Terms and Conditions for Total Energy Management (TEM) Service
These terms govern the Total Energy Management service supplied by Best Energy Ltd, trading as Best.Energy (the Provider), to the business customer named in the signed project agreement (the Client). They form part of that agreement. The savings guarantee applies where it is expressly included in the signed Agreement.
1. Service and project scope
1.1 The Provider will review energy consumption recorded by the project's monitoring equipment, identify improvements, support agreed energy management actions and report performance.
1.2 Recommendations and performance reports may be provided through the monitoring platform, email, meetings or another agreed format. The Client will allow reasonable access to the premises and relevant personnel where needed to deliver the Service.
1.3 The Provider will carry out the Service with reasonable care and skill. Where offered, the Guarantee in clause 6 concerns verified consumption savings achieved during the relevant period. Forecast savings and opportunities awaiting implementation do not satisfy it.
2. Information and data
2.1 The Client will promptly provide, when requested, accurate and complete information reasonably required for the Service, including energy bills, tariff records, operating hours, occupancy and production information and details of relevant operational changes. Each party will promptly correct errors it discovers in information it supplies.
2.2 The Client owns its supplied information and the consumption data generated at its premises. The Client permits the Provider to collect, retain and use those data to deliver and verify the Service, administer this Agreement and develop its products and analysis. Any external benchmarking or publication must use data that do not identify the Client or its premises, unless the Client agrees otherwise.
2.3 Both parties will comply with applicable data protection requirements. The Provider will maintain appropriate security for Client data. Where a separate personal-data processing agreement is required, the parties will put it in place before that processing begins. Retention and use remain subject to confidentiality and applicable law.
2.4 The Provider retains rights in its software, analytical methods, report formats and other intellectual property, excluding Client-owned data. The Client may use the supplied reports and agreed Service outputs for its own business purposes, including verification of the Guarantee and disclosure to its professional advisers under confidentiality obligations.
3. Recommendations and Client cooperation
3.1 The Client will appoint one or more informed Energy Champions, maintain the agreed monitoring connectivity and provide reasonable cooperation, site access and operating information. The Provider will maintain an implementation plan via an ‘Actions Table’ recording the actions, approvals, responsibilities and timescales on which the Guarantee depends, including Viable Recommendations notified during the Service under clause 6.10.
3.2 The Client remains responsible for approving operational changes and ensuring that implementation by its own personnel or contractors is safe and suitable. The Provider remains responsible for its own work and advice, subject to clause 4. The Provider will obtain approval before making material changes to the Client's equipment or operating settings.
3.3 Entitlement to the Guarantee is conditional on the Client approving, funding, implementing and maintaining the Viable Recommendations described in clause 6.10 within the reasonable timescales specified. This includes recommendations involving additional capital expenditure with a simple payback of ten years or less, unless a different payback limit has been expressly agreed in writing. The Client may choose not to proceed, but the consequences for Guarantee cover in clause 6.10 will apply. Separate purchasing approval does not allow the Client to decline a Viable Recommendation while retaining unconditional Guarantee cover.
3.4 The Provider is not responsible under the Guarantee for the effects of the Client's failure to implement or maintain Viable Recommendations, subject to the notice, evidence and suspension provisions in clause 6.10. Those provisions determine eligibility for Guarantee cover; they do not allow forecast savings from an unimplemented measure to be reported as achieved savings.
4. Liability
4.1 Neither party limits liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, or any liability which the law does not permit it to exclude or restrict.
4.2 Subject to clause 4.1, the Provider is not responsible for indirect or consequential loss, or loss of profit, revenue or business opportunity. This exclusion does not exclude a payment expressly due under the Guarantee.
4.3 Subject to clauses 4.1 and 4.4, the Provider's aggregate liability for claims arising from the same event or connected events is limited to the TEM Service fees paid by the Client for the three months immediately before the first such event. The exclusion and limit apply only to the extent permitted by applicable law.
4.4 Guarantee payments are separate payment obligations governed by clause 6.11. They are not reduced by the service-fee cap or other loss exclusions in this clause. The maximum Guarantee payment for a Reporting Period is that period's eligible asset lease cost. There is no entitlement to recover the same shortfall twice, including under another project guarantee.
5. Duration and termination
5.1 The Service begins on the date specified in the Agreement. Either party may end it by giving at least 28 days' written notice, unless the signed Agreement expressly specifies a different minimum term or notice period.
