HEMS Terms and Conditions Of Sale

Introduction

These Terms and Conditions of Sale (“Agreement”) govern all contracts for the supply of goods and/or services by Hills Energy Management Solutions Ltd, a company registered in England and Wales (Company No. 0907082) with its registered office at Cranmore Place, Cranmore Drive, Solihull, B90 4RZ (“Seller”), to any buyer (“Buyer”) placing an order with the Seller. 

1. Application and Entire Agreement

1.1.  All Orders for goods and/or services (“Order”) are accepted only on these terms. No Buyer terms or conditions shall apply, and these Terms and Conditions of Sale shall at all times supersede, override and prevail over any conflicting Buyer terms.  No terms or conditions submitted by the Buyer (whether in a purchase order, confirmation, or other document) shall apply, even if the Seller does not expressly reject them.

1.2.  No variation of this Agreement shall be binding unless it is agreed in writing, signed by an authorized representative of the Seller and expressly identifies the date and time of execution (“Date-Time Stamp”). Each such agreement, bearing its unique Date-Time Stamp, shall apply solely to the specific quotation or purchase order it references and shall not, in whole or in part, apply to any subsequent quotation or purchase order. 

1.3.  This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, negotiations and agreements, whether written or oral. 

2. Definitions and Interpretation

2.1.  “Agreement” means these Terms and Conditions of Sale. 

2.2. “Buyer” means the party placing an Order. 

2.3.  “Goods” means all equipment, parts and materials supplied under an Order. 

2.4.  “Services” means installation, maintenance, commissioning, consulting or related work performed under an Order. 

2.5.  “Order” means a purchase order or written instruction referencing a Seller quote. 

2.6.  “Site” means the Buyer’s premises or location where Services are performed. 

2.7.  “Handover” means formal completion of installation and acceptance testing on Site. 

2.8.  “Force Majeure Event” means an event beyond a party’s reasonable control, as defined in clause 11.1. 

2.9.  References to “writing” include email and electronic signature. 

2.10. “Distributor” means the Seller’s authorized supplier or manufacturer responsible for assessing and processing RMAs.

2.11. “Defects Liability Period” means the 12-month period following Handover during which warranty claims may be raised.

2.12. “Business Days” means Monday to Friday, excluding public holidays in England.

3. Orders and Acceptance

3.1.  The Buyer shall submit Orders via email, referencing a written quote provided by the Seller. Orders must be in writing and reference a valid Seller quotation; no work will commence without a valid purchase order, and verbal instructions or informal text messages shall not constitute binding Orders.

3.2.  The Seller’s electronically signed order confirmation shall constitute a valid written agreement for acceptance under this Agreement. 

3.3.  Acceptance of an Order occurs upon email order confirmation or first performance of any Services, whichever is earlier. 

3.4.  These Terms and Conditions apply to all Orders, and no bespoke Buyer terms shall apply. 

4. Pricing and Payment

4.1.  Prices are those quoted in writing by the Seller and are exclusive of VAT and any other applicable taxes or duties, which shall be added at the prevailing rate.

4.2.  Invoicing shall occur at the end of each month for all Goods delivered and Services performed during that month. For multi-month projects, each month’s work constitutes a separate application for payment, supported by evidence of completed works. 

4.3.  For any project extending beyond six months from the date of the initial quotation, the Seller may review and adjust quoted prices to reflect genuine increases in its material or labour costs. Any proposed adjustment will be notified to the Buyer in writing at least thirty (30) days before its intended effective date and will apply only to work performed after that date. No price increase under this clause shall take effect without the Buyer’s written consent. 

4.4.  Payment is due within 30 days of the invoice date. 

4.5.  Interest shall accrue on any overdue amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998, being Bank of England base rate plus 8% per annum, such rate to update automatically in line with any change to the base rate. 

4.6.  The Buyer may not withhold payment, set off amounts or apply deductions unless expressly agreed in writing by the Seller. 

