Version 2. 11/19

Flexi-Orb Standard Terms of Membership

Clause A - Flexi-Orb, the Parties and the Term

Flexi-Orb operates on the basis of the Membership Agreements for installers of the Products to which it relates, these shall form the legally binding contract between the parties named in the Flexi-Orb Membership Acceptance under which You enter Flexi-Orb Membership. Flexi-Orb also operates to a wider audience that do not form part of the Flexi-Orb Membership, the audience includes, but is not limited to, Consumers, energy providers, manufacturers, Certification Bodies, Codes Sponsors, Insurers, UK Fire Service and Distribution Network Operators.

The parties are:

  • You, Your, The Member means the party named as the ‘Company Name’ on the Flexi-Orb Membership Acceptance.
  • We, Our, Us means Flexible Energy Oversight Registration Body (Flexi-Orb), a trading style of Certi-fi Schemes Limited, whose company number is 08823843 and whose registered office is at Centurion House Leyland Business Park, Centurion Way, Farington, Leyland, Lancashire, England, PR25 3GR. We administer and provide Flexi-Orb.

We may contact You for any purposes under these Standard Terms of Membership or the Membership Agreement by any of the means provided by You on Your Flexi-Orb Application.

You can contact Us for any purposes under these Standard Terms of Membership or the Membership Agreement by any of the means provided for on the Flexi-Orb Membership Acceptance.

The Membership Agreement shall come (or be deemed to have come) into force on the Effective Date and shall continue in force indefinitely thereafter unless and until it is terminated by either party in accordance with the terms of these Standard Terms of Membership.

Clause B - Definitions

The provisions of the Interpretation Act 1978 shall have effect for the purposes of interpreting the provisions of these Standard Terms of Membership.

Any Schedules and Appendices to these Standard Terms of Membership shall form part of these Standard Terms of Membership as if set out within its main body. New Schedules and Appendices may be added to these Standard Terms of Membership from time to time and shall take effect as set out herein.

If any provision or part-provision of these Standard Terms of Membership and/or the Membership Agreement is or becomes for any reason illegal, invalid, ineffective, inoperable or otherwise unenforceable by law, it shall be modified to the minimum extent necessary to make it valid, legal and enforceable without affecting the validity and enforceability of the remainder of these Standard Terms of Membership and/or the Membership Agreement. If such modification is not possible, the relevant provision or part-provision shall be severed and deemed to be deleted from these Standard Terms of Membership and/or the Membership Agreement and the validity and enforceability of the remainder of these Standard Terms of Membership and/or the Membership Agreement shall not be affected or impaired thereby.

No failure or delay by a party to exercise any right or remedy provided under these Standard Terms of Membership and/or the Membership 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.

The following words or phrases are used throughout these Standard Terms of Membership and unless the context dictates otherwise, shall have the following meanings:

TERMSDEFINITIONS
ADR ProviderAn organisation responsible and certified for the provision of Alternative Dispute Resolution.
Business DayA day that is not a Saturday, Sunday or Public Holiday in England.
Certification BodyAn assessment and certification body accredited by UKAS under ISO IEC 17065 (2012).
Code SponsorA code sponsor approved by CTSI and set out in the list found in Appendix 2.
Code of PracticeA code of practice provided by a Code Sponsor.
ConsumerYour retail customer, in the UK.
Contact ValueThe value of the Installation calculated by reference to the amount which the Consumer is due to pay to You.
CTSIChartered Trading Standards Institute.
Decision MakerPerson charged with making a decision.
Decision NoticeFinal decision made by Our Decision Maker and which is notified to You in writing.
Effective DateDate which appears on the Flexi-Orb Membership Acceptance.
ERECEngineering Recommendations which are Requirements for the connection of generation equipment.
EESElectrical Energy Storage device, a system that stores electricity for use at another time; it may or may not trade with the Grid.
FCAThe Financial Conduct Authority or any superseding body from time to time.
Flexi-OrbFlexible Energy Oversight Registration Body.
Flexi-Orb ApplicationThe Flexi-Orb application which You completed, and which is headed as such.
Flexible Energy RegisterOnline platform for You to Register all Installations.
IBGAn insurance backed guarantee policy provided to the Consumer with the protection of the workmanship provided by You in accordance with Clause G, subject to relevant policy limits, in the event that You cease to trade and are unable to honour Your guarantee obligations.
InstallationEnergy Generating, Energy Storing or Energy Saving installations for which You entered into contract with a Consumer, during Your Membership Period.
Intellectual PropertyMeans patents, rights to inventions, copyright and related rights, rights in software, trade marks (including Licenced Logos), 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, renewables 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.
Licenced LogosIntellectual Property which We provide to and authorise You to use in accordance with the terms of Your Membership as set out in Appendix 3.
Loss or LossesMeans charges, claims, costs, damages, demands, expenses, liabilities and losses.
MembershipMeans Your membership of Flexi-Orb.
Membership AcceptanceMeans We have accepted Your Flexi-Orb Application and provided You with Your Flexi-Orb Membership certificate.
Membership AgreementMeans the whole of:

