Seller Marketplace Agreement

1 BASIS OF CONTRACT

1.1 By registering to sell on the Procenergy Website, you as an individual or the company, firm, or body corporate on behalf of which you are registering (referred to herein as the "Seller") agree to be bound by this agreement which is by and between Procenergy and the Seller. By pressing the "Accept" button during the registration process you acknowledge that you have read and understood and agree to all of these terms and conditions.

1.2 The terms of this agreement apply to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2 INTERPRETATION

The following definitions and rules of interpretation apply in this agreement.

2.1 Definitions:

"Business Day"

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

"Client"

a person with whom Procenergy has entered into a Relevant Contract on behalf of the Seller.

"Commission"

has the meaning given to it in clause 13.2.

"Content"

all text, images, descriptions, data, information, or materials uploaded to the Procenergy Website or otherwise provided to Procenergy by or on behalf of the Seller in relation to the Services and pursuant to the Marketplace Services.

"Delegate"

a person enrolled upon or attendee of any course, class, programme or other training or educational Service of a Seller.

"Delegate Gateway"

the online account page and interface on the Procenergy Website via which a Delegate may access, manage or otherwise administer their training history, records, and documents relating to the provision of Services by a Seller, or otherwise manage or administer its account on the Procenergy Website.

"Derivative Content"

original content contained on the Procenergy Website that is based on the Content, including any abridgement, amendment, extrapolation, extension, condensation or any other form in which a work may be recast, transformed or adapted.

"Intellectual Property Rights"

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, 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.

"Marketplace Services"

the marketing, promotional and virtual marketplace services accessed and operated via the Procenergy Website operated by Procenergy in order to facilitate transactions between Sellers and Users for the selling and purchasing of the Services.

"Marks"

any and all trade marks, trade names, service marks, trade dress, logos, URLs or identifying slogans of a party to this licence, whether or not registered

"Other Sales Channels"

sales channels other than the Procenergy Website, including but not limited to the Seller’s own website or any other sales channels whatsoever, including any third party website, marketplace, or platform, mobile device applications, other electronically-enabled sales platforms (including via telephone), catalogues, physical stores, or face-to-face.

"Portal"

means the online account page and interface via which the Seller may access its account on the Procenergy Website, upload its Content, manage or otherwise administer its Orders, communicate with or supply information to Procenergy, or otherwise manage or administer its account as Seller on the Procenergy Website.

"Procenergy"

means Procenergy Training Limited, a company registered in England and Wales with company number 09819813 whose registered office is at Boho 7, Queens Square, Middlesbrough, Cleveland, England, TS2 1PA.

"Procenergy Website"

means the website and applications available via the URL www.procenergy.co.uk and any related or connected websites operated by or on behalf of Procenergy.

"Net Price"

in relation to the provision of the Services under a Relevant Contract, the price actually charged to the Client (excluding out of pocket costs and expenses) less:

(i) any value-added tax or other sales tax thereon included in the price and

(ii) any discounts or rebates granted in accordance with this agreement.

"Relevant Contract"

a contract for the supply of Services between 1) the Seller and 2) a Client, entered into on behalf of the Seller by Procenergy.

"Seller"

the person registered to sell its services via the Procenergy Website.

"Services"

the training and educational services provided by the Seller together with any other services from time to time offered by the Seller and which the Seller, by express written agreement with Procenergy, included within the scope of this agreement.

"Training Records"

has the meaning given to it in clause 10.1.

"User"

any user accessing or visiting the Procenergy Website.

"User Data"

all information provided by Users when visiting the Procenergy Website (including for the avoidance of doubt any information relating to Delegates provided by a Client).

2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.

2.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

2.4 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

2.5 Save for where expressly provided otherwise in this agreement, reference to writing or written includes fax and e-mail but excludes all other forms of electronic communication.

2.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.7 References to clauses and Schedules are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.

3 BACKGROUND

3.1 Procenergy operates a virtual marketplace via the Procenergy Website and the Seller wishes Procenergy to provide the Marketplace Services to assist the Seller in entering contracts and delivery of the Services.

3.2 The Seller further wishes to appoint Procenergy as its agent to enter on the Seller’s behalf contracts and arrangements with Users for the provision of Services by the Seller.

3.3 The Seller further wishes Procenergy to provide the Marketplace Services to assist the Seller in delivering the Services.

3.4 The Seller is willing to pay Procenergy a commission on the terms of this agreement and Procenergy is willing to provide such services as specified in 3.1 and 3.3 above in return for this commission.

4 PROCENERGY WEBSITE

4.1 The Procenergy Website is a platform whereby users, subject to the applicable Procenergy terms and conditions, may offer, sell, and purchase certain Services provided by its registered sellers.

4.2 Procenergy will provide the Seller with access to the Procenergy Website as a platform to post listings in relation to the Services to be provided by the Seller subject to and in accordance with this agreement.