5. Delivery, Risk and Title

5.1.  The Seller will deliver the Goods to the Buyer’s Site using the Seller’s couriers or agents. Delivery is complete when the Goods are unloaded at the agreed location and signed for by the Buyer or the Buyer’s authorised representative. The Buyer is responsible for site access and handling.

5.2.  Risk in the Goods passes to the Buyer on delivery under clause 5.1 or, if earlier, when the Goods are first permanently fixed to the Site. First fix means the initial permanent attachment or incorporation of the Goods into the Site.

5.3.  Title to the Goods remains with the Seller until the earlier of payment in full of all amounts due in respect of those Goods or the Seller’s prior written waiver.

5.4.  Until title passes the Buyer must hold the Goods separate and identifiable as the Seller’s property, insure them to full replacement value for the Seller’s benefit and provide evidence of insurance within seven days of request. The Buyer grants the Seller and its agents the right of peaceful entry on reasonable notice to inspect or repossess Goods on the Buyer’s premises and must cooperate with repossession. If the Buyer fails to insure the Seller may procure insurance and charge the Buyer.

5.5.  If the Buyer sells or otherwise disposes of Goods before title passes the Buyer must hold the proceeds on trust for the Seller in a separate account, account to the Seller on receipt and, if requested, assign to the Seller the Buyer’s rights against the purchaser.

5.6.  If the Buyer becomes insolvent, an administrator or receiver is appointed, ceases trading, or otherwise fails to pay when due, the Seller may suspend deliveries, recover Goods, enter the Buyer’s premises where legally permitted to repossess them, and resell or dispose of them. The Seller may apply net proceeds to the Buyer’s debt and return any surplus. The Buyer must indemnify the Seller for reasonable repossession, storage, sale and enforcement costs.

5.7.  The Buyer must notify the Seller in writing immediately of any actual or likely insolvency, administration, receivership or material deterioration in its ability to pay debts as they fall due.

5.8.  These provisions preserve ownership of the Goods with the Seller until payment and are not intended to create a charge over the Buyer’s assets. If the Seller reasonably requests further security or registration to perfect its retention of title the Buyer shall promptly execute and deliver documents and comply with reasonable steps to register security. The Seller may charge interest on overdue amounts and recover its reasonable collection costs.

6. Site Readiness and Buyer Obligations

6.1.  The Buyer shall ensure the Site is ready for the Seller’s attendance, including safe, powered, weather-proof work areas, necessary permits, access keys or badges, and accurate as-built drawings or system diagrams. 

6.2.  If the Site is not ready on the agreed dates, the Seller may charge for additional attendance, stand-by time, and any wasted journey or labour costs. Any resulting delay shall not constitute a breach of contract or entitle the Buyer to claim liquidated damages, service credits, or other compensation.

6.3.  The Buyer shall comply with all Site-specific safety rules and regulations and shall promptly notify the Seller of any hazards or restrictions. 

7. Changes and Variation Control

7.1.  Any variation to the scope of Goods or Services beyond the written quote must be submitted as a Change Request by the party proposing the change. The Change Request must describe the change and state the revised price, schedule impact and any other affected terms.

7.2.  The Buyer must accept or reject a Change Request in writing within 14 days of receipt. No Change Request is effective unless and until the Buyer’s written acceptance is received.

7.3.  The Seller shall not implement any Change Request until the Buyer’s written acceptance is received. The Seller may suspend performance of the affected work pending written acceptance and is entitled to charge for time and materials at the Seller’s then‑current rates and to an appropriate extension of time.

7.4.  Where emergency work is necessary to prevent loss, damage or risk to health and safety the Seller may carry out such work immediately. The Seller must notify the Buyer in writing within 48 hours and promptly submit a Change Request for retrospective written approval; the Buyer shall not unreasonably withhold or delay approval of emergency Change Requests.