  1. The Flexi-Orb Application;
  2. These Standard Terms of Membership;
  3. Flexi-Orb Privacy Policy;
  4. Flexi-Orb Membership Acceptance.
Membership PeriodMeans the period of Your Membership during which You remain subject to the Standard Terms of Membership (as amended from time to time) and/or Your Membership continues.
Membership Review PanelMeans the panel which make determinations in relation to Your Membership comprised in accordance with Clause M.
Minded to NoticeMeans a preliminary view of the nature of a proposed decision.
Non-ComplianceA specific breach of these Standard Terms of Membership which means that We may terminate Your Membership.
PersonnelAny of Your employees or sub-contractors.
Principal ObligationsMeans those of Your obligations, which are set out within Clause C.
ProductsProducts or classes of retail Products which You sell to Consumers.
Register or RegisteredThe registration of an Installation in accordance with Clause F on the Flexible Energy Register.
Schedule(s) of Licensing TermsMeans the standard licensing agreement for use of Intellectual Property issued by Us as amended from time to time and any other document We provide setting out the basis on which Our Intellectual Property may be used.
We, Us, OurMeans the Flexible Energy Oversight Registration Body Limited (Flexi-Orb).
You, Your, the MemberMeans the party specified as the Member whose details are set out in the Flexi-Orb Membership Acceptance.
Clause C - Principal Obligations

This Clause sets out Your Principal Obligations under these Standard Terms of Membership, which are provided only as a summary of the main provisions of Your Membership. You are bound by the whole Membership Agreement and therefore anything which has not been set out within this Clause shall not be deemed to fall outside of Your obligations to Flexi-Orb and under Your Membership Agreement. Your Principal Obligations are:

  • To comply with the Membership Agreement;
  • To Register all Installations on the Flexible Energy Register throughout Your Membership Period;
  • To be a member of a Certification Body and to maintain that membership throughout the agreement;
  • To notify all Installations to Your relevant Certification Body;
  • To provide a minimum two-year workmanship warranty on every Installation;
  • To have access to an ADR provider or should You decide not to supply your Consumers with an ADR Provider then You must clearly notify all Your Consumers that You do not have an ADR Provider;
  • Any Deposits taken from Consumers must be covered by insurance protection;
  • To provide all of Your Consumers an Insurance Backed Guarantee, compliant with the Minimum standards set out in Appendix 1;
  • To comply with the relevant Consumer Protection Legislation;
  • To comply with all relevant legislation and regulations related to the Installations;
  • To promote Your Membership by using the point-of-sale and marketing materials provided to You by Us from time to time or such other methods as We reasonably require from time to time;
  • To notify Us of any significant changes to Your business activity or anything which We may reasonably deem could have an adverse effect on it;
  • To maintain adequate financial resources and responsible accounting practices for maintaining Your business as a going concern;
  • To provide Us with information which is at all times correct, accurate and complete and to not mislead Us or misrepresent Us in any way;
  • Not to bring Flexi-Orb into disrepute;
  • To cooperate with Us and Your ADR Provider with the resolution of disputes; and
  • To comply with all Data Protection

This Clause sets Our Principal Obligations under these Standard Terms of Membership, which are provided as a summary only. We are bound by the Membership Agreement and therefore anything which has not been set out within this Clause shall not be deemed to fall outside of Our obligations. Our Principal Obligations to You are to:

Operate Flexi-Orb in a manner that facilitates the safe and controlled deployment of energy saving, generating and storing products, safety notices and product recall to Consumers, safe decommissioning and recycling management, assists Your compliance with Building Control Regulations, and provide real-time data to the Fire and Rescue Service to assist in the safe treatment of energy saving, generating and storing products at domestic incidents;

  • Provide, for the benefit of Your Consumer a list of approved Deposit Protection Policy minimum standards;
  • Provide, for the benefit of Your Consumer a list of approved Insurance Backed Guarantee minimum standards;
  • Provide sales and marketing support materials to provide reasonable assistance, advice and information;
  • To comply with all laws applicable to Flexi-Orb.
Clause D - Terms of Membership

You have agreed to join Flexi-Orb and agree to be bound by and comply with these Standard Terms of Membership setting out the terms and conditions applicable to being a member of Flexi-Orb. The Membership Agreement including these Standard Terms and any documents referred to in it form the entire agreement between the parties which supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and undertakings between them, whether written or oral, relating to its subject matter. You acknowledge that in entering into the Membership Agreement, You do 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 the Membership Agreement or these Standard Terms of Membership. You agree that You shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Standard Terms of Membership.

Membership of Flexi-Orb is by invitation only and You are therefore not permitted to assign, transfer, charge, grant rights to any other person or trade Your Membership with any other person. In the event that You are subject to a change of control or You sell Your business, You must contact Us to determine the steps required to continue to recognise You where there is a change of control or to recognise the new owner in the event of a business sale, in either case in accordance with Clause N.

You acknowledge that the purpose of Flexi-Orb is to improve Consumer safety and protection and accordingly You consent to the jurisdiction of Flexi-Orb to the full extent permitted by the terms of these Standard Terms of Membership, as amended from time to time. In very limited circumstances, a court of competent jurisdiction may apply public law principles to the relationship between You and Us, but to the extent permitted by law, such action is expressly excluded and the relationship between You and Us shall be determined in accordance with the provisions of the Membership Agreement and these Standard Terms of Membership.

Nothing in these Standard Terms of Membership or the Membership Agreement is intended to, or shall operate to, create a partnership of joint venture between the parties, or to authorise either party to act as an agent for the other, and neither party shall have authority to act in the name of or on behalf of or otherwise to bind the other in any way ( including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Each party confirms that it is acting on its own behalf and not for the benefit of any other person.