4.3 Procenergy’s role is to facilitate transactions between the Seller and Users through the provision of the Marketplace Services. Where a Seller (acting by Procenergy as its agent) and a User agree to a sale and purchase of the Services via the Procenergy Website, a contract of sale is established between the Seller and the User, to which Procenergy for the avoidance of doubt is not a party.

4.4 Procenergy (or its agents contractors or subcontractors) will process payments made by Clients in relation to Relevant Contracts made via the Procenergy Website and shall make payment of such to the Seller in accordance with this agreement, such payment to the Seller, for the avoidance of doubt, being the balance of payment received by the Client less any deductions, set off, or other costs provided for in this agreement.

4.5 Procenergy may, in its sole discretion, ask Users to rate and/or provide comments regarding the Services and/or the Seller’s performance, using any method or metrics used by Procenergy in its sole discretion, and Procenergy may post any resulting ratings and/or comments on the Procenergy Website for public display. Procenergy is not responsible or liable for any rating or comments published or made available on the Procenergy Website. The Seller expressly acknowledges and accepts that Procenergy do not moderate, alter, or monitor any ratings, comments, or review prior to them being published on the Procenergy Website. The Seller releases Procenergy from and waives all rights it has or may have against Procenergy in respect of any liability whatsoever arising out of or connected to any comments, reviews, or ratings published on the Procenergy Website.

4.6 The Seller shall not rate or review themselves or their Services or any other item or matter for sale by them via the Procenergy Website, nor shall it engage any third party to submit and such ratings or reviews on its behalf in order to manipulate, change, alter, or otherwise effect or impact on the ratings or review of the Seller or its Services on the Procenergy Website.

4.7 If the Seller considers any review, comment, or rating to be grossly misrepresentative, unfair, or defamatory, the Seller may apply to Procenergy for such to be removed from the Procenergy Website. Removal of such rating, review, or comment shall be at Procenergy’s sole discretion

4.8 The Seller acknowledges and accepts that Procenergy is not a party to any Relevant Contract or any other arrangement entered into via the Procenergy Website.

4.9 Procenergy may in its sole discretion change some or all of the services available via the Procenergy Website at any time. In the event that any new service is introduced and used by the Seller, the fees for that service shall be those fees effective at the launch of such service.

5 APPOINTMENT

5.1 The Seller appoints Procenergy as its agent to:

5.1.1 promote the Services on behalf of the Seller (including via the Procenergy Website);

5.1.2 make or enter into any contracts or commitments for or on behalf of the Seller in relation to the Services (including via the Procenergy Website);

on the terms of this agreement and Procenergy accepts the appointment on those terms.

5.2 For the avoidance of doubt Procenergy shall be the agent of the Seller in relation to the online promotion, marketing, and advertising of the Services and entering into contracts online in relation to the provision of the Services. Such appointment shall not prejudice the engagement of third parties (whether as agents of the Seller or otherwise) to the extent that such third parties do not provide or procure the provision of similar services provided by Procenergy to the Seller, compete with Procenergy, or otherwise conflict with the interests or Procenergy.

6 PROVISION OF SELLER SERVICES

6.1 All Relevant Contracts entered by Procenergy on behalf of the Seller shall be on the Seller’s standard terms and conditions supplied to Procenergy via the Portal.

6.2 All Relevant Contracts entered by Procenergy on behalf of the Seller shall be subject to such pricing and other information and materials provided to Procenergy by or on behalf of the Seller via the Portal, and in respect of Services to be delivered on such date(s), time(s) and location(s) for the delivery of the Services, as may be provided to Procenergy by or on behalf of the Seller via the Portal from time to time. Save for in furtherance of clause 6.4 or with the prior written consent of Procenergy, the Seller shall not negotiate, agree, or purport to commit to any amendments to a Relevant Contract or to sums payable or that may be payable by or on behalf of a Client arising out of or connected to a Relevant Contract.

6.3 Procenergy shall promptly notify the Seller in writing of the following:

6.3.1 the date it enters into a Relevant Contract on behalf of the Seller;

6.3.2 the contact details of the Client in relation to the Relevant Contract; and

6.3.3 the net amount payable to the Seller in relation to the Relevant Contract;

no later than 3 Business Days (being any day excluding bank and public holidays in England when banks in London are open for business) after it enters into such Relevant Contract on the Seller’s behalf.

6.4 After Procenergy provides the Seller with the information set out at clause 6.3, the Seller may contact the Client directly to provide such details or make such arrangements as may reasonably be desirable for the provision of the Services, provided that such arrangements would not constitute a breach of the other terms of this agreement or the Relevant Contract.

6.5 Procenergy may in its sole discretion require the Seller to procure that the Client provides written acknowledgement and confirmation of the date and duration of Services that have been provided under a Relevant Contract. The Seller shall supply a copy of such confirmation to Procenergy at Procenergy’s request.