5.2 Termination ends future Service delivery and future Guarantee cover. It does not remove payment obligations, confidentiality duties or Guarantee rights attributable to a period before termination.
5.3 The Client's hardware purchase or asset lease remains a separate obligation. Ending TEM or receiving a Guarantee payment does not cancel, reduce or transfer any payment owed to a third-party finance provider. The Client must continue paying that provider under its own contract.
6. Savings guarantee
6.1 Application and assessment period
6.1.1 Subject to the Client satisfying the implementation and other conditions in clause 6.10, the Guarantee is a commitment that the value of the qualifying consumption savings, calculated under this clause, will equal or exceed the eligible asset lease costs for each covered Reporting Period. It covers asset lease costs only. Service charges remain payable and are not guaranteed to be recovered through savings.
6.1.2 The Guarantee applies only to the premises, energy type, original project equipment and lease payments recorded in the signed Agreement. Each covered premises is a Site. Unless that schedule states otherwise, the covered energy is electricity, gas, water and any other fuels in use at the site (eg. Oil, LPG).
6.1.3 The first Reporting Period is the 12 months beginning on the Guarantee Start Date. Subsequent periods run consecutively for 12 months while the Service and eligible asset lease remain in force. The Start Date is the recorded installation completion date unless another date is expressly agreed. Progress reports during a year are provisional; there is no separate monthly payout obligation.
6.1.4 Each Site and each energy type must have its own baseline and applicable tariff.
6.2 Eligible asset lease costs
6.2.1 Eligible Asset Lease Cost, referred to as L, is the total scheduled asset rental payable for the original project equipment during the Reporting Period, excluding VAT. For a constant monthly asset rental, L is that monthly rental multiplied by 12 for a complete year. For a rental where payment is taken quarterly, that quarterly rental is multiplied by 4 for a complete year. Any scheduled rental changes must be recorded at the outset.
6.2.2 L excludes TEM, service, maintenance and separately charged software or licence fees, whether billed separately or bundled into another payment. A bundled charge must be apportioned in the signed schedule. L also excludes deposits, upfront installation charges, insurance, penalties, arrears charges, termination costs and any final purchase or balloon payment, unless expressly included in the signed schedule.
6.2.3 The rental includes the ordinary financing cost already contained in the agreed asset lease instalment. Refinancing, extra equipment or changed rental terms do not increase L without a written variation signed by both parties. For a partial period, only the eligible rental attributable to the covered days counts.
6.3 Baseline and measurement plan
6.3.1 Before the Guarantee starts, the parties will record a measurement and verification plan. It must specify the measurement boundary, baseline dates and consumption, included assets, source data, normalisation models, relevant operating factors, treatment of data gaps and reporting dates.
6.3.2 The baseline should normally represent the 12 months before the project and include seasonal variation. A shorter baseline may be used only where both parties agree a representative annual profile and its supporting evidence. A full year's baseline consumption within the relevant Site and energy boundary is B, measured in kWh.
6.3.3 Every calculation must use comparable boundaries and periods. The Provider will retain the evidence needed to reproduce the result. In order to calculate a relevant baseline and performance against it, the Client must fulfill their obligations against clause 2.1 promptly. Failure to provide information reasonably requested, voids the Guarantee.
6.4 Tariff used to value savings
6.4.1 The Applicable Tariff, T, is the higher of the Client's unit energy tariff at the Guarantee Start Date and its latest evidenced replacement unit tariff effective on or before the last day of the Reporting Period. A tariff starting after that date is not used for that period. Interim reporting uses the corresponding reporting date.
6.4.2 T is expressed in pounds per kWh, excluding VAT and standing, capacity or other fixed charges. For a time-of-use or multi-rate tariff, each tariff is converted to a comparable average using the same agreed baseline consumption weights. This prevents a change in the consumption mix from changing the basis of the comparison.
6.4.3 The higher of those two rates is used to value all qualifying savings for the Reporting Period and to calculate its required savings percentage. If an intermediate tariff was higher but is no longer the latest tariff at period end, it is not used. The Client will supply evidence of tariff changes. Until reliable replacement tariff evidence is available, the starting tariff applies, subject to later correction.
6.4.4 This is an agreed contractual valuation. It may differ from the reduction shown on actual bills, because it can use the higher tariff and a normalised or asset-based result.
