Terms for Commercial Gas & Electricity Supply
- Sale and Purchase of Gas and Electricity: From the Supply Commencement Date, Nova Energy Limited will commence the supply or gas or electricity (or both) to the Customer. The Customer will purchase and pay for gas and electricity supplied by Nova Energy Limited upon the terms set out in this agreement.
- Certification: Prior to the Supply Commencement Date the Customer must provide Nova Energy with a copy of any certificate in relation to the gas installation at the Site required by the Gas Regulations 1993 or the operator of the Gas Network and any certificate in relation to the electricity installation at the Site required by the Electricity Regulations 1997 or the operator of the Electricity Network.
- Quality of Supply: gas and electricity supplied by Nova Energy will be of a specification that complies with all applicable laws.
- Obligation under unsafe practices: Nova Energy may suspend the supply of gas and/or electricity to the Site if the installation equipment used for distributing gas or electricity throughout that Site does not comply with sound engineering practice and workmanship or applicable law, New Zealand Standard or Code of Practice, from time to time, so that it is safe when connected to the Gas Network or Electricity Network.
- Exclusive supply: Except as otherwise provided in this agreement the Customer must purchase all of its gas and electricity requirements for the Site from Nova Energy and will not take any gas or electricity from other suppliers.
- Maximum supply: Nova Energy does not have to supply the Customer more than the Maximum Annual Quantity of gas or electricity.
- Information to be provided by Customer: The Customer will, on request, promptly and freely provide Nova Energy with all necessary information to enable Nova Energy to comply with the law and information relating to the Customer’s likely future gas and electricity consumption requirements that Nova Energy may reasonably require.
- Commencement and term: This agreement commences on the date it is signed by both Nova Energy and the Customer and shall remain in force (subject to earlier termination in accordance with this agreement) until it is terminated at the expiry of the Supply Period under clause 9.
- Termination on expiry of term: This agreement will terminate on the expiry of the Supply Period upon either party providing 3 months notice prior to the expiry of the Supply Period.
- Extension of term: if neither Nova Energy nor the Customer give notice terminating this agreement under clause 9, this agreement will be automatically extended for a further period equal to the term of the initial Supply Period on the same terms as this agreement (including this clause).
- Supply of gas and electricity outside Supply Period: If on the termination of this agreement:
- Nova Energy continues to supply gas and/or electricity to the Customer and that supply of gas and/or electricity is not governed by a separate written agreement between Nova Energy and the Customer, then the continued supply of gas and/or electricity shall be provided on the basis of Nova Energy’ Standard Terms for Gas and Electricity Supply then in force; and
- the Customer intends to purchase gas or electricity for the Site from another gas or electricity supplier, notwithstanding clause 9, the Customer shall provide Nova Energy with a right to match the terms of supply (including price) offered by the other gas or electricity supplier. If Nova Energy offers the Customer terms for gas or electricity which are equally as favourable or more favourable than those offered by the other supplier, the Customer shall enter into an agreement with Nova Energy to purchase gas or electricity (as the case may be) from Nova Energy on such terms.
CONTINUITY OF SUPPLY
- Continuity of supply: Nova Energy will use all reasonable endeavours to maintain a continuous supply of gas and electricity to the Site. However, the supply of gas or electricity to the Site may be interrupted or reduced:
- by any of Nova Energy or the operator of the Transmission System or Gas Network or the Electricity Network to avoid any overload of, damage to, interference with, or to ensure the integrity, efficiency, security or safety of, the Transmission System, the Gas Network or the Electricity Network or to avoid any interference with the supply of gas or electricity to any other person;
- if any emergency or event arises which any of Nova Energy or the operator of the Transmission System, the Gas Network or the Electricity Network considers threatens the safety of any person or property;
- for any reason permitted under any agreement between Nova Energy and the operator of the Transmission System, the Gas Network, or the Electricity Network or any producer or wholesaler of gas or electricity used by Nova Energy for the transmission of gas or electricity to the Customer;
- for any reason or cause outside the control of Nova Energy (including an excusable delay under clause 53);
- for the purpose of inspecting, testing, maintaining, repairing, or effecting any alterations or additions to the Site, gas or electricity installation;
- for any purpose necessary for Nova Energy to perform its obligations at law or under this agreement.
