|
An independent trading division
of Wanganui Gas Limited
PO Box 7149,
Wanganui 4540
Ph (06) 349 0909
Fax (06) 349 0135
Online Enquiries
|
DISTRIBUTION SERVICES
AGREEMENT
Between
WANGANUI GAS LIMITED
("WGL")
AND
[ ]
(the "Customer")
DISTRIBUTION SERVICES AGREEMENT
TABLE OF CONTENTS
1 INTERPRETATION
1.1 Defined Terms.
1.2 Construction
2 CONDITIONS PRECEDENT.
3 COVENANT TO PROVIDE DISTRIBUTION SERVICES
4 TERM OF AGREEMENT
5 SERVICES PROVIDED
5.1 Distribution Service
5.2 Pressure and Flow Servic e
5.3 Distribution System Operations
5.4 Expansion or modification
6 Receipt Points AND Delivery Points.
6.1 Receipts Points
6.2 New Receipt Points
6.3 Delivery Points
6.4 New Delivery Points
6.5 Compliance
6.6 Shared Receipt Points and Delivery Points
7 QUANTITY
7.1 Maximum Hourly Quantity
7.2 Increase in Maximum Hourly Quantity
7.3 Reduction in Maximum Hourly Quantity
7.4 Usage in Excess of Maximum Hourly Quantity
7.5 Usage Profile.
7.6 Time of Use Device
7.7 Changes in Quantities
8 TITLE, POSSESSION, RESPONSIBILITY AND DEEMED DELIVERY
8.1 Title to Gas
8.2 Possession of Gas
8.3 Responsibility for Gas
8.4 Deemed Delivery of Gas.
8.5 WGL may Co-Mingle
9 DISCONNECTION
9.1 Disconnection Requested by the Customer
9.2 Failure to Disconnect
9.3 WGL may Disconnect
9.4 Reconnection
10 INTERRUPTION OF DISTRIBUTION SERVICE
10.1 Interruption of Acceptance at Receipt Point
10.2 Interruption for Maintenance
10.3 Emergency Interruption
10.4 Interruption for Flows in Excess of Maximum Hourly
Quantity
11 QUALITY
11.1 Gas.
11.2 Non-specification Gas
11.3 Notification of Delivery of Non-Specification Gas
11.4 Blending.
11.5 Odorisation
12 MEASUREMENT OF GAS
12.1 Receipt Point Measurement
12.2 Delivery Point Measurement
12.3 Measurement Binding
12.4 Daily and Hourly Quantities
12.5 Meter Reading
12.6 Unbilled Gas
12.7 Initial Meter Reading
12.8 Special Meter Reading
12.9 Check Metering
12.10 Meter Testing
12.11 Special Test.
12.12 Test Procedures
12.13 Connection to WGL’s On-Line Monitoring System
13 FEES AND /CHARGES
13.1 Distribution Fees
13.2 Charges Associated with Multiple User Delivery Points
13.3 Other Charges
13.4 Non-Specification Gas.
13.5 Non-Standard Pressure Service
13.6 Rounding
13.7 Charges when Flows are Controlled
13.8 Bond/Deposit
13.9 Redetermination and Adjustment of Fees
13.10 Negotiated Fees
14 PAYMENT
14.1 Invoices Rendered
14.2 Contents of Invoices
14.3 Payment
14.4 Disputed Invoices
14.5 Interest on Disputed Amount
14.6 Incorrect Invoices
14.7 Default Interest
14.8 Presentation of Invoices
14.9 Goods and Services Tax
14.10 Other Taxes
15 RECORDS AND INFORMATION
16 TERMINATION
16.1 Defaults may Lead to Termination
16.2 Customer has a Right to Terminate
16.3 Termination Without Prejudice to the Amounts Outstanding
16.4 Effects of Termination
17 FORCE MAJEURE
18 LIABILITIES
18.1 Liability for Negligence and Wilful Default
18.2 Limitation of Liability
18.3 Direct Losses Only
18.4 Customer’s Liability
18.5 WGL’s Liability
18.6 Liability Locations
18.7 Capped Liability
18.8 Refund of Charges
18.9 Each Limitation Separate
18.10 No Limit on Orders for Specific Performance
18.11 Claims
18.11.1 Notice
18.11.2 No Payment or Admission of Liability
18.11.3 Defending Party may Defend
18.11.4 Defending Party’s Counsel
18.11.5 Duty to Mitigate
18.11.6 Other Limitations
19 CONFIDENTIAL INFORMATION
20 DISPUTE RESOLUTION
21 ARBITRATION
22 NOTICES
23 WAIVER
24 ENTIRE AGREEMENT
25 AMENDMENT
26 SEVERABILITY
27 ASSIGNMENT
28 ACCESS RIGHTS 29 CONSUMER GUARANTEES ACT
30 EXCLUSION OF IMPLIED TERMS
31 GOVERNING LAW
32 COUNTERPART
APPENDICES
APPENDIX ONE:
SPECIAL TERMS AND CONDITIONS FOR THE PROVISION OF DISTRIBUTION SERVICES
1 Customer’s Details
2 WGL’ s details
3 Commencement Date:
4 Termination Date:
5 Apportionment of delivered energy for multiple user Receipt Points and Delivery
Points:
6 Fees and Charges
6.1 Service Charge
6.2 Supply Charge
7 Bond/Deposit
8 Delivery Point Details
Schedule One: Fees and Charges
APPENDIX TWO:
TECHNICAL REQUIREMENTS
1 Receipt Points
2 Delivery Points
3 Accidents, Incidents And Callouts
4 Test Procedures
5 Load Management
Acts, Standards and Codes
APPENDIX THREE:
AMENDING AGREEMENT
1 Interpretation
1.1 Defined Terms
1.2 Construction
2 Amendments To Distribution Services Agreement
3 Confirmation
APPENDIX FOUR:
DISPUTE RESOLUTION PROCEDURE
1 Construction
2 Initiating Resolution
3 Negotiations
4 Alternative Dispute Resolution
5 Arbitration
APPENDIX FIVE:
INFORMATION TO BE PROVIDED BY WGL
1 Metering
2 Customers
3 Odorisation
4 Information Disclosure
5 Prices and Charges
General
APPENDIX FIVE:
INFORMATION TO BE PROVIDED BY WGL
1 Delivery Points
2 Metering
3 Billing Information
4 Odorisation
5 General
Agreement made this [ ] day of 199[ ]
BETWEEN
1 WANGANUI GAS LIMITED a duly incorporated company having
its registered office at 179 St Hill Street, Wanganui (WGL)
2 _________________________(the Customer)
BACKGROUND
A WGL is engaged in the distribution of Gas.
B The Customer has requested WGL to distribute Gas on its behalf.
C WGL agrees to distribute such gas on behalf of the Customer on
the terms and conditions set out in this Agreement.
IT IS ACKNOWLEDGED AND AGREED as follows:
1 INTERPRETATION
1.1 Defined Terms
In this Agreement and in each Appendix, unless the context otherwise requires,
the following terms shall bear the following meanings:
Agreement means this Agreement, including the Appendices, as amended
from time to time in accordance with Clause 25;
Appendix or Appendices means an Appendix or Appendices to this Agreement;
Bill Rate means the 90 day Commercial Bill Rate as published by Reuters
Press Agency applying at 10.45am on that day;
Billing Period, unless the Parties agree otherwise in writing, means the
period from 8.00am on the last Business Day in one Month up to 8.00am on the
last Business Day in the next Month, except where that next Month is September
in which case the Billing Period will end at 8.00am on the 1st of October irrespective
of whether that Day is a Business Day;
Business Day means any day (other than a Saturday or Sunday) on which registered
banks are open for business, excluding automatic teller machines, in Wanganui;
Calorific Value has the same meaning as in NZS5259: 1997 Gas Measurement;
Commencement Date means the date that this Agreement commences and is the
date specified as such in Appendix One or such other date as may be agreed between
the Parties;
CNG has the same meaning as in the Gas Regulations 1993;
CNG Station has the same meaning as in the Gas Regulations 1993;
Day shall mean a period of 24 consecutive hours, beginning and ending at
8.00 am and when referring to a particular Day the date of the Day shall be
the date on which that Day begins;
Default Rate means the Bill Rate plus 5% per annum;
Delivery Point means the delivery point or points where gas exits the distribution
system(as described in Clause 6.3) as specified in Appendix One;
Distribution Fees means the fees payable under this Agreement as set out
in Appendix One;
Distribution Service means the service required to be provided by WGL pursuant
to Clause 5.1;
Distribution System means the Distribution System (as defined in the Gas
Act 1992) owned and operated by WGL and made available by WGL for the distribution
of Gas ;
End User or End Users means a purchaser or purchasers of Gas for use or
resale from the Customer where the supply is by means of the Distribution System;
Fittings has the same meaning as in the Gas Act 1992;
Force Majeure means an event or circumstances not within the reasonable
control of WGL or the Customer, as the case may be, which results in or causes
a failure by such Party in the performance of any obligations imposed on it
by this Agreement and which by the exercise of due diligence such Party could
not have prevented or overcome and shall include but shall not be limited to
acts of God, acts of the Queen's enemies, sabotage, acts of war, blockades,
insurrections, riots, epidemics, floods, storms, earthquakes, fires, washouts,
landslides, explosions, breakage of or accident to machines, pipelines, or associated
equipment, freezing of wells or delivery facilities, well blowouts, craterings,
nuclear accidents, civil disturbances, strikes lockouts or other industrial
disturbances and the order of any court or national or local government authority;
Gas means: (a) gas with all the characteristics listed in the Gas Specification
and within the absolute limits specified in the Gas Specification; or (b)
Non-Specification Gas accepted for delivery by WGL pursuant to Clause 11;
Gas Installation has the same meaning as in the Gas Act 1992;
Gas Measurement System has the same meaning as in the Gas Act 1992;
Gas Specification means the New Zealand Specification For Reticulated Natural
Gas NZS5442:1990;
GST means Goods and Services Tax payable pursuant to the Goods and Services
Tax Act 1985;
GST Amount shall have the meaning ascribed to that term in Clause 14.9;
Information Memorandum means the full set of information, including any
updated information, provided about the Distribution System by WGL in accordance
with the New Zealand Gas Pipeline Access Code;
Interest Rate means the Bill Rate plus 2% per annum;
Maximum Hourly Quantity or MHQ means the maximum Quantity of Gas
measured in cubic meters, at standard conditions as defined by the Gas Regulations
1993, which WGL has agreed, subject to the terms of this Agreement, to accept
receipt of, distribute and deliver for the Customer in any hour of any Day as
specified in Appendix One;
Maximum Instantaneous Quantity or MIQ means the maximum instantaneous
quantity of Gas measured in cubic meters, at standard conditions as defined
by the Gas Regulations 1993, which WGL has agreed, subject to the terms of this
Agreement, to accept receipt of, distribute and deliver for the Customer at
any point in time as specified in Appendix One;
Month shall mean the period beginning at 8.00 am on the last Day of a calendar
month and ending at 8.00 am on the last day of the next calendar month;
Nominated Annual Quantity or NAQ means that Quantity of Gas which
the Customer has notified WGL will be delivered in any Year to a Delivery Point
as specified in Appendix One;
Nominated Monthly Quantity or NMQ means that Quantity of Gas which
the Customer has notified WGL will be delivered in any Month to a Delivery Point
as specified in Appendix One;
Non-Specification Gas means gas with one or more characteristics outside
the absolute limits detailed in the Gas Specification;
Party means WGL and the Customer individually and
Parties means them collectively;
Quantity or Quantities for the purposes of Distribution Service,
other than for the determination of Maximum Hourly Quantities and Maximum Instantaneous
Quantity, means energy measured in Gigajoules;
Reasonable and Prudent Operator means an operator of a gas distribution
system whose standard of performance is equal to or better than good gas distribution
operating practice as determined by reference to proper and prudent practices
recognised nationally or internationally as applying to the operation of such
systems;
Receipt Point means the receipt point or points where gas enters the Distribution
system (as described in Clause 6.1) as specified in Appendix One;
Reconciliator means a mutually agreed person responsible for calculating
the proportions of Gas received by, or delivered to, the Customer in circumstances
where the Customer shares a Receipt Point or Delivery Point with other System
Users;
Service Charge means the charge payable by the Customer calculated and payable
in accordance with Appendix One;
Supply Charge means the charge payable by the Customer calculated and payable
in accordance with Appendix One;
System User means any person (other than the Customer) together with its
successors and assigns whose Gas is or is to be distributed through the Distribution
System to a Delivery Point;
Termination Date means the Termination Date set out in Appendix One;
Time of Use Device means equipment used for the purpose of providing Gas
flow information at predetermined moments in time;
Unbilled Gas means the estimated Quantity of Gas which has been delivered
by WGL to each Delivery Point up to the end of the Billing Period and which
has not been billed from Meter readings;
Upon Demand shall have the meaning ascribed to that term in Schedule Five
to the Chattels Transfer Act 1924;
Usage Profile means, in relation to a Delivery Point, an annual usage profile
identifying anticipated deliveries to the Customer at that Delivery Point, for
each hour and Day of the Year;
Year means a period of 365 (or 366 in a leap year) consecutive Days commencing
at 8.00 am on the 1st day of October in each year and ending at 8.00 am on the
1st day of October in the following year provided that the first Year shall
include the broken period from 8.00 am on the Commencement Date (if not 1 October)
to 8.00 am on the 1st day of October immediately following the Commencement
Date;
WGL means Wanganui Gas Limited and its successors and permitted assigns.
