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ABOUT THIS AGREEMENT
1. Terms of Agreement
- Empower's contract with the Customer includes these terms and conditions, and the following:
- The Supply Order signed by the Customer (on Empower's standard form).
- The relevant Empower Price Schedule, which sets out the charges payable by the Customer.
- Empower's contract with the Customer is also subject to all statutes and regulations relating to electricity supply, and any requirements that the relevant local network operator may impose on the use of its local electricity network.
- Empower's dispute resolution process for complaints and disputes which is in force from time to time. A copy of the dispute resolution process presently in place is available from Empower upon request.
- These terms and conditions apply unless otherwise agreed in writing by Empower and the Customer.
- These terms and conditions will continue to apply for as long as the Customer continues to receive electricity or other services from Empower.
- If Empower ceases to supply the Customer with electricity or other services, the terms that Empower considers still apply will continue to apply until their purpose is served. For example, if the Customer ends the Customer's contract with Empower, terms relating to payment by the Customer will continue to apply.
2. Existing and New Customers
- These terms and conditions apply to Empower's Customers as from 1 June 2000. Where notified to Customers, they replace all previous terms and conditions relating to Empower's supply of electricity and services .
- Empower may choose not to commence supply to any Customer with electricity or other services if the Customer fails to meet Empower's payment, credit or other commercial criteria.
- Any delay in the commencement of supply by Empower will not entitle the Customer to cancel or otherwise terminate this agreement.
3. Supply of Electricity
- During the term, the Customer will purchase all the electricity used at the Customer's premises exclusively from Empower.
- Empower does not guarantee a continuous or uninterrupted supply of electricity.
4. Line Function Services
- Where the Customer does not enter into a separate agreement with its local network operator for the provision of line function services for the conveyance of electricity to the Customer's premises, Empower will contract with the local network operator for the provision of such line function services.
- Empower is not responsible to the Customer for any failure by the local network operator or Transpower to deliver electricity to the Customer's premises.
- If the local network operator requires the Customer to enter and maintain a contract for line function services and the Customer does not hold such a contract with the local network operator then the Customer's point of supply may be disconnected and Empower will be unable to supply electricity to the Customer.
- Empower must be supplied with a certificate of compliance issued by the local network operator before Empower can arrange to supply electricity to a new installation or a connection that has been disconnected for more than six months.
5. The Customer's Responsibilities
The Customer agrees:
- To pay Empower's invoices on time by the due date specified on the invoice.
- Not to tamper or interfere with the electricity meters on the Customer's premises, and to prevent others from doing so.
- Not to interfere with or damage the local network operator's local electricity network.
- To keep meters clear of trees and vegetation.
- To make sure all wiring, fittings and electrical equipment on the Customer's premises are electrically safe, and to use electricity safely.
- To allow meter readers (who will carry proof of identity) to enter the Customer's premises to read the meter at any time during normal working hours or at any other time as arranged.
- To allow service people (who will carry proof of identity) to enter the Customer's premises to inspect, repair, install, replace, test, or remove any meter, at any time during normal working hours or at any time arranged for such a purpose (or if there is an emergency as soon as the relevant people can be there).
- To make sure any dog or other animal that may make the entry of meter readers or service people unsafe, is kept under control.
6. Empower's Responsibilities
Empower agrees:
- To comply with any specifications and technical regulations under the Electricity Act 1992 that apply to Empower.
- To help resolve any questions or complaints the Customer may have about Empower's accounts or service, in a timely manner.
7. Ownership and Responsibility
- The Customer is responsible for electricity supplied to the Customer's point of supply.
- The Customer owns and is responsible for repairing and maintaining the meter box or meter board, and any fuse or other wiring on the Customer's premises.
- The Customer is responsible for ensuring that meters on the Customer's premises that are not owned by Empower, but that are used to measure electricity supplied by Empower, meet Empower's accuracy standards.
- Empower owns and is responsible for installing, repairing and maintaining any of Empowers meters that are on the Customers premises.
8. Payment and Pricing
- Empower's charges are set out in the relevant Price Schedule as may be amended from time to time.