Where practicable Nova Energy will ensure any interruption or reduction to the supply of gas or electricity will occur at a time that will cause as little interference to the Customer’s business as is reasonably practicable and will use its reasonable endeavours to give the Customer reasonable notice of any planned interruption or reduction in the supply of gas or electricity.
- Restoration of supply: In the event of any interruption to, or reduction in, the supply of gas or electricity to the Site, Nova Energy will, having regard to the cause of the interruption or reduction and the steps to be taken to restore the supply of gas or electricity, use its reasonable endeavours to restore the normal supply of gas or electricity to the Site as soon as reasonably practicable.
- Delivery Point and Pressure: Nova Energy will deliver gas to the Site at the Delivery Point at a pressure that ensures the safe use of the gas where the gas is used for its intended purpose in the Customer’s properly functioning gas installation and gas appliances at the Site.
- Risk: Every risk in relation to the supply of gas and electricity by Nova Energy to the Site will pass to the Customer at the Delivery Point.
- Customer’s Responsibilities: The Customer is responsible for its installation, equipment, appliances and other property at the site and must:
- follow directions of Nova Energy and the operator of the Transmission System or the Gas Network or the Electricity Network to ensure the integrity, efficiency, security and safety of the Gas Network or the Electricity Network, any other equipment or property of Nova Energy on the Site or the Transmission System;
- never, and shall use all reasonable endeavours to ensure that any other person the Customer is responsible for (including its employees, agents and contractors) never, interfere with, damage or work on any part of the Gas Network or the Electricity Network, any metering equipment or any other equipment or property of Nova Energy or any other person which is used in connection with the supply of gas or electricity to the Customer. Tampering with meters and equipment is dangerous and a criminal offence;
- ensure that its installation, equipment and appliances at the Site are safe and comply with all relevant law and any reasonable requirements of Nova Energy;
- make sure that nothing on the Site interferes with or damages the Gas Network or the Electricity Network;
- obtain any necessary consent of the owner of the Site or other person needed for the Customer to satisfy its obligations and for Nova Energy to exercise its rights under this agreement;
- provide Nova Energy with the necessary convenient space, at the Site, to install any equipment necessary to supply gas and electricity to the Site;
- protect any equipment of Nova Energy or Gas Network owner or Electricity Network owner installed on the Site or any other person used in connection with the supply of gas or electricity to the Customer;
- never take or allow any person to take a supply of gas or electricity from any point between the Delivery Point and the metering equipment or otherwise allow any gas or electricity to be used by any person before it passes through the metering equipment.
- not convey or receive, or attempt to convey or receive, any signal or any other form of communication over the Electricity Network without prior written consent of the relevant Electricity Network owner.
- Nova Energy’s responsibilities: Nova Energy is responsible for the supply of gas and electricity to the Site and any metering equipment, plant or equipment it provides to the Customer for the supply of gas and electricity to the Site. Nova Energy will perform its obligations under this agreement with the degree of skill, diligence and prudence which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking as Nova Energy in the same or similar circumstances in New Zealand.
- Access for works: The Customer shall provide Nova Energy and its employees, agents and contractors free, safe and unobstructed access to the Site:
- to read metering equipment;
- for the purpose of installing, inspecting, testing, repairing, removing or replacing any of its plant or equipment;
- to investigate any suspected tampering with any of its equipment or property;
- to connect or disconnect the supply of gas or electricity to the Site; or
- for any other purpose necessary for Nova Energy to perform its obligations at law or under this agreement.