1.2 Construction
1.2.1 In the construction of this Agreement, unless the context otherwise requires:
1.2.1.1 A reference to a clause or to a Appendix is to a clause in or Appendix
to this Agreement;
1.2.1.2 The singular includes the plural and vice versa;
1.2.1.3 References to any statute, regulations, New Zealand Standard, or other
statutory instrument or by-law shall be deemed to be references to the statute,
regulation, standard, instrument or by-law as from time to time amended including
substituted provisions that substantially correspond to those referred to;
1.2.1.4 References to persons shall be deemed to include references to individuals,
companies, corporations, firms, partnerships, joint ventures, associations,
organisations, trusts, states or agencies of state, government departments and
local or municipal authorities in each case whether or not having separate legal
personality;
1.2.1.5 Clause headings are inserted for convenience only and shall not affect
the interpretation of this Agreement;
1.2.1.6 A reference to a prohibition against doing anything is to be regarded
as including a reference to not permitting, suffering or causing that thing
to be done;
1.2.1.7 Expressions referring to writing shall be construed as including references
to words printed, type-written, telexed, lithographed, facsimiled or otherwise
traced, copied or reproduced;
1.2.1.8 TJ shall mean Terajoules, GJ shall mean Gigajoules and MJ shall mean
Megajoules;
1.2.1.9 All references to time in this agreement shall refer to New Zealand
Standard Time;
1.2.1.10 References to dollars and $ are references to New Zealand dollars.
2 CONDITIONS PRECEDENT
Prior to the receipt and distribution of Gas through the Distribution System
to a Delivery Point or Points pursuant to this Agreement:
2.1 The Customer and WGL shall have executed this Agreement; and
2.2 The Customer shall have satisfied WGL that:
2.2.1 the Customer has suitable arrangements for both a Gas supply and maintenance
of that supply during the term of this Agreement; and
2.2.2 the Customer has suitable commercial and technical arrangements to supply
Gas to an End User or the Gas is for the Customer's own use; and
2.3 The Customer shall have provided to WGL all of the information listed in
Appendix One; and
2.4 The Customer shall have given WGL an executed performance bond or security
required under Clause 13.8, if the Customer was notified that WGL requires a
bond.
2.5 Where the Nominated Annual Quantity is greater than or equal to 10 TJ, a
Time of Use Device is installed at the Delivery Point.
2.6 Where the Nominated Annual Quantity is less than 10 TJ, the Customer has
provided WGL with a Usage Profile for the Delivery Point or there is a Time
of Use Device installed at the Delivery Point.
3 COVENANT TO PROVIDE DISTRIBUTION SERVICES
3.1 WGL shall provide and the Customer shall accept Distribution Services on
the terms and conditions set out in this agreement.
3.2 WGL warrants to the Customer that at all times during the term of this agreement
it will act as a Reasonable and Prudent Operator and deal with all users of
the Distribution System on an arms length basis and generally in a manner consistent
with the policies described in WGL’s publicly available Information Memorandum.
4 TERM OF AGREEMENT
This Agreement shall come into force on the Commencement Date and, (subject
to termination pursuant to Clause 16), shall continue until terminated by the
Customer by the giving of 3 months prior written notice to WGL, or on the termination
date set out in Appendix One whichever is the earlier.
5 SERVICES PROVIDED
5.1 Distribution Service Subject to the provisions of this Agreement, WGL,
shall, on a 24 hour per day basis, receive at the Receipt Point, distribute
through its Distribution System, and deliver to the Customer at the Delivery
Point, the Quantities of Gas requested by the Customer in Appendix One.
5.2 Pressure and Flow Service WGL shall deliver Gas to the Customer at the flow
rate and pressure specified in Appendix One for each of the Delivery Point or
Points specified in Appendix One;
5.3 Distribution System Operations
5.3.1 Subject to any other arrangement between the parties to this agreement
WGL will own, operate and control the Distribution System at all times whether
itself or through designated agents;
5.3.2 Subject to compliance with the terms of this Agreement, WGL reserves the
right to decide the manner in which it shall conduct the operations of its Distribution
System but shall exercise such rights in a manner consistent with being a reasonable
and prudent operator; 5.3.3 Notwithstanding Clause 5.3.1 and 5.3.2, WGL will
operate and maintain the Distribution System in accordance with NZS5258:1995
Gas Distribution.
5.4 Expansion or modification Prior to the commitment of capital funding for
any expansion or modification of the Distribution System, as a result of additional
quantities required outside the limits of Appendix One, separate contractual
risk-sharing arrangements may be required between WGL and the Customer.
6 RECEIPT POINTS AND DELIVERY POINTS
6.1 Receipts Points
6.1.1 Gas shall be received by WGL for distribution through the Distribution
System at a Receipt Point. Receipt Points shall at all times comply with the
technical requirements for Receipt Points set out in Section 1 of Appendix Two,
the cost and compliance to be borne by the owner of the relevant Receipt Point.
6.2 New Receipt Points
6.2.1 New Receipt Points may be constructed by WGL in accordance with Clause
6.1.1. WGL may require that some or all of the Gas received from the Customer
shall be then received through this new connection. To the extent that the cost
of construction of the new Receipt Point, or the re-routing of Gas through the
new Receipt Point may impact on the Customer, the Customer shall be entitled
to have the cost of the new Receipt Point or the re-routing of Gas referred
to the dispute resolution procedure outlined in Clause 20.
6.2.2 The Customer may apply to WGL in writing for a new Receipt Point to be
constructed in addition to the Receipt Point(s) specified in Appendix One.
Where a new Receipt Point results in additional costs WGL may recover these
from the Customer.
6.3 Delivery Points
Gas distributed by WGL on behalf of the Customer shall be delivered by WGL to
the Customer at a Delivery Point. Any Delivery Point shall at all times comply
with the technical requirements for Delivery Points set out in Appendix Two,
the cost and responsibility of such compliance to be borne WGL. The Customer
acknowledges that it shall have no other right, title or interest in the relevant
Delivery Point equipment.
6.4 New Delivery Points
6.4.1 All equipment upstream of the Delivery Point shall be owned by WGL.
6.4.2 New Delivery Points shall be constructed in accordance with Appendix Two.
6.4.3 The Customer may request WGL to construct a new Delivery Point in addition
to the Delivery Point(s) specified in Appendix One. Where a new Delivery Point
results in additional costs WGL may recover these from the Customer.
6.5 Compliance
As a condition of the acceptance of any Gas by WGL, WGL shall be entitled to
confirm that both the relevant Receipt Point and the relevant Delivery Point
comply with the applicable technical requirements set out in Appendix Two. This
clause shall not apply in the event that WGL owns the relevant Receipt Point
or relevant Delivery Point and any non-compliance is the direct result of WGL
breaching the Reasonable and Prudent Operator standard.
6.6 Shared Receipt Points and Delivery Points
6.6.1 Where an agreement is in place for the apportionment of delivered energy
between users of receipt points and delivery points by the Reconciliator, the
Parties will provide the Reconciliator with whatever metering information is
required for the Reconciliator to carry out its role in relation to the relevant
Receipt Points and Delivery Points and, in the absence of express agreement
to the contrary, the industry agreement shall govern the apportionment of quantities
at multiple user receipt points and delivery points (and shall form the basis
of related charges) to the exclusion of other provisions in this Agreement governing
such apportionment’s.
6.6.2 If there is no agreement on how the quantity of energy received at receipt
points or delivered at delivery points on the Distribution System is to be apportioned
between users of those receipt points or those delivery points, then the following
provisions shall be observed whether the Customer is an existing user or a prospective
user of a relevant receipt point or delivery point.
6.6.2.1 WGL shall require the prospective user to negotiate with existing users
to determine how the quantities of energy received at the relevant receipt point
or delivered at the relevant delivery point is to be apportioned. WGL will agree
to a request by any user of a relevant receipt point or delivery point that
WGL become involved in such a negotiation in an advisory role.
6.6.2.2 In the event that agreement cannot be reached by all affected receipt
point or delivery point users within 10 Business Days the matter will be referred
to an independent expert for binding resolution in accordance with Clause 20.3.
It is hereby acknowledged that the prospective user may have recourse to the
Contracts (Privity) Act 1982 as a beneficiary, if necessary.
6.6.2.3 Once the means of apportioning delivered energy among the users of a
relevant receipt point or delivery point has been determined, the Customer will
notify WGL in writing of the agreement reached with the prospective user and
provide written evidence of such agreement. The method of advising WGL of the
resulting apportionment’s will then be specified in a new Appendix One, which
will be prepared by WGL in accordance with Appendix Three, and signed by the
Customer.
6.6.3 WGL will notify all affected receipt point or delivery point users of
any prospective user’s intention to have gas received at a particular receipt
point or delivered at a particular delivery point (as the case may be).
6.6.4 For the avoidance of doubt, multiple user delivery points include delivery
points serving a common downstream pipework system.
6.6.5 Where used in this Clause 6.6, the terms receipt point and delivery point
include the Receipt Point and the Delivery Point.
7 QUANTITY
7.1 Maximum Hourly Quantity
Subject to the provisions of this Agreement, WGL, shall, on a 24 hour per day
basis, receive at the Receipt Point, distribute through its Distribution System,
and deliver to the Customer at the Delivery Point, a quantity of Gas no greater
than the Maximum Hourly Quantity requested by the Customer in Appendix One.
7.2 Increase in Maximum Hourly Quantity Where the Customer wishes to increase
its Maximum Hourly Quantity, then:
7.2.1 the Customer shall advise WGL in writing, of its request to increase the
Maximum Hourly Quantity at a specified Delivery Point, noting the new Maximum
Hourly Quantity and the date from when it will be required; and
7.2.2 WGL shall advise the Customer within 10 Business Days whether WGL can
receive, distribute and deliver the new Maximum Hourly Quantity from the date
requested by the Customer. In the event that WGL is unable to receive, distribute
and deliver the new Maximum Hourly Quantity from the date requested by the Customer,
WGL will advise the reason and the requirements for WGL to be able to meet the
Customer’s request, including any risk-sharing arrangements that may be required
by WGL prior to committing capital funding in accordance with Clause 5.4; and
7.2.3 once agreement has been reached the new Maximum Hourly Quantity will be
specified in a new Appendix One, which will be prepared by WGL in accordance
with Appendix Three, and signed by the Customer.
7.3 Reduction in Maximum Hourly Quantity
Where the Customer wishes to reduce its Maximum Hourly Quantity, then:
7.3.1 the Customer shall advise WGL in writing, of its request to reduce the
Maximum Hourly Quantity at a specified Delivery Point, noting the new Maximum
Hourly Quantity and the date from when it will be effective; and
7.3.2 the new Maximum Hourly Quantity will be specified in a new Appendix One,
which will be prepared by WGL in accordance with Appendix Three, and signed
by the Customer.
7.4 Usage in Excess of Maximum Hourly Quantity
7.4.1 The Customer shall on demand indemnify and hold WGL harmless against each
cost, loss, damage, expense (including all legal expenses on a full indemnity
basis and taxes) and liability sustained or incurred by WGL as a direct or indirect
result of the Customer receiving, taking or being delivered any Quantities in
excess of the Maximum Hourly Quantity. WGL shall use all reasonable endeavours
in the circumstances to mitigate the indemnified repercussions sustained or
incurred by WGL. The maximum amount claimable under this indemnity shall be
$1,000,000 in respect of any one event or related series of events with a maximum
amount claimable in any 12 month period of $5,000,000, irrespective of the number
of events. Charges or fees paid or payable by the Customer under this Agreement
shall not be included in calculating any amount claimable by WGL under this
Clause 7.4. The limitations expressed in Clause 18 shall not apply in respect
of any indemnity under this Clause 7.4.1.
7.4.2 Clause 7.4.1 is not to limit, modify or exclude any other rights available
to WGL in respect of the Customer receiving, taking or being delivered any Quantities
in excess of the Maximum Hourly Quantity, whether those rights arise under this
Agreement or otherwise.
7.4.3 In the event that WGL receives from any System User (other than the Customer)
any amount (the indemnified amount) in respect of that party receiving, taking
or being delivered any quantities in excess of the Maximum Hourly Quantity in
accordance with provisions equivalent to Clause 7.4.1 under that party’s contract
with WGL, then if;
7.4.3.1 a surplus remains after WGL has applied the indemnified amount, in its
sole discretion, to any costs, losses, damages, expenses and liabilities sustained
or incurred by it; and
7.4.3.2 the Customer was detrimentally affected by having received, taken or
been delivered the Quantity in excess of the Maximum Hourly Quantity, then WGL
shall pay the Customer a proportion of such surplus to compensate the Customer
for its loss suffered, calculated on a pro-rata basis by reference to the loss
suffered by all other System Users detrimentally affected by that party receiving,
taking or being delivered any quantities in excess of the Maximum Hourly Quantity.