We will issue You with a Membership Acceptance, which will include Your Membership certificate. Your Membership certificate will be valid for a period of twelve months from the Effective Date. You shall display the Membership certificate in a prominent and public place at Your principal place of business. You shall display a copy of the Membership certificate at each of Your trading premises and a copy (either in paper or electronic form) shall be carried by all sales Personnel employed by You or acting as Your agent. You shall identify Your Membership of Flexi-Orb on Your websites.

Subject to these Standard Terms of Membership remaining effective and there having no breach of these Terms, Flexi-Orb

will issue You with a renewal Membership certificate annually.

These Standard Terms of Membership and any variation to them shall have effect throughout the Membership Period and for any period afterwards where they are expressed to continue. They shall apply particularly to, but not to be exclusively restricted to Your responsibilities and commitments in respect of;

  • Any contractual obligation accepted by, or affecting, You and any of Your customers; and
  • Any work contracted and carried out by You (including any subsequent remedial or warranty work and/or any related tortious matter); and
  • Any matter of complaint or claim in tort raised by a member of the public about or resulting from its dealings with

You, during the duration of the Standard Terms of Membership.

At the end of Membership Period any of the Standard Terms of Membership or other provisions of the Membership Agreement which are intended to apply after Your Membership ends shall continue to apply and You shall be bound to those obligations.

You must maintain adequate financial resources and responsible accounting practices for maintaining Your business as a going concern. Your attention is drawn to Clause P which provides permission for Us to share data and information with third parties including credit referencing agencies to, among other matters, verify that You are maintaining Your business as a going concern.

If We have cause for concern about Your financial stability, We may take action at Our absolute discretion to terminate the

Membership Agreement in accordance with Clause O, in the event that:

  • You indicate to Us, in express term, that You intend to cease to trade or threaten to cease to trade; or
  • You enter any composition or arrangement (whether formal or informal) with Your creditors; or
  • You become the subject of a voluntary arrangement within the meaning of Section 1 of the Insolvency Act 1986 or any statutory modification or re-enactment thereof; or
  • a receiver manager, administrator or administrative receiver is appointed in respect of You or any undertaking, assets or income or a substantial part thereof; or
  • a winding up resolution of You is passed; or
  • You or any Personnel are convicted of any crime committed in the course of any trade or business that attracts a fine in excess of £500, or any period of imprisonment. For the avoidance of doubt, You must continue to Register all Installations undertaken until such time as You formally cease to

You shall not bring Flexi-Orb into disrepute.

You shall ensure that all of Your Personnel, Agents and Sub-Contractors shall be fit and proper persons for discharging their responsibilities under Flexi-Orb and these Standard Terms of Membership.

Clause E - CTSI Approved Code of Practice

You agree to join a Code Sponsor and comply at all times with the terms of their Code of Practice or should You decide not to join a Code Sponsor, You must clearly notify all Your Consumers that You do not have a Code Sponsor.

The Code of Practice must be relevant to the Installation, see Appendix 2 for Code Sponsors that are approved by CTSI. You shall comply with all relevant laws, Code of Practice and regulations relevant to the conduct of Your business.

If You have transferred from one Code Sponsor to another, You shall be bound to comply with any:

  • Determinations of that Code of Sponsors disciplinary process;
  • Requirements or recommendations arising from that Code Sponsors monitoring and audit process;
  • Determinations of any appropriate panels associated with that Code Sponsor;
  • Awards made by or on behalf of any complaint or dispute resolution person or body acting on behalf of that Code Sponsor;
  • Demand for payment form that former Code Sponsor.

If You fail to comply, We may take action to:

  • Investigate the circumstances of Your default; and/or
  • Terminate Your Membership of Flexi-Orb; and/or

Take disciplinary action in accordance with Clause O.

Clause F - Flexible Energy Register

You shall notify Us of every Installation, by using the Flexible Energy Register. We shall provide the person nominated by You with a username and password and instructions on how to access and use the Flexible Energy Register.

You shall notify Us of every new Installation within 2 Business Days of You completing an Installation with a Consumer.

All Consumer Installations should be Registered with the Flexible Energy Register.

You shall ensure that We have the ability to lawfully process the data about customers and to share this with third parties for the purposes of oversight. You shall inform the Consumer that You will share information with Us which We will process on the basis of legitimate interest. You will confirm We may process data for:

  • Registering Installations;
  • Monitoring Your compliance with Flexi-Orb;
  • Assisting the Certification Bodies to identify Installations for audit purposes;
  • Assisting You and Manufacturers with their regulatory obligations under the General Product Safety Regulations 2005, to ensure they have a planned course of action in order to provide a timely and effective response to any Product Safety Notice or Recall;
  • Supporting safe decommissioning of Installations and assisting You and Manufacturers with their Regulatory obligations under the Waste Equipment and Electronic Equipment Regulations 2013 – (WEEE);
  • Passing data to the Fire and Rescue Service so that they can make better operational decisions when attending an incident;
  • Supplying rationalised data to the District Network Operators so that they can make informed decisions about Network Infrastructure;
  • Supplying to government departments to assist in strategic decision making;
  • Assisting in compliance with standards such as PAS 7100:2018 Code of Practice on Consumer product safety-related recalls and other corrective actions;
  • Contact Consumers directly.

You may cancel the registration of any Installation by using the Flexible Energy Register provided:

  • The Installation to which the registration relates was cancelled in accordance with the Consumers Cancellation Rights to change their mind and cancel the Installation;
  • You notify Us within 10 Business Days of the cancellation of that Installation.

If You make a mistake with a registration, You should contact Us as soon as possible to notify Us of the error. We will use reasonable endeavours to rectify the mistake, including where appropriate, at Our sole discretion, cancellation of the Installation registration.