7.5.  If the parties cannot agree revised pricing or other material terms within 7 days of the Buyer’s receipt of a Change Request, the Seller may suspend the affected work pending agreement. The Buyer must pay for all authorised variations in accordance with this contract and the Seller may charge interest on overdue amounts and recover reasonable collection and enforcement costs.

8. Termination and Suspension

8.1.  Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 30 days of receiving notice. 

8.2.  The Buyer may terminate for convenience by giving at least 60 days’ written notice, subject to payment for all Goods delivered and Services performed up to termination and any reasonable cancellation fees under clause 8.4. 

8.3.  The Seller may suspend performance if the Buyer repeatedly fails to pay, delays Site access, or otherwise breaches its obligations. Such suspension shall be without prejudice to the Seller’s right to terminate under clause 8.1.

8.4.  If the Buyer cancels a booked installation or suspends Services with less than 14 days’ notice, the Buyer shall pay a cancellation fee equal to 50% of the daily labour rate for each day booked and any non-recoverable travel and accommodation costs incurred by the Seller. 

8.5.  On termination, the Buyer shall pay all outstanding invoices and return any Seller materials. Clauses on confidentiality, data protection, limitation of liability and any others which by their nature survive termination shall survive. 

8.6. Any liquidated damages or delay penalties shall be capped at five percent (5%) of the affected Order value.

9. Returns, Warranty and Rejection

9.1.  The Seller warrants that all workmanship and installed parts shall be free from defects for 12 months from Handover. Any refurbished or reconditioned equipment carries the reduced warranty period specified in the quote. 

9.2.  RMA Initiation and Eligibility 

During the 12-month warranty period, and only after the Seller’s on-site diagnosis, the Seller may initiate a Return Merchandise Authorization (RMA) for any unit the Buyer reports as faulty.

9.3.  Standard RMA

Once the Seller confirms a Standard RMA: 

a) The Seller will remove the suspected faulty unit from Site within three (3) business days and ship it, at the Seller’s cost, to its distributor for assessment. 

b) Distributor assessment is targeted at seven to ten (5–10) working days. 

c) The Seller will use reasonable endeavours to minimize any disruption or increased energy usage while the unit is off-site but shall not be liable for any additional energy costs, loss of environmental control or reduced comfort resulting from manual operation of plant during the assessment period. 

9.4.  Advanced RMA 

At the Buyer’s election, the Seller may instead initiate an Advanced RMA:

a) The Seller will procure and ship a like-for-like replacement unit to Site immediately, at the Seller’s cost, to minimize or eliminate system downtime. 

b) The Seller will install and recommission the replacement within five (5) business days of arrival. 

c) The Seller will then return the original unit at the Seller’s cost to the distributor for assessment. 

d) If the distributor confirms a defect, the replacement unit is provided free of charge. 

e) If the distributor deems the original unit repairable, the Buyer shall reimburse the Seller for the total cost of both the replacement unit and the repair cost of the original unit.

9.5.  Labor, No-Show & Repeat-Failure

a) All labour for collection, replacement installation, return logistics and any temporary provisioning during the defects-liability period is included in the quoted fees. 

b) If the Buyer fails to make a scheduled removal or installation appointment, the Seller may charge a no-show fee equal to one day’s labour rate per technician plus any non-recoverable travel or accommodation costs. 

c) If the same unit undergoes more than two RMA procedures within any ninety (90) day period, the Seller reserves the right to require a permanent replacement unit.

9.6.  Except as expressly provided herein, all other warranties, conditions or terms (whether statutory or otherwise) are excluded to the fullest extent permitted by law. 

10. Limitation of Liability

10.1. The Seller’s total liability under or in connection with this Agreement in respect of any Order shall not exceed the total value of the Order to which the claim relates, excluding VAT. This cap applies whether the claim arises in contract, tort (including negligence), breach of statutory duty or otherwise.

10.2. The Seller’s aggregate liability under this Agreement in respect of all Orders shall not exceed the total value of all Orders placed under it, excluding VAT.