- Charges in Empower's Price Schedule may relate to both electricity supply and line function services. If this is the case, and if the Customer's invoice includes the name of the local network operator, the amount payable to Empower will be calculated by deducting from the relevant charge in Empower's Price Schedule the amount payable to the local network operator. If the Customer's invoice does not include the name of the local network operator, the relevant charge in Empower's Price Schedule is payable to Empower.
- Empower will prepare and send to the Customer each month an invoice containing all charges payable by the Customer for electricity and other services provided to the Customer in respect of the preceding month.
- Empower's invoice to the Customer may include both Empower's charges and the charges payable to the local network operator. If so, the Customer agrees that payments received from the Customer will be allocated between Empower and the local network operator on the basis Empower has agreed with the local network operator.
- Any payment arrangements Empower has with the relevant local network operator will not reduce the Customer's responsibility to pay the full amount of each of Empower's invoices by the due date.
- Any prompt payment discount offered to the Customer will be shown on the invoice. If Empower does not receive payment from the Customer by the discount expiry date (as shown on the invoice) the Customer will have to pay the full amount shown.
- If any amount set out in an invoice is not paid within the period specified on the invoice, the amount may be treated as being overdue, and the Customer's electricity supply may be disconnected.
- Empower may recover from the Customer any disconnection costs, collection costs, revenue recovery costs, legal fees, or other costs incurred by Empower relating to late payment or non-payment (including dishonoured payment of Empowers invoices).
9. Metering
- The Customer agrees that all electricity supplied by Empower to the Customer's premises will be metered, unless Empower has agreed in writing otherwise. If an existing meter on the Customer's premises does not meet Empower's accuracy standards, Empower may install a meter to measure the electricity supplied by Empower.
- The Customer agrees that Empower or its agents may remotely read any meter at the Customer's premises.
- Upon request by the Customer, Empower will test the metering equipment on the Customer's premises, at the Customer's cost, unless the test shows that the metering equipment is not operating properly (in which case, testing will be at Empower's cost).
- If Empower finds or suspects tampering with a meter at the Customer's premises, or with the local network operator's equipment, with the intent or outcome of preventing all or a portion of the electricity consumed at the Customer's premises from being accurately measured for invoicing purposes, Empower may disconnect the Customers supply
Empower may also charge the Customer:
- The estimated cost of unmeasured electricity due to that tampering.
- The cost of repairing, replacing and resecuring the meter.
- The administration cost of investigating tampering and preparing an assessment.
- A reconnection fee if the Customer's supply has been disconnected.
- Empower may recover from the Customer the cost of repairing or replacing any of the meters that are damaged on the Customer's premises, except when the damage is caused by Empower or its agents.
- If Empower has agreed that the Customer will receive an unmetered supply, the Customer must inform Empower of any expected change in future electricity use, before the change happens.
- If the Customer's unmetered electricity use increases, and Empower is not informed beforehand, Empower will require the Customer to pay for that increased supply, as assessed by Empower.
- The Customer will ensure that Empower and its agents have free and uninterrupted access to the metering equipment located on the Customer's premises (and where remote reading is required by Empower, the Customer will ensure, at its own cost, that the required telephone line is made available adjacent to the meter and connected at all times).
- Notwithstanding any provision of this agreement relating to metering, Empower may estimate the electricity supplied to the Customer's premises taking into account the Customer's use of electricity over similar periods. The Customer is responsible for payment of invoices for estimated usage by the due date.
10. Electrical Safety
- If Empower considers that any lines, fittings, equipment, installation or appliance at the Customer's premises may be unsafe, or may not comply with the relevant legal requirements or the requirement of the relevant local network operator, Empower may advise the relevant local network operator.
11. Interruption of Supply
- The Customer's electricity supply may be interrupted by the Customer's local network operator or for reasons beyond Empowers control (including force majeure events)
12. Sensitive Equipment and Special Needs
- Fluctuations in the voltage or frequency of electricity can damage sensitive equipment (for example, computers, televisions, microwaves or other electronic equipment). It is solely the Customer's responsibility to protect sensitive equipment against fluctuations.
- If the Customer has special needs for continuous, non-fluctuating supply of electricity (for example, medical equipment), the Customer is solely responsible for making the necessary arrangements to meet that need.