Clause G - Licences, Insurances and Guarantees

You agree at all times throughout the Membership Period and for such period as We direct thereafter, to hold insurance with an insurer authorised to provide insurance policies covering risks in the U.K, in respect of the matters set out below:

  • A policy of Public Liability Insurance cover; and
  • If You employ any person, a policy of Employers Liability Insurance

You shall maintain the insurance cover set out in Clause G to cover Your normal types of business activity, taking care to ensure that there are no policy exclusions (such as working at height, working in confined spaces, working with oxy-acetylene torches, etc) that would affect Your normal types of business activity.

You shall provide a copy of Your insurance policies as required each renewal date of the insurance throughout the Membership Period. You shall notify Us of any claims made on and changes to Your insurance policies within 5 Business Days, by sending a copy of Your Revised policy to Us in the manner We confirm to You.

If You sell, arrange or discuss any finance options with Consumers, You must hold the appropriate authorisation from the Financial Conduct Authority (FCA) (or be an appointed representative of a party who does), which We must be able to verify on the FCA Financial Services Register. If You cease to be authorised (or an appointed representative), You must immediately cease any activity requiring authorisation and notify Us immediately.

You must provide every Consumer with the guarantee for the Products that they have purchased. This must include all manufacturers’ guarantees for each of the component parts of the Product(s) that You supply.

You must provide every Consumer with a minimum 2-year workmanship guarantee. This must be supplied with an IBG which consists of the minimum standards specified In Appendix 1.

You acknowledge that, notwithstanding the additional protection afforded by the existence of a manufacturers guarantee, You maintain primary responsibility for ensuring that any Product defects are rectified. Where a manufacturer is unable or unwilling to honour the terms of their guarantee, You are responsible for honouring the terms of Your own Product and workmanship guarantee for the duration of its cover. You hereby warrant that You will provide Us with access to any relevant manufacturers guarantees and authority to deal on Your behalf with any manufacturer where You are unable to do so given Your reasonable endeavours.

Clause H - Licence of Intellectual Property Rights

We will permit You to use the Licenced Logos as set out in Appendix 3 and include reference to Your Membership of Flexi-Orb on the basis of the Membership Agreement. We may from time to time notify You that a trading style, business name and/or Licenced Logos are to be added or removed from the approved/permitted list.

We grant to You a non-exclusive, non-transferrable licence, on the terms set out in this Clause H, Appendix 3 and Our Schedule(s) of Licencing Terms to use Our Intellectual Property in the Licenced Logos for use in connection with Your Membership and in particular the marketing of the Products and services to the general public. You shall not alter, deface or modify the Intellectual Property in any way nor shall You seek to create any derivative, developed or improved rights (‘Improvements’). In the event that any Improvements are created then ownership of these shall automatically vest in Us.

For the avoidance of doubt all ownership rights vesting in Our Intellectual Property shall remain Our exclusive property (or where applicable, the third party from whom the right to use the Intellectual Property has derived). We make no warranties as to the validity or enforceability of the Intellectual Property, nor do We warrant that it does not infringe the rights of any third party.

You shall promptly give Us notice in writing if You become aware of any infringement or suspected Infringement of the

Intellectual Property or any other rights relating to Your Membership. In respect of any matter that falls within Clause H:

  • We shall, at Our absolute discretion, decide what action to take in respect of the matter (if any) and shall conduct and have sole control over any consequent action that We deem necessary that You shall be required to provide any assistance to Us (including the use of Your name in, or being joined as a party to, proceedings) with any action to be taken by Us under this Clause;
  • We shall pay all costs in relation to that action (unless any action is wholly or partly attributable to Your acts or omissions in which case the indemnity at Clause Q shall apply); and
  • We shall be entitled to 100% of all damages and other sums that may be paid or awarded in Our or Your favour as a result of that

You shall, within 3 calendar months from the Effective Date, ensure that You display the Flexi-Orb logo on all customer-facing documents, stationery, websites, vehicles and all radio, TV, on demand, social media or internet commercials.

On termination of Your Membership, You agree that You shall either destroy or pass to Us all information and materials belonging to Us or carrying Our Intellectual Property, or otherwise remove references to Our Intellectual Property from any and all of Your materials. Upon written request from Us, You shall warrant that You have complied with the provisions of this Clause.

Where Flexi-Orb is endorsed by any other oversight body and as such endorsement provides for You to use the Intellectual Property of that oversight body alongside Our intellectual property, You shall comply with the terms of the licence of Flexi- Orb as set out in the Flexi-Orb Schedule(s) of Licencing Terms.

This Clause is intended to survive the termination of Your Membership. You shall, within 20 Business Days from the date of termination, ensure that You remove any of Our Intellectual Property on all customer-facing documents, stationery, websites, vehicles and all radio, TV on demand, social media or internet commercials. For any Job that You enter into after the termination of Your Membership You are reminded that it is an offence to claim Membership of Flexi-Orb when You are no longer a member.

You agree to only use the trading styles and business names (or any branding or name) only when approved by Us and subject to its registration with Us. In the event that any trading style, business names or branding of Yours causes Us any Loss You agree to fully indemnify Us against the same.

Clause I - Your promotion of the Flexi-Orb

You shall ensure that Your relevant administrative staff are trained in the use of the Flexible Energy Register and have undergone induction training about Flexi-Orb.