7.5 Usage Profile
7.5.1 In respect of all Delivery Points where the Nominated Annual Quantity
is less than 10 TJ and at which there is no Time of Use Device installed, the
Customer shall, at the end of each Year, submit to WGL for its approval, a Usage
Profile for the following Year. WGL may, at any time, withdraw its approval
and require a Usage Profile to be amended if it reasonably considers that the
Usage Profile does not substantially reflect actual Gas delivered to the Customer
at the Delivery Point.
7.5.2 Where a usage Profile has been approved by WGL, then the Usage Profile
shall be applied across the total Quantity of Gas delivered to a Delivery Point
in any Month to determine the Quantity of Gas delivered on any given Day in
that Month. The total Quantity of Gas delivered to a Delivery Point in a Month
shall be derived from the difference between the Meter reading made closest
to the beginning of the Month and the Meter reading made closest to the end
of the Month.
7.6 Time of Use Device
In respect of all Delivery Points where the Nominated Annual Quantity:
7.6.1 is greater than or equal to 10 TJ; or
7.6.2 is less than 10 TJ and there is no current Usage Profile which is approved
by WGL, then a Time of Use Device shall be installed at the Delivery Point.
WGL shall provide and install a Time of Use Device at all such Delivery Points
and the Customer shall pay the appropriate fee specified in Appendix One.
7.7 Changes in Quantities
7.7.1 In the event that the Customer wishes to vary its Nominated Annual Quantity,
Nominated Monthly Quantity or Usage Profile at a Delivery Point, then:
7.7.1.1 the Customer will notify WGL before 1 July in any Year of the Quantities
for delivery during the following Year; and
7.7.1.2 if, at any time during the Year the Customer requires a variation to
the Nominated Annual Quantity, Nominated Monthly Quantity or Usage Profile,
the Customer shall notify WGL, as soon as reasonably practical, of the new Quantity
or Quantities. Any additional system throughput will be negotiated and agreed
by the Parties in writing in the form attached as Appendix Three.
8 TITLE, POSSESSION, RESPONSIBILITY AND DEEMED DELIVERY
8.1 Title to Gas
Title to the Gas shall at all times remain with the Customer and the Customer
hereby warrants to WGL that, at the time of delivery to WGL, the Customer has
good title to the Gas, free and clear of all liens, encumbrances and claims.
For the purposes of this Clause 8.1, the Customer shall, where applicable, include
any principal on whose behalf the Customer may be acting as agent, and the Customer
is and will be warranting as to that principal’s unencumbered title to the Gas.
8.2 Possession of Gas
The control and possession of the Gas shall pass from the Customer to WGL at
the Receipt Point and shall be held by WGL until Gas is delivered to the Customer
at the Delivery Point at which time the control and possession of such Gas shall
revert to the Customer.
8.3 Responsibility for Gas
WGL shall be solely responsible for the Gas on the basis set out in this Agreement
while distributing it from the Receipt Point to the Customer at the Delivery
Point and the Customer shall be solely responsible for the Gas at all other
times.
8.4 Deemed Delivery of Gas
The Parties agree that by delivering Gas to the Customer at the Delivery Point
in accordance with the terms of this Agreement, WGL will be deemed to have delivered
the Customer’s Gas to it.
8.5 WGL may Co-Mingle
WGL shall have the right to co-mingle the Customer’s Gas with other Gas in its
Distribution System during distribution and to subject the Gas in its Distribution
System to processes consistent with WGL’s operation of its Distribution System.
9 DISCONNECTION
9.1 Disconnection Requested by the Customer
WGL shall as soon as reasonably practicable following receipt of a request from
the Customer to disconnect a Delivery Point from the Distribution System, cause
the delivery of Gas through the Delivery Point to be disconnected, and shall
notify the Customer of the date and time at which the disconnection was effected.
9.2 Failure to Disconnect
WGL shall not be liable to the Customer if WGL fails to comply with a request
to disconnect a Delivery Point from the Distribution System if WGL considers
that it is not reasonably practical to effect the disconnection as requested
and promptly notifies the Customer accordingly. 9.3 WGL may Disconnect
WGL may, upon giving the Customer not less than two Business Days notice, disconnect
a Delivery Point from the Distribution System if, and for so long as:
9.3.1 the Customer fails to provide access in accordance with Clause 28.4;
9.3.2 the Delivery Point or any associated Fittings are damaged; or
9.3.3 in WGL’s reasonable opinion any Fittings downstream of the Delivery Point
or the premises or any Gas Installation of an End User is unsafe or fails to
comply with the Gas Regulations 1993, any law or code of practice relating to
the supply of Gas or any order of any court or government or local authority;
or
9.3.4 the Customer is in breach of the Agreement pursuant to Clause 16.1.
Upon giving notice to the Customer in accordance with this clause, WGL shall
be entitled (but have no obligation) to notify the End User at the Delivery
Point of its intention to disconnect the Delivery Point from the Distribution
System and specify the
reason for such disconnection. WGL may impose any reasonable conditions as a
condition of reconnection of the Delivery Point to the Distribution System.
9.4 Reconnection
WGL shall reconnect the Delivery Point to the Distribution System on the request
of the Customer subject to WGL being satisfied that any conditions imposed following
disconnection of the Delivery Point in accordance with Clause 9.3 have been
met. The Customer shall pay the reconnection fee specified in Appendix One.
10 INTERRUPTION OF DISTRIBUTION SERVICE
10.1 Interruption of Acceptance at Receipt Point
Following at least five Business Days notice in writing from WGL of a failure
of the Customer’s Receipt Point(s) to comply with the requirements of Appendix
Two, WGL shall have the right to interrupt or reduce acceptance of Gas at the
Receipt Point, where the Customer has failed to maintain or operate the Receipt
Point (including any bulk measuring equipment) in accordance with this Agreement,
and otherwise in accordance with good pipeline industry practice and the Customer
has not within such five Business Days rectified any such fault.
10.2 Interruption for Maintenance
WGL may interrupt or reduce distribution to any Delivery Point either totally
or partially for any period which in its opinion is necessary for the purposes
of testing, adding to, altering, repairing, replacing, cleaning or maintaining
any Distribution System equipment (including, without limitation, pipelines,
valves, and monitoring equipment) or for any other purpose which in WGL’s opinion
requires interruption or reduction of distribution services. In the event of
interruption or reduction of distribution which would materially adversely affect
the Customer, WGL shall:
10.2.1 notify the Customer as early as reasonably practicable prior to interruption
or reduction of distribution of its intention to interrupt or reduce distribution;
and
10.2.2 minimise the period of interruption or reduction of distribution; and
10.2.3 agree with the Customer the timing of the interruption or reduction so
as to minimise the disturbance to the Customer's business; and
10.2.4 provide an appropriate rebate of charges specified in Clause 13 to the
Customer for loss of distribution services.
10.3 Emergency Interruption
WGL shall have the right to as a Reasonable and Prudent Operator to interrupt
or reduce distribution immediately in situations of emergency or risk of serious
injury or damage to any person or the Distribution System or the environment
for such period as in the opinion of the WGL is necessary. In the event of
any interruption or reduction to which this Clause 10.3 applies, WGL shall as
soon as reasonably practicable inform the Customer of the circumstances giving
rise to the interruption or reduction, and shall use its reasonable endeavours
to minimise the period of interruption or reduction. An appropriate rebate
of charges specified in Clause 13 in respect of the period of interruption or
reduction shall be given to the Customer for loss of distribution services.
10.4 Interruption for Flows in Excess of Maximum Hourly Quantity
WGL shall have the right to interrupt or reduce distribution of any Gas delivered
at a Delivery Point in any hour in excess of the Maximum Hourly Quantity if
in WGL’s opinion delivery of such Gas may impair WGL’s ability to deliver gas
to any other System User.
11 QUALITY
11.1 Gas
Subject to the balance of this Clause 11, all Gas received and delivered pursuant
to this Agreement shall conform to the Gas Specification.
11.2 Non-specification Gas
11.2.1 The Parties acknowledge that, in relation to Non-Specification Gas, for
certain factors, including the quantities of such gas, the Delivery Point for
such gas, and the extent to which the specification of that gas varies from
the limits prescribed in the Gas Specification the Parties shall use reasonable
endeavours to negotiate the transport of Non-Specification Gas under this Agreement.
11.2.2 In the event that the Customer makes application for the transport of
Non-Specification Gas, and WGL is willing to provide distribution services,
subject to any conditions or constraints deemed necessary by WGL to safeguard
the quality or energy value of Gas being delivered conforming to the Gas Specification
or to protect the Distribution System or to avoid prejudicing the interests
of others, then such proposed conditions or constraints will be promptly notified
to the Customer to facilitate a revised application.
11.2.3 The agreed conditions or constraints applicable to the transport of Non-Specification
Gas, which are subject to a revised application, will be incorporated in Appendix
One
11.3 Notification of Delivery of Non-Specification Gas
11.3.1 In situations where the Customer expects that it will be unable to deliver
Gas meeting the Gas Specification but still wants the Gas distributed by WGL,
the Customer shall give WGL written notice as early as possible prior to delivery,
giving particulars of the extent that the Non-Specification Gas will differ
from the Gas Specification and (if known by the Customer at the time of the
notice) the expected commencement and duration of the supply of Non-Specification
Gas, so as to give WGL a reasonable length of time before the proposed delivery
takes place to decide whether or not to accept such proposed delivery of Non-Specification
Gas, and to endeavour to gain the consent of potentially affected System Users.
11.3.2 WGL shall notify the Customer whether or not it will accept delivery
of such Non-Specification Gas within a reasonable time following receipt of
the Customer's notice as is necessary to enable the Customer to prevent delivery
of the Non-Specification Gas if necessary provided that WGL reserves the right
to revoke any such acceptance at any time for any reason and to refuse receipt
of such Non-Specification Gas from that time.
11.3.3 In the event that WGL accepts, distributes, and/or delivers Non-Specification
Gas pursuant to Clause 11.3.2,WGL may deliver to the Customer at the Delivery
Point Gas having the same or narrower specifications than the specifications
of the Non-Specification Gas delivered by the Customer to WGL at the Receipt
Point.
11.4 Blending
11.4.1 The Customer may request WGL to blend the Gas to be accepted by WGL provided
that:
11.4.1.1 the Customer has obtained the prior written agreement of all other
System User(s) utilising the Distribution System; and
11.4.1.2 the resulting blended Gas will conform to the Gas Specification; and
11.4.1.3 the Distribution System can account for the changed energy value of
the resulting blended Gas.
11.4.2 The Customer shall pay all costs incurred by WGL in carrying out the
blending of Gas requested by the Customer.
11.4.3 WGL shall make available to the Customer any records and information
with regard to Gas blending carried out by WGL which directly affects the Customer.
11.5 Odorisation
11.5.1 WGL will comply with its obligations under the New Zealand Code of Practice
for Odorisation of Gas NZGCP 3: in respect of Gas delivered by it at the Delivery
Point.
11.5.2 The Customer will deliver Gas to WGL at the Receipt Point which is odorised
and complies with the Code of Practice for Odorisation of Gas NZGCP 3 in respect
of Gas delivered by it at the Receipt Point. The Customer shall satisfy WGL
that quality assurance procedures are in operation to ensure odorisation of
the Gas delivered by the Customer to the Receipt Point.
11.5.3 Where WGL has to add odorant to Gas received by it at a Receipt Point,
then if it was the Customer’s Gas which required odorant the Customer shall
pay the costs incurred by WGL in adding the odorant.
11.5.4 Where WGL has to add odorant due to odour fade in the Distribution System
the cost shall be borne by WGL.
11.5.5 WGL will monitor and record odorant levels and will advise the Customer
as soon as it anticipates or encounters any odorant fade or masking.
12 MEASUREMENT OF GAS
12.1 Receipt Point Measurement
WGL may install, maintain, and operate, at or near the Receipt Point, bulk measuring
equipment complying in all respects with Section 3 of Appendix Two and in particular
NZS 5259:1997 Gas Measurement and otherwise in accordance with good pipeline
industry practice.
12.2 Delivery Point Measurement
12.2.1 Subject to any other arrangement between parties to this agreement, WGL
shall install, maintain, and operate, at or near the Delivery Point, bulk measuring
equipment complying in all respects with Appendix Two and in particular NZS
5259:1997 Gas Measurement and otherwise in accordance with good pipeline industry
practice, such measuring equipment to measure the total amount of Gas delivered
by WGL to the Customer (and other system users) at the Delivery Point to enable
the applicable fees as set out in Clause 13 to be calculated in accordance with
Appendix One.
12.2.2 Any metering equipment required by the Customer or the End User in addition
to that required pursuant to Clause 12.2.1 is not included in the Distribution
Service provided by WGL. WGL may provide additional metering services at the
cost to the party requesting such services. The Customer however may install
its own metering equipment under the same conditions as provided for check metering
as set out in Clause 12.9.
12.2.3 If the metering and reconciliation arrangements require Time of Use metering
then WGL shall provide such metering.