10.3. The Seller shall not be liable for indirect or consequential losses, including but not limited to loss of profit, loss of revenue, loss of contracts, loss of goodwill, business interruption or reputational loss.

10.4. The Seller shall not be liable for loss of data, software corruption, or failures resulting from the Buyer’s failure to maintain equipment, follow operating instructions or provide accurate information. The Seller shall not be liable for delays or failures caused by third‑party suppliers, contractors or service providers.

10.5. Nothing in this Agreement shall exclude or limit liability for death or personal injury caused by the Seller’s negligence, or for fraud or fraudulent misrepresentation.

10.6. No claim may be brought more than twelve (12) months after the cause of action arose.

10.7. Notwithstanding any other provision, the Seller’s aggregate liability for claims arising directly from or connected with schematic control design services, control software configuration, graphics configuration or system architecture design, interpretation of tender documents, equipment schedules or written specifications shall be limited to the greater of the total sum paid to the Seller under the Order to which the claim relates, excluding VAT. The Seller shall not be liable for indirect or consequential losses arising from such matters.

10.8. Where the Seller provides schematic control proposals, control software configuration, graphics configuration or system architecture diagrams, the Seller will perform such services with the reasonable skill and care normally exercised by competent specialist controls subcontractors in the UK. The Seller’s responsibility for such items is limited to the design and configuration outputs reasonably necessary to perform the Works. The Seller does not warrant that any design, configuration or graphics will be free from all defects or will achieve any particular operational performance except where expressly and separately guaranteed in writing.

10.9. The Seller’s proposals, quotations, configurations and designs are prepared on the basis of the tender documents, drawings, schedules, specifications and other information provided by the Buyer or its agents. The Seller may carry out reasonable site surveys for its own information only. Such surveys do not transfer responsibility for the adequacy, completeness or accuracy of the Buyer’s information. All proposals, drawings, schedules, configuration files, graphics and instructions issued by the Seller are submitted to the Buyer for review and approval and the Buyer remains responsible for confirming their suitability for the project, subject to Clause 10.10.

10.10. The Seller’s preferred route to formal completion is signed commissioning, witness test or handover documentation obtained prior to payment; however where the Buyer has not signed such documentation prior to payment, the Buyer’s unequivocal written confirmation of willingness to pay, the Buyer’s instruction to pay, or the Buyer’s actual payment of the Seller’s final invoice (each, an “Acceptance Act”) shall, unless expressly agreed otherwise in writing between the parties, constitute satisfactory handover and formal acceptance of the Works for the purposes of this Agreement. An Acceptance Act shall be treated as an acknowledgement by the Buyer that it has assumed the allocation of design and configuration risk and indemnities set out in Clause 10.11 and shall, from the date of the Acceptance Act, limit the Seller’s liability for system performance in accordance with this Clause 10.

10.11. Upon issuance of a Purchase Order or other written instruction to proceed the Buyer accepts responsibility for the adequacy of the design brief, tender documents and third‑party design interfaces and expressly assumes the design/configuration risk allocation set out in this Agreement. The Buyer shall indemnify and hold the Seller harmless from and against all liabilities, losses, costs and expenses including legal costs on an indemnity basis arising from design, specification, configuration or coordination matters for which the Buyer, the Principal Designer, the Principal Contractor or any other appointed designer or contractor is responsible, except to the extent such loss is caused by the proven negligence of the Seller. An Acceptance Act shall be treated as an acknowledgement by the Buyer that it has assumed such liabilities.

10.12. The Buyer acknowledges that the Seller does not hold professional indemnity insurance sufficient to accept full professional design responsibility. Any requirement for the Seller to assume wider professional design responsibility must be agreed in writing in advance and shall be conditional upon revised commercial terms and the Buyer procuring or funding appropriate additional professional indemnity insurance naming the Seller as an insured party.

