Terms and conditions of supply

1 Definitions

We/us – BRIGHTWATER SERVICES LTD a company registered in Scotland with company number SC514287.

You/your – The company person or people who have entered into the contract with us. If this is more than one company, each company or person will be jointly and severally liable for any money owed to us. This means we will be entitled to claim all of the money owed from any company.

the Act – Water Services Etc. (Scotland) Act 2005

Charges – the charges payable by you for the supply of the Services calculated in accordance with clause 6, using the relevant Tariff. Conditions – these terms and conditions as amended from time to time in accordance with clause 4.2.

Contract – the contract between us and you for the supply of Services in accordance with these Conditions.

Contract Term – the term of the Contract, as specified in the Estimate.

Discount – the difference between the Charges calculated using the Industry Default Tariff and the Charges calculated using the Tariff, where the Tariff Charges have been discounted because the Contract Term is fixed.

Industry Default Tariff – the maximum tariff which we can charge you for Services as set by the Water Industry Commission for Scotland from time to time

the Estimate – our estimate for the Services which will set out details of the Services to be provided, the Contract Term, Tariff and any discounts to be applied to the Tariff

Meter Services – services sub-contracted to a Network Operator including meter repairs, replacements, installations and upgrades.

Network Operator – the statutory water or sewerage undertaker appointed by the Government as the provider of wholesale water and/or sewerage service in the area in which a Premises is located that owns or operated the network through which water and/or sewerage services are supplied to that Premises.

Order – your written acceptance of the Estimate.

Premises – the business address where we will provide the Services as set out in the Order.

Regulatory Body – those government departments and regulatory, statutory and other entities, committees, ombudsmen and bodies which, whether under statute, rules, regulations, codes of practice or otherwise, that are entitled to regulate, investigate or influence the matters dealt with in this Contract.

Services – supply of water and/or the removal of any associated waste including surface water and trade effluent.

Tariff – the tariff for the Services set out in the Order.

2 Contract

2. 1 The Order constitutes an offer by you to purchase Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted by us when we issue a written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).

2.3 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4 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 by, and construed in accordance with the laws of Scotland.

2.5 Any Estimate given by us shall not constitute an Order, and is only valid for a period of 30 days from its date of issue.

2.6 Unless and until otherwise terminated in accordance with clause 5, at the expiry of the Contract Term this Contract shall continue on a rolling monthly basis.

2.7 We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent.

2.8 You shall not, without our prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract.

2.9 We reserve and maintain our rights set out in the Act and our licences.

3 Supply of Services

We have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement or as defined by the network Operator, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.

4 Variation

4.1 We reserve the right to increase any Tariff in the event of any increase in charges by the Network Operator or any Regulatory Body to us. We will notify you in writing of any increase to the Tariff by that of the Network Operator at least 14  days before applying any such increase.

4.2 Where you continue to receive Services after the date of termination of the Contract, we reserve the right to calculate the Charges due in such circumstances using the Industry Default Tariff.

4.3 Other than pursuant to clause 4.1 or clause 4.2, or in accordance with clause 3, no variation of the Contract shall be effective unless it is in writing and signed by both parties.

5 Terminating this contract

5.1 Without limiting its other rights or remedies, either party may terminate the Contract during the Contract Term by giving the other party 20 business days’ written notice.

5.2 At the expiry of the Contract Term, either party may terminate the Contract by giving the other party 20 business days’ written notice.

5.3 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

5.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;

5.3.2 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), 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;

5.3.3 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

5.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

5.4 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if:

5.4.1 you fail to pay any amount due under the Contract on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment; or

5.4.2 you interfere or damage your meter or any other equipment owned by us or the Network Operator.

5.5 Where the Contract is terminated by you during the Contract Term in accordance with clause 5.1, you shall pay, in addition to any Charges due in accordance with clause 5.8.1, a sum equivalent to the Discount you have received from the Commencement Date until the date of termination of the Contract.