- Exercise of rights of access: Nova Energy will use all reasonable endeavours to ensure that the rights of access under clause 18 are exercised by:
- giving the Customer reasonable notice of the reason and time Nova Energy requires access, except in the case of emergency or to read any metering equipment;
- causing as little inconvenience to the Customer at the Site as is reasonably possible;
- complying with the Customer’s reasonable safety, security and operational requirements; and
- observing proper gas and electricity industry standards at all times.
- Emergency access: Nova Energy shall have access to the Site at any time where any work is rendered urgent and necessary due to any defective equipment, interruption to the supply of gas or electricity or other emergency.
- Gas pipelines: The Customer will permit Nova Energy or the Gas Network owner as the case may be to lay gas pipelines on the Site to transport gas to the Delivery Point or from the Delivery Point to any other delivery point that the Customer requires.
- Easements: If requested by Nova Energy the Customer will grant Nova Energy or the Gas Network owner as the case may be an easement over the line of the gas pipelines on the Site.
MEASUREMENT OF ENERGY
- Unit of gas and electricity supply: Both gas and electricity will be sold by energy content measured in kWh.
- Metering equipment: The quantity of gas and electricity delivered to the Site at the Delivery Point will be measured by metering equipment at or near the Delivery Point. If metering equipment is not installed, or is not available for use by Nova Energy, at the Site, Nova Energy shall arrange for metering equipment to be installed prior to the Supply Commencement Date and the Customer must provide Nova Energy the necessary convenient space to install the metering equipment. If the Customer fails to provide such space, Nova Energy may refuse to supply gas or electricity to the Site.
- Meter reading: Nova Energy shall attempt to arrange for the metering equipment at each Delivery Point to be read at least once a month.
- Remote reading: Nova Energy may install at or near the Delivery Point any plant or equipment it considers necessary for the purpose of remote interrogation of any metering equipment used for measuring or monitoring the supply of gas or electricity to that Delivery Point.
- Supply assessment: If, for any reason (whether or not due to a fault in any plant or equipment owned by Nova Energy), the metering equipment cannot be read on the scheduled reading date or Nova Energy considers an Accurate meter reading cannot be obtained, then the quantity of gas or electricity supplied to the Site may be determined by Nova Energy using, at Nova Energy’s election:
- any back-up or check metering equipment which is available and considered by Nova Energy to be Accurate; or
- Nova Energy’s reasonable estimation of the quantity of gas or electricity supplied to that Site using such historical consumption data as Nova Energy considers appropriate and having regard to the Customer’s recent consumption trends or some other appropriate method;
with a subsequent adjustment to the Customer’s account following the obtaining of an accurate reading of the metering equipment (if available).
- Inaccurate metering: If the Customer considers any metering equipment used to measure the quantity of gas or electricity supplied by Nova Energy is not Accurate, the Customer may, at reasonable intervals of not less than 12 months, give written notice to Nova Energy requiring Nova Energy to test the accuracy of that metering equipment. On receipt of that notice, Nova Energy will test the accuracy of the metering equipment as soon as reasonably practicable.
- Adjustment of account: If the test undertaken by Nova Energy establishes that the metering equipment is not Accurate, Nova Energy will repair or replace the metering equipment, and make an appropriate adjustment to the Customer’s account for the period since the metering equipment was installed or since the metering equipment last tested Accurate, whichever is the shorter.
- Testing costs: The Customer shall pay Nova Energy’s reasonable costs of testing any metering equipment if the test undertaken by Nova Energy establishes the metering equipment to be Accurate.
REVIEW OF PRICES
- Adjustment to Gas or Electricity Price: Nova Energy may, at any time, adjust the Gas Price or the Electricity Price:
- on 30 days written notice to the Customer, where the cost of supplying gas or electricity to the Customer has increased (including, without limitation, due to any new or increased taxes, charges, local authority rates, levies or metering system, the Gas Network or the Electricity Network or Transmission System charges or any carbon charges or costs (or the cost of activities which Nova Energy deems economically rational for mitigating the incidence of carbon charges or costs) that Nova Energy is required to pay); or
- by giving the Customer 3 months written notice of such adjustment.