- The Customer is solely responsible for arranging adequate insurance for cover of any damage or loss that the Customer may suffer due to the failure or interruption or fluctuation of the electricity supply.
13. Customer Information
The Customer agrees:
- To provide Empower with all information reasonably requested by Empower.
- To ensure all information provided is correct and complete.
- That Empower may collect information about the Customer and the Customer's point of supply for Empower's business purposes from the Customer's local network operator, and from other persons, as Empower considers appropriate.
- Empower may rely on information provided to Empower by the Customer's local network operator.
- Empower may disclose information about the Customer and the Customer's point of supply to the local network operator. Empower may use information about the Customer that Empower holds for business purposes, including for credit information, marketing and statistical purposes.
- The Customer may obtain from Empower details of any personal information Empower holds about the Customer, and the Customer may request that any incorrect information be corrected.
14. Compensation and Liability
- Notwithstanding any other provision of this agreement, the Customer acknowledges Empower (including its officers, employees, agents and contractors) will not in any circumstances be liable to the Customer in respect of loss arising from any fluctuations in the quality of electricity supplied to the Customer, any interruption of supply, or any disconnection undertaken under this agreement or otherwise.
- If, through negligence, Empower causes physical damage to the Customer's premises, Empower will pay to the owner of the damaged property the reasonable cost of repairing the damage, up to a maximum of:
- $2,500 for any single event or series of related events.
- $25,000 in any 12-month period, for all events or series of related events.
- Subject to the rights of compensation referred to above, Empower will not be liable to the Customer for any other loss or damage (whether direct or indirect, special or consequential, pecuniary or non-pecuniary) that Empower or any of its officers, employees, agents or contractors may cause (whether through inadvertence, negligence, breach of contract, or breach of any other obligation owed to the Customer, or otherwise), or which may be due to some action or failure to act, or to negligence of a third party, or to any force majeure event. If for any reason it is held that this exclusion of liability cannot be relied on in any case, then Empower's liability to the Customer shall be limited, in such case, to:
- $2,500 for any single event or series of related events.
- $25,000 in any 12-month period, for all events or series of related events.
15. Changes by Empower
- Empower may change these terms and conditions and Empower's Price Schedule (unless the Price Schedule provides otherwise) and dispute resolution process at any time.
- Empower will give at least 14 days' notice before the changes come into effect and the Customer may provide comment, which will be considered by Empower before finalising the changes. The changes will come into effect whether or not notice is received by the Customer.
16. Disconnection
The Customer's electricity supply may be disconnected for the following reasons:
- Non-payment of amounts invoiced relating to electricity supply or line function services.
- Suspected or proven tampering with a meter, or lines or equipment on the Customer's premises.
- Empower is denied access to the Customer's premises for any of the purposes provided under this agreement.
- or any of the reasons for disconnection set out in the Customer's agreement (if any) with the relevant local network operator.
- The Customer agrees that Empower, the relevant local network operator, or their authorised agents, may disconnect the Customer's point of supply in accordance with this agreement or the Customer's agreement (if any) with the local network operator.
- Before we disconnect you for non-payment we will notify you of any overdue amounts. If your account remains unpaid we will send you a final disconnection notice. If we still do not receive payment, we will disconnect your electricity supply and any reconnection will be entirely at our discretion.
- The above notice periods will not apply if disconnection is effected:
- To protect health and safety.
- To prevent damage to property.
- By or on the instructions of the relevant local network operator or Transpower in circumstances where Empower is not required or not able to give prior notice to the Customer.
- A disconnection fee may be charged when the Customer's supply is disconnected.
- If Empower disconnects the Customer's electricity supply, and later agrees to reconnect supply, Empower may require, payment of outstanding invoice charges and costs, agreement on a satisfactory payment arrangement, payment of a reconnection fee, a bond or other security.
17. Vacating the Customer's Premises
- The Customer must give Empower at least 7 days' notice of vacating the Customer's premises and arrange access for a final meter reading to be carried out at the Customer's cost.
- The Customer agrees to provide Empower with the Customer's new address, or a forwarding address, prior to vacating the Customer's premises.
