software system remains the ownership of the Client throughout the engagement and on termination the data will be delivered to the Client as either an SQL database backup, Excel or CSV file within 7 days of termination.

Clause 16 – No Waiver, Partnership or Joint Venture

16.1 No waiver by a Party of any breach by another Party in the performance of any of its obligations under this Agreement shall operate or be construed as a waiver of any other or further breach whether of a like or different character or be effective unless in writing duly executed by an authorised representative of the affected Party.

16.2 The failure by a Party to insist on any occasion upon the performance of the terms, conditions and provisions of the Engagement, or time or other indulgence granted by one Party to another shall not thereby act as a waiver of any breach, as acceptance of any variation, or as the relinquishment of any right under the Engagement, which shall remain in full force and effect.

16.3 An Engagement shall not be interpreted or construed to create an association, joint venture or partnership between the Parties, or to impose any partnership obligation or liability upon either Party.

Clause 17 – Entire Agreement

17.1 The Terms of Business constitute the entire agreement and understanding of the Parties as to the subject matter of the Terms of Business. They supersede any prior agreement or understandings between the Parties and no variation of the RESERO Terms and Conditions or any Engagement Letter shall be binding unless agreed in writing between the Parties.

17.2 The Client expressly acknowledges that it has not been induced to enter into the Terms of Business by any warranty or representation or other assurance not expressly incorporated in the Terms of Business.

Clause 18 – Severability

18.1 If any provision of the Terms of Business is or becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Terms of Business shall not be impaired.

Clause 19 – Contracts (Rights of Third Parties) Act 1999

19.1 RESERO may perform any of its obligations or exercise any of its rights under the Terms of Business through any subsidiary or associated company of RESERO or any holding company of RESERO or any subsidiary or associated company of such holding company but in all other respects no term of the Engagement is intended for the benefit of a third party and the Parties do not intend that any term of the Engagement shall be enforceable by a third party either under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

Clause 20 – Assignment

20.1 An Engagement shall not be assigned or transferred by either Party without the prior consent of the other save that RESERO shall be entitled by writing to the Client to assign all or any of its rights under an Engagement to any company in the same group of companies as RESERO or associated with RESERO.

Clause 21 – Notices

21.1 Any notice or other information to be given by either Party to the other under the Engagement shall be given by:

21.1.1 Delivering the same by hand;

21.1.2 Sending the same by pre-paid registered post; or

21.1.3 Sending the same by email, telex, facsimile transmission or comparable means of communication to the other Party at the trading address given in Clause 21.4.

21.2 Any notice or information sent by post in the manner provided by Clause 21.1.2 which is not returned to the sender as undelivered shall be deemed to have been given on the second day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been returned to the sender, shall be sufficient evidence that the notice or information has been duly given.

21.3 Any notice or information sent by email, telex, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy is sent to the other Party at the address given in Clause 21.4 within 24 hours after transmission. 21.4 The address of either Party for service for the purposes of Clause 21 (but excluding legal proceedings) shall be that of its registered or principal office, or such other address as it may last have notified to the other Party in writing from time to time.

Clause 22 – Miscellaneous

22.1 Each Party warrants that it has power to enter into the Terms of Business and that it has obtained all necessary consents and/or approvals to do so.

22.2 The Engagement shall inure to the benefit of, and be binding upon, the permitted successors and permitted assignees to the Parties.

22.3 No actions or proceedings arising under or in respect of the Engagement shall be commenced against RESERO after 6 years after the date of completion of the Engagement, or such date as may be prescribed by law.

Clause 23 – Dispute Resolution and Governing Law

23.1 In the event that the Client is dissatisfied with the provision of the Services by RESERO under the Terms of Business it must refer such complaint in the first instance to the RESERO director in charge of the Engagement in accordance with the provisions of RESERO’s complaints procedure current at the time of the complaint. RESERO shall supply to the Client a copy of the complaints procedure upon the request of the Client.

23.2 The Parties irrevocably submit to the exclusive jurisdiction of the English Courts, subject to the right of either Party to enforce a judgment obtained in the English Courts in any other jurisdiction.

23.3 The Terms of Business shall be governed by and construed in accordance with English Law.

Clause 24 – Interpretation

24.1 Words importing the singular shall also include the plural and vice versa where the context requires.

24.2 Words importing persons or parties shall include firms, corporations and any other organisation having legal capacity.

24.3 The headings in the Terms of Business are not part of the Terms of Business nor shall they be taken into consideration in its interpretation or construction.

24.4 All references in the Terms of Business to Clause numbers are references to Clause numbers in the RESERO Terms and Conditions and not to those in any other documents forming part of the RESERO Terms and Conditions unless the context otherwise indicates.

24.5 Reference to a statute or statutory provision includes it as from time to time amended, extended or re-enacted.

24.6 These RESERO Terms and Conditions and any applicable Engagement Letter shall be read together as a single document.

24.7 If there is any conflict between the provisions of:

24.7.1 The RESERO Terms and Conditions and any applicable Engagement Letter, the Engagement Letter shall have priority;

24.7.2 An Engagement Letter and any documents cross referenced and/or attached to that Engagement Letter, the Engagement Letter shall have priority.

Clause 25 – Data Protection

25.1 Each of the Parties undertakes and agrees to comply with the applicable provisions of GDPR in relation to the performance of its obligations under the Terms of Business and the collection, holding and Processing of any Personal Data.

25.2 RESERO’s Privacy Notice regarding the manner in which it collects, stores and Processes Personal Data in its performance of the Services, may be found at www.resero.co.uk/privacy. The Privacy Notice also contains information regarding, amongst other things, the types of Personal Data collected by RESERO, the lawful bases for the processing of such Personal Data, who Personal Data may be shared with and the circumstances surrounding such sharing, any international transfers of Personal Data, and the data subject’s rights in relation to Personal Data.

25.3 Where applicable the Parties shall enter into a data processing agreement to regulate any Processing of Personal Data which is due to occur during the course of the engagement or as part of the performance of the Services.

25.4 It is a condition of this Engagement that RESERO may conduct, or request that a third party conduct, a credit reference search on the Client to verify its identity and to assess whether the Client is able to fulfil its payment obligations under the Terms of this Engagement. The Client hereby authorises RESERO to conduct such a search.

Clause 26 – Change Control

26.1 If either Party wishes to change the scope of the Services (including Client requests for additional services), it shall submit details of the requested change to the other in writing.

26.2 If either Party requests a change to the scope or execution of the Services, the other Party shall, within a reasonable time(and in any event not more than five (5) working days after receipt of the request to change), provide a written estimate to the requesting Party of:

26.2.1 The likely time required to implement the change;

26.2.2 Any necessary variations to the Service Charges arising from the change; and

26.2.3 Any other impact of the change on the terms of this Agreement as set out in the commercial proposal.

26.3 If Client wishes RESERO to proceed with the change, RESERO has no obligation to do so unless and until the Parties have agreed in writing the necessary variations to its charges and any other relevant terms of this Agreement to take account of the change