6.5 Required savings percentage
6.5.1 The monetary Guarantee Threshold is L. Its equivalent required consumption reduction is calculated as follows: divide L by the product of B and T, then multiply by 100. B and T must both be positive.
6.5.2 The required percentage is recalculated for each Reporting Period using its Applicable Tariff. It therefore reduces when the Applicable Tariff rises, if lease costs and the baseline are unchanged. A tariff below the starting tariff does not increase the requirement beyond the starting-tariff calculation. There is no separate fixed percentage hurdle.
6.5.3 The initial schedule must show the monthly eligible rental, annual L, B, starting tariff and initial required percentage. Any agreed boundary adjustment or lease variation must show its effect on these figures. No revision may be made unilaterally simply because performance has fallen short.
6.6 Raw and normalised savings
6.6.1 Raw savings are the agreed baseline consumption less measured consumption for the corresponding Reporting Period, without adjustment for ordinary changes in weather, occupancy, production or operating hours. The boundary and data corrections in clauses 6.3 and 6.8 still apply.
6.6.2 Normalised savings compare the same baseline with measured Reporting Period consumption adjusted to the agreed baseline operating conditions. The adjustment must use the documented model and evidenced factors, such as weather, output, occupancy or operating hours. Each asset model must use conditions consistent with the Site baseline. A model must not be selected or changed retrospectively merely to improve the result.
6.6.3 Normalisation must be based on measured performance during the Reporting Period. Proposed measures, theoretical opportunities and forecast future savings do not qualify. The savings attributable to a measure introduced part way through a period count only for the time it operated within that period; they are not extrapolated to a full year for settlement.
6.7 Sitewide and accumulated asset savings
6.7.1 The Provider will calculate all results for which adequate evidence is available: raw Sitewide savings, normalised Sitewide savings, accumulated raw asset savings and accumulated normalised asset savings. The largest valid kWh result is used. If every valid result is negative, qualifying savings are zero. A result that cannot be substantiated is unavailable, not assumed to be zero.
6.7.2 Sitewide savings compare consumption across the full agreed Site boundary. Accumulated asset savings are the sum of savings for assets affected by the actions taken within the scope of the project. An asset saving is its baseline consumption less its measured or normalised consumption, as applicable.
6.7.3 Asset savings are added in kWh. Individual asset percentages are not added or averaged. All four results are divided by the same Site baseline B and multiplied by 100 to express their equivalent Site consumption reduction. An asset saving must not be divided only by that asset's baseline and then treated as a Sitewide saving.
6.7.4 Overlapping meters, interactions between measures and transfers of consumption must be reconciled so that the same saving is counted once. Measured increases within the included asset group, including increases caused elsewhere by an included measure, must be deducted. An asset result must not exceed the consumption available to be saved within its properly reconciled baseline boundary.
6.7.5 Raw and normalised results are compared as complete period totals. They must not be mixed by selecting the better result for each month or asset. Sitewide and accumulated asset totals are alternatives and are not added together. Savings from the Client's own implemented actions may count where they satisfy the same evidence and boundary requirements.
6.8 Changes in operation and missing data
6.8.1 Ordinary operating variations may be reflected in the raw and normalised calculations under clause 6.6. A permanent closure, material change of floor area, transfer or removal of major loads, changed metering boundary or other structural change must be documented and reflected consistently in the affected baseline and reporting data. The parties will agree any necessary change to the scope or allocation of L in writing.
6.8.2 The measurement plan must distinguish reduced consumption from reduced grid imports. On-site generation, battery operation, fuel switching or a supply tariff change does not itself establish a consumption saving. Generation and storage flows must be reconciled so that only evidenced consumption reductions count under this Guarantee.
6.8.3 Missing or unreliable data must be identified. Where a reasonable, evidenced estimate can be made under the agreed measurement plan, it may be used and must be disclosed. Missing readings must not be treated as zero consumption. If a method cannot be supported, another valid method will be used; if none can be supported, clause 6.12 applies. A failure attributable to the Provider does not automatically invalidate the Guarantee.
6.9 Valuation and achievement
6.9.1 Qualifying Savings, S, are the highest valid kWh savings determined under clauses 6.6 to 6.8, subject to a minimum of zero. The Achieved Savings Percentage is S divided by B, multiplied by 100. The Qualifying Savings Value, V, is S multiplied by T.