You shall ensure that all customer-facing Personnel, including any third-party sales staff (e.g. anybody engaged in the sales process for you or on Your behalf), shall receive training which will include information on selling methods, Consumer rights, cancellation rights and identifying and dealing with vulnerable Consumers. You shall ensure all such staff comply with Your Code of Practice.

You shall also provide all of Your Consumers with information about how to complain to You and, if they are unable to resolve their complaint with You, how to complain to Your Code Sponsor (Should You have one).

You shall not explicitly or implicitly claim to represent Our views or those of Flexi-Orb without the written consent from Flexi-Orb.

You shall not use material to publicise Flexi-Orb which is not in accordance with the brand guidelines for Flexi-Orb that We shall supply to You from time to time.

You shall not explicitly or implicitly represent to any person that Flexi-Orb shall provide any protection or service that it is not obliged to provide under the terms of the Membership Agreement.

Clause J - Complaint Handling

This Clause is intended to survive termination of Your Membership.

You shall maintain adequate and effective means of resolving complaints about You and/or any Installation You have undertaken (including any action or default by any agents, lead generators, sales Personnel, installers or sub-contractors working on Your behalf).

Unless the complaint is specific to Flexi-Orb, Your complaints should be handled through Your relevant Code Sponsor or nominated ADR Provider and We will work with them to ensure that the Consumer is not disadvantaged. You give Us permission to share data with Your Code Sponsor for the purpose of resolving complaints and disputes.

You give Us permission to share data with any relevant stakeholder for the purpose of resolving complaints and disputes.

We retain the right to share information with Your Code Sponsor, or any regulatory body, for the purpose of resolving complaints and disputes or to notify Your Code Sponsor, or any regulatory body, of any areas of concern.

At Our sole discretion, We may refuse to accept a complaint, if, in Our opinion, it is frivolous, vexatious or repetitive.

Clause K - Alternative Dispute Resolution

You have a duty to offer Your Consumers an ADR Provider, which will normally be offered by Your Code Sponsor. However, should You decide not to supply your Consumers with an ADR Provider, then You must clearly notify all Your Consumers that You do not have an ADR Provider.

Clause L - Monitoring and Audit

We shall maintain a fair and proportionate monitoring and auditing regime over Your activities and the activities of other members of Flexi-Orb.

You have a duty to cooperate with Our monitoring and auditing regime, including any contractors that We use. In particular, You shall respond to any queries in a reasonable timescale, providing supporting materials and evidence and such other reasonable assistance as may be necessary to assess Your compliance. In addition, We may provide Our monitoring and auditing contractors with any relevant information about You, including, if appropriate, the report of a specialised expert.

Our monitoring and audit activities are concerned with ensuring the safe Installation, maintenance and registration of Products.

In addition, You agree and acknowledge that We may undertake from time to time and at Our sole discretion;

  • Credit reference checks;
  • Checks against any publicly available information;
  • Checks against any governmental or certification agency databases;
  • Mystery shopping exercises; and

Such other routine market surveillance or monitoring as is commensurate with Clause N.

Clause M - Discipline and Sanctions

You consent to be within the jurisdiction of Flexi-Orb disciplinary and sanctions provisions as set out in Clause M.

We reserve the right to terminate Your Membership of Flexi-Orb should you not comply with any of the terms in this agreement.

You agree to abide by the decision of Your Code Sponsor or Certification Body with regard to Discipline and Sanctions. Termination from Your Code Sponsor or Certification Body will mean that You no longer qualify to be a Member of Flexi- Orb.

The Membership Review Panel shall consist of at least two members of Our senior management and/or audit and risk teams and shall be formed and meet as necessary to determine matters relating to member applications, behaviour, conduct and any other matter relating to Flexi-Orb or Your Membership. Our Membership Review Panel is intended to address issues quickly and provide a means for the effective management of risks to Flexi-Orb. All final decisions of the Membership Review Panel shall be confirmed in writing within. For the avoidance of doubt, it is not independent of Flexi-Orb.

The Membership Review Panel may terminate You from Flexi-Orb for any of the reasons set out in these Standard Terms of Membership, any other breach of the Membership Agreement (including the Standard Terms of Membership) which We deem to be sufficiently serious at Our absolute discretion and any continuous or series of breaches of any of the terms of these Standard Terms of Membership.

The Membership Review Panel shall be empowered to consider any allegation of a breach of the Standard Terms of Membership or the Code of Practice or Membership Agreement referred to it by Us (for any reason at Our sole discretion), or the ADR Provider (for failure to implement a remedy).

The Membership Review Panel shall be empowered to take such action as it considers appropriate in the circumstances to achieve ongoing compliance with Flexi-Orb and adherence to these Standard Terms of Membership or Membership Agreement, this includes, but is not limited to:

  • The issue of a formal warning;
  • A requirement for You to take additional measures (either temporarily or permanently) as a condition of continued Membership;
  • A requirement to change, modify or establish an operating practice as a condition of continued Membership;
  • A requirement to provide remedies to an identified group of consumers (but not an individual case – that is a matter for the ADR Provider) as a condition of continued Membership;
  • A requirement to implement a remedy as directed by the ADR Provider as a condition of continued Membership;
  • Termination of Your Membership.
Clause N - Variation

Save to the extent set out elsewhere in these Standard Terms of Membership or where agreed between the authorised representatives of the parties in writing, these Standard Terms of Membership may only be varied in accordance with this Clause.

Save to the extent set out elsewhere within these Standard Terms of Membership, We may vary the contents with immediate effect without the provision of any notice of the change to You as a result of any change required as a result of changes to primary or secondary legislation.