12.2.4 Where WGL in pursuance of Clause 12.2.1 installs equipment that provides
data relating to hourly Gas volumes, and/or flow pressure and/or temperature
the Customer or the End User of the relevant Delivery Point may request WGL
to fit equipment that would allow the telemetric transfer of such data, the
party requesting the installation of such telemetry equipment shall be responsible
for all costs associated with its installation, maintenance, repair and removal
provided that unless WGL agrees in writing, the data provided by such telemetry
equipment shall not be used as conclusive evidence of the delivery of Gas.
12.3 Measurement Binding
Quantities of Gas delivered to any Delivery Point shall be measured as the volumes
recorded by WGL’s Meter and any Time of Use Device installed at that Delivery
Point converted to a quantity of energy in accordance with NZS 5259:1997 Gas
Measurement. Quantities so measured and calculated shall be binding on the parties
unless either of the parties disputes the accuracy of the Meter or the Time
of Use Device by giving notice in writing to the other party.
12.4 Daily and Hourly Quantities
12.4.1 The Quantity of Gas delivered on any Day or in any hour to a Delivery
Point where a Time of Use Device is installed shall be derived from recordings
at the beginning and end of such Day or hour, as the case may be.
12.4.2 The Quantity of Gas delivered on any Day or in any hour to a Delivery
Point where a Time of Use Device is not installed and where a Usage Profile
has been agreed shall be derived in accordance with Clause 7.5.2.
12.5 Meter Reading
12.5.1 WGL shall, unless it has agreed otherwise with the Customer, read all
Meters at Delivery Points with a Nominated Annual Quantity of greater than or
equal to 1200 GJ, on a monthly basis and read all Meters at Delivery Points
with a Nominated Annual Quantity of less than 1200 GJ, on a two monthly basis.
WGL shall notify the Customer of the Meter reading at each Delivery Point within
two Business Days of each Delivery Point Meter being read.
12.5.2 WGL shall provide the Customer with daily Meter readings for Delivery
Points where a Time of Use Device is installed within two Business Days of the
Meter being read for billing purposes. WGL is not required to provide this information
on a daily basis but may do so at the Customers’ request in accordance with
Clause 12.2.2.
12.6 Unbilled Gas
For Delivery Points where the Meter was not read on the last day of the Billing
Period, the Customer will estimate the Quantity of Gas which has been delivered
by WGL to each Delivery Point for the period commencing the date of the last
Meter reading and ending on the last Day of the Billing Period. The method of
estimating the quantity of Unbilled Gas will be agreed between the Parties.
12.7 Initial Meter Reading
WGL shall carry out an initial reading of the Meter at each new Delivery Point
prior to the commencement of deliveries to the Customer at that Delivery Point.
12.8 Special Meter Reading
The Customer may request a special Meter reading at any Delivery Point subject
to payment of the special meter reading fee specified in Appendix One.
12.9 Check Metering
Each Party hereby grants (or will procure the grant) to the other Party the
right to install and maintain check metering equipment at the site of its bulk
measuring equipment, to enable that other Party to check the bulk measuring
equipment located at that site provided that such check metering equipment shall
not interfere in any way with any bulk measuring equipment (or other equipment)
located at the site and that the cost of installing, maintaining and removing
any such check metering equipment shall be borne by the Party installing such
equipment.
12.10 Meter Testing
The accuracy of each Party’s bulk measuring equipment shall be verified by
that Party in accordance with NZS 5259:1997 Gas Measurement at reasonable intervals
and, if requested, in the presence of representatives of the other Party but
the Parties shall not be required to verify the accuracy of such equipment
more frequently than once in any one year unless it can be shown through check
metering or otherwise that the equipment may be out of calibration.
12.11 Special Test
If either Party notifies the other that it requires a special test of any bulk
measuring equipment, the Parties shall co-operate to secure a prompt verification
of the accuracy of such equipment. The reasonable expense of any such special
test shall be borne by the Party which called for the test if the equipment
tested is found to be accurate within the limits specified in Section 4 of Appendix
Two. If the equipment tested is found to be inaccurate compared with the limits
specified, then the expense of the special test shall be borne by the Party
owning the bulk measuring equipment.
12.12 Test Procedures
The procedures outlined in Section 4 of Appendix Two shall apply to tests on
equipment carried out pursuant to Clauses 12.10 and 12.11.
12.13 Connection to WGL’s On-Line Monitoring System
The Customer hereby agrees that WGL may connect any on-line monitoring system
operated by WGL to the Customer's check metering equipment located downstream
of a Delivery Point provided that WGL agrees to pay such costs as mutually agreed
between the Parties.
13 FEES AND /CHARGES
13.1 Distribution Fees
The Customer shall pay the Service Charge and the Supply Charge as set out in
Appendix One.
13.2 Charges Associated with Multiple User Delivery Points
In any case where a System User (other than the Customer) is entitled to have
Gas delivered to the Delivery Point, the Customer shall:
13.2.1 be deemed to have received that proportion of the Gas agreed or decided
under Clause 6.6 delivered to that Delivery Point in the Billing Period; and
13.2.2 be liable to pay that proportion of the Service Charge and Supply Charge
for Gas delivered to the Delivery Point, as may be specified in Appendix One.
13.3 Other Charges
The Customer shall pay all other charges incurred pursuant to this Agreement
(including, but without limitation the charges set out in Clauses 11.5.3 and
12.11).
13.4 Non-Specification Gas
The charges set out in Clauses 13.1 to 13.3 and Clause 14.10 apply to Non-Specification
Gas as if it was gas meeting the Gas Specification. In addition, WGL shall be
entitled to pass on to the Customer all reasonable and consequential costs and
charges resulting from WGL agreeing to accept, distribute and/or deliver Non
Specification Gas at the request of the Customer.
13.5 Non-Standard Pressure Service
Where the Customer elects to receive Gas at a pressure in excess of the minimum
pressure set out in Appendix One, the charge for such service will be set at
the level of anticipated increased cost reasonably associated with the provision
of the service, or as otherwise agreed. Where this service is provided the fees
shall be as set out in Appendix One.
13.6 Rounding
All amounts to be paid pursuant to this Clause 13 shall be expressed in dollars
to three decimal places per GJ of Gas.
13.7 Charges when Flows are Controlled
In circumstances where WGL restricts the flow of Gas in accordance with Clause
10.4, the Customer acknowledges that (where applicable) all distribution charges
will continue to apply.
13.8 Bond/Deposit
13.8.1 If requested by WGL, prior to commencement of distribution service the
Customer shall pay a deposit to WGL or arrange a registered bank (or other person
acceptable to WGL acting reasonably) to post a bond equivalent to the approximate
total fees payable by the Customer for two Billing Periods as estimated by WGL.
In the event that at the end of any Year during the term of this Agreement the
Customer increases its obligations in respect of which charges are, or could
be, incurred, WGL may require that the amount of the deposit or bond be correspondingly
increased from the beginning of the next Year and the Customer hereby agrees
to comply with such requirement.
13.8.2 Where WGL and the Customer agree on the terms under which any new equipment
upstream of a Delivery Point is to be constructed, such terms may include the
Customer posting a bond from a registered bank (or other person acceptable to
WGL acting reasonably) as required by WGL. The amount of such bond shall be
negotiated between the Parties and if no such agreement can be reached then
this matter shall follow the dispute resolution procedure outlined in Clause
20.
13.9 Redetermination and Adjustment of Fees
13.9.1 Subject to Clause 3.2, WGL’s fees for distribution services may be redetermined
by WGL annually with effect from 1 October in each applicable Year.
13.9.2 The Customer will notify WGL before 1 July in any Year of the Quantities
for delivery during the following Year pursuant to Clause 7.7.1.1.
13.9.3 WGL will notify the Customer by 1 September of the new fees for the following
Year. In the event that the Customer does not accept the revised fees, the Customer
may require WGL to submit to the dispute resolution procedure outlined in Clause
20. In any such process or arbitration, WGL will provide the mediator or arbitrator
or such other authorised person as the case may be, and the Customer, with the
prevailing applicable pricing methodology as a basis for examining the fees
set, provided that the methodology itself will not be the subject of the dispute
resolution procedure or arbitration.
13.9.4 Pursuant to Clause 14.10, fees may be revised at any time to take account
of any new or changed tax, duty, impost, levy or other charge. 13.9.5 If WGL
proposes making material changes to the prevailing applicable pricing methodology
which would, if introduced, have a material adverse effect on the Customer,
then WGL shall consult with the Customer in good faith before any such changes
are made to ensure that the economic impact of the changes is equitable, but
any final decision shall be at WGL’s discretion.
13.10 Negotiated Fees
WGL may negotiate a fee which differs from any of the fees in WGL’s publicly
available Information Memorandum (the negotiated fee) so long as all of the
following conditions are met:
13.10.1 the Customer provides WGL with evidence that demonstrates to WGL’s satisfaction
the reasons why the Customer desires the negotiated fee; and
13.10.2 all other entities involved in the supply of Gas to the Customer also
agree to lower their rates; and
13.10.3 the negotiated fee is for an agreed period only; and
13.10.4 the negotiated fee is not likely to have the effect of destabilising
other market prices (to be determined at WGL’s sole discretion).
14 PAYMENT
14.1 Invoices Rendered
On or before the 10th day of each Month WGL shall render to the Customer
an invoice for all services provided under this Agreement and all charges payable
in the Billing Period. All such invoices shall be sent to the Customer in accordance
with Clause 14.8.
14.2 Contents of Invoices
Invoices rendered pursuant to Clause 14.1 shall include the following information:
14.2.1 the total energy value of Gas delivered by WGL to the Customer in the
Billing Period, as supplied by the Customer in accordance with the Customer’s
obligations in respect of Clauses 3.1 in Appendix Six; and
14.2.2 the number of Delivery Points at which WGL delivered Gas to the Customer
in the Billing Period sub totalled for each of the fee categories specified
in Appendix One; and
14.2.3 any charges payable pursuant to Clause 13 for the Billing Period; and
14.2.4 any additional fees and charges payable pursuant to this Agreement (including
any adjustments for prior Billing Periods); and
14.2.5 GST payable pursuant to Clause 14.9.
14.3 Payment
Subject to Clauses 14.1, 14.4 and 14.6, the Customer shall pay to WGL the aggregate
amount stated in WGL’s invoice by direct credit to WGL’s bank account not later
than the 20th day of each Month or on the preceding Business Day
if the 20th of the Month is not a Business Day. However, in the event
that WGL’s invoice was not received by the Customer until after the 10th
Day of the Month, then payment shall be made within 10 days of receipt of the
invoice. The Customer shall:
14.3.1 ensure that payment is credited to WGL’s bank account set out in Appendix
One or such other bank account as notified by WGL, or made in such other manner
as may be mutually agreed in writing from time to time; and
14.3.2 immediately give notice to WGL of the invoice number and the respective
amount to which the payment relates.
14.4 Disputed Invoices
In the event of any dispute concerning an invoiced amount the Customer shall,
within 10 Days from the date it received the invoice, notify WGL in writing
identifying the amount in dispute and giving full reasons for the dispute. The
Customer shall pay the full amount of any portion of the invoice which is not
in dispute. The Parties agree to attempt to resolve the dispute but if a resolution
is not forthcoming within a further 10 Days, the dispute will then be referred
to an independent expert for binding resolution in accordance with Clause 20.3.
In the event that the Customer complies with the provisions of this Clause 14.4,
WGL shall not have the right to suspend distribution services by reason only
of the Customer’s withholding of the disputed amount.
14.5 Interest on Disputed Amount
Where as a result of the determination of a dispute of the nature referred to
in Clause 14.4 either Party has to pay money to the other, then in addition
to such payment, interest calculated on a daily basis (but not compounded) shall
be payable thereon from the due date for payment of the invoice until actual
payment at a rate equal to the Interest Rate.
14.6 Incorrect Invoices
If it shall be found at any time that the Customer has been overcharged or undercharged
in any form whatsoever under the provisions of this Agreement and the Customer
shall have actually paid the invoices containing such overcharge or undercharge,
then, within 30 days after such error has been discovered and the amount has
been agreed to by the Parties or determined by an independent expert pursuant
to Clause 20.3, WGL shall refund to the Customer the amount of any such overcharge
or the Customer shall pay to WGL the amount of any such undercharge, in both
cases together with interest on the overcharged or undercharged amount at the
Interest Rate calculated from the due date for payment of the appropriate invoice
to the date of actual payment of the overcharged or undercharged amount provided
that there shall be no right to re-open invoices if more than 18 months has
elapsed since the date of the invoice.
14.7 Default Interest
If either Party without lawful excuse defaults in the payment of money payable
under this Agreement on the due date for payment (or, where money is payable
Upon Demand, Upon Demand being made) then interest shall be payable on the amount
unpaid from the due date for payment until actual payment, at a rate equal to
the Default Rate, calculated on a daily basis.
14.8 Presentation of Invoices
Invoices rendered pursuant to Clause 14.1 shall be rendered by New Zealand Post
to the Customer’s postal address set out in Appendix One (or the Customer’s
postal address notified in writing to WGL). By mutual agreement of the Parties
invoices may be rendered by facsimile transmission to the Customer’s facsimile
number or by Email to the Customer’s Email address set out in Appendix One.
