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Terms and Conditions
Energy Balance LLC; Effective Date: 20-May-2019  


i. DEFINITIONS

“Agreement” is a consultancy engagement for the Company’s Services that may include a Statement of Work;

“Business Day” is a day other than a Saturday or Sunday when U.S. banks are open for their full range of business banking transactions;

“Company” is Energy Balance LLC;

“Deliverables” are the outputs from the provision of the Services including those described in any Scope of Supply or Statement of Work;

“Goods” are those physical items, software products, and software applications that are the subject of an order placed by the Client; 

“Intellectual Property” is all patents, rights to inventions, utility models, copyright and related rights, trademarks, trade, business and domain names, rights in goodwill and to sue for passing off, rights in design, rights in computer software, database rights, moral rights and other intellectual property rights, in each case whether registered or unregistered and including all applications for and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world;

“Quotation” is pricing document for Goods and Services that may include a Scope of Supply;

“Scope of Supply” is the Company’s description of Deliverables for a quoted project;

“Services” are units of work, travel, and reporting that are the subject of an order placed by the Client;

“Statement of Work” is a statement agreed between the Company and the Client from time to time specifying works to be carried out by and deliverables to be provided by the Company;

“Terms” are the Terms and Conditions described herein.

1. GENERAL

The Terms shall apply to and be deemed to be included in any purchase order or contract for sale of Goods or Services entered into with the Company, howsoever arising. Where such Terms are in conflict with those set out in any specification, quotation, offer to purchase, or order received from the Client, these conditions shall prevail unless otherwise agreed by the Company in writing. 

The headings herein are for convenience only and shall not affect its interpretation. Use of the word “including” is without prejudice to the generality. Any reference in these Terms to any provision shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

2. STATUS

The Company and the Client are independent entities and nothing contained in these Terms shall or shall be capable of creating or constituting between them any partnership or joint venture or any relationship of employment or agency.

The Company shall have no authority to incur any liability or expense on behalf of the Client or to make any promise, representation or commitment that might be binding on the
Client without the prior written consent of the Client.

3. PROVISION OF SERVICES

The Company shall provide and perform the Services on these Terms, and will do so in compliance with all applicable laws, regulations, codes of practice and professional standards; with reasonable skill and care; in accordance with these Terms, including the timescales specified in any Statement of Work.

4. PERSONNEL

The Company shall use reasonable endeavors to ensure that the same personnel provide the Services in order to maintain consistency and build a relationship with the Client, and to ensure that its personnel comply with the Client’s site regulations when the Company’s personnel are on the Client’s premises.

The Client shall not at any time during the term of any Agreement or for a period of six (6) months following its expiry or termination employ or solicit for employment or engage on any basis any member of the Company’s personnel, whether employed or engaged on some other basis by the Company. The Client acknowledges the cost to the Company of losing and replacing any such person and the Client agrees that if it breaches this clause, the Client shall pay to the Company an amount equal to the person’s aggregate annual gross compensation package.

5. CLIENT OBLIGATIONS

The Client shall make such decisions and provide such instructions as the Company shall require and at the time that the Company requires to enable the Company to provide the Services. The Client acknowledges that the Company’s ability to provide the Services and to meet any time frame agreed for the provision of the Services is dependent on the Client providing that information and access and providing those decisions and instructions at the times required by the Company. The Client shall provide the Company with such information and access to such facilities and personnel as the Company shall reasonably require in order to provide the Services.

6. DELIVERY

The delivery schedule will be specified by the Company in the Quotation. When an order is placed for Goods or Services to be supplied to the Client against time schedules sent to the Company from time to time by the Client, the quantity of Goods or Services stated in the order must be accepted by way of delivery within twelve (12) calendar months from the date of the order or such other period as the Company has agreed in writing to the Client.

The time of delivery of Goods stated in a Quotation is the time of dispatch from the Company's offices or the time of acceptance by the Client. Any time limit issued by the Client or the Company shall commence from the receipt by the Company of definite written instructions to proceed or upon receipt of necessary information including completed drawings, materials, and patterns if these are to be supplied by the Client, whichever is the later. In the event of the suspension of the work or the delay of dispatch upon the Client's instructions or by the lack of or ambiguity of the Client's instructions or any delay caused beyond the reasonable control of the Company including, but without prejudice to the generality of the foregoing, strikes, lock outs, war, fire, floods, defects in material not supplied by the Company, or any suspension of work, the Client shall grant a reasonable extension of time to the Company and the Company shall be at liberty to increase the quoted price to cover extra expenses incurred by the delay.

