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20210322 Special Conditions – TOU WHOLESALE MARKET RATE (SPOT)
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Terms & Conditions
Business Terms and Conditions
20210322 Special Conditions – TOU WHOLESALE MARKET RATE (SPOT)
TOU Wholesale Market Rate (SPOT)
We agree to supply to you, and you agree to buy from us, all of the electricity requirements for the premises and points of supply set out in the Price Schedule for the contracted term specified in the Price Schedule, subject to clause 4 below.
The prices associated with the supply of electricity under this Agreement are set out in the Price Schedule.
Our Standard Terms and Conditions for Business Customers ("Standard Terms") apply to the supply of electricity by us to the premises and points of supply set out in the attached Price Schedule, except as modified by this document. We have included a copy of our current Standard Terms for your information. If there is any inconsistency between the terms of this document, and the Standard Terms, the terms of this document will prevail. For the avoidance of doubt clauses 17.1 and 17.3(a) of the Standard Terms (relating to contract termination) shall not apply to this agreement. This agreement includes this document, the attached Price Schedule and our Standard Terms (together, "Agreement"). Any conditions in your tender document, pricing request or any other communications from you that purport to apply to our Agreement and/or the supply of electricity and associated services to you are excluded and shall not apply unless expressly accepted in writing by Mercury.
If you accept this Agreement, its terms will apply:
if you are a current Mercury customer, for the contract term specified on the attached Price Schedule; or
if you are currently supplied by another electricity supplier, from the Agreement start date or the date we receive your industry compliant meter data from your existing supplier, whichever is the later, until the end of the contract term specified on the attached Price Schedule.
At the end of that term, unless a new arrangement has been entered into, your electricity prices will be either our then current standard prices or, if your agreement is based on spot market pricing, the price or price averages (according to your meter type) on the New Zealand Electricity Market, plus applicable fees, charges, and GST ("Spot Market Linked Prices"). A full description of how Spot Market Linked Prices are calculated is available on request.
If you accept this Agreement, its terms replace any prior arrangements that you may have had with us in relation to the supply of electricity to the premises and points of supply set out in the Price Schedule.
Other Charges and Costs: The prices outlined in the Price Schedule do not include any charges in relation to electricity transmission and distribution, metering, Government levies or any other non-energy related charges ("Other Charges and Costs"). We will invoice you for Other Charges incurred, in each invoice we provide to you. These are subject to change from time to time.
Early Termination Fee: You understand that taking supply from another energy retailer before the end of this Agreement constitutes a breach of this Agreement with Mercury. In the event of such breach or if you terminate the agreement early for any reason (other than our breach), then (without prejudice to Mercury’s other rights and remedies), in addition to any outstanding moneys owed by you to Mercury, you will be required to pay Mercury an Early Termination Fee calculated at 2.0 cents per kWh for the Forecast Electricity Consumption from the date of the breach until the scheduled expiry of this Agreement plus an administration fee of $140 per ICP (both plus GST).
For the purposes of this clause: the Forecast Electricity Consumption will be based on the average daily kWh you have used over the period beginning on the start date of this Agreement and ending on the date we became aware of your termination of this Agreement.
The parties agree that such Early Termination Fee represents a genuine estimate of Mercury’s loss and does not constitute a penalty.
Nothing in clause 7 shall limit your liability under this Agreement, including, but not limited to, liability under any Hedge Price Schedule.
You may not assign, transfer or subcontract your rights or obligations under this Agreement (whether in whole or in part) without first obtaining Mercury’s prior written consent which may be provided or withheld at its complete discretion.
We reserve the right to adjust our pricing if the contract is returned after the offer expiry date.
Distributed Unmetered Load: Under Part 15 of the Code, Mercury is responsible for auditing Distributed Unmetered Load databases. If you have a database of Distributed Unmetered Load, Mercury will pass on to you, and you must pay, all third-party costs Mercury incurs in auditing your Distributed Unmetered Load (if any). Distributed Unmetered Load is unmetered load, with a single profile, with a single customer, across more than one point of connection (for example, streetlights).
Regulatory Events: We may change this Agreement where reasonably necessary for us to comply with the requirements or consequences of a Regulatory Event and change the prices detailed in the Price Schedule or any other amount payable under this Agreement in response to a Regulatory Event by an amount that we estimate to be a reasonably apportioned amount equivalent to that imposed or increased as a result of the Regulatory Event. We may make the change or changes at any time by giving you at least 30 days prior notice.
For the purposes of this clause:
"Regulator" means the Commerce Commission or Electricity Authority, any court or tribunal of competent jurisdiction, any agency, authority, board, department, government, instrumentality, ministry, official or public or statutory person, any local or municipal government or governmental bodies or any other government agency whose activities impact on our business; and
"Regulatory Event" means
any enactment, amendment, replacement or repeal of any law; and
the lawful making, amendment, clarification or withdrawal of any determination, order, directive, consent, advice, guidance or finding by a Regulator.
You agree that the wholesale market (spot) price payable will be the actual final prices on the New Zealand Electricity Market for the Grid Exit Point(s) from which the electricity is supplied (the ‘Spot Price’). You acknowledge that the Spot Price can have considerable spikes and that there could be significant price variances, and you accept the risk associated with this product. You also agree that if the Spot Price (the actual final price) is temporarily unavailable, then:
we will calculate the amount payable by the relevant party on the basis of the provisional price for electricity, and the parties shall settle on the basis of the provisional price
determined under Part 13 of the Electricity Industry Participation Code 2010 (“Code”) for the relevant Grid Reference Point for that calculation period; and
if there is no such provisional price, determined by us acting in good faith; and
once the Spot Price (the actual final price) is available, we will calculate the actual amount payable by the relevant party. If the actual amount is different from the provisional amount, we will advise you of the extent of that difference and the identity of the party required to pay that difference to the other.