7 SUPPLY OF MARKETPLACE SERVICES

7.1 Procenergy shall provide the Marketplace Services to the Seller in accordance with this agreement following the date of full, proper, and successful registration of the Seller on the Procenergy Website and activation of the Seller’s account (which shall be at Procenergy’s sole discretion). The Seller’s account shall not be activated until all information required as part of the registration process has been supplied to, in such form required by, and to the satisfaction of, Procenergy. The Seller warrants and undertakes that such information is true, accurate, up-to-date, and not misleading, and the Seller will immediately inform Procenergy of any changes to such information and ensure that all such information held by Procenergy continues to be true, accurate, up-to-date and not misleading.

7.2 For the avoidance of doubt, the provision of the Marketplace Services shall be subject to the receipt by Procenergy of all information required as part of the registration process and pursuant to this agreement and such information being maintained and updated by the Seller.

7.3 The Seller will be required to set a password for its Portal account as part of the Procenergy registration process. The Seller is solely responsible for maintaining the security of its password and the Seller shall not disclose its password to any third party not authorised to access and/or use the Portal, and the Seller is solely responsible for any use of or action taken under or pursuant to the use of, or further to the knowledge of, the password to the Portal. Procenergy are not liable in any way for any act matter or thing, costs, losses, or liabilities (whether direct or indirect) suffered or incurred by the Seller as a result of any unauthorised activity on the Seller’s account or via the Portal (save for where such unauthorised activity arises out of our gross negligence). If the password of the Seller is compromised, it must be immediately changed by the Seller.

7.4 Procenergy reserves the right to:

7.4.1 reject or refuse any application to register an account on the Procenergy Website;

7.4.2 suspend or terminate any account or authorisation to use the Procenergy Website;

7.4.3 otherwise, acting reasonably, disallow or deny access to the Portal or Procenergy Website or any part thereof if we consider it necessary or desirable in the interests of Procenergy, any Seller, Client, User, or any third party or for any other reason whatsoever as determined in our sole discretion.

7.5 If the Seller provides false, inaccurate, or misleading information or fails to notify Procenergy of changes to such information in accordance with the terms of this agreement, Procenergy reserves the right to terminate the Seller’s account and this agreement without notice.

7.6 Without prejudice to any terms of this agreement (including in relation to the suspension of the provision of the Marketplace Services), the Marketplace Services shall continue to be supplied unless and until this agreement is terminated.

7.7 If Procenergy's performance of the Marketplace Services is prevented or delayed by any act or omission of the Seller, its agents, subcontractors, consultants, employees or other representatives, Procenergy shall not be liable for any costs, charges or losses sustained or incurred by the Seller that arise directly or indirectly from such prevention or delay.

7.8 The Seller acknowledges that Procenergy shall not be in any way liable or responsible for the tax interests of the Seller (including in relation to income tax and National Insurance) or be accountable to HM Revenue and Customs or any other taxation authority for payments, deductions, returns, filings, or otherwise to be made thereto.

7.9 Procenergy shall perform the Marketplace Services in such manner as it deems fit in its absolute and sole discretion.

7.10 The Seller shall provide Procenergy with such materials, information, and support as Procenergy may reasonably request in relation to the Marketplace Services and Delegate Gateway, and shall ensure that such materials and information remain complete, accurate and not misleading throughout the term of this agreement.

7.11 The Seller acknowledges that the ability of Procenergy to perform the Marketplace Services and the number of Relevant Contracts it is able to enter into is dependent on the quantity, quality, and accuracy of up-to-date information being provided by the Seller to Procenergy. The Seller further waives all claims it may have and releases Procenergy from any liability it may suffer or incur arising out of any Relevant Contract entered into pursuant to or otherwise incorporating invalid, inaccurate, or out of date information or Content.

8 PROCENERGY’S OBLIGATIONS

8.1 Procenergy shall serve the Seller faithfully and diligently and not to allow its interests to conflict with its duties under this agreement (save for as provided for in clause 8.2 below).

8.2 Notwithstanding the provisions of clause 8.1 above, Procenergy may, during and after the term of this agreement, perform duties similar to the Marketplace Services and those set out at clause 5.1 and clause 7.9 of this agreement on behalf of any person, including any person who provides services that are the same as, or similar to, the Services.

9 OBLIGATIONS OF THE SELLER

9.1 The Seller must at all material times act dutifully and in good faith towards Procenergy.

9.2 Liability for compliance and enforcement of all obligations under the Relevant Contract is between the parties to that Relevant Contract only. Procenergy has no obligation to mediate between or otherwise assist in the resolution of disputes between the parties to a Relevant Contract.

9.3 The Seller shall promptly provide Procenergy at all times with the information Procenergy reasonably requires to carry out its duties, including (without limitation) marketing information for, and details of, the Services, information about the Seller, and Training Records, and shall ensure that it is complete, accurate and not misleading in all material respects.

9.4 The Seller shall create an account on the Procenergy Website and shall upload content and create listings via the Portal in respect of the Services it wishes to sell via the Procenergy Website. All such listings must comply with the terms and policies of Procenergy that are in place from time to time, and all Content provided in relation to such listings shall be complete, accurate, and not misleading in any respect.