7. PACKING AND SHIPPING

Unless otherwise specified by the Company in the quotation all packing cases for Goods are non-returnable and will be charged for as required.

The right is reserved to charge packing and shipping on all orders of Goods from the Company's operating address in the United States to the point of delivery. When Goods are consigned in accordance with the Client's instructions by other means involving extra costs, the excess over and above the normal carrier charges will be chargeable. For export, delivery FOB charges will be included as part of the unit cost shown on the invoice and payable by the Client unless otherwise specifically shown in the quotation. The Company's responsibility for Goods sold FOB ceases immediately when such Goods are delivered to the place of embarkation or shipment.

8. CONFIDENTIALITY

The Company and the Client may during the course of an Agreement and in connection with provision of Goods or Services obtain information relating to the other party which is not made available generally by that other party (“Confidential Information”). The receiving party shall keep all information identified as Confidential Information confidential and not disclose it to any person, save as required by law), and use the Confidential Information only for the purpose for which it was provided and for no other purpose.

9. INTELLECTUAL PROPERTY

Any pre-existing Intellectual Property of either party that are made available for use in connection with the provision of the Services shall remain vested with the original party. The other party shall have a license to use those rights so far as may be necessary to enable that party to provide or to enjoy the benefit of the Services. The Company warrants to the Client that the Deliverables will not in any way infringe the Intellectual Property of any other party and the Company will indemnify the Client and keep the Client fully indemnified in respect of any losses, liabilities, demands, actions and claims that the Client might incur or suffer as a result of any breach of this warranty.

The Company shall have no liability when an alleged infringement arises from the Client using the Deliverables in any manner or for any purpose other than those for which they were provided. If indemnity related to the use of Deliverables is called upon, the Client shall promptly notify the Company in writing of the claim, give the Company such assistance and information that the Company reasonably requires, make no admission or settlement without the Company’s prior written consent, and allow the Company to have control over the conduct of the relevant elements of the claim, including any litigation.

Subject to these Terms and receipt of any applicable payments, all software Goods provided by the Company to the Client are provided subject to a non-transferable, non-exclusive license to use the software Goods in object code format only. The Company reserves all rights to the software Goods not expressly granted. Except as set forth in these Terms, no express or implied license, moral rights, or other right of any kind is granted to the Client regarding the software Goods. Without limiting the foregoing, and except as set forth otherwise in these Terms, the Client shall not, nor permit others to: (i) store, run, display, load, use, produce, receive, reproduce, copy, market, sell, rent, distribute, transfer, translate, modify, adapt, disassemble, decompile, or reverse engineer the Company's Goods; or create derivative works based thereon, any portions thereof or using any information derived from the Company’s Goods; (ii) obtain possession of any source code or other technical material related to the Company’s Goods.

All Intellectual Property rights that are created in the course of the provision of Services and in the Deliverables shall belong to the Company. The Client shall have a royalty free, perpetual license to use those rights as envisaged by the Agreement to enable the Client to have the benefit of the Services and the Deliverables for use within the Client’s own business.

10. PRICES AND PAYMENTS

Quotation prices are valid for 30 days unless specified otherwise. Any purchase order received after the expiry of a Quotation may be subject to revision. The Company also reserves the right to revise its prices where an estimate is based on a stated quantity which is greater or less than the quantity ordered.

The Company shall charge by invoice on an agreed schedule and the Client shall pay the amounts set out or calculated in accordance with the relevant Quotation. Where the prices are to be calculated on a time and materials basis, the Company may increase those prices upon giving not less than thirty (30) days’ written notice to the Client. The Client shall pay all valid and properly submitted invoices not later than thirty (30) days after they are received or at such other times as may be specified in the invoice. Where the Goods or Services provided are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the installments in accordance with these conditions or any claim by the Client in respect of any one or more installment shall not entitle the Client to treat the Contract as a whole as repudiated.