6.9.2 For a period covered by the Guarantee, the Guarantee is met when V equals or exceeds L. This is equivalent to the Achieved Savings Percentage equalling or exceeding the required percentage under clause 6.5. The same baseline, tariff, scope and period must be used for both sides of that comparison. Entitlement to cover and any Shortfall Payment remains subject to clause 6.10.
6.9.3 Each Reporting Period is settled separately. A surplus in one period cannot be carried forward or back to offset another period's shortfall. Savings may recur in later periods only where continued performance is evidenced for those periods.
6.10 Viable recommendations and conditions of Guarantee cover
6.10.1 The Guarantee is expressly conditional on the Client paying undisputed TEM fees when due, providing the cooperation required by clause 3, and implementing and maintaining all Viable Recommendations within the reasonable timescales notified under this clause. These conditions apply to recommendations made at the outset and during the Service. A recommendation need not have been included in the original equipment package or implementation plan to qualify.
6.10.2 A Viable Recommendation is a fair and reasonable energy-saving measure that is technically practicable at the Site, can be implemented safely and lawfully, and does not cause disproportionate disruption to the Client's business. Recommendations requiring additional capital expenditure are expressly included where their evidenced simple payback is ten years or less, unless the parties have expressly agreed a different payback limit in writing. The need for capital expenditure does not, by itself, make a recommendation optional for Guarantee purposes or make it unfair, unreasonable or non-viable.
6.10.3 Simple payback means the reasonably estimated total implementation cost divided by the reasonably estimated annual net financial savings. Both figures must use a consistent VAT basis. Costs of implementing a recommendation do not increase the Guarantee Threshold.
6.10.4 The Provider will notify each Viable Recommendation in writing, stating the proposed action, expected savings, estimated implementation cost, payback where applicable, Client responsibilities and a reasonable implementation deadline. The deadline must allow for reasonable assessment, approvals, procurement and installation. Unless the Client agrees otherwise, it must allow at least 20 Business Days from receipt for a viability objection under clause 6.10.5. No additional purchase is authorised merely by making the recommendation.
6.10.5 A Client disputing viability must provide its reasons and supporting evidence in writing within 20 Business Days of receiving the recommendation, or promptly after a relevant issue could reasonably have been discovered. Evidence may concern technical feasibility, safety, legal restrictions or disproportionate operational burden. A preference not to spend capital, refusal to approve a budget, or an internal payback target shorter than the agreed limit does not by itself establish non-viability. The Provider will consider the evidence reasonably and respond with reasons. A recommendation shown not to meet clause 6.10.2 will be withdrawn or revised, and declining it will not prejudice the Guarantee. Unresolved disputes follow clause 6.12. An objection alone does not establish that a recommendation is non-viable; any Guarantee consequence must reflect the eventual determination and a reasonable implementation deadline in light of it.
6.10.6 If the Client fails to approve, fund, implement or maintain a Viable Recommendation by the applicable deadline, the Client recognises that this will impact their Guarantee cover status.
6.10.7 If the failure to implement continues and materially prevents achievement or reliable verification of the Guarantee, Guarantee cover for the affected Site is suspended. The Provider has no obligation to achieve the Guarantee Threshold or make a Shortfall Payment for the period suspended.
6.10.8 Cover resumes once the relevant failure has been remedied and any evidenced continuing impact preventing delivery or verification has ended; the Provider must promptly confirm the resumption date and must not unreasonably delay reinstatement. Excluded dates or scope must remove the corresponding lease costs and savings consistently, using the relevant baseline profile for the covered period. Forecast savings must never be added to achieved savings to compensate for non-implementation. The reconciliation must show any suspension and its effect on the calculation. A dispute about viability, implementation or suspension follows clause 6.12.
6.11 Annual reconciliation and shortfall payment
6.11.1 Within 60 calendar days after each Reporting Period, the Provider will issue a reconciliation showing L, B, T, the supported raw and normalised results, the selected result, the required and achieved percentages, V and any shortfall. It must identify estimates, excluded methods and material adjustments, with supporting calculations available to the Client.
6.11.2 Subject to entitlement to Guarantee cover under clause 6.10, the Shortfall Payment equals L less V, subject to a minimum of zero and a maximum of L. Both L and V must exclude any period or scope properly suspended under that clause. The Provider will pay the undisputed amount within 30 calendar days after the end of the month in which the reconciliation was issued. No separate claim is required for a shortfall shown in the Provider's reconciliation. An agreed service credit may replace cash only with the Client's written consent.