9.5 The Seller acknowledges and consents that Content provided to Procenergy by or on its behalf in relation to the Services, Marketplace Services, Delegate Gateway, or otherwise via the Portal may be edited, amended, duplicated, replaced, refused, rejected or otherwise altered or represented in anyway as Procenergy see fit in its sole discretion, provided that such use of the material does not grossly misrepresent the Seller or the Services to which the Content relates.

9.6 Procenergy shall have sole discretion as to the display, arrangement, style, format, listing, or presentation of any listing, specification, or details of or provided by the Seller in relation to the Services. The Seller expressly acknowledges and consents that it may not by the sole provider of particular Services on the Procenergy Website, and the Seller will not be entitled to any preferential status or listing or position on the Procenergy Website.

9.7 The Seller shall not create any listing in relation to any Services it is unable, unqualified, or may reasonably foreseeably be unable to perform, or in relation to any Services which it will not be able to perform to any standard or specification required by law, regulation, or otherwise in accordance with good industry practice.

9.8 The Seller shall do no act, matter, or thing to prevent a Relevant Contract being entered into via the Procenergy Website or to otherwise refer a User or historic User away from the Procenergy Website such that a contract for Services is not entered into via the Procenergy Website when, but for such act, matter, or thing or referral, such a contract may have been a Relevant Contract or other contract with a seller operating through the Procenergy Website.

9.9 Procenergy may reject, censor, or remove any proposed listing or other content of or provided by the Seller as it reasonably sees fit in its sole discretion.

9.10 The Seller shall not do or permit or omit to do anything that causes or would reasonably foreseeably cause the Procenergy Website, the Marketplace Services, Delegate Gateway, or any other services offered by Procenergy to be interrupted, impaired, or damaged.

9.11 The Seller must not use any data supplied by a User, or information relating to a Delegate, in relation to entering into a Relevant Contract or provision of the Services for any purpose other than in satisfaction of its obligations under the Relevant Contract, and such data must not be subsequently stored or transferred to a third party. The Seller further agrees not to use User or Delegate names, email addresses, contact details or any other information collected from the User or Delegate via the Procenergy Website or otherwise in the course of entering into a Relevant Contract to send marketing letters or emails or such other similar materials directly to Users or Delegates.

9.12 The Seller shall not upload any content or offer for sale any Services through the Procenergy Website that are prohibited by law or regulation, promote or engage in any deceptive trade practice, or otherwise promote or engage in any other illegal activity or are considered by Procenergy (in its sole discretion) to be inappropriate, obscene, offensive, lewd, immoral, contrary to public interest, damaging to the reputation or goodwill of Procenergy or its officers, employees, subcontractors or agents, or otherwise injurious or in breach of third parties’ privacy or any Intellectual Property Rights of any third party.

9.13 The Seller shall indemnify Procenergy against any liabilities which Procenergy may incur as a result of acting with reasonable care and skill within the scope of its authority under this agreement as agent for the Seller.

9.14 The Seller shall immediately inform Procenergy if the Seller suspends or ceases to perform the Services (or any part or parts thereof).

9.15 The Seller acknowledges and undertakes to notify Procenergy of the details of the Services to be provided by the Seller, the date(s), times(s), and locations(s) at which the Services will be performed, and shall immediately provide Procenergy with any further information as to such that Procenergy may reasonably request.

9.16 Procenergy shall use its reasonable endeavour to confirm to the Seller, as soon as reasonably practicable that a Client, has made an offer making an offer to buy Services through the Procenergy Website. The Seller shall, as soon as reasonably practicable after but in any event within two Business Days of Procenergy sending such notice, confirm to the Client, Procenergy, and any relevant Delegates the booking of the Services (and the acceptance of the Seller of the Client’s offer to buy such Services) (“Seller Notice”), such confirmation including sufficient details to identify the booking, scope of the Services, and date(s) and time(s) when such Services are to be performed and the Seller’s contact details.

9.17 The Seller shall immediately notify Procenergy of:

9.17.1 any complaints, feedback, or comments of the Client in relation to Procenergy, the Seller, the Relevant Contract or the Services;

9.17.2 any notice given by the Client to cancel or postpone for more than 14 days the provision of the Services in relation to a Client; and

9.17.3 any notice given by the Client to recommence the provision of Services that had been otherwise postponed by them.

9.18 The Seller undertakes and agrees with Procenergy during the term of this agreement:

9.18.1 within a reasonable period of becoming aware of the same, and subject to its rights thereunder, to perform any Relevant Contracts for the provision of Services made on its behalf by Procenergy under this agreement professionally, diligently and in accordance with good industry practice;

9.18.2 to promptly and efficiently deal with any complaint, dispute or enquiry relating to the Services raised by a Client, in any event within 48 hours;

9.18.3 to inform Procenergy within a reasonable time if any Relevant Contract will not be performed by it, and of the reason for such non-performance; and

9.18.4 to co-operate with Procenergy in all matters relating to the Services, Relevant Contracts, and Marketplace Services.