WGL is entitled to rely on, as conclusive evidence of receipt of the invoice
by the Customer, if sent by New Zealand Post when posted, or the transmission
confirmation record when sent by facsimile or in the absence of advise to the
contrary when sent by Email.
14.9 Goods and Services Tax
14.9.1 In addition to any payments specified or determined pursuant to the provisions
of this Agreement (including but not limited to payments under this Clause
14) the Customer shall pay to WGL an amount equal to any GST which WGL is liable
for in respect of payments made by the Customer pursuant to this Agreement (the
GST Amount).
14.9.2 The GST Amount shall be due and payable at the same time as the payment
on which it is levied is due pursuant to Clause 14.3.
14.9.3 WGL’s invoices provided to the Customer as referred to in this Clause
14 shall specify the GST Amount and shall comply with the Goods and Services
Tax Act 1985.
14.10 Other Taxes
14.10.1 In addition to the fees, charges and GST payable pursuant to Clause
13 and this Clause 14, the Customer shall pay to WGL an amount equal to any
tax, duty, impost, levy or other charge (but excluding income tax and rates)
imposed by the Government or other regulatory authority after the date of this
Agreement from time to time on, or incurred by WGL in respect of, any services
provided pursuant to this Agreement (including without limitation, any increase
of any such tax, duty, impost, levy or other charge, but excluding any increase
in income tax or rates). WGL agrees that any decrease of any such tax, duty,
impost, levy or other charge (but excluding income tax, rates and GST) will
be passed on to the Customer.
14.10.2 In the event that WGL requires payment by the Customer of any new or
increased tax, duty, impost, levy or other charge pursuant to Clause 14.10.1
it shall provide to the Customer a certificate from WGL’s auditors confirming
the amount is properly payable by WGL, verifying the accuracy of the amount
charged by WGL and, where the amount is payable by WGL in respect of all or
some of its customers, confirming that the proportion payable by the Customer
has been determined on an appropriate and reasonable basis taking into account
the quantity of distribution services purchased by the Customer in comparison
to all distribution services purchased from WGL and any factor relevant to the
new or increased tax, duty, import, levy or other charge. WGL shall notify the
Customer of the corresponding revision in the fees payable by the Customer under
this Agreement.
14.10.3 Nothing in this Clause 14.10 derogates from Clause 14.9.
15 RECORDS AND INFORMATION
15.1 Each Party shall prepare and maintain proper books, records and inventories
of all matters pertaining to this Agreement and, subject always to the right
of each Party to withhold confidential information or information not related
to the performance of this Agreement, each Party shall have the right to examine
at any reasonable time, the books, records and documents of the other to the
extent necessary to carry out an audit for the purposes of verifying any statement,
computation or claim made under the provisions of this Agreement.
15.2 It is hereby acknowledged by the Parties that:
15.2.1 all information relating to the basis on which WGL sets its fees (other
than information required to be disclosed by law) shall be deemed to be confidential
for the purposes of Clause 15.1; and
15.2.2 in respect of the derivation of the Customer’s fees and charges a certificate
given by WGL’s auditors shall be conclusive evidence of the correctness or otherwise
of the calculation of the Customer’s fees and charges based on Appendix One.
16 TERMINATION
16.1 Defaults may Lead to Termination
In cases where:
16.1.1 either Party defaults in payment of any money payable under this Agreement
(for reasons other than those in Clauses 14.4 or 14.6) for a period of ten Business
Days; or
16.1.2 either Party defaults in the performance of any of the other material
covenants or obligations imposed upon it by this Agreement; or
16.1.3 a resolution is passed or an order made by the Court for the liquidation
of either Party except for the purposes of reconstruction or amalgamation; or
16.1.4 either Party makes or enters into or endeavours to make or enter into
any composition, assignment or other arrangement with or for the benefit of
that Party’s creditors; or
16.1.5 a Force Majeure event or circumstance occurs with the result that it
is unlikely that one Party could ever again be in a position to perform its
obligations under this Agreement; or
16.1.6 either Party ceases to be engaged in the delivery or trading of Gas,
then the Party not in default or unaffected by the circumstances (referred to
in the balance of this Clause 16.1 as the Notifying Party) may at its option
give notice to terminate this Agreement in the following manner:
16.1.7 The Notifying Party shall give written notice to be served on the other
Party (the Defaulting Party) stating specifically the cause for terminating
this Agreement and declaring it to be the intention of the Notifying Party to
terminate the same.
16.1.8 Where the notice is given in respect of a default under Clauses 16.1.1,
16.1.2 or 16.1.5 (a 30 Day Default), the Defaulting Party shall have 30 days
after the service of that notice in which to remedy or remove the cause or causes
stated in the notice for terminating this Agreement. In respect of a default
under Clauses 16.1.3, 16.1.4 or 16.1.6, no such 30 day period shall apply and
termination can be effected immediately upon delivery of the notice.
16.1.9 In respect of a 30 Day Default, if within 30 days the Defaulting Party
does remove and remedy the cause or causes and fully indemnifies the Notifying
Party for all direct consequences of such breach, then such notice of default
shall be deemed to be withdrawn and this Agreement shall continue in full force
and effect.
16.1.10 If the Defaulting Party does not so remedy and remove the cause or causes
or does not indemnify the Notifying Party for any and all direct consequences
of such a 30 Day Default to the satisfaction of the Notifying Party, within
30 days, then the Notifying Party shall be entitled to terminate this Agreement
forthwith.
16.2 Customer has a Right to Terminate
Notwithstanding anything else in this Agreement, the Customer shall be entitled
to terminate this Agreement provided that it has given WGL 30 Days notice in
writing of its intention to do so.
16.3 Termination Without Prejudice to the Amounts Outstanding
The termination of this Agreement shall not, of itself:
16.3.1 relieve the Customer of its obligation to pay any money outstanding at
that time; or
16.3.2 relieve WGL of its obligation to deliver any Gas belonging to the Customer
in the Distribution System at the time of termination; or
16.3.3 constitute a waiver of any remedy to which the Party not in default may
be entitled for breach of this Agreement.
16.4 Effects of Termination
The termination rights set out in Clause 16.1 and 16.2 shall be in addition
to, and not in substitution for, any other rights and remedies available to
the Parties (including any rights and remedies which but for the inclusion of
this Clause 16.4 would not have been available to the Parties) whether pursuant
to this Agreement, at law, at equity or otherwise.
17 FORCE MAJEURE
17.1 Notwithstanding the other provisions of this Agreement but subject to
Clause 17.2, a Party shall be relieved from liability under this Agreement:
17.1.1 in the case of WGL, to the extent that on account of Force Majeure WGL
has not accepted, distributed or delivered or is unable to accept, distribute
or deliver Gas in the quantities required by the Customer; and
17.1.2 in the case of the Customer, to the extent that on account of Force Majeure
the Customer has not delivered or taken delivery of Gas pursuant to this Agreement
or has failed to perform any of its obligations under this Agreement.
17.2 Notwithstanding Clause 17.1, the Parties shall not be relieved from liability
to pay money due at the time of the Force Majeure event, or to give any notice
which may be required to be given pursuant to this Agreement. For the avoidance
of doubt, the Customer shall be relieved of its obligation to pay the Service
Charge, to a level proportionate with the duration and extent of the Force Majeure.
17.3 If either Party seeks relief under Clause 17.1, that Party shall, upon
the occurrence of any such failure due to Force Majeure:
17.3.1 as soon as reasonably practicable but in any event within 48 hours give
notice to the other Party of the occurrence of the event or circumstance claimed
to be Force Majeure and provide to the other Party full particulars relating
to the event or circumstance and the cause of such failure. Such notice shall
also contain an estimate of the period of time required to remedy such failure;
and
17.3.2 render the other Party reasonable opportunity and assistance to examine
and investigate the event or circumstance and the matters which caused the event
or circumstance and failure; and
17.3.3 as quickly as reasonably possible, use due diligence and take all reasonable
steps which may be necessary to rectify, remedy, shorten or mitigate the event
or circumstance giving rise to Force Majeure so as to minimise any loss, damage,
expense or other effects of the suspension of obligations suffered or incurred,
or likely to be suffered or incurred by the Party (and the other Party shall
use reasonable endeavours to assist the Party claiming Force Majeure to do so,
provided the other Party incurs no direct or indirect cost in doing so); and
17.3.4 give notice as soon as reasonably practicable but in any event within
48 hours to the other Party upon termination of the event of Force Majeure.
17.4 For the avoidance of doubt, the Customer will not be able to claim relief
from liability under Clause 17.1.2 for the suspended performance, or non performance,
of obligations of any of its customers, howsoever caused.
17.5 If, as a result of Force Majeure, WGL is not able to provide distribution
services in accordance with this Agreement then WGL shall, in good faith, allocate
among all of its System Users (including the Customer) any available distribution
services in accordance with section 5 of Appendix Two.
18 LIABILITIES
18.1 Liability for Negligence and Wilful Default
If either Party (the Liable Party) is negligent, or wilfully defaults, in respect
of or in the performance of its obligations to the other Party under this Agreement,
then:
18.1.1 the Liable Party shall be liable to the other Party for the direct losses
caused by the negligence or wilful default; and
18.1.2 the Liable Party shall indemnify the other Party against all claims,
demands, actions or proceedings by third parties, and any costs or expenses
in connection therewith which would otherwise be and become payable by the other
Party, in consequence of or arising out of the negligence or wilful default.
Any allegations by a third party that might lead to a claim in respect of this
indemnity shall be subject to the procedure set out in Clause 18.11. The liabilities
and indemnified amounts referred to in this Clause 18.1 shall be subject to
the limitations as to quantum outlined in Clause 18.7. Nothing in this Clause
18 shall operate to limit the liability of either Party to pay all appropriate
fees and charges incurred pursuant to Clauses 13 and 14.
18.2 Limitation of Liability
Except as provided in Clauses 18.1, 18.4 and 18.5, neither Party shall be liable
to compensate the other Party for any loss, injury, or damage arising directly
or indirectly from:
18.2.1 any act, omission, error, default or delay of the Party or its officers,
employees or agents; or
18.2.2 any act, omission, error, default or delay in respect of the provision,
use or termination of distribution services under this Agreement; or
18.2.3 the failure by the Party or its officers, employees or agents to commence
acceptance, transmission, or delivery of Gas or other services pursuant to this
Agreement; or
18.2.4 any failure of any part of the Distribution System, Receipt Point or
Delivery Point; or
18.2.5 any interruption or reduction of distribution services, receipts or deliveries
of Gas or Non-Specification Gas (made in accordance with this Agreement or
otherwise); or
18.2.6 any act or omission of any other customer of the Party and any other
third party for whom the Party is not responsible.
18.3 Direct Losses Only
If for any reason it is determined that, notwithstanding Clause 18.2, a Party
is liable to the other Party for breach of this Agreement other than in the
circumstances described in Clause 18.1, then:
18.3.1 the liability of the Party in breach to the other Party shall never exceed
the loss or damage sustained by the other Party itself resulting from or arising
out of that breach; and
18.3.2 any liability shall be subject to the limitations as to quantum outlined
in Clause 18.7; and
18.3.3 under no circumstances will the Party in breach be liable to the other
Party:
18.3.3.1 in contract, tort (including negligence) or otherwise for any and all
consequential loss or damage including, but without limiting the generality
thereof, the other Party’s loss of profits, business or anticipated savings
and damages, whether or not the consequential loss or damage was or ought to
have been known by the Party in breach; or
18.3.3.2 for any and all claims, demands, actions or proceedings by third parties,
and any costs or expenses in connection therewith, that are not already excluded
under Clause 18.3.3.1.
18.4 Customer’s Liability
Except as provided in Clause 18.1, the Customer alone will be responsible for
and liable to pay any money by way of compensation, damages or repair which
may be or become payable in consequence of the occurrence during the term of
this Agreement in or about or incidental to activities in or about the locations
specified in Clause 18.6 of:
18.4.1 any injury to or death of any person who is employed by the Customer
or by any person contracting with the Customer (except WGL), howsoever caused;
and
18.4.2 any loss of or damage to any property of the Customer or of any person
contracting with the Customer (except WGL), howsoever caused; and the Customer
shall hold harmless and indemnify WGL, any person contracting with WGL (except
the Customer) and their respective employees, agents and servants from and against
all liabilities and expenses of whatsoever nature for, under or in connection
with any claim, demand, action or proceeding whatsoever made or brought by any
person in respect of or in relation to any such injury, death, loss or damage.
18.5 WGL’s Liability
Except as provided in Clause 18.1, WGL alone will be responsible for and liable
to pay any money by way of compensation, damages or repair which may be or become
payable in consequence of the occurrence during the term of this Agreement in
or about or incidental to activities in or about the locations specified in
Clause 18.6 of:
18.5.1 any injury to or death of any person, who is employed by WGL or by any
person contracting with WGL (except the Customer), howsoever caused; and
18.5.2 any loss of or damage to any property of WGL or of any person contracting
with WGL (except the Customer), howsoever caused; and WGL shall hold harmless
and indemnify the Customer, any person contracting with the Customer (except
WGL) and their respective employees, agents and servants from and against all
liabilities and expenses of whatsoever nature for, under or in connection with
any claim, demand, action or proceeding whatsoever made or brought by any person
in respect of or in relation to any such injury, death, loss or damage.