5.6 You agree that the sums set out in clause 5.5 represent a fair and reasonable estimate of the losses, costs and expenses which we would suffer in the event of the Contract being terminated by you in accordance with clause 5.1.

5.7 The sums set out in clause 5.5 shall be calculated with reference to actual usage from the final meter reading of the Premises.

5.8 On termination of the Contract for any reason:

5.8.1 you shall immediately pay to us all of outstanding unpaid invoices and
interest (if applicable) and, in respect of Services supplied (including any Services supplied to you after the date of termination) but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;

5.8.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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;

5.8.3 provided all outstanding unpaid invoices are paid in accordance with clause 5.8.1, we will instruct the Network Operator to terminate your supply with effect from 28 days from the date of termination; and

5.8.4 clauses which expressly or by implication survive termination shall continue in full force and effect.

6 Meter readings

6.1 The Charges for the Services shall be on the following basis:

6.1.1 where the Premises has a meter installed:

6.1.1.1 we will make reasonable endeavours to take regular meter readings to calculate the volumetric usage for that period;

6.1.1.2 waste water shall be assumed to be 95% of the water metered to the property unless proven otherwise and amended by the Network Operator;

6.1.1.3 where it is not possible to take a meter reading in accordance with clause 6.1.1, we will estimate usage on historic consumption market data;

6.1.2 Premises and roads drainage shall be measured on the rateable value of the Premises (calculated by the relevant valuation agency in line with the Scottish Water Charges Scheme as amended from time to time); and

6.1.3 where the Premises does not have a meter installed, all Charges shall be calculated on the basis of the rateable value of the Premises (calculated by the relevant valuation agency).

6.2 If you request a test by an independent meter examiner you must pay for the test in advance. If the meter is found to be accurate, applicable charges for such tests will not be refunded. If they are incorrect we will arrange for compensation to be paid.

7 Payments and billing

7.1 We will raise invoices on a monthly basis in advance, and you agree to pay us by Direct Debit on a monthly basis unless agreed otherwise in writing.

7.2 Any invoices shall include any charges to value added tax or any other taxes or levies at the prevailing rate.

7.3 If you fail to make any payment due to us under the Contract by the due date for payment , then you shall pay interest on the overdue amount at the rate of 4% per cent per annum above The Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount. This clause shall survive termination.

8 Limitation of liability

8.1 Nothing in the Contract shall limit or exclude our liability for:

8.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

8.1.2 fraud or fraudulent misrepresentation; or

8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

8.2 Subject to clause 8.1, we shall not be liable to you, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

8.2.1 loss of profits;

8.2.2 loss of sales or business;

8.2.3 loss of agreements or contracts;

8.2.4 loss of anticipated savings;

8.2.5 loss of use or corruption of software, data or information;

8.2.6 loss of damage to goodwill; and

8.2.7 any indirect or consequential loss.

8.3 Subject to clause 8.1, our total liability to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid under the Contract.

8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.5 This clause 8 shall survive termination of the Contract.

9 Your information

We will use information we have about you and your account to administer and manage your account. These uses include, but are not limited to, market research, billing and providing up to date information on water, associated waste efficiency and safety issues. Your records may also be shared with other organisations and used by us to recover debt trace debtors and prevent money laundering or fraud. Unless you tell us otherwise in writing, we will provide you with up to date information on other plans, services and special offers we provide. Calls may be monitored or recorded for training purposes.

10 Access to your premises

You must allow us, the Network Operator or any person authorised by us access to the Premises to carry out the Services or any Meter Services. In an emergency, we or the Network Operator may require you to stop using water or disposing of associated waste. We, and the Network Operator will take reasonable care when working in the Premises.

11 Moving or leaving your premises

You must provide us with at least 14 days’ written notice if you intend to move or leave your Premises. If you fail to notify us of any move we shall have the right to continue to raise invoices and charge for the Services until we receive such notice.

12 Force Majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

13 Entire Agreement

13.11 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.3 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

14 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

15 Third Parties

No one other than a party to the Contract shall have any right to enforce any of its terms.

 

Last updated 05/02/2018