10 DELEGATE GATEWAY

10.1 The Seller acknowledges that the purpose of the Delegate Gateway is to provide a full and accurate training and education record (amongst other things) relating to Services provided pursuant to a Relevant Contract, providing long-term access to a Delegate to such information independently of the Client.

10.2 The Seller shall, within two Business Days of completion of the provision of the Services to a Delegate or, if earlier, within two Business Days of the Delegate achieving or otherwise receiving any certification, accreditation, confirmation or such similar status in relation to any particular training or educational course, programme, classes (or similar) in the provision of Services ("Training Records"), upload to the Procenergy Website all documentation, materials, certificates, or other information in relation to such and all such other information that may be necessary or desirable (in the Seller’s opinion, acting reasonably) for the Client or Delegate to access, or any such information as Procenergy may reasonably request.

10.3 The Seller shall, as soon as reasonably practicable but in any event prior to the commencement of the Services, notify in writing (including by email) the relevant Client and any Delegates in relation to particular Services of:

10.3.1 the Delegate Gateway;

10.3.2 how the Delegate Gateway may be accessed;

10.3.3 any information that may be reasonably expected to be provided by or available to the Seller in relation to the Delegate Gateway that may assist a Delegate in gaining access to the Delegate Gateway.

10.4 The Seller shall do all such acts matters and things within its power or control to facilitate access to the Delegate Gateway by the respective Delegate and shall do no act matter or thing to restrict, limit, prohibit or deter a Delegate’s access to the Delegate Gateway save for with the prior consent of Procenergy

10.5 The Seller shall comply with all reasonable requests of Procenergy in relation to the Delegate Gateway and Portal, including regarding the facilitation of access to the Delegate Gateway by Delegates and to provision of information, documentation, and materials to the Delegate and making such available in full via the Delegate Gateway.

11 CONTENT

11.1 The Seller warrants and represents that it shall procure and maintain parity between the pricing of Services offered via the Procenergy Website and any Other Sales Channel by ensuring at all times:

11.1.1 the purchase price and all other terms of offer or sale of the Services (together with any guarantees, rebates, or discounts) are at least as favourable to users of the Procenergy Website as the most favourable terms upon which a product is offered and/or sold via any Other Sales Channel;

11.1.2 no Services which are materially similar to or derivations of Services offered via the Procenergy Website are offered by any Other Sales Channel on terms (including pricing together with any guarantees, rebates, or discounts) which are more favourable than those offered via the Procenergy Website;

11.1.3 customer service in relation to any Relevant Contract or Services otherwise provided as a result of the Procenergy Website is of a similar quality and level as is offered in relation to Services purchased or provided other than via the Procenergy Website;

11.1.4 all Content is of the same quality and accuracy as that used by the Seller or provided to any other third party or Other Sales Channel.

11.2 The Seller warrants to Procenergy that the Content and the Seller’s Marks:

11.2.1 do not infringe any third party's Intellectual Property Rights, other proprietary rights or rights of publicity or privacy;

11.2.2 do not violate any law, statute, ordinance or regulation (including the laws and regulations governing export control);

11.2.3 are not defamatory, trade libellous, unlawfully threatening or unlawfully harassing;

11.2.4 are not obscene, pornographic or liable to incite racial hatred or acts of terrorism and do not contain child pornography;

11.2.5 do not violate any laws regarding unfair competition, anti-discrimination or false advertising;

11.2.6 do not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

12 QUALIFICATION AND INFORMATION

12.1 Each party shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

12.2 The Seller warrants that:

12.2.1 it holds such qualifications required (by law or regulation and such other qualifications as may have been notified to the Seller by Procenergy) to properly provide the Services;

12.2.2 it is legally entitled to perform the Services in the United Kingdom, territories and jurisdictions notified to Procenergy;

12.2.3 that there are no matters that would prevent or restrict the Seller or its officers, employees, subcontractors or agents from providing the Services to any persons, including children or vulnerable adults; and

12.2.4 there are no matters that may appear on a Disclosure and Barring Service (DBS) certificate or on the results of any such similar search that would reasonably result in it being considered undesirable for the Seller or any of its officers, employees, subcontractors or agents to provide to Services to any person.

12.3 The Seller shall immediately notify Procenergy of any restrictions on the Seller’s ability to perform the Services in accordance with a Relevant Contract.

12.4 The Seller shall, immediately on demand by Procenergy, supply all information that Procenergy may consider necessary or desirable in order that it may consider the qualification and suitability of the Seller or its officers, employees, subcontractors or agents to provide the Services.

12.5 The Seller warrants that it has conducted and holds all accurate and up to date searches, checks, or applications at the Disclosure and Barring Service or any such similar service in relation to the officers, employees, subcontractors or agents that may deliver the Services or otherwise be associated with the Seller, that are required to be made by law or that are otherwise necessary or desirable in accordance with good industry practice .

12.6 The Seller shall immediately notify Procenergy if it ceases to hold any qualification required to provide the Services or any qualification that may have been notified to him by Procenergy to be a requirement for the provision of the Services, or becomes subject to any inquiry, investigation or proceeding that may lead to the loss of any such qualification.