18.6 Liability Locations
The locations specified for the purposes of Clauses 18.4 and 18.5 shall be:
18.6.1 Receipt Point; and
18.6.2 Delivery Point; and
18.6.3 Distribution System; and
18.6.4 such other premises or places of storage, distribution or delivery of
Gas, received, transmitted, or delivered to the Customer as shall from time
to time be agreed upon in writing by WGL and the Customer; and
18.6.5 such other premises or places where:
18.6.5.1 property of WGL or persons employed by WGL; and
18.6.5.2 property of the Customer or persons employed by the Customer;
are in proximity as shall from time to time be agreed upon in writing by WGL
and WGL.
18.7 Capped Liability
If for any reason, whether in accordance with or despite the various limitations
in this Clause18:
18.7.1 WGL, its officers, employees, or agents are liable to the Customer; or
18.7.2 the Customer, its officers, employees, or agents are liable to WGL; in
contract, tort (including negligence) or otherwise, the combined maximum liability
of that Party to the other Party shall be $1,000,000 in respect of any one event
or related series of events, with a maximum liability in any 12 month period
of $5,000,000, irrespective of the number of events. No charge or fee paid
or payable by either Party under this Agreement shall be included in any calculation
of liability limitation pursuant to this Clause 18.7.
18.8 Refund of Charges
Notwithstanding Clause 18.2 but subject to all other provisions of this Clause
18, where there is a total failure of the pipeline supplying a Delivery Point
for any reason after one Party advises the other in writing of the failure,
and the failure or continuation of the failure is not in any way directly or
indirectly caused by the Customer or any person for whom the Customer is responsible,
WGL will, on request by the Customer made within 10 Business Days, refund or
give a credit to the Customer for each period of 24 hours or part thereof by
which the failure continues after the time of service of the Customer’s notice
mentioned above calculated as the daily Service Charge payable in respect of
the affected Delivery Point. Such a refund or credit will only apply where
the Customer has paid the Service Charge in respect of the period of failure,
notwithstanding Clause17.2.
18.9 Each Limitation Separate
Each limitation or exclusion of this Clause 18 and each protection given to
WGL and to the Customer or their respective officers, employees, or agents by
any provision of this Clause 18 is to be construed as a separate limitation
or exclusion applying and surviving even if for any reason any of the provisions
is held inapplicable in any circumstances.
18.10 No Limit on Orders for Specific Performance
Nothing in this Clause 18 shall limit the right of the parties to enforce this
Agreement by seeking an order for specific performance or a like order pursuant
to any arbitration under this Agreement.
18.11 Claims
If a third party alleges any liability (whether actual or contingent) or commences
any proceedings against a Party (a Third Party Claim) in respect of which that
Party (the Claiming Party) makes, or is in a position where it could reasonably
anticipate that it might seek to make, any claim against the other Party (the
Defending Party) pursuant to Clause 18.1.2, the following procedure shall apply:
18.11.1 Notice
The Claiming Party shall immediately give notice of the Third Party Claim to
the Defending Party.
18.11.2 No Payment or Admission of Liability
The Claiming Party will not make any payment or admission of liability in respect
of the Third Party Claim without the prior written consent of the Defending
Party. The Defending Party will not unreasonably withhold its consent under
this Clause 18.11.2.
18.11.3 Defending Party may Defend
If the Defending Party accepts liability to the Claiming Party for a Third Party
Claim, then the Defending Party (and its legal representatives) may elect to
defend in the name of the Claiming Party any Third Party Claim involving any
litigation. The Defending Party must notify the Claiming Party of its election
within 14 days of receiving notice of the Third Party Claim. The Claiming Party
shall provide or procure to be provided such assistance as the Defending Party
may reasonably require if:
18.11.3.1 the Defending Party first agrees that it has an obligation to indemnify
the Claiming Party against any liabilities resulting from such Third Party Claim
and/or its defence; and
18.11.3.2 the Claiming Party is not required to render assistance to the Defending
Party pursuant to this Clause 18.11.3, other than allowing a defence in its
name, in circumstances where the Claiming Party reasonably believes that its
reputation could be damaged or impaired by such assistance; and
18.11.3.3 the Claiming Party can decline the defence in its name of any Third
Party Claim in circumstances where such defence is not meritorious or is vexatious
(if there is any dispute as to the merit of a defence, the matter shall be immediately
referred to arbitration pursuant to Clause 21, and concluded as speedily as
possible); and
18.11.3.4 the Defending Party agrees that it will pay the costs of the Claiming
Party in providing assistance in defending the Third Party Claim.
18.11.4 Defending Party’s Counsel
If the Defending Party elects to defend a Third Party Claim under Clause 18.11.3,
then it may choose its own counsel for such defence. The costs of that counsel
will be met by the Defending Party.
18.11.5 Duty to Mitigate
The Claiming Party shall take all reasonable steps to avoid or mitigate any
loss or liability which might give rise to a claim under Clause 18.1.2 and will
not take any active steps which would or could directly and inevitably result
in the occurrence of an indemnifiable event.
18.11.6 Other Limitations
The Defending Party shall not be required to make any payment in respect of
any claim under Clause 18.1.2 based on a contingent liability until the contingent
liability becomes an actual liability and is due and payable.
19 CONFIDENTIAL INFORMATION
19.1 Except as required by law neither Party shall communicate or comment upon
any details contained in this Agreement to third parties without the prior written
consent of the other Party provided that:
19.1.1 a Party may, without such prior written consent, communicate or comment
on the details contained in this Agreement to any financial institution from
which such Party is seeking to obtain finance, or to any accountant or legal
adviser, upon obtaining a written undertaking from such person to keep such
matters confidential; and
19.1.2 the Customer may, without such prior written consent of WGL, communicate
or comment on the provisions of this Agreement, strictly on a need to know basis,
to any other user of the Distribution System to whom the Customer wishes to
share a Receipt Point or Delivery Point, as provided in Clause 6.6.
20 DISPUTE RESOLUTION
Subject to Clause 20.2, in the event of any dispute between the Parties arising
out of this Agreement (other than a dispute to which Clause 18.11.3.3 applies)
the Parties shall submit to the dispute resolution procedure contained in Appendix
Four.
20.1 A dispute or difference on any of the following matters shall be determined
by an independent expert in accordance with Clause 20.3:
20.1.1 invoices rendered; and
20.1.2 metering equipment; and
20.1.3 multiple user delivery points and receipt points; and
20.1.4 any other matters that the Parties may agree to in writing.
20.2 If any dispute or any difference arises between the Parties concerning
any matter set out in Clause 20.2 either Party may give written notice to the
other Party. If such dispute or difference is not resolved by negotiation between
the Parties within a period of 10 Business Days from the date of notice being
given under this Clause
20.3, either Party may refer the matter in dispute to an independent expert
nominated in writing by WGL and the Customer jointly (or, in default of agreement
within 2 Business Days thereafter as to the nominee, by the President for the
time being of the Institute of Professional Engineers New Zealand (IPENZ)).
The determination in writing of the independent expert or the nominee of the
President of IPENZ on the matter in dispute will be conclusive and binding on
the Parties and will be deemed to have been given as an expert and not an arbitrator.
The costs of the independent expert or the nominee of the President of IPENZ
(as the case may be) will be borne as to one half by WGL and as to the other
half by the Customer. For the avoidance of doubt, the provisions of the Arbitration
Act 1996 shall not apply to such determination.
21 ARBITRATION
21.1 Where Clause 5 of Appendix Four applies and the matter remains unresolved
or where Clause 18.11.3.3 applies the matter in dispute between the Parties
shall be referred to arbitration within five Business Days in accordance with
the Arbitration Act 1996 except that clauses 4 and 5 of Schedule Two to the
Arbitration Act 1996 shall not apply.
21.2 Either Party may refer a matter to arbitration by giving to the other Party
notice in writing stating the subject matter and details of the dispute and
that Party’s desire to have the matter referred to arbitration.
21.3 The arbitration shall be by one arbitrator to be agreed upon by the Parties
or, in the event that a single arbitrator cannot be agreed, then before two
arbitrators one to be appointed by each Party and their umpire to be appointed
by the arbitrators before any arbitration proceedings commence. If the identity
of the arbitrator, or two arbitrators and umpire, remains unsettled 30 days
after the giving of notice pursuant to Clause 21.2, then an arbitrator for the
matter in dispute shall be appointed by the President for the time being of
the Arbitrators’ and Mediators’ Institute of New Zealand Inc.
21.4 Pending resolution of any dispute or difference, the Parties shall continue
to perform their respective obligations pursuant to the provisions of this Agreement.
22 NOTICES
22.1 Each Party shall provide written notification to the other at the earliest
possible time of any factor, event or impending event known to it which may
affect its ability to meet the requirements of this Agreement.
22.2 All notices, demands, consents, requests or other communications (collectively
referred to as notices) required or permitted to be given or made to either
Party pursuant to this Agreement, shall be in writing and shall be deemed to
be sufficiently served, given or made if personally delivered or if sent by
registered mail, or e-mail, or facsimile to the Party to be notified at the
appropriate address specified in Appendix One or in either case to such other
address as the Party to be notified shall designate by written notice given
to the other Party.
22.3 A notice personally delivered shall be deemed served upon delivery. If
sent by registered mail the notice shall be deemed served on the earlier of
the date of receipt or on the second Business Day after the same was committed
to post. If sent by facsimile or e-mail transmission such notice shall, if
sent prior to 4.00 pm on any Business Day, be deemed served on that Business
Day. If sent after 4.00pm on any Business Day it shall be deemed served on
the next Business Day.
23 WAIVER
Any failure or delay by either Party in exercising any of its rights under
this Agreement shall not operate as a waiver of its rights and shall not prevent
such Party from subsequently enforcing any right or treating any breach by the
other Party as a repudiation of the Agreement.
24 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties from the
Commencement Date on the subject matter of this Agreement and supersedes all
prior negotiations, representations and agreements between the Parties.
25 AMENDMENT
25.1 Except as expressly set out in this Agreement, no variation, modification
or waiver of any provision of this Agreement shall be of any force or effect
unless it is in writing and signed by both Parties. Any amendment to this Agreement
shall be in the form attached as Appendix Three, unless the Parties otherwise
agree.
25.2 The Parties agree that changes from time to time during the currency of
this Agreement that relate only to Delivery Point(s) can be recorded by exchange
of correspondence between the Parties and will not require formal amendment
pursuant to clause 25.1 more frequently than once in any six month period.
26 SEVERABILITY
If any clause or provision of this Agreement shall be held illegal or unenforceable
by any judgement of any Court or Tribunal having competent jurisdiction, such
judgement shall not affect the remaining provisions of this Agreement which
shall remain in full force and effect as if such clause or provision held to
be illegal or unenforceable had not been included in this Agreement.
27 ASSIGNMENT
27.1 Subject to Clause 27.2, either Party may only assign the totality of its
rights and obligations under this Agreement.
27.2 In the event of assignment pursuant to Clause 27.1, the assignor shall
remain liable to the other Party for the due performance of all obligations
under this Agreement as primary obligor and not merely as surety or guarantor
only, unless that other Party has given its prior written consent to the release
of the assignor from its obligations.
27.3 Prior to an assignment made pursuant to this Clause 27, the assignor shall
obtain execution by the assignee of a Deed of Covenant binding the assignee
(consequent upon the assignment) to observe and perform all the duties and obligations
arising to be observed and performed under this Agreement.
27.4 Notwithstanding the effective date of any assignment made in accordance
with the provisions of this Clause 27, in respect of any charges payable under
this Agreement, the assignor shall remain liable up to the end of the Billing
Period during which the assignment takes place.
27.5 An amalgamation (as defined in the Companies Act 1993) of the Customer
with any other company or companies shall require WGL’s consent (not to be unreasonably
withheld). Upon amalgamation, the Customer shall notify WGL of the name of
the amalgamated company and certify that the amalgamation has complied and continues
to comply with any relevant law.
28 ACCESS RIGHTS
28.1 Each Party hereby grants to the other access to its relevant premises
at reasonable times for the purposes of performing this Agreement.
28.2 The right of access conferred by Clause 28.1 shall, when appropriate, be
exercised as follows:
28.2.1 reasonable notice specifying the time of such proposed access is to be
given by the Party seeking access to the other; and
28.2.2 each Party shall take all reasonable steps to ensure that its officers,
agents, and employees who enter the premises of the other Party cause as little
inconvenience to the other Party as possible and observe recognised safety and
security procedures.
28.3 If any equipment of a Party (the owner) is or is to be located on the premises
of another person and the other Party requires access to that equipment for
any purpose under this Agreement, the owner shall use its best endeavours to
secure from that other person a right of access to that person’s property which
can be exercised by the Party seeking access.
28.4 The Customer shall ensure that WGL has a right of access at all times to
examine, test, install, replace or modify any Meter and associated Fittings
at a Delivery Point or any part of the Distribution System to the extent that
it or they are located on or within an End User’s premises. In exercising its
right of access WGL shall take all reasonable steps to ensure that its officers,
agents, and employees who enter the premises of an End User cause as little
inconvenience to the End User as possible and observe recognised safety and
security procedures.