18. Complaints and Disputes
- Empower will promptly deal with complaints or disputes in accordance with Empower's dispute resolution process in force from time to time.
- If, following the dispute resolution process, an amount is found to be due to the Customer, it will be credited to the Customer's account.
- If an amount is found to be due by the Customer to Empower, the Customer agrees to pay that amount within 10 business days of the finding. If such amount is not paid, the amount will be treated as overdue, and the electricity supply may then be disconnected.
19. Termination
This agreement may be terminated by:
- Empower immediately, if the Customer fails to pay any amount due under this agreement and the failure remains unremedied for 5 business days after notice from Empower of such non-payment.
- Either party if the other has committed a material breach of this agreement which is not remedied within 5 business days of receipt of notice of breach.
- Empower, immediately, if Empower ceases to hold a contract with either the local network operator or a contract to purchase electricity for supply to the Customer or by Empower by giving 14 days notice to the Customer.
- The Customer, at the end of 7 days' prior notice, if the Customer permanently vacates the Customer's premises.
- Such termination will be without prejudice to the rights and remedies of either party in respect of any prior breach of this agreement.
20. General Provisions
Assignment:
- The Customer may not assign or transfer any of the Customer's interest in or responsibilities under this agreement without the prior written consent of Empower. Empower may assign or transfer all or part of its interest in or responsibilities under this agreement to any person.
- On giving notice to the Customer of any such assignment or transfer, Empower will be released from the obligations assigned, and the assignee or transferee will take over those obligations.
Cumulative Remedies:
- The rights, powers and remedies provided in this agreement are cumulative and not exclusive of any rights, powers or remedies provided by law.
Definitions in these terms and conditions:
- "commercial customers" are Customers who use electricity supplied by Empower for business purposes.
- "dispute resolution process" means the dispute resolution process employed by Empower from time to time.
- "force majeure" means an event or circumstance beyond Empower's control, including, without limitation, acts of God or natural disasters, civil commotion, riots, interruptions to or fluctuations in electricity supply, distribution or transmission faults, and lack of generation.
- "local network operator" means the person, firm, company or organisation that owns and operates the local electricity network.
- "local electricity network" means the electricity distribution network in the area servicing the Customer's premises.
- "term" means the period (if any) from commencement date to the expiry date recorded in the Supply Order. If no period is recorded in the Supply Order the term is continuous from the commencement date until the expiry of 14 days' notice given by one party to the other.
- "Transpower" means Transpower Limited, its successors and assigns.
Entire Agreement:
- This agreement constitutes the entire agreement between Empower and the Customer relating to the matters dealt with in this agreement and supersedes all previous agreements and arrangements, whether written or oral or both, relating to such matters.
Non-Waiver:
- No waiver of any breach, or failure to enforce any provision of this agreement by either will in any way limit or waive the right of that party to subsequently require strict compliance with this agreement.
Notices:
- All invoices and notices will be sent to the Customer at the last address given to Empower.
- Empower is entitled to assume that any invoice or notice delivered or sent to the Customer will be received within 3 business days of it being sent.
Partial Invalidity:
- If any provision of this agreement is held in a court of law to be invalid or illegal such invalidity or illegality will not affect the validity or legality of the other provisions of this agreement.
Variation of Agreement:
- Except as provided under clause 15, this agreement may be varied only with the written agreement of Empower and the Customer.
21. Further Terms applying to Commercial Customers
Consumer Guarantees Act:
- The provisions of the Consumer Guarantees Act 1993 do not apply to the supply of electricity or line function services to commercial Customers under this agreement.
Default Payment:
- Where Empower exercises any right which it has to terminate this agreement prior to the expiry of the term, or where the Customer has repudiated this agreement, the Customer will pay to Empower, on demand, an amount equal to the average daily energy and metering charges due to be invoiced from the commencement of supply until the date of termination of this agreement, multiplied by number of days remaining in the term from the date of termination to the expiry date.
Delivery up of Meters:
- At Empowers request, the Customer will procure (at the Customers cost) the safe delivery to Empower of Empowers metering equipment at the expiry, or earlier termination, of this agreement.