12.7 The Seller warrants that any accredited, qualified, regulated or such other similarly regulated or prescribed Services comply with any such requirements or curriculum and shall properly issue any due Training Records in relation thereto to the appropriate Client and/or Delegate and make such available by the Delegate Gateway in accordance with these Terms.

13 COMMISSION AND PAYMENT

13.1 Procenergy shall be entitled to Commission for each Relevant Contract it enters into on behalf of the Seller.

13.2 In relation to each Relevant Contract (as it may be renewed, extended or amended) the amount of commission payable shall be 10% of the Net Price ("Commission") and such Commission shall be payable in pounds’ sterling.

13.3 Commission shall become due to Procenergy, irrespective of whether an invoice has been issued in relation thereto, on the earlier of the date the Client is invoiced in relation to a Relevant Contract or when Procenergy or its officers, employees, agents, or subcontractors receives on the Seller’s behalf, for immediate value from or on behalf of the Client, the price in respect of the provision of the Services. Where payment in relation to a Relevant Contract is paid by instalments, a proportionate part of the commission shall become due to Procenergy as soon as such instalments are received for immediate value by Procenergy on the Seller’s behalf (or by the Seller directly), that proportion being equivalent to the proportion which such instalments bear to the total contract price.

13.4 For the avoidance of doubt, the Commission shall be payable to Procenergy notwithstanding any failure to perform, cancellation of, dispute in relation to, or any refund of any amount payable to the Seller in respect of, the Services.

13.5 The Seller expressly authorises Procenergy to, but Procenergy shall be under no obligation to, invoice a Client on its behalf in relation to a Relevant Contract, and such invoice may be in such form and on such terms and Procenergy see fit in their sole discretion. Procenergy will reasonably endeavour to provide the Client an acknowledgement of receipt of payment promptly following said receipt of payment by Procenergy.

13.6 Any payments in relation to a Relevant Contract paid directly to the Seller (save for such payments made by or on behalf of Procenergy) shall immediately be paid in full to Procenergy (or as Procenergy may direct) by the Seller, without any deduction, set off, or other withholding.

13.7 Procenergy shall collect and hold as trustee all monies due to the Seller in respect of all Relevant Contracts (except for any remitted directly by the Client to the Seller), and shall transfer such to the Seller, save for any deductions made pursuant to this agreement, on the first reasonably practicable Business Day following receipt from the Client or the giving of a Seller Notice in accordance with clause 9.16 by the Seller, whichever is the later. For the avoidance of doubt, Procenergy shall be under no obligation to make payment to the Seller before it has received corresponding payment from the Client under a Relevant Contract. At the end of the month in which Procenergy enters into a Relevant Contract on behalf of the Seller, Procenergy will issue an invoice to the Seller (in a form suitable for VAT purposes) for the commission due to Procenergy in respect of that month.

13.8 Procenergy may at any time, without notice to the Seller, deduct from monies held pursuant to clause 13.7:

13.8.1 any liability of the Seller to Procenergy including for the avoidance of doubt Commission due in relation to a Relevant Contract (whether or not invoiced); and

13.8.2 an amount equal to any payment made by Procenergy to the Seller in advance of Procenergy receiving corresponding payment from a Client under a Relevant Contract.

Any exercise by Procenergy of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise

13.9 Procenergy may at any time, without notice to the Seller, set off any liability of the Seller to Procenergy against any liability of Procenergy to the Seller, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, Procenergy may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Procenergy of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise

13.10 In the event that any Commission cannot be settled by deduction in accordance with clause 13.9 within one month of it becoming due, the Seller shall pay Procenergy the balance of Commission due on demand by Procenergy.

13.11 If the Seller fails to make any payment due to Procenergy under or arising out of this agreement by the due date for payment, then, without limiting Procenergy's remedies under clause 17, the Seller shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’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. The Seller shall pay the interest together with the overdue amount.

13.12 If the Seller fails to make any payment due to Procenergy under or arising out of this agreement by the due date for payment, then, without limiting Procenergy's remedies under clause 17, the Seller shall be liable for all costs, losses, expenses, claims, fines, penalties, and interest suffered by Procenergy relating to or arising out of such failure of the Seller or otherwise connected to the Commission due by the Seller, including for the avoidance of doubt any additional charge, fines, penalties or other costs charged to Procenergy by its payment provider relating to the foregoing failure of the Seller.

13.13 All sums payable under this agreement are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question.

13.14 If any dispute arises as to the amount of Commission payable by the Seller to Procenergy, the same shall be referred to Procenergy’s accountants for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.

13.15 Termination of this agreement, howsoever arising, shall not affect the continuation in force of this clause 13 and the Seller's obligation to pay Commission to Procenergy in accordance with it.

14 INTELLECTUAL PROPERTY RIGHTS

14.1 All Intellectual Property Rights in or arising out of or in connection with the Marketing Services or the Procenergy Website shall be owned by Procenergy.