If the Client does not pay any invoice by the due date for payment the Company may, without prejudice to any other rights and remedies that it may have, suspend provision of the Services until payment in full without any set-off or deduction and including any interest and late fees is received.

11. DURATION

These Terms shall commence on the earlier of the dates stated in an Agreement or purchase order, and shall continue in force, subject to early termination in accordance with Clause 11, until terminated by either party giving to the other not less than thirty (30) days’ notice, such notice to expire at any time.

12. TERMINATION

Either party may terminate an Agreement immediately on notice to the other party if that other party ceases operating or is in material breach of any of the Terms and, where the breach is capable of being remedied, fails to remedy the breach within twenty (20) Business Days of service of written notice specifying the breach and requiring it to be remedied. Termination shall not affect any right or remedy which has accrued due at the time of termination.

It is understood that termination may be in respect of any individual Statement of Work, Scope of Supply, or in respect of these Terms. Upon termination for any reason and at the end of the provision of the Services, the Company shall return all property, equipment, documentation and other items provided to it by the Client in connection with the provision of the Services.

13. LIABILITY

The Company shall have no liability to the Client in connection with these Terms for any loss of profits, loss of revenue, loss of business, loss of contract, loss of goodwill, loss of data or failure to make anticipated savings or any indirect or consequential loss, whether this results from breach of contract, negligence or otherwise.

Nothing in these Terms shall limit or exclude the liability of either party for death or personal injury caused by the negligence of that party, its employees, agents or sub-contractors, or for fraud. The maximum aggregate liability of the Company to the Client under or in connection with these Terms and whether resulting from breach of contract, negligence or otherwise shall not exceed the amount payable by the Client under the relevant Agreement six (6) months prior to the date on which such liability arises or one million dollars ($1,000,000), whichever is lower.

14. FORCE MAJEURE

Neither party shall have any liability for any failure to perform or delay in performing any of its obligations under these Terms if and to the extent that such failure or delay is caused by reasons, circumstances or events beyond the reasonable control of that party. If a party is affected by any circumstance or event beyond its reasonable control, that party shall notify the other party as soon as reasonably practicable and the parties shall each use all reasonable endeavors to minimize the impact on the obligations that are affected.

15. NOTICES

Any notices that are required under this these Terms shall be in writing and shall be served on the relevant party at its registered office address, either by personal delivery, in which case they shall be deemed to be served when delivered, or registered mail, in which case they shall be deemed to be served on the third (3rd) Business Day after the day of posting.

16. RESOLUTION OF DISPUTES

If any differences or disputes arise between the Company and the Client in connection with these Terms, they shall use all reasonable endeavors to resolve them by discussions between themselves internally at the working level before escalating the issues through their respective management structures or engaging third parties.

17. LEGAL JURISDICTION

Agreements with the Company and these Terms and everything arising in connection with it, including non-contractual matters, shall be construed and have effect in accordance with the laws of Ohio and are subject to the jurisdiction of such courts. The legal construction of the clauses herein shall not be affected by any marginal notes. 

The unenforceability or invalidation of any part of the foregoing terms and conditions or any clause thereof shall not render unenforceable, invalidate or otherwise affect any other part of the said foregoing terms and conditions or clauses thereof.

18. SEVERABILITY

If a party does not on any occasion insist on the strict observance or performance of any rights under or of any provision of these Terms, that will not amount to a waiver of those rights or that provision.

The unenforceability or invalidation of any part of the foregoing terms and conditions or any clause thereof shall not render unenforceable, invalidate or otherwise affect any other part of the said foregoing terms and conditions or clauses thereof.

If any provision or part-provision of these Terms are or becomes invalid, illegal, or unenforceable, the Terms 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 partial-provision shall be deemed deleted. Any modification to or deletion of a provision or partial-provision under this clause shall not affect the validity and enforceability of the rest of the Terms.

19. ENTIRE DOCUMENT

The Company and Client agree that this document contains the entire Terms between the parties and that these shall not be modified, changed, altered or amended in any way except through a written amendment signed by authorized representatives of both parties. If either party wishes to propose a change to the Services or any other provision of these Terms, that party shall inform the other party of the proposed change and the parties shall work together to determine whether they are willing and able to agree new terms that are necessary to implement the change.


Copyright © 2021 Energy Balance LLC.  All Rights Reserved.
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