Last Right of Refusal:
- The Customer grants Empower the last right of refusal to match any alternative suppliers offer to supply electricity to the Customers premises following the expiry or earlier termination of this agreement.
Notice of Competitive Offer:
- The Customer agrees to provide Empower immediate notice of the details of any alternative suppliers offer to supply electricity to the Customers premises.
Receivership or Liquidator:
- If the Customer has a liquidator or receiver appointed over all or part of its assets, then Empower may terminate this agreement immediately on notice or require payment of the charges payable under this agreement in advance.
Payment and Pricing:
- If any amount set out in an invoice is not paid within the period specified on the invoice, the Customer will pay interest on the unpaid amount, calculated daily and compounded monthly, at the prevailing average 90-day bank bill buy rate plus 5% from the due date specified on the invoice, up to and including the date the amount due is actually received by Empower.
22. Customer's Obligations to Local Network Operator
Where the Customer has not entered into a separate agreement with its local network operator for line function services, the following provisions will apply:
- The Customer will comply with:
- All statutory and regulatory requirements relating to its connection to, and use of, the local network.
- The local network operator's metering code (if any).
- Any requirements of the local network operator as to the way in which the Customer is to connect to the local network and draw a supply of electricity from it.
- Good industry practice.
- The Customer consents to the use by the local network operator, for any purpose associated with its business, of personal information about the Customer which the local network operator receives from Empower.
- The Customer will not connect or disconnect any equipment to/from the local network without the prior written consent of the local network operator.
- The Customer will not interfere with the local network or any equipment belonging to the local network operator, nor will the Customer permit any other person to do so.
- The Customer will not (nor will the Customer attempt to) convey or receive any signal or other form of communication over the local network to/from any person other than the local network operator, nor will the Customer permit any other person to do so, without the prior written consent of the local network operator.
- The Customer will allow the local network operator, its employees, contractors, agents and invitees:
- Safe and unobstructed access to and within the Customer's premises; and
- Reasonable use of facilities and amenities at the Customer's premises, for the purposes of:
- Installing, testing, inspecting, maintaining, repairing, replacing, operating, reading or removing any local network operator's equipment at the Customer's premises; or
- Ascertaining the cause of any interference to the quality of services being provided by the local network operator to Empower or any other retailer; or
- Inspecting the Customer's equipment or any metering equipment to assess compliance with this agreement; or
- Protecting or preventing danger or damage to persons or property; or
- Connecting or disconnecting the supply of electricity to/from the Customer's point of supply, or for any other purpose.
- The local network operator is entitled to disconnect the Customer's point of supply in the following circumstances:
- If the Customer breaches clause 22, to a material extent, in relation to that Customer's point of supply; or
- If Empower fails to comply with its payment obligations to the local network operator; or
- Upon the termination of this agreement.
The local network operator is entitled to interrupt supply to the Customer's point of supply in the following circumstances:
- To enable the local network operator to inspect or effect alterations, maintenance, repairs or additions to any part of the local network;
- To avoid danger to persons or property or to avoid interference with the regularity or efficiency of the conveyance of electricity to points of supply;
- To preserve and protect the proper working of the local network, Transpower's network or any other network through which electricity is supplied to the local network;
- If supply of electricity to any point of supply is or will be reduced, impaired or interrupted;
- Upon instructions from Transpower or as a result of an action by Transpower under any agreement between the local network operator and Transpower;
- In carrying out load management in accordance with good industry practice; or
- In response to an event of force majeure.
- The Customer will provide and maintain, at no cost to the local network operator, suitable space at the Customer's premises for the secure housing of any equipment relating to the Customer's connection to the local network, as reasonably required by the local network operator.
- The Customer agrees that the liability to the Customer of its local network operator, its directors, officers, employees, authorised agents, contractors and professional advisers in all circumstances relating to the supply of electricity by Empower and the provision of line function services to the Customer (including in negligence) is excluded to the fullest extent permitted by law.
- The provisions of clause 22 are intended for the benefit of and enforceable by the local network operator, its directors, officers, employees, authorised agents, contractors and professional advisers pursuant to the Contracts (Privacy) Act 1982.
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