6.11.3 The Client should raise a substantiated calculation query within 20 Business Days of receiving the reconciliation. Failure to raise a query in that period does not cancel a payment already due or prevent correction of a material error. A Business Day means a weekday other than a public holiday in England.
6.11.4 Where information is missing, the Provider will issue its report on time using available evidence, explain what remains outstanding and pay any undisputed amount. A delayed or omitted report does not postpone the due date for an undisputed payment beyond 61 calendar days after period end. Any additional payment established by agreement or determination is due within 31 calendar days afterwards.
6.11.5 Within 30 calendar days after reporting a shortfall, the Provider will also provide a corrective action plan for the next period. The plan does not defer payment or itself reduce the next period's Guarantee. Additional equipment or chargeable work requires separate written purchasing approval. If that work is a Viable Recommendation, refusing that approval remains subject to the Guarantee conditions in clause 6.10.
6.11.6 Subject to clause 4.1, the Shortfall Payment is the Client's exclusive monetary remedy for failure to reach the savings threshold itself. It does not replace a claim for a separate breach of the Provider's obligations, although the same loss cannot be recovered twice. No payment is due for future lease instalments outside the relevant covered period.
6.12 Measurement disputes
6.12.1 The parties will first try to resolve a dispute about calculation, measurement, recommendation viability or Guarantee suspension through their nominated representatives within 20 Business Days of written notification. They will share the records reasonably needed to assess the disputed issue. Undisputed sums remain payable on time.
6.12.2 If unresolved, the parties may jointly appoint an independent energy measurement specialist to determine the technical issues as an expert. Unless otherwise agreed, its determination is binding except for manifest error or fraud. The expert may allocate its reasonable costs by reference to the parties' positions and conduct; otherwise they share those costs equally. If appointment cannot be agreed within a further 10 Business Days, either party may pursue the dispute under clause 8.
7. Confidentiality
7.1 Each party will protect the other's confidential commercial, operational and technical information, use it only for the purposes permitted by this Agreement, and disclose it only to personnel, contractors or professional advisers who need it and owe appropriate confidentiality duties.
7.2 This obligation does not apply to information that is lawfully public, already held without restriction, independently developed or lawfully received from another source. Disclosure required by law is permitted, with prior notice where lawful and reasonably practicable. These duties continue after the Service ends.
8. Applicable law and disputes
8.1 The laws applicable in England and Wales govern this Agreement and related non-contractual claims. Subject to the technical expert process in clause 6.12, disputes fall within the exclusive jurisdiction of the courts there.
9. Contract documents and changes
9.1 The signed Agreement and these terms together form the Service contract. In a conflict, a project-specific provision in the signed Agreement takes priority only where it expressly identifies the provision being varied. Otherwise these terms apply.
9.2 Those documents replace earlier discussions and representations about the Service, without excluding liability for fraud or any other liability which cannot lawfully be excluded. Hardware and finance contracts continue on their own terms.
9.3 Changes require written agreement by authorised representatives. Updating terms on a website does not retrospectively change an existing signed project. Notices may be sent to the contract contacts and email addresses recorded in the Agreement.
10. Events outside reasonable control
10.1 A party affected by an event beyond its reasonable control must promptly notify the other party, explain the likely impact, take reasonable steps to reduce that impact and resume affected obligations as soon as reasonably practicable.
10.2 Relief applies only to obligations actually prevented by the event and only for the affected time. Any Guarantee adjustment must consistently address the affected period, scope, baseline and lease allocation, using the principles in clause 6.10 and the dispute process in clause 6.12 where needed. Payment obligations already accrued remain payable.
11. Charges and payment
11.1 TEM charges are set out in the Agreement and are payable within 21 days after the invoice date unless that agreement expressly states otherwise. VAT is additional where applicable. Asset lease instalments are payable separately under the finance agreement.
11.2 Overdue undisputed Service charges may bear simple interest at 6 percentage points above the Bank of England base rate per year, calculated daily, to the extent permitted by law. The Provider may suspend the Service after written notice and at least 14 days to remedy non-payment. Effects on Guarantee cover are governed by clause 6.10.
12. Recruitment of personnel
12.1 Without the Provider's written agreement, the Client must not directly target for recruitment or consultancy engagement an employee materially involved in delivering its Service during the Service term or for 24 months afterwards. General recruitment advertising and approaches initiated independently by the employee are excluded.