10.13. Where an Acceptance Act has occurred: (a) the Seller will, where reasonably practicable and at the Seller’s discretion, assist with post‑acceptance commissioning or remedial works required to meet agreed performance targets; (b) remedial works arising from latent defects, third‑party works or changes to the Buyer’s information shall be treated as a variation and charged accordingly; and (c) the Seller’s liability for defects or performance shortfalls subject to this Clause 10 shall be limited to the caps and exclusions set out in this Clause 10.

10.14. The Seller may partner with control panel manufacturers, electrical installers or other subcontractors and will issue work packages and manage such parties in accordance with the Agreement. The Seller shall not be liable for defects, delays or losses arising from the manufacture, supply or installation of plant, panels, equipment or systems by third parties to the extent caused by such third parties. The Buyer shall ensure that third‑party suppliers provide appropriate warranties and insurances and shall indemnify the Seller against liabilities arising from third‑party equipment or integration works except to the extent caused by the Seller’s proven negligence.

10.15. The provisions of this Clause 10, including the indemnities and limitations of liability set out herein, shall survive termination or expiry of this Agreement for any reason.

11. Force Majeure

11.1.  Neither party shall be liable for delay or failure to perform its obligations due to a Force Majeure Event, including acts of God, fire, flood, epidemics, pandemics, war, terrorism, civil commotion, strikes, government action, supply-chain breakdown or inability to obtain materials. Obligations affected by a Force Majeure Event shall be suspended for the duration of the event.

11.2.  The affected party shall notify the other in writing as soon as practicable, and in any event within 14 days of the Force Majeure Event. 

12. Assignment and Subcontracting

13. Roles and Responsibilities

13.1. The Seller acts solely as a specialist controls subcontractor. The Seller is not the Principal Designer, Principal Contractor or lead designer and does not provide mechanical design or mechanical installation works.

13.2. The Buyer shall supply complete and accurate tender documents, drawings, equipment schedules and specifications in a timely manner and shall identify the Principal Designer and Principal Contractor. The Buyer shall review and approve all proposals, drawings, configuration files and schedules issued by the Seller where approval is requested.

13.3. The Seller may carry out reasonable site surveys to inform proposals; such surveys are for the Seller’s information only and do not transfer responsibility for the adequacy, completeness or accuracy of the Buyer’s information. All proposals, mockups, templates, work packages and drawings issued by the Seller are submitted to the Buyer for review and approval.

13.4. The Seller may provide schematic control proposals, control software configuration, and graphics templates or mockups created using the Seller’s configuration and templating tools. These outputs are issued for the Buyer’s review and approval and the Buyer remains responsible for confirming their suitability for the project. Graphics mockups are illustrative and subject to refinement during configuration and commissioning.

13.5. The Seller may issue technical specifications, panel build work packages and installation instructions to control panel manufacturers, electrical installers and other subcontractors and will manage those parties in accordance with the Agreement. Subcontractors remain separate contracting parties; the Seller does not assume third‑party design or manufacturing liability beyond managing and issuing work packages.

13.6. The Seller will provide a witness testing and commissioning programme and will invite the Buyer (or the Buyer’s authorised representative) to attend and sign commissioning records where requested. Where commissioning documentation is signed prior to payment, that sign‑off constitutes formal acceptance. Where the Buyer pays or gives unequivocal written instruction to pay in the absence of prior sign‑off, such payment or written instruction shall constitute acceptance in accordance with Clause 10.10.

13.7. All changes to scope, specification, configuration, graphics, site conditions or work packages shall be managed under the Agreement’s Changes and Variation Control procedure in Section 7. Where Section 7 requires written instruction, quotation or approval for a variation, the parties shall follow that process; any additional works, time or costs arising from a variation shall be governed by the change control provisions in Section 7 and shall be chargeable and subject to programme adjustment as set out in Section 7.

14. Intellectual Property

14.1.  All intellectual property rights in any bespoke software, control logic, dashboards or documentation created by the Seller shall remain the property of the Seller. 

14.2.  The Buyer is granted a non-exclusive, non-transferable, royalty-free license to use such intellectual property for its own internal operations only.  This license excludes any right to sublicense, resell or redistribute the intellectual property.