29 CONSUMER GUARANTEES ACT
The Customer represents and warrants that it has entered into this Agreement
to acquire distribution services from WGL solely for business purposes. Nothing
in the Consumer Guarantees Act 1993 is to apply to the supply of Gas or any
services to the Customer under this Agreement.
30 EXCLUSION OF IMPLIED TERMS
All terms and conditions relating to this Agreement and the distribution services
that are implied by law or custom are excluded to the maximum extent permitted
by law.
31 GOVERNING LAW
This Agreement shall be construed and interpreted in accordance with the law
of New Zealand and the Parties submit to the non-exclusive jurisdiction of the
New Zealand courts.
32 COUNTERPART
This Agreement may be executed in two or more counterparts and all such copies
shall be read and construed as one and the same document.
IN WITNESS WHEREOF this Agreement was executed by the Parties on the day
and year first above written
SIGNED ON BEHALF OF WGL BY
two of its Directors
Director
Director
SIGNED ON BEHALF OF THE CUSTOMER BY
two of its Directors
Director
Director
APPENDIX ONE
SPECIAL TERMS AND CONDITIONS FOR THE PROVISION OF DISTRIBUTION SERVICES
1 Customer’s Details
Street Address: [No & Street]
[City]
Mailing Address: [PO Box No]
[City]
Facsimile Number:
E-mail Reference:
Marked for the attention of:
2 WGL’ s Details
Street Address:
179 St Hill Street
Wanganui
Mailing Address:
PO Box 32
Wanganui
Facsimile Number: (06) 349 0135
E-mail Reference: wanganui.gas@xtra.co.nz
Bank Account:
Marked for the attention of:
Distribution Manager
3 Commencement Date:
4 Termination Date:
5 Apportionment of delivered energy for multiple user Receipt Points and Delivery
Points:
If applicable refer to Clause 6.6 of this Agreement and Table 1 of this Appendix
One.
6 Fees and Charges
This section outlines the fees and charges payable by the Customer for use
of the Distribution System under this Agreement.
6.1 Service Charge
Each month, for each Delivery Point, the Customer shall pay a Service Charge
equal to the applicable Service Charge Fee as set out in Table 1 of this Appendix
One. The Service Charge will be payable in monthly in arrears.
The Service Charge Fee shall be redetermined pursuant to Clauses 13.9.1 and
13.9.2 of this Agreement.
6.2 Supply Charge
Each month the Customer shall pay a Supply Charge equal to:
Supply Charge Fee ($/GJ) x Gas Delivered (GJ) Where:
Supply Charge Fee = the applicable Supply Charge Fee as set out in Table 1 of
this Appendix One.
Gas Delivered = the energy value (expressed in GJ) of all Gas delivered to the
Delivery Point(s) by WGL on behalf of the Customer in any Month.
The Service Charge will be payable in monthly in arrears.
The Service Charge shall be redetermined pursuant to Clauses 13.9.1 and 13.9.2
of this Agreement.
7 Bond/Deposit
Pursuant to Clause 13.8 of this Agreement [enter details of Bond/Deposit here]
8 Delivery Point Details
The following information is to be specified for each delivery point where
applicable.
8.1.1 Identification number (a unique number for each Delivery Point as specified
by WGL)
8.1.2 Location
8.1.3 Receipt Point.
8.1.4 Maximum pressure
8.1.5 Minimum pressure
8.1.6 Nominated pressure
8.1.7 Maximum Hourly Quantity (MHQ)
8.1.8 Maximum Instantaneous Quantity (MIQ)
8.1.9 Nominated Monthly Quantity (NMQ)
8.1.10 Nominated Annual Quantity (NAQ)
8.1.11 Non standard pressure service (if any)
8.1.12 Specify dedicated or not
8.1.13 Proportion of volumes and charges (if delivery point not dedicated)
8.1.14 Frequency and timing of meter reading for the purpose of billing
8.1.15 ANZIC classification
SCHEDULE ONE
FEES AND CHARGES 1 Service charge
Table 1 - Service Charges
|
Meter Type
|
Meter Capacity m3/hour
|
Daily Service Charge
($/day)
|
| M6 |
0-6 |
|
| M12 |
6.01-12 |
|
| M23 |
12.01-23 |
|
| M43 |
23.01-43 |
|
| M85 |
43.01-85 |
|
| M142 |
85.01-142 |
|
| M200 |
142.01-200 |
|
| M300 |
200.01-300 |
|
| M450 |
300.01-450 |
|
| M1080 |
450.01-1080 |
|
2 Supply Charge
2.1 Delivery Points Greater than 1200 GJ Nominated Annual Quantity T
he Supply Charges applicable to Delivery Points where the Nominated Annual Quantity
is greater than or equal to 1200 GJ are as specified in Table 2.
Table 2 - Supply Charges
|
Delivery Point Identification Number
|
Supply Charge
($/GJ)
|
|
[Details to be entered]
|
|
2.2 CNG Delivery Points
The Supply Charge applicable to all Delivery Points at a CNG Station is $XXX/GJ.
2.3 Other Delivery Points
The Supply Charge applicable to all Other Sites is $XXX/GJ.
3 New connection fee
The fee for all new Delivery Points is $XXX.
4 Disconnection fee
The fee for disconnection of the Delivery Point from the Distribution System
is $XXX.
5 Reconnection fee
The fee for reconnection of a Delivery Point previously disconnected from the
Distribution System is $XXX.
6 Special meter reading fee
The fee for a special meter reading is $XXX.
7 Monthly meter reading
The fee for changing the frequency of reading the Meter at a Delivery Point
from two monthly to monthly is $XXX.
8 Meter change
Where the Customer requests the Delivery Point Meter be changed for a Meter
with greater or less capacity then;
8.1 where the Meter only is to be changed there is no charge; and
8.2 where equipment other than the Meter is to be replaced a price is available
on application.
9 Time of use data
9.1 Time of Use Data Charge
The charge for installation of a Time of Use Device at a Delivery Point is;
9.1.1 included in the Service Charge where the Nominated Annual Quantity is
greater than or equal to 10 TJ, and
9.1.2 available on application where the Nominated Annual Quantity is less than
10TJ and for which a Usage Profile has not been agreed.
9.2 Monthly Summary of Daily Data Charge
The charge for providing daily data for a specified Delivery Point on a monthly
basis is;
9.2.1 included in the Service Charge where the Nominated Annual Quantity is
greater than or equal to 10 TJ, and
9.2.2 available on application where the Nominated Annual Quantity is less than
10TJ.
9.3 Daily Summary of Daily Data Charge
The charge for providing daily data on a daily basis and the continuous monitoring
of the Time of Use Device is available on application.
APPENDIX TWO
TECHNICAL REQUIREMENTS
1 RECEIPT POINTS
1.1 Receipt Point site layout and design must conform with good engineering
practice and in particular comply with the requirements of:
1.1.1 NZS 5223 Part 1;
1.1.2 Gas Act 1992 and any Regulations made pursuant to that Act;
1.1.3 NZS 5259:1997 Gas Measurement;
1.1.4 Health and Safety in Employment Act 1992; and
1.1.5 Any other relevant Acts or Regulations in place at the time of construction.
1.2 Receipt Point sites shall have adequate security fencing, vehicular access,
and alternative means of personnel egress.
1.3 All electrical equipment shall comply with NZ ECP 24 meet the technical
requirements approved by the owner of the Receipt Point and Occupational Safety
and Health (Ministry of Commerce) for the classified areas in which it is installed.
1.4 The Receipt Point may contain means to prevent excess offtake in the event
of a failure of the downstream system. This could be an automatic linebreak
device, remote operated block valve, flow control valve or other device as approved
by WGL.
1.5 Custody transfer metering shall be in accordance with NZS 5259:1997. WGL
shall determine the means of pressure, temperature, compressibility and calorific
value determination and calculation of standard volume and energy.
1.6 The Receipt Point site must allow for installation of check metering equipment
should this be required by WGL.
1.7 The Customer shall be responsible for providing Gas at sufficient pressure
to enable it to enter WGL’s Distribution System at whatever pressure may prevail
therein. The Customer shall be aware that most pipelines operate below their
maximum allowable operating pressure and that WGL may in future elect to take
Gas at a higher pressure into its Distribution System.
1.8 The Receipt Point must contain adequate pressure regulation (active and
monitor preferred) and over-pressure protection equipment in order to adequately
protect the Distribution System of a standard approved by WGL. Further the
Delivery Point should also contain equipment to prevent overspeeding of the
custody transfer meter(s) and check meter(s) if installed.
1.9 WGL or the Customer may (at their own cost) require gas composition and
properties (including calorific value) to be continuously monitored by gas chromatograph
or other suitable device. The monitoring Party shall, if requested, supply
the other Party with data collected as a result of such continuous monitoring.
1.10 The Receipt Point shall also contain equipment to prevent dust, oil, condensed
hydrocarbons or other deleterious substances from reaching WGL’s Distribution
System including the metering equipment.
1.11 Gas delivered shall conform to NZS 5442: 1990 and be odorised to conform
with NZGCP3.
1.12 The Receipt Point must contain an approved means of electrically isolating
the Receipt Point from WGL’s cathodic protection system. A surge diverter approved
by WGL shall be installed across the isolating device. Pipework within the Receipt
Point site is to be suitably bonded so as to be electrically continuous and
connected to an approved earthbed.
1.13 WGL may require the Receipt Point to be connected to its remote monitoring
system. This involves installation of an remote terminal unit (RTU), cabinet,
uninterruptible power supply, telephone line or other communications link, protection
devices, earthing, transducers, cabling etc. to provide WGL with access to particular
data, statuses and such other parameters as WGL may reasonably require. The
Customer shall provide at WGL’s request at each Receipt Point a suitable building
or enclosure to house remote monitoring equipment.
2 DELIVERY POINTS
2.1 Delivery Point site layout and design must conform with good engineering
practice and in particular comply with the requirements of:
2.1.1 NZS 5258:1995 Code of Practice for Gas Distribution;
2.1.2 Gas Act 1992 and any Regulations made pursuant to that Act;
2.1.3 NZS 5259:1997 Gas Measurement;
2.1.4 Health and Safety in Employment Act 1992; and
2.1.5 Any other relevant Acts or Regulations in place at the time of construction.
2.2 Delivery Point sites shall have suitable security measures which will minimise
damage and/or interference.
2.3 All electrical equipment shall comply with NZ ECP 24 for the classified
areas in which it is installed.
2.4 The Delivery Point may contain means to prevent excess offtake in the event
of unanticipated increase in usage or failure of the downstream system. This
could be a flow restricting orifice or other device as approved by WGL.
2.5 Custody transfer metering shall be in accordance with NZS 5259:1997. WGL
shall determine the means of pressure, temperature, compressibility and calorific
value determination and calculation of standard volume and energy.
2.6 The Delivery Point must contain adequate pressure regulation and over-pressure
protection equipment in order to adequately protect the system downstream of
the Delivery Point of a standard mutually agreed between WGL and the Customer.
2.7 WGL or the Customer may (at their own cost) require gas composition and
properties (including calorific value) to be continuously monitored by gas chromatograph
or other suitable device. The monitoring Party shall, if requested, supply
the other Party with data collected as a result of such continuous monitoring.
2.8 The Delivery Point shall also contain equipment to prevent dust, oil, condensed
hydrocarbons or other deleterious substances from reaching the system downstream
of the Delivery Point including the metering equipment.
2.9 Gas delivered shall conform to NZS 5442: 1990 and be odorised to conform
with NZGCP3.
2.10 The Delivery Point shall be electrically isolated from the system downstream
of the Delivery Point.
2.11 WGL may require the Delivery Point to be connected to its remote monitoring
system. This involves installation of an remote terminal unit (RTU), cabinet,
uninterruptible power supply, telephone line or other communications link, protection
devices, earthing, transducers, cabling etc. to provide WGL with access to particular
data, statuses and such other parameters as WGL may reasonably require. WGL
may construct at each Delivery Point a suitable building or enclosure to house
remote monitoring equipment.
3 ACCIDENTS, INCIDENTS AND CALLOUTS
3.1 WGL will notify the Customer as soon as possible of any incident that
will, or has the potential to, directly affect End Users supplied by the Customer.
3.2 WGL will report to the Customer on the investigation of any accident or
incident that interrupts or curtails gas deliveries from the Distribution System.
3.3 The Customer will notify WGL of all incidents occurring on an End User’s
installation that are likely to;
3.3.1 have been caused by a Distribution System fault, or
3.3.2 to have affected the normal operation of the Distribution System.
3.4 The Customer will immediately report to WGL any signs of damage, gas escapes
or other abnormalities on the Distribution System resulting from reports given
to the Customer.
3.5 Unless alternative arrangements are made, WGL will at all times be the principal
contact for the public and consumers in relation to Gas supply and delivery
issues to the outlet of the Gas Measurement System. The Customer may wish to
make arrangements to respond to its End User's calls relating to the gas supply
downstream of the Gas Measurement System. WGL will accommodate these arrangements
provided that all safety matters are adequately addressed.