- Annual review of Gas Price and the Electricity Price: In addition to the rights of adjustment under clause 31, the gas price and the electricity price will be adjusted annually from 1 October each year in accordance with the following formula:
“Index A” means the first published CPI for the quarter preceding the adjustment date.
“Index B” means the published CPI for the quarter one year previous to index A.
“Base price” means the price payable preceding the adjustment.
“New Price” means the new Price to apply from and including the Review Date concerned.
- Replacement index: If the CPI ceases to be published, or is determined and published on a basis which is materially different from the way in which it was determined and published on the Supply Commencement Date (in particular if the CPI most recently published prior to the Review Date relates to a period ending more than 6 calendar months prior to the Review Date), Nova Energy and the Customer shall agree on another index suitable for the purpose of calculating and taking into account inflation for the period concerned in the same manner as the CPI. Failing agreement on another index within 10 working days the matter will be determined in accordance with the disputes resolution procedures in clause 51.
SENDING AND PAYMENT OF INVOICES
- Monthly invoicing: Nova Energy will send the Customer a monthly invoice for the supply of gas and electricity and any other service used by the Customer during the month to which the invoice relates.
- Payment: The Customer must pay all Nova Energy invoices by the due date set out in the relevant invoice. Such payment must be made without deduction or set-off and unless agreed otherwise be made by cheque or direct credit.
- Disputed invoices: Where the Customer, in good faith, disputes all or any part of any of Nova Energy invoices, then:
- the Customer must pay the whole of the invoiced amount, in full, by the due date;
- the Customer may refer the disputed amount for resolution in accordance with the disputes resolution procedure in clause 51; and
- if it is resolved in that dispute resolution procedure that the Customer is due a refund in whole or in part then Nova Energy shall promptly repay the relevant amount to the Customer.
- Default interest: Without prejudice to Nova Energy’s other rights and remedies, if any amount payable under this agreement is not paid by the Customer on or before the due date for payment, Nova Energy may require the Customer to pay interest on that amount from (but excluding) the due date to (and including) the date of actual payment (such payment to include all accrued interest). Interest shall accrue daily at the then current base or indicator retail rate of The National Bank of New Zealand Limited plus 6% per annum and be compounded monthly. The Customer shall also pay Nova Energy reasonable costs (including solicitor/client costs) associated with collecting any money the Customer owes Nova Energy.
- Exclusion of Consumer Guarantees Act: The parties agree that, where the Customer is being supplied gas and electricity for commercial use, the provisions of the Consumer Guarantees Act 1993 shall not apply in relation to the supply of gas and electricity under this agreement.
- Exclusion of Nova Energy’s liability: Notwithstanding any other provision of this agreement, to the extent allowed by law, none of Nova Energy, its directors or representatives will be liable, whether in contract, tort (including negligence) or otherwise to the Customer for:
- any interruption to, or reduction in, the supply of gas or electricity to the Site for any reason referred to in clause 12;
- any failure to comply with this agreement caused by any interruption or reduction in the supply of gas or electricity into the Gas Network or the Electricity Network;
- any other reason beyond Nova Energy’ reasonable control; or
- any indirect loss, consequential loss or loss of profits suffered by the Customer.
- Limitation of liability: To the extent allowed by law, Nova Energy is only liable for direct loss or damage caused by Nova Energy to the Customer in relation to this agreement, provided that Nova Energy’ liability in respect of any event or series of related events shall be limited to $2,000 and provided further that Nova Energy’ liability in respect of all claims over the term of this agreement shall be limited to $20,000.