14.2 Procenergy retains all Intellectual Property Rights in the Procenergy Website, the Derivative Content and its Marks, and nothing in this licence shall be taken to grant any rights to the Licensor in respect of such Intellectual Property Rights.

14.3 Title to and ownership of all Intellectual Property Rights embodied by or otherwise incorporated into the Content shall remain with the Seller. Except as expressly provided in this licence, nothing shall be construed to grant to Procenergy any right, title or interest in or to the Content.

14.4 Any and all User Data (such as name, address and e-mail address) that is collected through any registration process or otherwise shall be owned by Procenergy.

14.5 Each party acknowledges and agrees for all purposes that all Marks associated with the other party or the other party's services, products, literature, promotional materials or otherwise, whether or not registered, constitute the other party's exclusive property.

14.6 The Seller grants to Procenergy a non-exclusive, non-transferable, non-assignable, royalty-free licence to use all Marks of the Seller supplied to Procenergy or otherwise uploaded to the Procenergy Website by the Seller. The Seller shall use such Marks solely for the purposes of performing its obligations under this agreement, including in connection with the Marketplace Services, the Procenergy Website, and any related promotional activities undertaken and materials developed.

14.7 The Seller shall not, for the avoidance of doubt, use any Procenergy Mark without the prior written consent of Procenergy.

14.8 The Seller may not copy, reproduce, modify, create derivative works from, extract, or utilise any part of the contents of the Procenergy Website without Procenergy’s prior written consent.

14.9 The Seller may not:

14.9.1 imitate or use the Procenergy Website or the Procenergy Website’s presentation, layout, design, and/or structure or create and/or publish any database that contains substantial or material parts or elements (including but not exclusive to prices, listing descriptions, details of other providers of Services, or other information), of the Procenergy Website;

14.9.2 modify, distribute, copy, republish, or make any derivative of the Procenergy Website or the Marketplace Services;

14.9.3 use any framing method or technique;

14.9.4 collect or use any Client email addresses or other information, ratings, feedback, or listings, or extract or mine any data from the Procenergy Website

without Procenergy’s prior written consent.

14.10 The Seller shall not use, register or attempt to register in any jurisdiction, or otherwise appropriate or adopt, any name, mark or logo that is confusingly similar to Procenergy’s Marks.

14.11 At no time during the term of the licence or thereafter shall the Licensee attack, challenge or file any application with respect to any Procenergy Mark.

14.12 Subject to14.13, during the term of this licence, the Seller grants to Procenergy an exclusive licence(including the right to sub-license) to distribute the Content on the Procenergy Website in relation to the Marketplace Services.

14.13 The licence granted under14.12permits Procenergy to:

14.13.1 modify, electronically reproduce and distribute, and publicly perform and display the Content on the Procenergy Website;

14.13.2 reproduce and distribute through any media now known, or hereafter developed, excerpts of the Content in advertisements for, and in marketing and promotional materials related to, the Procenergy Website; and

14.13.3 make Derivative Works, reproduce, publicly perform and display and distribute such Derivative Works in conjunction with the Content through the Procenergy Website, including in any media now known or hereafter developed.

15 CONFIDENTIALITY 

15.1 The Seller undertakes that, save with the prior written consent of Procenergy or as may be otherwise required by law, court of competent jurisdiction or any governmental or regulatory authority, it shall not during the term of this agreement or at any time thereafter disclose to any person personal information of any nature whatsoever in relation to any Client or persons connected thereto that was received by the Seller in connection with or arising out of this agreement, the Marketplace Services, a Relevant Contract, or the Services. For the avoidance of doubt, this clause shall apply whether or not the Client or persons connected thereto are identifiable from such personal information.

15.2 The Seller shall not, save with the prior written consent of Procenergy or as may be otherwise required by law, court of competent jurisdiction or any governmental or regulatory authority, qualify, substantiate, corroborate or otherwise any personal information relating to any Client or persons connected thereto, notwithstanding such information being in the public domain.

15.3 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients, employees or agents of the other party, except as permitted by clause 15.4.

15.4 Each party may disclose the other party's confidential information:

15.4.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 15; and

15.4.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.5 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.

15.6 All documents and other records (in whatever form) containing confidential information supplied to or acquired by the Seller from Procenergy shall be returned promptly to Procenergy on termination of this agreement, and no copies shall be kept.

16 DATA PROTECTION

16.1 The Seller shall comply with all data protection legislation and regulations in England and Wales when handling personal data in the course of providing the Services.

16.2 The Seller consents to Procenergy processing data relating to the Seller for legal, personnel, administrative and management purposes and in particular to the processing of anysensitive personal data(as defined in the Data Protection Act 1998) relating to the Seller.

16.3 Procenergy may make such information available to those who provide products or services to Procenergy (such as advisers and payroll administrators), regulatory authorities, potential purchasers of Procenergy, and as may be required by law.