3.6 Where WGL is required to respond to End User(s) calls to gas supply incidents
downstream of the Gas Measurement System WGL may recover direct costs, relating
to the incident, from the Customer.
3.7 Where the Customer has an agreement with WGL to respond to End User's calls
relating to the supply of Gas, then the Customer will furnish WGL with ongoing
and current 24 hour call out rosters and will have agreed procedures for handling
calls and for communicating with WGL.
3.8 WGL will have procedures for handling calls relating to the Distribution
System and will maintain rosters for responding to out of hour calls. Copies
of ongoing and current rosters will be provided to the Customer.
4 TEST PROCEDURES
4.1 All test procedures shall be in accordance with NZS 5259:1997.
4.2 If, upon testing, any measuring equipment is found to be accurate within
the maximum allowable error limits of table 1, NZS 5259:1997, all previous recordings
or output of such equipment shall be considered accurate in computing the acceptance,
distribution, and delivery of Gas. To the extent that the error of the measuring
equipment is not zero the equipment shall be adjusted immediately such that
its error is as close as practicable to zero. No adjustment to the Customer’s
account shall be made.
4.3 If, upon testing, any measuring equipment shall be found to be inaccurate
within the maximum allowable error limits of table 1, NZS 5259:1997, any previous
recordings or output of such equipment shall be corrected by the full magnitude
of the error found for any period wherein it is known definitely that the measuring
equipment was operating inaccurately. In the event the period is not known
or not agreed upon, such correction shall be for a period of one half of the
time elapsed since the date of the preceding test. The equipment shall be adjusted
immediately such that its error is as close as practicable to zero.
4.4 To determine the accuracy of any measurement device it shall be tested so
that the output signal or reading of the device is as close as possible to the
normal operating conditions or, if the device normally operates within a particular
range, at points within that range. In the latter case the uncertainty shall
be an average across the range.
4.5 For the purposes of Clause 4.1 of this Appendix a suitable calibration standard
shall be any facility or testing device with traceability to a primary standard,
or a testing laboratory or facility having accreditation recognised by WGL.
5 LOAD MANAGEMENT
5.1 In the event that WGL determines that any System User (including the Customer)
and/or its End User(s) is acting in a manner that compromises the access rights
of any other System User (including the Customer) and/or their End User(s),
or the deliverability of Gas to End Users, then WGL will take appropriate actions
available to it under the Gas Act to protect the interest of other Distribution
System users. WGL shall not be held liable for the actions of any party that
prevents WGL from providing the services described in this Appendix unless such
actions have been approved in writing by WGL.
5.2 WGL will be responsible for the costs of providing load management, including
the cost of equipment and processes.
5.3 WGL will be solely responsible for the management of Distribution System
emergencies. Emergency management will include the actions necessary to:
5.3.1 Assess and make safe any situation;
5.3.2 Arrange for the control of the flow of gas into and out of the Distribution
System;
5.3.3 Make temporary or permanent repairs to any part of the Distribution System;
5.3.4 Restore the Distribution System back to its previous operational condition;
5.3.5 Keep System Users (including the Customer) and others informed of developments.
5.4 WGL will maintain a written plan outlining the resources available and the
actions likely to be taken when handling any foreseeable emergency involving
the Distribution System. The plan shall include loadshedding principles and
loadshedding schedules provided by the System User(s) (including the Customer).
5.5 By 1 July of each year (or more frequently if reasonably asked by WGL),
the Customer will supply to WGL loadshedding schedules that identify and classify
all non-domestic Delivery Points. WGL will from time to time advise the Customer
of the loadshedding classifications that apply.
5.6 In situations involving interruption to the Gas supply, WGL will be responsible
for isolating and tagging the Delivery Points and will as soon as practical
advise the Customer of the action taken.
5.7 WGL will nominate a person who will act as a Customer Liaison Officer who
will liase with the Customer in the event of a Civil Defence or system emergency
and will notify the Customer of the name of the person. The Customer will nominate
a person who will liaise with WGL in the event of a Civil Defence or system
emergency and will notify WGL of the name of the person.
5.8 The Customer must take no action during the course of a Distribution System
emergency to compromise the ability of WGL to manage the emergency.
5.9 Once the Distribution System has been returned to its normal operating condition,
WGL will advise the Customer, who is then responsible for the safe re-introduction
of gas to affected Customers.
6 ACTS, STANDARDS AND CODES
The following Acts, Standards and Codes, as amended from time to time, form
part of and are to be read in conjunction with this Agreement:
- Gas Act 1992
- Gas Industry Regulations 1993
- Gas (Information Disclosure) Regulations 1997
- Commerce Act 1986
- Fair Trading Act 1986
- Consumer Guarantees Act 1993
- Hazardous Substances and New Organisms Act 1996
- Health and Safety in Employment Act 1992
- Ministry of Energy Abolition Act 1989
- Resource Management Act 1991
- Transit New Zealand Act 1991
- New Zealand Railways Act 1981
- New Zealand Gas Pipeline Access Code
- NZS 5258: 1995 "Code of Practice for Gas Distribution"
- NZS 5259: 1997 "Gas Measurement
- NZS 5261: 1996 "Code of Practice for the Installation of Gas Burning
Appliances and Equipment"
- NZS 5442: 1990 "Specification for Reticulated Natural Gas"
- NZ GCP 3: 1993 "Code of Practice for Odorisation of Gas"
- AS/NZS 2430.3.4: 1997 Classification of Hazardous Areas - Part 3.4: Examples
of area Classification - Flammable Gases"
APPENDIX THREE
AMENDING AGREEMENT
This Agreement is made the [ ] day of 199[]
BETWEEN
1 WANGANUI GAS LIMITED at Wanganui ("WGL")
2 [ ] ("the Customer)
BACKGROUND
1 By agreement dated [ ] WGL agreed to provide distribution services to
the Customer on the basis set out in that agreement (the " Distribution
Services Agreement").
2 WGL and the Customer now wish to amend the Distribution Services Agreement
on the basis set out in this Agreement.
IT IS ACKNOWLEDGED AND AGREED as follows: 1 INTERPRETATION 1.1 Defined Terms
Terms defined in Clause 1.1 of the Distribution Services
Agreement shall, unless the context otherwise requires, have the same meanings
in this Agreement. 1.2 Construction
Clause 1.2 of the Distribution Services Agreement
shall, unless the context otherwise requires, apply in respect of this Agreement
as if it were set out in this Clause 1.2. 2
AMENDMENTS TO DISTRIBUTION SERVICES AGREEMENT
The Distribution Services Agreement is hereby amended as follows with effect
from [ ]:
3 CONFIRMATION
The Parties agree that the Distribution Services Agreement, as hereby amended,
is confirmed.
IN WITNESS WHEREOF this Agreement has been executed on the date shown on the
first page.
APPENDIX FOUR
DISPUTE RESOLUTION PROCEDURE
1 CONSTRUCTION
Unless otherwise defined or the context otherwise requires all
terms which are capitalised in this Appendix shall bear the same meaning as
in the main body of the Agreement.
2 INITIATING RESOLUTION
If a dispute arises out of or in connection with this Agreement
the Parties, using the procedures set out in this Appendix, agree to make a
genuine effort to resolve the dispute without resorting to litigation. Either
Party may initiate these resolution procedures by giving written notice to the
other Party.
3 NEGOTIATIONS
The Party who initiates the resolution procedures must name its
representative in the negotiations when giving written notice to the other Party
within three Business Days. The Party receiving such written notice must then
give written notice to the other Party naming its representative in the negotiations.
Each representative must have authority to settle the dispute. As soon as possible
after both Parties have been so advised of each others’ representatives, the
representatives must enter into negotiations to try to resolve the dispute.
4 ALTERNATIVE DISPUTE RESOLUTION
4.1 If the dispute is not resolved within 5 Business Days of both
Parties being advised of each other’s representatives under Clause 3 of this
Appendix, then within a further 5 Business Days, the Parties must either:
4.1.1 initiate any available standard industry dispute resolution procedure
if such a procedure has been agreed to by both Parties in writing with respect
to the particular dispute; or
4.1.2 in the event that Clause 4.1.1 of this Appendix does not apply, attempt
to agree on a process for resolving the dispute, such as further negotiations,
mediation, or independent expert determination, but not arbitration or litigation.
Agreement on a process is to include agreement on: 4.1.2.1 the procedure and
timetable for any exchange of documents and other information relating to the
dispute; 4.1.2.2 procedural rules and a timetable for the conduct of the selected
method of proceeding;
4.1.2.3 a procedure for selection and compensation of any neutral person who
may be employed by the Parties in dispute;
4.1.2.4 whether or not the decision of any mediator or independent expert, or
other decision reached as a result of further negotiation or other dispute resolution
process, will be final and binding on the Parties.
4.2 The Parties must maintain the confidentiality of any documents or other
information made available to, or coming to the knowledge of, any Party in the
course of negotiations or other dispute resolution process established under
this Clause 4 of this Appendix. The Parties may use such information in settling
the dispute, but not for any other purpose. They may not rely on, or introduce
as evidence in any arbitral, judicial or other proceeding:
4.2.1 views expressed or suggestions made by either Party or another party on
a possible settlement of the dispute;
4.2.2 any admission or concession made by either Party or another party in the
course of negotiations or any other agreed process to resolve the dispute;
4.2.3 proposals made or views expressed by a neutral person employed by the
Parties to the dispute; or
4.2.4 the fact that either Party had or had not indicated willingness to accept
a proposal for settlement.
4.3 Where a time limit is set in these alternative dispute resolution provisions
for doing something the Parties’ representatives may agree to extend that time
limit.
5 ARBITRATION
If:
5.1 the Parties fail to agree on a dispute resolution process within the applicable
time limit; or
5.2 using an agreed dispute resolution process (including any dispute resolution
process initiated under Clause 4.1.1 of this Appendix) the Parties fail to settle
the dispute within a further 20 Business Days, subject to any agreement made
pursuant to Clause 4.1.2.4 of this Appendix; the Parties shall refer the dispute
to arbitration in accordance with the Arbitration Act 1996 pursuant to Clause
29 of this Agreement.
APPENDIX FIVE
INFORMATION TO BE PROVIDED BY WGL
In accordance with this provision of the Agreement the following information
will be supplied by WGL to the Customer.
1 Metering
1.1 For each Delivery Point, meter readings taken in accordance with Appendix
One.
1.2 Any information relevant to the checking of metering equipment.
1.3 Relevant information to assist in the estimation of quantities of Gas during
periods when the metering equipment is known to be not functioning or inaccurate.
1.4 Information relevant to the possible interference with or damage to the
Customer’s metering equipment that comes to the notice of WGL.
2 Customers
2.1 Details of the location of End Users disconnected by WGL because of serious
risk to life or property or because the End User’s installation does not comply
with the requirements of this Agreement.
3 Odorisation
3.1 Where requested, details of odorant levels measured by WGL.
3.2 Notification within ½ hour of WGL becoming aware of any situation where
Gas within its Distribution System is, or has the potential to be, over or under
odorised.
4 Information Disclosure
4.1 A complete copy of the information publicly disclosed by WGL in compliance
with the Gas (Information Disclosure) Regulations 1997.
5 Prices and Charges
5.1 Where requested, details of WGL’s pricing strategies, policies and methodologies.
5.2 Written notice of any proposed price variations.
6 General
6.1 The Annual Report and Financial Statement of WGL.
APPENDIX SIX
INFORMATION TO BE PROVIDED BY THE CUSTOMER
In accordance with this provision of the Agreement the following information
will be supplied by the Customer to WGL.
1 Delivery Points
1.1 Gasfitting certification certificates issued pursuant to the Gas Regulations
1993 for End Users.
1.2 Details of deleted or disconnected End Users
2 Metering
2.1 Any information relevant to the checking of metering equipment.
2.2 Relevant information to assist in the estimation of quantities of Gas during
periods when the metering equipment is known to be not functioning or inaccurate.
2.3 Information relevant to the possible interference with or damage to WGL’s
metering equipment that comes to the notice of the Customer.
3 Billing Information
The following information shall be provided in accordance with Clause 14.2.1:
3.1 For the purposes of charging for Distribution Services in the Billing Period;
3.1.1 the total energy value of Gas delivered by WGL to the Customer in that
Billing period; and
3.1.2 the total energy value of Gas estimated to have been delivered by WGL
in the Billing Period but not accounted for in metered quantities.
3.2 The Calorific Value of the Gas delivered by the Customer to WGL at the Receipt
Point for each day in the Billing Period.
4 Odorisation
4.1 Where requested, copies of the quality assurance procedures for the supply
of odorised Gas to WGL at the Receipt Point.
4.2 Where requested, details of odorant levels measure by the Customer at Receipt
and Delivery Points.
4.3 Notification within ½ hour of the Customer becoming aware that over or under
odorised Gas may occur at a Receipt and/or Delivery Point.
5 General
5.1 The Annual Report and Financial Statement of the Customer.
5.2 Details of significant deterioration in the financial position of the Customer
likely to lead to the Customers’ insolvency or liquidation as soon as the Customer
becomes aware that such a financial position exists.
5.3 Such details of the Customers’ contract(s) with any party (other than WGL)
supplying transportation services or Gas as may affect any condition of this
Agreement. |