ENDING OR SUSPENDING THE SUPPLY OF GAS OR ELECTRICITY
- Failure to perform: Either party may terminate this agreement by written notice to the other party if:
- the other party fails to pay any amount due under this agreement by the due date and fails to rectify this default after being given 5 working days written notice to do so;
- the other party commits a material breach of any provision of this agreement and if capable of remedy, upon receiving written notice of that breach from the other party, the party in breach has failed to remedy that breach within 5 working days of receipt of the notice; or
- an excusable delay pursuant to clause 53 continues for more than 5 consecutive working days or for an aggregate of 10 working days in any 12 month period.
- Nova Energy may suspend supply of gas or electricity: Without prejudice to Nova Energy’ other rights and remedies, Nova Energy may suspend the supply of gas and/or electricity under this agreement if any of the events specified in clause 41 occurs in respect of the Customer.
- Vacation of Sites: If the Customer ceases to occupy the Site and wishes Nova Energy to discontinue the supply of gas and electricity to that Site, the Customer must give Nova Energy not less than 5 working days prior written notice of the date it wishes Nova Energy to discontinue the supply of gas and electricity to the Site. Upon the Customer ceasing to occupy the Site this agreement shall terminate. All rights and obligations that may have accrued or been incurred in respect of the supply of gas and electricity to the Site prior to disconnection shall continue in full force and effect.
- Early termination fee: If this agreement terminates, or if the Customer ceases to take an exclusive supply of gas and/or electricity at the Site from Nova Energy, before the end of the relevant Supply Period, then the Customer shall pay Nova Energy the applicable Early Termination Fee within 5 working days of receipt of an invoice from Nova Energy for that fee. This clause shall not apply in the event of a valid termination by the Customer for any default of, or any excusable delay by, Nova Energy. The parties agree that the Early Termination Fee represents a genuine pre-estimate of loss to Nova Energy arising from early termination or repudiation of this agreement in relation to the supply of either gas or electricity or both.
- Disconnection on termination: Upon expiry or earlier termination of this agreement, Nova Energy may disconnect the Delivery Point at the Site from the Gas Network and/or the Electricity Network.
- Removal of Nova Energy equipment: Following the expiry or earlier termination of this agreement, the Customer must provide Nova Energy and its employees, agents and contractors free, safe and unobstructed access, during normal working hours to the Site to allow such persons to remove any metering equipment, plant or equipment owned or provided by Nova Energy.
- Amendments: Nova Energy may amend these Standard Terms for Gas and Electricity Supply from time to time. Any such amended terms notified to the Customer will apply to the Supply Period and to any subsequent Supply Period.
- Gas Network and Electricity Network Requirements: The Customer agrees to comply with any requirement of the operator of the Gas Network or the Electricity Network and any obligation or requirement set out in any agreement between such network operator and Nova Energy intended to be passed onto the Customer, shall be binding on the Customer.
- Assignment: The Customer must not assign any of its rights or interests under this agreement without Nova Energy’ prior written consent.
- Confidentiality: Except as required by law or authorised by Nova Energy in writing, the Customer must keep confidential all information relating to this agreement, including the terms of the supply of gas and electricity, the Gas Price and Electricity Price and any related correspondence.
- Disputes: If a party believes that there is a dispute in relation to this agreement (including any invoice), it will first notify the other party in writing giving details of the dispute. The dispute will then be promptly referred to a senior representative of each party for resolution and if they do not resolve the dispute within 10 working days, either submitted to arbitration if requested by either party or submitted to any independent complaints resolution process offered by Nova Energy. Nothing in this clause shall prevent Nova from applying for summary judgment or seeking injunctive or equitable relief from the High Court in connection with any breach of this agreement by the Customer.
- Entire agreement: This agreement records the entire agreement between Nova and the Customer, and supersedes and cancels any prior written or oral understanding, agreement or arrangement concerning the subject matter of this agreement.
- Excusable delay: Neither party will be liable to the other party for any failure or delay in performing an obligation under this agreement (other than an obligation to make a payment when due) if due to a cause reasonably unforeseeable or beyond the control of a party and that party has used its best endeavours to perform its obligations on time despite the cause.