We shall provide details of any changes where We deem this appropriate.

We may introduce a Schedule of Fees and Charges by giving You at least one month’s notice.

Any change to Your legal entity would require the termination of Your Membership and a new application for Membership in the name of the new entity will need to be made.

Any other change to the Membership Agreement may be made by Us on providing 30 days’ notice of the change to The members generally. The change will apply to Your Membership 30 days from the date on which We send the notice to You. Any change to terms which are particular to Your Membership may be made by Us by providing You with 30 days written notice. The period for notice shall begin on the date We send the notice. You may only make a change to Your Membership with Our agreement. Any change to the terms which would have applied to Your Membership but for its termination shall apply to any continuing obligations as if, made to Your Membership.

Clause O - Termination

The Membership Agreement may be terminated only in accordance with this Clause.

Either party may give three months’ notice in writing to terminate the Membership Agreement without reason and, at the conclusion of that period of notice, the Membership Agreement shall be terminated.

We may terminate Your Membership Agreement with immediate effect in any of the following circumstances:

  • In the event that you breach any of the provisions specified in Clause C as the Principal Obligations or any other breach which We reasonably deem to be material;
  • In the event that You repeatedly breach any of the terms of these Standard Terms of Membership or Your Membership such that We deem to Your conduct to be such that You have no intention to act in accordance with it;
  • If any of the events in Clause D (relating to matters of solvency, administration and insolvency) occur;
  • If a determination is made under Clause M by the Membership Review Panel to expel You from Flexi-Orb;
  • If We are ordered to expel You from Membership by:
  • A court of competent jurisdiction;
  • A statutory or quasi-statutory oversight body for Your sector;
  • Any other oversight body; or
  • Trading

You may terminate the Membership Agreement with immediate effect in any of the following circumstances:

  • In the event that We become unable to fulfil Our obligations set out in Clause C to You; or
  • In the event that We repeatedly breach any of the terms of these Standard Terms of Membership or the Membership Agreement such that You deem Our conduct to be such that We have no intention to act in accordance with it; or
  • If We enter any composition or arrangement (whether formal or informal) with Our creditors; or
  • If We become the subject of a voluntary arrangement with the meaning of Section 1 of the Insolvency Act 1986 or any statutory modification or re-enactment thereof; or
  • If We become unable to pay Our debts with the meaning of Section 123 of the Insolvency Act 1986 or any statutory modification or re-enactment thereof; or
  • If the receiver manager, administrator or administrative receiver is appointed in respect of Us or any undertaking, assets or income or a substantial part thereof; or
  • If a winding up resolution of Us is passed or any petition is presented to any Court for Our winding up or Our ceasing or threatening to cease to carry on Our business; or
  • If You do not accept a change in terms made in accordance with Clause N. The effect of the termination is as follows:
  • Clause J and any other clause required to continue after Your Membership ends shall continue to have an effect after termination of these Standard Terms of Membership for the entire length of Your maximum guarantee period (as set out in Your Membership Agreement) plus any further period required to give effect to the requirements of the clause;
  • Clause M and Clause P shall continue to have effect after the termination of these Standard Terms of Membership for a period of twelve months, but only in relation to any disciplinary or Non-Compliance action commenced during the Membership Period so as to enable Us to complete any outstanding disciplinary matters and, notwithstanding a notice of termination of the Membership Agreement from You, the Membership Review Panel may nevertheless proceed to make a final decision to expel You from Flexi-Orb and publish that accordingly;
  • Any other Clause which is expressly stated to or by implication should remain in force following termination.

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

Clause P - Data Protection and Information Security

We will use Your data if You are an individual in a partnership to administer Flexi-Orb processes. This is part of the Membership Agreement and necessary to meet the obligations of the Flexi-Orb agreement with You. We will also use the data of Your employees for the purposes of Flexi-Orb processes. This is part of Our legitimate interest in administering Flexi- Orb. You agree to confirm to Your employees that We may use their data.

We may provide information on You and Your employees to third parties which may include insurance carriers, fraud agencies, credit reference agencies, certification bodies, regulatory authorities, manufacturers, emergency services and other Consumer protection organisations and Code Sponsors. Where We provide data to a third party, We will ensure that if they process data for Us an agreement is in place for this. Some third parties may receive data from Us that they will process in their own right.

Both You and Us agree and confirm We shall comply with the requirements of the data protection laws.

You shall not, except as directed by an authorised person representing Us or as required by these Standard Terms of Membership, use for Your benefit or gain, divulge to any persons, firm, company, or other organisation whatsoever, any confidential information belonging to Us, any customer, client or potential customer or client of Ours or any contractor or service provider to Us, or any contributors to any of Our Products or services, relating to affairs or dealings which come to Your knowledge arising out of or in connection with these Standard Terms of Membership.

You shall not, except as directed by an authorised person representing Us, provide to any person, including other members of Flexi-Orb, any information concerning the content of Your Membership Agreement.

We may in certain circumstances, share information about You, the Installation or a Consumer with any relevant regulatory body, essential service, energy infrastructure body, funders, or Consumer advisory body e.g. BEIS, OFGEM, Fire and Rescue Service, Energy Networks Association, District Service Operators, National Grid, Retail Finance Companies, Trading Standards Department or other such advisory body deemed appropriate.

We will only share Your or a Consumers details in circumstances that comply with the data protection laws. You must gain the Consumers authorisation, in writing, to allow Us to use the data for the legitimate purpose noted above.

We will gain express written permission from any complainant to share information relating to a complaint.