17 TERMINATION

17.1 Without affecting any other right or remedy available to it, Procenergy may terminate this agreement with immediate effect by giving written notice (including by email) to the Seller if:

17.1.1 the Seller fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment;

17.1.2 the Seller commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

17.1.3 the Seller repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this agreement;

17.1.4 the Seller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

17.1.5 the Seller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

17.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Seller (being a company);

17.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Seller (being a company);

17.1.8 the holder of a qualifying floating charge over the assets of the Seller (being a company) has become entitled to appoint or has appointed an administrative receiver;

17.1.9 a person becomes entitled to appoint a receiver over the assets of the Seller or a receiver is appointed over the assets of the Seller;

17.1.10 the Seller (being an individual) is the subject of a bankruptcy petition or order;

17.1.11 a creditor or encumbrancer of the Seller attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Seller's assets and such attachment or process is not discharged within 14 days;

17.1.12 any event occurs, or proceeding is taken, with respect to the Seller in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1.4 to clause 17.1.11 (inclusive);

17.1.13 the Seller suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business (including the provision of the Services);

17.1.14 the Seller (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

17.2 Either party may terminate this agreement on written notice (including by email) to the other party, such notice ending on the final day of the second calendar month after such notice is given.

18 CONSEQUNCES OF TERMINATION

18.1 On termination of this agreement, the following clauses shall continue in force: clause 1, clause 14, clause 15, and clause 18 to clause 30 (inclusive).

18.2 On termination of this agreement the provisions of clause 13 shall remain in force in relation to all Services sold via the Procenergy Website prior to termination.

18.3 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

19 LIABILITY

19.1 Unlimited liability. Nothing in this agreement shall limit or exclude the liability of either party for:

19.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

19.1.2 fraud or fraudulent misrepresentation or wilful default;

19.1.3 the indemnities contained in this agreement; or

19.1.4 any matter in respect of which it would be unlawful to exclude or restrict liability.

19.2 Limitations of liability. Subject to clause 19.1:

19.2.1 neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

19.2.1.1 any loss of profit, revenue, or anticipated savings; or

19.2.1.2 any loss that is an indirect or secondary consequence of any act or omission of the party in question.

19.2.2 the total liability of Procenergy to the Seller in respect of all loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed, in relation to each Relevant Contract to which a claim relates, an amount equal to the total Commission payable to Procenergy under such Relevant Contract, for the entire term of this agreement, or, to the extent that such a claim does not relate to a Relevant Contract, an amount equal to the total Commission paid to Procenergy in the six months immediately prior to the accrual of such a claim.

19.3 The Seller shall indemnify Procenergy against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Procenergy arising out of or in connection with:

19.3.1 any breach of the warranties contained in this agreement;

19.3.2 the Seller's breach or negligent performance or non-performance of this agreement;

19.3.3 the Seller's breach or negligent performance or non-performance of a Relevant Contract;

19.3.4 a Relevant Contract;

19.3.5 any claim or dispute between the Seller and a User in relation to or arising out of the matters conducted by them through the Procenergy Website, including for the avoidance of doubt the entering into of a Relevant Contract;

19.3.6 the enforcement of this agreement;

19.3.7 any claim made against Procenergy for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Content, the Sellers Marks, or the Services;

19.3.8 any claim made against Procenergy by a third party arising out of or in connection with a Relevant Contract, the provision of the Services by the Seller, or the Marketplace Services; or

19.3.9 any liability to account to HM Revenue & Customs or any other tax authority in relation to the Seller.

19.4 This indemnities contained in this clause 19 shall apply whether or not Procenergy has been negligent or at fault.

20 INSURANCE

To cover the liabilities that may arise under or in connection with this agreement and each Relevant Contract, the Seller shall maintain in force with a reputable insurance company such insurances as may be prudent and in accordance with good industry practice from time to time, or in any event such insurances as Procenergy may from time to time reasonably request. The Seller shall, on the Procenergy's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each policy of insurance.

21 NO PARTNERSHIP

21.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties.

21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22 ENTIRE AGREEMENT

22.1 This agreement 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.

22.2 Each party acknowledges that in entering into this agreement it does not rely on, and 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.

22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.

22.4 Nothing in this clause shall limit or exclude any liability for fraud.

23 VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). For the purposes of this clause 23 ‘writing’ shall exclude fax, email, and all other forms of electronic communication.

24 ASSIGNMENT AND OTHER DEALINGS

This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

25 WAIVER

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

26 SEVERANCE

26.1 If any provision or part-provision of this agreement 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 this agreement.

26.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

27 NOTICES

27.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:

27.1.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its address as set out hereinbefore or as otherwise notified by the respective party to the other from time to time;

27.1.2 sent by fax to such fax number as may be notified by the respective party to the other from time to time; or

27.1.3 sent by email to such email address as may be notified by the respective party to the other from time to time.

27.2 Any notice shall be deemed to have been received:

27.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

27.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;

27.2.3 if sent by fax, at 9.00am on the next Business Day after transmission; or

27.2.4 if sent by email, at 9.00am on the next Business Day after transmission.

27.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include e-mail.

28 THIRD PARTY RIGHTS

No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

29 GOVERNING LAW

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

30 JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).