- Further assurances: Each party will execute all other documents and do all other acts and things as may be reasonable to implement and to carry out its obligations under, and the intent of, this agreement.
- Waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing. A waiver of one breach will not be a waiver of any other breach.
- Survival: Each provision in this agreement survives the expiry or earlier termination of this agreement to the extent unfulfilled, and remains enforceable and does not merge, on performance of any other provision and, any provision which, by its nature is intended to survive termination, will survive termination of this agreement and will remain in full force and effect.
- Interpretation: In this agreement, unless the context otherwise requires:
- headings are inserted for convenience only and shall be ignored;
- references to legislation or to any provision of any legislation (including regulations and orders) includes that legislation or provision as amended, re-enacted or substituted and any statutory instruments, regulations and orders issued under any such legislation or provision; and
- references to a party includes its employees, agents, contractors, successors, permitted assigns, receivers, managers, liquidators or other representatives and to any person includes any form of entity.
- Definitions: In this agreement, unless the context otherwise requires:
“Accurate” means, having regard to the type of metering equipment, that the margins of error advised by Nova Energy from time to time are not exceeded.
“CPI” means the Consumers Price Index, All Groups, set out in the Statistics New Zealand publication “Hot Off the Press” category 183501.
“Delivery Point” means the point at which gas or electricity (as the case may be) flows from the Gas Network or the Electricity Network into the Customer’s installation, appliance or reticulation system or such other point as the parties may agree.
“Early Termination Fee” means an amount equal to A x B for gas + A x B for electricity, where:
A = Nova Energy’s reasonable estimate (having regard to the Customer’s historical usage profile) of the quantity of gas/electricity (in kWh) that it would have supplied to the Customer between the date of termination or the date on which the Customer ceased to take an exclusive supply of gas/ electricity at the Site from Nova Energy (as the case may be) and expiry of the Supply Period; and
B = In the case of gas, the Gas Price less actual avoided third party costs and Nova Energy’s reasonable estimate of Mismatch Fees payable in respect of A, and in the case of electricity, the Electricity Price less actual avoided third party costs;
“Electricity Network” means the electricity network system used by Nova Energy for the distribution of electricity to the Customer.
“Electricity Price” means both the aggregate of the daily charge and the variable charge specified in the attached Gas and Electricity Supply Agreement plus GST (if any) adjusted in accordance with clauses 31 or 32 as the case may be.
“Gas and Electricity Supply Agreement” means the Application for Commercial Gas and Electricity Supply signed by the Customer and Nova Energy and attached to these terms.
“Gas Network” means the gas network system used by Nova Energy for the distribution of gas to the Customer.
“Gas Price” means both the aggregate of the daily charge and the variable charge specified in the attached Gas and Electricity Supply Agreement plus GST (if any) adjusted in accordance with clauses 31 or 32 as the case may be.
“GST” means goods and services tax and any penalties which a person may be liable to pay under the Goods and Services Tax Act 1985 and includes any other applicable tax, duty or excise.
“Maximum Annual Quantity” means the maximum annual quantity specified in the attached Gas and Electricity Supply Agreement (apportioned equally over a 12 month period, to the intent that maximum monthly, daily and hourly quantities can be determined).
“Mismatch Fee” means, on any day, the positive mismatch price on the Maui OATIS system (net of all charges, costs and taxes) payable by the operator of the Maui pipeline for each GJ of Gas injected into, but not taken from, the Maui pipeline.
“Site” means the site specified in the attached Gas and Electricity Supply Agreement to be supplied gas and electricity under this agreement.
“Supply Commencement Date” means the date specified in the attached Gas and Electricity Supply Agreement.
“Supply Period” means the term of this agreement specified in the attached Gas and Electricity Supply Agreement including any renewal of that term.
“Transmission System” means any high pressure gas transmission system for the transportation of gas or any high voltage transmission system for the transportation of electricity
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