Lorem ipsum dolor sit amet, consectetuer adipiscing elit, sed diam nonummy nibh euismod tincidunt ut laoreet dolore magna aliquam erat volutpat.

Clause Q - Liability and Indemnity

Nothing in these Standard Terms of Membership shall limit or exclude either party’s liability to the other for causing death or personal injury by their negligence, any fraud or fraudulent misrepresentation or wilful default and any other matter in respect of which would be unlawful to exclude or limit liability.

Subject to Clause Q and to the extent permitted by law:

  • We shall under no circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any Losses arising under or in connection with the Membership Agreement, which are:
    • Loss of profits;
    • Loss of sales or business;
    • Loss of agreements or contracts;
    • Loss of anticipated savings;
    • Loss of or damage to goodwill;
    • Loss of authorisation, accreditation or approval by any other body;
    • Loss of use or corruption of software, data or information; or
    • Any other indirect, direct, special or consequential Loss; and
  • Our total liability to You in respect of all Loss arising under or in connection with the Membership Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the value of any fees which You have paid to Us in cleared funds in the year leading up to the date on which that liability arises.

You shall indemnify, keep indemnified and hold harmless Us against any Loss arising out of or in connection with Your breach of the Membership Agreement, otherwise in contract, tort (including negligence), breach of statutory duty or otherwise as a result of any other act or omission of You under or in connection with the Membership Agreement and whether such Loss is of a direct nature or for:

  • Loss of profits;
  • Loss of sales or business;
  • Loss of agreements or contracts;
  • Loss of anticipated savings;
  • Loss of or damage to goodwill;
  • Loss of authorisation, accreditation or approval by any other body;
  • Loss of use or corruption of software, data or information; or
  • Any other indirect, direct, special or consequential Loss.
Clause R - Notices

A notice or any other communication given in accordance with the Membership Agreement:

  • Shall be in writing (in English);
  • Be sent by any of the methods and to the details set out in accordance with Clause A for You and Us respectively;
  • Shall be deemed to have been received in accordance with Clause R if prepared and sent in accordance with this Clause.

Any notice shall be deemed to have been received:

  • If delivered by hand, on signature of a delivery receipt (or at the time the notice is left at the proper address);
  • If sent by pre-paid first-class post or other next Business Day delivery service, at 09:00am on the second Business Day after posting or at the time recorded by the delivery service; or
  • If sent by email, at 09:00 on the next Business Day after

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.

A Decision Maker for Us may send You a Minded to Notice and may provide You with a reasonable opportunity to make representations to Us about that proposed decision as set out in the Minded to Notice.

A Decision Notice shall represent Our final decision on its subject matter (subject to any rights of appeal). For the avoidance of doubt, any correspondence, discussions or negotiations antecedent to a Decision Notice shall not form any part of that Decision Notice unless specifically referenced therein.

Clause S - Miscellaneous

Neither party, provided that it has complied with the provisions of Clause S, shall be in breach of the Membership Agreement, nor liable for any failure or delay in performance of any obligations under the Membership Agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (‘Force Majeure Event’), including but not limited to any of the following:

  • Acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
  • War, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
  • Terrorist attack, civil war, civil commotion or riots;
  • Nuclear, chemical or biological contamination or sonic boom;
  • Voluntary or mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
  • Fire, explosion or accidental damage;
  • Loss at sea;
  • Adverse weather conditions;
  • Collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
  • Any labour dispute, including but not limited to strikes, industrial action or lockouts; and
  • Interruption or failure of utility service, including but not limited to telecommunications services, electric power, gas or water.

In the event of a Force Majeure Event, the corresponding obligations of the other party will be suspended to the same extent. Any party that is subject to a Force Majeure Event shall not be in breach of the Membership Agreement provided that:

  • It promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
  • It could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
  • it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Membership Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

If the Force Majeure Event prevails for a continuous period of more than 1 month, either party may terminate the Membership Agreement by giving 10 Business Days written notice to the other party. On the expiry of this notice period, the Membership Agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Membership Agreement occurring prior to such termination.

At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Membership Agreement.

 

Clause T - Rights of Third Parties

A person who is not a party to the Membership Agreement shall not have any rights under or in connection with it.

Any oversight body, whose logo or Intellectual Property is permitted by virtue of the terms of any applicable licence, may enforce the terms of these Standard Terms of Membership insofar as it relates to the protection of their intellectual property.

Any insurer, whose policies are procured to underwrite deposit or insurance backed guarantee, may enforce the terms of these Standard Terms of Membership insofar as You have provided information upon which a decision to underwrite a policy that You know to be false or do not believe to be true.

Clause U - Payment of Fees

This Clause is intended to survive termination of the Membership Agreement.

There are no fees associated with this Agreement at present. We will issue a Schedule of Fees should any become associated.

We reserve the right to introduce a fee arrangement, subject to variation in accordance with Clause N. You shall pay Our fees if they become due.

We may take legal action against You for recovery of any unpaid fees and any other contingent Losses incurred by Us as a result of Your acts and/or omissions.

You shall pay any and all fees due to Us without any set off, abatement, counterclaim or other similar deduction and notwithstanding the presence of any dispute between the parties. We may at any time and without notice to You, set off any liability of Ours to You against any liability of Yours to Us, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises or has arisen under these Standard Terms of Membership.

Clause V - Governing Law and Jurisdiction

The Membership 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.

The parties irrevocably agree that, subject to Clause M, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Membership Agreement or its subject matter or formation (including non-contractual disputes or claims).