14.3. The Seller’s deliverables are provided solely for the Buyer’s internal use. No third party shall rely on them, and the Seller accepts no liability to any third party.

14.4. Any advice, recommendations or design input provided by the Seller are for guidance only. The Buyer remains solely responsible for final decisions and outcomes.

15. Health & Safety and Insurance

15.1.  Each party shall comply with all applicable health and safety legislation and Site safety rules. 

15.2.  The Buyer shall maintain appropriate site liability insurance and provide evidence of such cover on request. 

15.3.  The Seller may suspend work immediately if unsafe conditions are identified and shall not be liable for any delays or costs arising from suspension for safety reasons.  Such suspension shall not constitute breach or entitle the Buyer to claim delay penalties or damages.

16. Expenses and Disbursements

16.1.  The Buyer shall reimburse the Seller for reasonable travel, accommodation and subsistence expenses incurred by personnel when attending Sites away from the Seller’s base, at rates agreed in advance or, if not agreed, at the Seller’s standard published rates. 

16.2.  Expenses shall be invoiced monthly in arrears and payable under the same terms as Goods and Services. 

17. Set-Off and Deductions

17.1.  The Buyer shall not withhold payment of any amount due under this Agreement, nor apply any set-off, counterclaim, deduction or withholding unless mandated by law or agreed in writing by the Seller. 

18. Environmental Disposal and Sustainability

18.1.  The Buyer shall be responsible for the disposal of old or decommissioned equipment in compliance with applicable environmental and WEEE regulations and shall indemnify the Seller against any costs or liabilities arising from improper disposal. 

18.2.  Where the Seller removes equipment, any hazardous waste handling fees shall be charged to the Buyer in addition to the Seller’s standard rates. 

19. Confidentiality and Data Protection

19.1.  Each party shall keep confidential all information disclosed by the other that is designated confidential or ought reasonably to be regarded as confidential. 

19.2.  The parties shall comply with all applicable data protection laws, including the UK GDPR and Data Protection Act 2018. Where the Seller processes personal data on behalf of the Buyer, the Seller shall do so as a processor, implementing appropriate technical and organizational measures to safeguard the data. 

19.3.  The Buyer grants the Seller the right to audit, on reasonable notice and during normal business hours, the Buyer’s compliance with data-protection obligations relating to personal data processed under this Agreement. Any such audit shall be conducted in a manner that minimizes disruption to the Buyer’s business.  The Seller shall treat all audit findings and Buyer data with strict confidentiality.

19.4.  Upon termination or expiry, each party shall return or securely delete confidential information and personal data of the other, unless otherwise required by law. 

20. Governing Law and Jurisdiction

20.1.  This Agreement and any dispute arising out of or in connection with it shall be governed by and construed in accordance with the laws of England. 

20.2.  The courts of England shall have exclusive jurisdiction to settle any dispute. 

21. Dispute Resolution

21.1.  The parties shall attempt to resolve any dispute promptly by good-faith negotiation. 

21.2.  All disputes not resolved by negotiation shall be referred to mediation under the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure, or such other body as the parties may mutually agree.  Mediation shall be non-binding unless the parties agree otherwise in writing.

21.3.  No legal proceedings may be commenced until the notifying party has served a written “Letter Before Action” and allowed at least 21 days for the other party to remedy the matter. 

22. General Provisions

• Severability: If any provision is held invalid, the remainder shall continue in full force. 
• Waiver: No failure to enforce any right is a waiver of that right. 
• Headings: Headings are for convenience only and shall not affect interpretation. 
• Third-Party Rights: No one other than the parties may enforce this Agreement under the Contracts (Rights of Third Parties) Act 1999. 
• Notices: All notices shall be in writing and delivered by email or registered post to the addresses above.  Notices shall be deemed received on the next business day following delivery by email or registered post.
• Interpretation: Words denoting persons include corporations; singular includes plural and vice versa.