Appendix 1 - Minimum Standards for IBG Policies

IBG policies, as stated in this Membership Agreement, must be supplied to each Consumer on each separate Installation. The minimum standard of each IBG must reach or exceed the following:

  • Insurance policyholders must have access to Financial Ombudsman Services (FOS).
  • Insurance policyholders must have access to Financial Services Compensation Scheme (FSCS).
  • Deposits & Staged Payments taken from the Consumer must not exceed 25% of the Installation Contact
  • The Insurance policy must be effective without the Consumer having to register or send a reply to the
  • A minimum 2-year IBG that covers the Workmanship must be
  • The IBG must cover for defects discovered prior to the company ceasing to trade (up to a maximum of 6 months).
  • The IBG must cover for Voluntary Liquidation of the company or Retirement of a self-employed
  • The IBG must be transferable to subsequent property
  • The IBG should not have an excess that exceeds £250.
  • Should the IBG cover the product, it must cover for electrical and/or mechanical breakdown.
Appendix 2 - Energy Installer Minimum Eligibility for Flexi-Orb Approval

The minimum criteria for approval are as follows:

  • You must be an accredited installer with the relevant Certification Body
  • You must be a member of one of the following CTSI approved Code Sponsors, or clearly notify all of Your Consumers that You do not have a Code Sponsor:
    • GGF The Glass and Glazing Federation
    • HIES The Home Insulation and Energy Systems Contractors Scheme
    • RECC The Renewable Energy Code of Conduct
    • TMO The Motor Ombudsman
  • You Must Register every Installation on the Flexible Energy
  • Membership must Comply with all regulation, specifically, but not limited to:
    • To comply with the relevant Consumer Protection
    • The Waste Electrical and Electronic Equipment Regulations (WEEE).
    • EREC G98, G99 and G100 Registration of EES and co-located qualifying.
Appendix 3 - Schedule(s) of Licensing Terms

These terms grant You the right to use the Flexi-Orb Logo, Flexible Energy Register and any Flexi-Orb ambassadors Image Rights (hereafter, ‘Intellectual Property’) and explains how You may use the Intellectual Property.

For the avoidance of doubt, We shall have the power to enforce any provisions contained in this Appendix against You. A licence may only be granted to You on the Effective Date.

We hereby grant You a non-exclusive, non-transferable, royalty-free licence to use the Intellectual Property from the date of the Membership Agreement and on these terms and conditions. Members shall not assign or grant sub-licences of the licence or any part of it to any other party.

Grant of License
We will ensure that You adhere to the terms of this licence and We will monitor and supervise Your use of the Intellectual Property.

Use of the Intellectual Property
You may use the Intellectual Property on or in any of the following materials, provided that such materials relate directly to

Your business and are owned, used or purchased by You in the course of running Your business:

  • Business stationery, including letterheads, order forms and invoices;
  • Promotional material including brochures, posters, TV advertising, exhibition stands, mailshots;
  • Catalogues, promotional gifts and calendars;
  • Newspaper or other advertisements;
  • Websites and electronic mail;
  • Advertising hoardings;
  • Name plaques;
  • Windows and doors;
  • Workwear;
  • Business and professional directories, and
  • Commercial.

Should You wish to use the Intellectual Property on or in any materials not listed in this clause, You must first obtain written consent from Us.

You shall not do, or omit to do, or permit to be done, any act that will or may:

  • Weaken, damage or be detrimental to the Intellectual Property or the reputation or goodwill associated with the Intellectual Property, Us, Flexi-Orb or Ambassadors;
  • Invalidate or jeopardise any registration of the Intellectual Property.

Whenever using the Intellectual Property, You must at all times comply with the Brand Guidelines. We reserve the right to make any amendments to these Guidelines.

The Intellectual Property may not be used by You to infer endorsement by Us, Flexi-Orb or Ambassadors of Your financial stability or the quality or suitability or safety of goods or services provided by You beyond the approval of Membership onto Flexi-Orb.

You shall comply within 14 days with any request made by Us to provide examples of each way in which You use the Logo.

Intellectual Property Rights and Goodwill
You acknowledge Our ownership and proprietary rights in the Intellectual Property Rights and agree and acknowledge that:

  • You will not obtain or seek to obtain any rights in the Intellectual Property Rights for the Intellectual Property
  • You will not register or attempt to register any of the Intellectual Property Rights in any jurisdiction, and
  • Any goodwill in the Intellectual Property that accrues to You from time to time through use of the Intellectual Property is assigned to Us and any goodwill generated by use of the Intellectual Property under this Agreement shall accrue to Us.

You shall not adopt or use any mark, symbol or logo which incorporates or is confusingly similar to or is a colourable imitation of the Logo.

You shall immediately give notice in writing to Us if You become aware of any:

  • Infringement or suspected infringement of any of the Intellectual Property Rights, or
  • Claims made or threatened that the Intellectual Property Rights infringe the rights of any third party.

Termination of Licence
The licence shall terminate in the event of Us or You terminating the Membership Agreement.

Consequences of Termination of Licence
On termination of a licence to You, You shall within 20 working days:

  • Return or destroy any property including (but not limited to) copies of any materials containing the Logo or other Intellectual Property Rights owned by or licenced to Us;
  • Promptly cease representing to any third parties in any media that You are a Flexi-Orb Member;
  • Remove or obliterate all uses of the Logo on the materials and any others for which permission has been given by Us; and
  • Do nothing which may lead any person to believe that You are still licensed to use the Intellectual Property.